Bennett, R v

Mr Justice Beatson: On 27th May 2004, in the Crown Court at Liverpool, the appellant pleaded guilty to supplying a class A controlled drug, heroin. He was also in breach of licence relating to a sentence of four years' imprisonment imposed on 4th July 2000 also for supplying class A controlled drugs. On that occasion there were 11 counts. On 5th July 2004 he was sentenced as follows by His Honour Judge Holloway: to 502 days' imprisonment for the breach of licence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and to three years' imprisonment for the current offence to be served consecutively. The total sentence was four years and five months' imprisonment.

He appeals against the sentence for breach of licence by leave of the single judge. The single judge refused leave in respect of the three year sentence for the current offence and Mr Jones does not renew that application.

In those circumstances we can state the facts very briefly. The current offence arose as a result of an undercover police operation in Liverpool targeting street dealing in drugs. The previous offence had involved similar drug dealing. The position in respect of the earlier sentence was complicated, but this Court has the benefit of an agreed chronology (agreed that is by the prosecution and defence), which contains information not available to the sentencing judge when he imposed the 502 days' imprisonment for the breach of licence.

It is clear from the transcript of the prosecution's opening of the facts that there was then before the court no accurate account of the period served on administrative recall. Mr Astbury, who appeared at trial, and who has agreed the chronology and information from HMP Liverpool to which we will return, stated that, given the pattern of releases on licence and recalls, it was not possible to be precise. He stated it was very difficult to be specific as to exactly how many months the appellant had served as part of a recall period. Only those who have currently detained him would be able to work that out with accuracy. The judge was invited, in effect, to do the best he could and to take account of the approximate period that was served.

The decision of this Court in Sharkey [2000] 1 Cr App R(S) 409, however, states that normally the court will want to give full account of periods served on administrative recall because the prison service do not do so for reasons explained in Sharkey and the cases based on it to which we will return. The learned judge then imposed the sentence.

We return to the agreed chronology. On 30th June 2000 the appellant was sentenced to four years' imprisonment. He was released on licence on 5th November 2002. The current offence was committed on 11th February 2003 while on licence. He was recalled to prison for breach of licence on 18th February, but was not returned to custody until 11th April 2003, having spent 52 days unlawfully at large. On 18th July 2003 he was again released on licence. On 9th December 2003 he was recalled for breach of licence. Again, he spent time unlawfully at large, on this occasion 43 days, and returned to custody on 21st January 2004. On 19th February 2004 he was sentenced to three months' imprisonment for driving whilst disqualified. The agreed chronology assumes that he was not released thereafter. He was sentenced for the current offence by His Honour Judge Holloway on 5th July 2004.

Mr Jones calculates that the total number of days that the appellant has spent on administrative recall is 205, taking account of half the period in respect of the three month sentence on 19th February 2004. The days spent unlawfully at large postponed the appellant's sentence expiry date until 29th August 2004 for the earlier offence. Mr Jones was unable to provide information as to the effect of that on his licence expiry date, which is the crucial date for these purposes because after then the period of administrative recall under section 39 of the Criminal Justice Act 1991 ends. The information from the prison states that the licence expiry date was 29th August 2004. Mr Jones submits that, applying the principles in Sharkey, the 205 days should be doubled, and he submits that the learned judge should accordingly have not sentenced this appellant to more than 92 days for breach of licence.

The difficulty as stated in Sharkey and the cases based on it, including Stocker [2003] Crim LR 293, Teasdale [2003] Crim LR 657 and Rady [2004] EWCA Crim 3297, is that the regime in section 39 of the Criminal Justice Act 1991, governing the terms upon which a prisoner released on licence may be recalled to prison administratively, differs from the power of the court in section 116 of the Powers of Criminal Courts (Sentencing) Act to order such a person to be returned to prison for the unexpired part of his sentence. Where a person is held in custody in part on remand for further offences, but also pursuant of the revocation of his licence under section 39, the prison service does not treat the period as counting towards either the period of the unexpired part of the earlier sentence, or in respect of any sentence imposed in respect of the later offences. This is so until the licence expiry date for the first sentence. After that date the period of administrative recall under section 39 ends and the individual is held solely on remand for the later offences so that time thereafter on remand would count towards his sentence for the later offences.

The difficulty for sentencing judges, as the facts of this case show, is that they are not always informed of the correct position. In the present case the prosecution was only able to put approximate dates and periods before the learned judge. The fact that the appellant had been released on licence on two occasions and then recalled further complicated the calculation the judge had to make.

Mr Astbury on behalf of the prosecution, as we have noted, invited the judge to exercise discretion as to the sentence imposed and to take account of an approximate period. That, as we have said, is not what this Court has stated a sentencing court should do. In the present case, in the absence of information about the effect of the periods unlawfully at large on the appellant's licence expiry date, the sentencing Court was in some difficulty.

As we have stated, after the licence expiry date the prison service will treat time towards the sentence for the later offence in the normal way, so the sentencing judge does not have to do so. In principle, therefore, but for his breaches of licence and time spent unlawfully at large the appellant would have time after 27th May 2003 deducted by the prison service against the current sentence. The information from the prison is that the effect of the breaches put the licence expiry date back to 29th August 2004. This is the basis of Mr Jones's calculation. He calculates 205 days on administrative recall, which has to be doubled because a day spent in custody following the revocation of a parole licence is the equivalent of two days in respect of which a defendant is ordered to return to custody under section 116. This is because a period of custody under section 116 is treated as an independent sentence for which an offender will in normal circumstances be released after serving half the period. The result is 410 days. Mr Jones submits the period of imprisonment for breach of licence should have been 92 days.

In principle if the period of unlawful absence from custody did not affect the licence expiry date, the period in custody after 27th May 2003, i.e from 21st January 2004, should not have been deducted by the judge. This Court accepts the calculation put forward by Mr Jones based as it is on the information from the prison service. It therefore sets aside the period of 502 days and substitutes for it a period of 92 days. Should, however, it emerge that the licence expiry date ended before the appellant's return to custody on 21st January 2004, then we would invite the matter to be brought back on paper so that a new calculation can be done which would, in fact, lead to a longer sentence for breach of licence.

It is unsatisfactory that, when a case comes to the Court for sentencing, the Court is not in a position to know the precise position. We observe that there is a cottage industry in appeals resulting from sentencing judges not being in a position to make an accurate deduction from a period of imprisonment for breach of licence because the information is not available to them. In the present case it was also not available to the prosecution. The prosecution recognised that accurate information could be obtained from the prison service. This has now been obtained.

In view of the pressure on the work of this Court and the expense of appeals, prosecutors should consider carefully how to obtain accurate information from the prison service as to the days in custody consequent on administrative recall prior to the licence expiry date before the Crown Court has to consider what the sentence under section 116 should be for breach of licence. If necessary, there should be liaison with the court office to ensure that this information is before the judge. It may be that it will be necessary for the court to request it. If such information is not available, a sentencing judge cannot, as the learned judge in this case and the Recorder in Rady did rely, on the prison authorities to make the appropriate reduction.

This appeal is allowed to that extent and subject to the caveat to which we have referred.