Gordon, R v

This group of appeals and applications for leave to appeal raised common questions about the operation of and interaction between s 67 of the Criminal Justice Act 1967 (“the 1967 Act”) and s 240 of the Criminal Justice Act 2003 (“the 2003 Act”) and the impact on the sentencing process of time spent by defendants in custody on remand. Taken as a whole this group of cases also required further analysis of the statutory provisions governing remand time, recall on licence, return to prison by order of the court and imprisonment or detention for public protection. We have also reflected on the jurisdiction of the Crown Court to correct its own errors, and the effect of s 11(3) of the Criminal Appeal Act 1968 (now s 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act)) in the context of the decision of this Court in Norman [2006] EWCA Crim 1792.

We were greatly indebted to Mr Mark Ellison and Mr Adrian Darbishire instructed by the Attorney General for meticulous written and oral submissions which helped us find our way through a complex body of legislation. The judgment on the broad principles is heavily dependent on these submissions, and effectively quotes substantial portions of the written submissions. It would be something of a comfort if their impressive work could guarantee that our analysis was free from error or oversight. In this area of legislation however, experience has shown that hidden traps abound, and we, not they, are responsible for any failures to recognise and avoid the traps.

S 67 of the Criminal Justice Act 1967 provides:

“67(1) The length of any sentence of imprisonment imposed on an offender by a Court shall be treated as reduced by any relevant period, but where he was previously subject to a probation order, a community service order, an order for conditional discharge or a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section;

(1A) In subsection (1) above “relevant period” means-

(a)

any period during which the offender was in police detention in connection with the offence for the sentence was passed; or

(b)

any period during which he was in custody-

(i)

by reason only of having been committed to custody by an order of a Court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose; or

(ii)

by reason of his having been so committed and having been concurrently detained otherwise by an order of a Court.”

The effect of schedule 6 paragraph 1 of the Crime (Sentences) Act 1997 and Article 2 of para 2 of the Crime (Sentences) Act 1997 (Commencement No. 4) Order 2005/932 was to repeal s 67 of the 1967 Act, subject to the following savings provision:

“…

(3)

The commencement of the provisions …is of no effect in a case in which a court has imposed a sentence of imprisonment in respect of an offence committed before 4 April 2005 (whether or not it is also imposed a sentence of imprisonment in respect of any offence committed after that date)”.

The result is that s 67 of the 1967 Act continues to apply to sentences of imprisonment imposed in relation to offences committed before 4th April 2005. The date of the offence is critical. If it was committed before 4th April 2005 no order in relation to time spent on remand in custody is required. The period will automatically be deducted from the sentence. So far, so good.

The regime for offences committed on or after 4th April 2005 is governed by s 240 onwards of the 2003 Act. This provides:

“240(1) This section applies where-

(a)

a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section,

(b)

the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence….

(3)

Subject to subsection (4) the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence…

242(2) References in sections 240 and 241 to an offender being remanded in custody are references to his being –

a)

remanded in or committed in custody by order of a court,

b)

remanded in or committed to local authority accommodation…

c)

remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the Mental Health Act 1983.”

One immediate but relatively unimportant distinction between this provision and s 67 of the 1967 Act is that police detention does not fall within the ambit of a remand in custody under s 242(2) of the 2003 Act. Accordingly, in relation to sentences subject to s 240, it is no longer treated as a “relevant period” for the purpose of calculating time served on remand. Such days in police detention are not deductible. Section 240 expressly underlines that any deduction for time served is related to the number of days for which the offender was remanded for the offence which resulted in the sentence of imprisonment, or for an offence related to it, in the sense that it was “founded on the same facts or evidence”. We simply note that such a link is not always present.

The most important distinction however is that for sentences to which s 240 applies, the deduction for time spent on remand no longer follows automatically. The court is required positively to order that the days during which the offender was remanded in custody in connection with the offence or a related offence shall count as part of the sentence. Without a specific order no deduction can be made. In short, despite the provision which requires the court to make the order, the deduction will not be made and the time served will not count towards the sentence unless the court expressly orders it.

The obligation to direct that time remanded in custody should count as time served is subject to the further provisions in s 240 itself:

“(4)

Subsection (3) does not apply if and to the extent that –

(a)

rules made by the Secretary of State so provide in the case of –

(i)

a remand in custody which is wholly or partly concurrent with the sentence of imprisonment, or

(ii)

sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent, or

(b)

it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(5)

Where the court gives a direction under subsection (3), it shall state in open court –

(a)

the number of days for which the offender was remanded in custody, and

(b)

the number of days in relation to which the direction is given….

(6)

Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court –

(a)

that its decision is in accordance with rules made under paragraph (a) of subsection (4), or

(b)

that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.”

These provisions enable the court to disapply s 240(1) if, but only if, the situation either falls within rules made by the Secretary of State or the court considers that it would be “just” that credit should not be given. An example of such a case is found in R v Pusey below. However in such cases it remains essential that the decision should be announced, and the reasons for it explained in open court. Given this limited range of exceptions to what would otherwise be an apparent entitlement to credit, it might be reasonable to assume that unless the court directs that the credit arrangements should be disapplied, they would follow automatically. As Norman demonstrates, that is not how the statutory regime operates. For time served to be counted, an express direction is required. Its omission, if made in error or by oversight, must be addressed within 28 days. Otherwise the jurisdiction of the Crown Court ceases, and the omission must be dealt with through the appeal process.

It is convenient to notice that provision is made for offences which straddle 4th April 2005. S 240 (9) provides that where an offence is found:

“to have been committed over a period of two or more days,…it shall be taken for the purposes of subsection (1) to have been committed on the last of those days”

In other words, in these circumstances the 2003 Act rather than the 1967 Act applies, and an express order is required.

The statutory provisions are convoluted yet they have practical consequences for defendants, and they can be easily overlooked or misapplied by advocates and sentencers. We must now address the problems which arise when the offences before the court were neither confined to the period before 4th April 2005, nor the period beginning on or continuing after that date. The court is often required to pass sentence on a defendant who, no doubt ignorant of the significance for sentencing purposes of the 4th April 2005 date, has committed offences both before and on and after 4th April 2005. He may indeed have been arrested and remanded in custody on one or other side, and sometimes both sides, of that date. These are usefully described as “mixed” cases.

The calculations are governed by two different regimes. The “Remand in Custody” (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (SI No. 2054 of 2005)(the 2005 Rules) were made under section 240(4)(a). They came into force on 23rd July 2005. They provide:

“2.

Section 240(3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody –

(a)…

(b)

where the term of imprisonment referred to in subsection (1) of that section is ordered to be served consecutively on another term of imprisonment, if the length of that other term falls to be reduced … by virtue of section 67 of the Criminal Justice Act 1967 ”

This provision is to avoid double counting, or rather, double discounting. Home Office Circular 37 of 2005 explains that rule 2(b)

“covers the situation where an offender is sentenced to consecutive sentences in relation to an “old” offence (committed before 4 April 2005) and a “new” offence (committed on or after 4 April 2005) and has served remand on a particular day in relation to both offences. As this day will automatically be counted towards sentence by the Prison Service in relation to the “old” offence it is not necessary for the court to consider a direction in respect of that day for the “new” offence”

The situation when consecutive sentences are imposed in these circumstances was addressed in Norman. Norman fell to be sentenced in respect of offences committed both before and after 4th April 2005. The sentences for the post-4th April offences were ordered to run consecutively to those imposed for the pre-4th April offences. It was held that the entire remand period would be credited under the 1967 Act in respect of the pre-April 2005 offences, and that therefore, following rule 2(b), a direction under s 240 was not required.

The opposite situation arises when the sentence for the post-4th April 2005 offence is ordered to be served concurrently with the sentence for a pre-4th April offence. For such an offence the deduction under s 67 of the 1967 Act will automatically follow, but in relation to the post-4th April offence the court must address s240. Time on remand will not be credited without a direction. The court may consider that to grant credit would in effect produce double credit, and accordingly may disallow it. For present purposes what matters is that the court should deal with the s240 point.

We must next consider cases where the defendant has been recalled to prison, either under s 39(6) of the Criminal Justice Act 1991 or s 254(6) of the 2003 Act, which repeats s 39(6).

An offender who is recalled to prison is “liable to be detained in pursuance of his sentence”. Therefore time spent in custody in connection with a fresh offence while the defendant is serving a sentence of imprisonment following his recall after release on licence, does not form part of the “relevant period” for the purposes of s 67 of the 1967 Act and would not fall to be deducted from the sentence imposed for the fresh offence. For the reasons given in Stocker [2003] EWCA Crim 121, this situation falls outside the ambit of s 67 (1A)(b)(ii) because:

“…time spent in custody under recall pursuant to section 39 is not (taken into account) since it is service of the original sentence .”

This principle continues under the 2003 Act. The 2005 Rules provide:

“Section 240 (3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody –

(a)

if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under chapter 6 of part 12 of the 2003 Act or part 2 of the Criminal Justice Act 1991);….” (see rule 2)

The effect is explained in HO Circular 37 of 2005, in a passage which culminates:

“….it is not appropriate for remand days to be counted towards any subsequent sentence imposed in respect of the second offence where a period in custody is being served further to recall from release on licence in respect of the first offence”.

This is self-explanatory and logical. It avoids over-favourable double counting when the prisoner is in effect serving an earlier sentence.

The regime which governs offences committed before 4th April 2005 is governed by section 116 of the 2000 Act. This provides:

“116.

– (1) This section applies to a person if –

(a)

he has been serving a determinate sentence of imprisonment which he began serving on or after 1^st October 1992;

(b)

he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners);

(c)

Before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment (“the new offence”);

(d)

whether before or after that date, he is convicted of the new offence.

(2)

Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which

(a)

begins with the date of the order; and

(b)

is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(c) above.”

The effect of the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (SI 2005 No. 950)(the 2005 Order) Schedule 2, is that although the 2003 Act applies to offences committed on or after 4th April 2005, this is subject to important exceptions preserving the powers of s116 of the 2000 Act which are otherwise repealed by the 2003 Act. These are:

“29.

The coming into force of paragraph 116 of Schedule 32 to the 2003 Act and the repeal of section 6(4)(d), 116 and 117 of the Sentencing Act is of no effect in relation to a person in a case in which the sentence of imprisonment referred in section 116(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 –

(a)

is imposed in respect of an offence committed before 4^th April 2005; or

(b)

is for a term of less than twelve months.

30.

The coming into force of the repeal of section 84 of the Sentencing Act is of no effect in a case in which the sentence of imprisonment referred to in that section was imposed in respect of an offence committed before 4th April 2005.”

The references to the Sentencing Act are to the 2000 Act.

The effect of these transitional provisions is that in the circumstances expressly identified in paragraph 29(a) and (b) the power of the court to order the return of an offender to prison is preserved. As Howell [2006] EWCA Crim 860 explained:

“A defendant who appears before the Court who is the subject of a return or recall to prison in respect of an offence which is committed before 4th April 2005 will still be treated as if he had been dealt with under powers conferred by the 2000 Act (PCC(S)A) and thus must be treated as if section 116 of that Act had not been repealed and further on the basis that s 84(PCC(S)A) had also not been repealed.”

Provided the “new” offence was committed before the date on which the original sentence would have been completed, and subject to paragraph 29(a) and (b), the court is enabled to order a return to prison, and make a subsequent order that the sentence for the “new” offence shall begin at the end of the return date. However an order that the offender should be returned to prison is not available if the “new” offence was committed before his release on licence.

“As the offence was committed whilst the appellant was in custody serving a sentence, we have no power because of the terms of section 116 of the 2000 Act (PCC(S)A) to order that the appellant should serve the outstanding part of his last sentence .” [Harris [EWCA] Crim 1186.]

Apart from the savings made by the transitional provisions, the arrangements under s 116 of the 2000 Act are not repeated in the 2003 Act. As time passes the number of cases to which the transitional provisions will apply will gradually diminish, but it will be a very long time before it can realistically be assumed that they will have ceased altogether to have any continuing effect.

The arrangements in respect of consecutive sentences for released prisoners before the coming into force of the 2003 Act was governed by s 84 of the 2000 Act. This provides:

“84(1) A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under part II of the Criminal Justice Act 1991 (early release of prisoners).”

The prohibition is clear. A sentence cannot be imposed to begin on the expiry of another sentence from which the prisoner has been released, if that “other sentence” was imposed in respect of an offence committed before 4th April 2005. However s 84 does not prevent a court from ordering a period of return under s 116 and indeed to impose a consecutive sentence for the new offence. This also applies to an administrative recall under s 39 of the 1991 Act. (Howell).

In paragraph 23 we have drawn attention to the important provision of paragraph 30 of schedule 2 of the 2005 Order, to the effect that the repeal of s84 of the Sentencing Act 2000 does not apply to a sentence of imprisonment imposed for an offence committed before 4 April 2005. The restrictions in s 84 of the 2000 Act are effectively reproduced (albeit in not absolutely identical terms) by s265 of the Criminal Justice Act 2003. This provides:

“ Restrictions on consecutive sentences for released prisoners

265(1) A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this Chapter.”

S 265 was brought into force on 4th April 2005 by paragraph 19 of schedule 1 of the Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Savings Provisions (Order 2005) SI 2005 No 950). It is however subject to paragraph 30 of Schedule 2. It applies when the “other sentence of imprisonment” was imposed for an offence committed on or after 4th April 2005.

Under the regime to which the 2003 Act applies, when dealing with an offence committed after release on licence for a previous offence, but while the full term of the sentence is incomplete, the court cannot make an order for return, nor an order that the sentence should run consecutively to the full term or any period of recall order made by the Secretary of State to serve a further part of that sentence. To avoid double counting, when considering any direction in relation to time served for days spent on remand, the court should consider whether it would be “just” to reduce from the number of days included in the order those days or periods when the offender was serving part of the earlier sentence. In short, the avoidance of double credit would appear to represent a just exercise of the discretion under s 240(4).

S 82A of the 2000 Act provides the regime for the determination of what are usefully described as “tariffs” when the court passes “a life sentence in circumstances where the sentence is not fixed by law”. This applies to discretionary life sentences, orders for custody for life, detention for life, imprisonment for public protection under s 225 or detention for public protection under s 226 of the 2003 Act. S 82A(2) applies ss 28(5) – (8) of the Crime (Sentences) Act 1997 to an offender who has served the part of the sentence specified in the order, and that part of the sentence requires the court to take account of:

“The effect of any direction which it would have given under s 240 of the Criminal Justice Act 2003 … (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.”

Accordingly the statutory link between s 82A(3)(b) of the 2000 Act with the 2003 Act means that when fixing the appropriate determinate sentence, the Court should apply the regime under s 240 to time spent on remand.

The imperative is that no prisoner should be detained for a day longer than the period justified by the sentence of the court. S 240 of the 2003 Act is clearly directed to achieve that, save in cases specifically identified for express reasons, credit should be given to the prisoner for time spent in custody on remand, unless such credit would contravene some other statutory provision, or result in double crediting. That is why the Sentencing Guidelines Council in “New Sentences: Criminal Justice Act” explained that “The court should seek to give credit for time spent on remand in all cases ... it should explain its reasons for not giving credit ...”.

From the present group of cases, and indeed a number of other cases, we can identify three main problem areas. First, the court may give a direction that time spent in custody should be credited, but, acting on inaccurate information, may specify too long, or too short a period. Second, the court may conclude that although such a direction should be given, it lacks information, or sufficient information and accordingly, having indicated its intention to make the direction, may leave the order incomplete, pending the arrival of acceptable accurate information. Third, the court may simply say nothing on the subject, without being reminded of the obligation either to direct that credit should be given, or alternatively, provide an explanation why in the particular case it would be inappropriate to give such credit.

Under s 155 of the 2000 Act (repeating the provision originally enacted in s 11(3) of the Courts Act 1971) the Crown Court may vary or rescind the “sentence imposed or other order made”, provided the variation is made within “the period of 28 days beginning with the day on which the sentence or other order was imposed or made”. Separate provision is made where two or more defendants are tried separately on the same or related facts (s 155(2)). S 142 of the Magistrates’ Court Act 1980 provides an equivalent power where “it appears to the court to be in the interests of justice”. The power ceases to be available after the Crown Court has determined any appeal against conviction, sentence or other order, or the High Court has determined a case stated.

It is well established that s 155 permits significant alterations in sentence, for example, changing a suspended sentence into an immediately effective one (Hart 5 CAR (S) 25) or ordering that the term of an immediate custodial sentence should be longer (Menocal [1980] AC 598). The discretion to vary sentence of course may also produce a sentence of reduced severity. The power must always be exercised with great caution, not least because (subject to any appeal or reference by the Attorney General) the administration of criminal justice is hindered by doubt or hesitation whether the order pronounced by the court as its sentencing decision is final. Everyone with an interest in the sentence (in particular the defendant and the victim) wants what is sometimes described as closure, and by long hallowed tradition the sentence of the court is effectively the culmination of the criminal process. The area in which the exercise of the power under s 155 is of particular value is where there is a need to cure what would otherwise be an unlawful sentence.

Once the 28 day period has expired, the power to vary or rescind a sentence imposed in the Crown Court expires. In Menocal Lord Edmund-Davies suggested that s 11(2) of the Courts Act allowed 28 days “for second thoughts”, but that the 28 day period represented a limitation, a term of art no doubt deliberately chosen. In Stillwell and Jewell [1992] 94 CAR 65, this Court observed that “the 28 day period is not elastic.” However the correction of an error, notwithstanding the expiry of the 28 day period was permitted in Saville [1980] 2 CAR (S) 26 where an inchoate order was simply adjusted in such a way that the sentence or other orders were unaffected, and the court followed Michael [1976] QB 414, upholding the inherent jurisdiction of the court to correct an order properly to reflect the decision pronounced in court.

This forms the background for consideration of Norman and others. These appeals required detailed consideration of s 240 of the 2003 Act, particularly where the court has been supplied with unreliable information about the time actually spent on remand by the prisoner which then found its way into the order made by the sentencer. Latham LJ, the Vice-President, considered that the only express power available to the court enabling it to correct any resulting mistake arose under s 155 of the 2000 Act. In consequence, after the 28 day period, any remedy must be provided by way of an appeal against sentence.

We must briefly notice one of the cases decided in Norman, Igbanoi, where the judge directed that 114 days should count towards sentence. The figure turned out to be inaccurate. The judge’s sentencing remarks made clear that the whole period that the appellant had spent on remand since a particular date was to count. The actual calculation should have been 146 days rather than 114 days. This was described as a “classic example” where the court records should be amended to produce the true effect of the judge’s order.

After analysing the individual cases, the Vice-President made a number of points of general application in paragraph 50 of the judgment. They include:

“...

ii)

If the information provided subsequently turns out to be incorrect, the sentencing court can only correct the mistake within 28 days (or the extended period in section 155(2) of the 2000 Act), unless the judge's order has identified the period in question, but the order as drafted has simply miscalculated the number of days. In that case, the court record can be amended.

...

vi)

If the period for which the direction has been given is wrong, and both parties agree, but more than 28 days have elapsed since the sentence was imposed, the application for leave to appeal should so state, in which event, on receipt of confirmation of that agreement ... the matter will be remitted by the Registrar direct to the Court for it to correct the mistake. ...

vii)

There may well be cases where the judge fails to give a direction. It should be the responsibility of counsel to bring the matter to the attention of the judge. But where that has not occurred, the same procedural mechanism, as set out in (vi) above should be used in order to correct such a mistake.”

The judgment ends by reflecting generally on s 240 and its impact on the sentencing decision, and concludes: “the defendant is entitled to have a direction; and an appeal is the only route available if s 155 of the 2000 Act, or an administrative correction, is not available.”

Encouraged by the commentary on Norman by Dr David Thomas in the Criminal Law Review for December 2006 at page 1073, we addressed the decision of the House of Lords in Soneji and Bullen [2006] 1 CAR (S) 430 in the context of non-compliance with statutory provisions relating to the postponement of confiscation proceedings. The question was whether, save in exceptional circumstances, confiscation proceedings could be postponed or adjourned beyond the apparently “mandatory” six month time limit provided by and within the context of s 72A of the Criminal Justice Act 1988, as amended.

“... the principal issue raised by the Crown’s appeal in these cases is whether, assuming that the judge had not been entitled to postpone the determinations beyond the six month limit, the confiscation orders were invalid” (per Lord Rodger of Earlsferry). The answer was that delay beyond the six month limit did not of itself nullify an otherwise properly made confiscation order made after the six month limit had elapsed, or for non-compliance with the preferred statutory sequence that the confiscation proceedings and orders should precede the remaining sentencing decisions. For present purposes we must take note that the consequence of the detailed legislative arrangements governing possible postponement of confiscation proceedings removed the common law powers of the court to order the adjournment of confiscation proceedings.

It is tempting to seek to apply Soneji and Bullen to s 155 of the 2000 Act and treat it as authority which enables the court to vary or rescind a sentence beyond the 28 day limit. However that route is not available to us. Menocal is a decision of the House of Lords, in which the possibility of an extension of the 28 day time limit was directly addressed. The conclusion was expressed in categoric terms:

“There is however no power in the Crown Court to vary or rescind a sentence or any other order after the expiry of that period (28 days) ... The learned judge had 28 days to vary the sentence he had passed by adding to it a monetary penalty, namely the forfeiture ... of upwards of £4,000. Had he done so within the statutory time limit, the forfeiture could not have been questioned. As it is, in my opinion, it cannot be defended.” (Per Lord Salmon at p. 162.)

“... The action of the trial judge in this case would, as I think, have been entirely proper had it been done timeously. But it was not, and he was therefore without jurisdiction to make the forfeiture order when he purported to make it.” (Per Lord Edmund-Davies at p. 167.)

We have already touched on the critical importance of finality in the sentencing process. S 155 of the 2000 Act allows a small degree of latitude, and, as the cases show, the 28 day limit would not prohibit what is in effect a later curing of a mere procedural irregularity in the way in which the order of the court was recorded, or a later procedural step to complete an inchoate order, but without affecting what had already been announced. Subject to such considerations, the limitation point applies. On analysis Soneji and Bullen was concerned with a different problem, namely, whether the process which would be expected to culminate in a confiscation order, or a decision that a confiscation order would be inappropriate, should, after the prescribed time had elapsed, automatically preclude that question being addressed at all. Following Norman such sensible flexibility is not available under s 155, and we must put the temptation offered by Dr Thomas behind us.

In his commentary Dr Thomas suggested another possible solution. He pointed out that there was “clear authority to the effect that a judge may specifically adjourn one part of a sentence”. He drew attention to Annesley [1975] 62 CAR 113, when it was argued on Annesley’s behalf that s 11(2) of the Courts Act 1971 deprived the Crown Court of the former common law jurisdiction to adjourn part of the sentence. The argument was rejected:

“It is clear from these authorities and statutory provisions that the Crown Court still enjoys the common law jurisdiction vested in its predecessors to put off passing the whole of a sentence, or indeed part of a sentence, if the circumstances make it necessary. While accepting the proposition that to take two bites at the sentencing cherry is bad practice, there may be circumstances in which it may be very desirable, when all the material necessary to complete all elements of a sentencing problem is not immediately available, to deal with the substantive sentence at once and postpone what may have to be done in addition, rather than postpone the whole of the sentence till all of the material is to hand. ... This court thinks it would have been unnecessarily cruel to keep the appellant in the dark as to whether, and if so how long, the custodial sentence he was to receive, simply because the material necessary for dealing with ‘totting up’ ... was not immediately available. Although in the result it took longer than 28 days to obtain the material, the judge was entitled to make the further disqualification order some 7 weeks after imposing an appropriate prison sentence.”

We are grateful to Dr Thomas for reminding us of Annesley principle.

Returning to s 240 in this context, the number of days during which the defendant was remanded in custody does not, strictly speaking, form part of the sentence. After the sentence has been decided (and assuming that it is a custodial sentence) then the time in custody will count as “time served”, unless the court decides otherwise. In theory, it would be open to the court to adjourn the entire sentencing process until satisfied that the number of days properly to be regarded as time served was accurately calculated. That would, as Annesley, and as many other authorities and conventional sentencing practice suggest, normally be inappropriate, and productive of unnecessary concern to defendants and indeed to victims. But once the court has decided that credit should be given it should say so, and it would then be entitled to adjourn for appropriate information to be provided about the relevant number of days. In short, if for whatever reason that calculation has not been made, or the court is uncertain about the “time served”, but considers that in principle the time spent in custody should be treated as time served, the court may properly direct that the period will be deducted after the appropriate calculation has been made, and adjourn this part of the process.

Thereafter the calculation should be made promptly. Plainly if there is any dispute about it, the arguments should be reduced to writing and put before the sentencing judge for his consideration. If necessary he may order a short further oral hearing. If so, the defendant would be entitled to be for present if he wished. We emphasise that the adjournment should be a limited period only, and the final decision should, save in exceptional circumstances, be concluded within 28 days. But even if delayed beyond that period, it would be permissible for the Crown Court to deal with what is no more than the final implementation of its order. This would not be a variation or rescission of sentence. It would merely represent the conclusion of an adjourned part of the sentencing process. In the end the order should be listed and pronounced in open court.

We have re-examined the decision in Norman in the light of the Annesley principle and in particular the observations of the Vice President at paragraph 50 (ii) of the judgment. The starting point is that any mis-statement of the number of days credit to which a defendant is entitled would almost invariably be the product of administrative error. We see no reason why the judge cannot use language making clear that he is directing that the defendant should receive credit for the full period of time spent in custody on remand, (or any particular part of that period), that on the basis of the information currently before him the relevant period is X days, but if this period proved to be based on an administrative error, on being informed, the court would order an amendment of the record for the correct period to be recorded. Approaching the problem in this way, the number of days to be credited may properly be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28 day rule.

Now that s 240 of the 2003 Act has been in force for some time, and the attention of sentencers and advocates has been drawn to its importance in a number of decided cases, it should be clear that the issue of time spent on remand must be directly addressed at the sentence hearing. Of course there may be circumstances in which the court may direct that time on remand should not be taken into account. An example can be found in Pusey below. If so, a reasoned explanation is required, and it should be given when the sentencing decision is made. However as the presumption is that the direction under s 240 will be made, unless the court directly addresses the issue, its unexplained failure to do so will be treated as if the issue had not been addressed at all (Norman).

We shall briefly return to s155 of the 2000 Act. Our conclusion is that save in very limited circumstances an extension to the 28 day period is impermissible. This period coincides with the time for any appeal against conviction or sentence. On occasions when an appeal is launched it is immediately apparent that the point, although correct, is purely technical. For example, the judge may have passed a sentence on one of the lesser counts of the indictment which is in excess of the permitted maximum. If the 28 day period allowed under s155 were extended to, say, 42 days, a number of appeals against sentence in particular could probably be dealt with by referring them back to the original Crown Court to correct an oversight. At present, once the 28 day period allowed under s155 has expired, such cases require the attention of the CACD. That is not an appropriate use of limited resources.

We come now to the individual cases.

On 7 July 2000 Gordon was sentenced to eight years’ imprisonment for wounding with intent. The sentence was to run consecutively to an existing six month sentence.

In late November 2004, while he was serving his sentence, together with others, he became involved in a plot to introduce cannabis resin into prison. For present purposes the details are unimportant. Gordon was interviewed, but denied any involvement in the plot. He was released on licence on 22 July 2005. The sentence was due to expire in December 2008.

At a case management hearing on 12 December 2005, he pleaded not guilty. He was remanded on bail. His trial was due to begin on 20 February. He attended for the first day, but not thereafter. A bench warrant was issued on 21 February. He was convicted in his absence.

On 2 March he surrendered himself to court. He was immediately recalled to custody for breach of his licence conditions. He appeared before the Crown Court on 3 March and pleaded guilty to a Bail Act offence. Sentence was adjourned until final disposal of the drug-related conspiracy on 2 June 2006.

On that date the unexpired period of the original sentence was two years six months and eighteen days. The Recorder ordered that he should serve eighteen months imprisonment for the drug related offence, to run consecutively to the unexpired portion of the original offence which he said would be “completed”. In effect the total sentence was just over 4 years’ imprisonment. He further ordered that the licence should be revoked. No separate penalty was imposed for the bail offence.

There were two further defendants. Jason Lawler pleaded guilty on re-arraignment to conspiracy to supply a class C drug. He was sentenced to three and a half years imprisonment. Gloria Tiano was convicted of the same offence and sentenced to fifteen months’ imprisonment. All the offences for which Gordon fell to be sentenced (with the exception of the Bail Act offence) were committed before 4th April 2005. The 2003 Act had no application to his case. Any appropriate deduction for time spent on remand will be made under s 67 of the 1967 Act. In fact time spent on remand while the appellant was concurrently in custody as a result of the revocation of his licence will not fall to be deducted.

The essential problem with the order made by the judge is that as the new offence was committed before the offender’s release, the power to order Gordon’s return to prison to serve all or part of the unexpired portion of the original sentence did not arise. That part of the order must be quashed. However for this Court now to order that the sentence imposed by the judge should be the term of 18 months’ imprisonment imposed for the conspiracy offence would mean that it would take effect as if it were a term concurrent to the original sentence imposed in July 2000, starting on 2nd June 2006, and in practical terms unlikely to add anything to the original sentence. That would be wrong. It would result in a sentence of 18 months’ imprisonment for the conspiracy offence which would not add a single day’s punishment for a serious offence committed in prison while serving a sentence for another serious offence, and would be an absurdity in the circumstances.

We have considered s 11(3) of the Criminal Appeal Act 1968 and the prohibition against any increase in the original sentence. It is however clear from the statute that the case must be taken “as a whole”, and it is established that what is prohibited is an increase which would result in an increase in the total sentence. (See for example, Sandwell [1985] 80 CAR 78.)

A total sentence of 4 years’ imprisonment to reflect the appellant’s involvement in the drug-related conspiracy would have been entirely proper. We are however told that the appellant has already been given release dates of March 2007, and then December 2006. We have seen supporting documents. It looks as though the individual responsible for the preparation of the release date notification slip recognised the problem caused by the order that Gordon should return to prison to serve the unexpired portion of the previous sentence. There was, however, some uncertainty about the possible impact on the time spent by the appellant in custody under recall for the original offence in the context of s 67 of the 1967 Act. In all these circumstances we are inclined as an act of mercy to make some allowance for what will now appear to the appellant to be an increase in his sentence. The judge treated the role of this appellant as marginally more serious than that of Lawler, and this resulted in a slightly higher marginal total sentence. A lower sentence on him would now be appropriate. Therefore the order that the unexpired portion of the original offence should be “completed” will be quashed. The sentence of 18 months’ imprisonment for conspiracy will become 3 years’ imprisonment, to run from 2nd June 2006. To that extent this appeal will be allowed.

On 18th October 2005 before the Magistrates Court at Stockport Taylor pleaded guilty to two offences of unlawful possession of knives, one a lock knife, and the second a hand held flick knife in Stockport on 19th September 2005, and a Bail Act offence of failure to surrender to custody, committed on 22nd September 2005.

He was also before the court for non-compliance with the terms of a Community Rehabilitation Order imposed on 12th March 2004 for offences of affray, unlawful possession of a bladed article and of a class B drug. He was committed to the Crown Court sitting at Manchester under the 2000 Act. He was granted conditional bail. On 8th November he committed an offence of burglary. In due course his conditional bail was revoked and he was then remanded in custody for a nine day period between 30th November and 8th December 2005. During the first day of this nine day period he was in police custody, and from 1st December to 8th December in prison custody.

On 11th May 2006 he pleaded guilty to burglary and was remanded on bail for sentence. For thirteen days between 20th June and 3rd July 2006 he was remanded in custody. On 3rd July he was sentenced to 6 months imprisonment for the offence of burglary, to 3 months’ imprisonment concurrent among themselves but consecutive to the sentence for burglary for the three offences for which he was committed to the Crown Court on 18th October. He was then sentenced for the original offences which had attracted the Community Rehabilitation Order to 6 months’ imprisonment for affray, three months’ imprisonment for unlawful possession of a bladed article, both sentences to run concurrently among themselves, but consecutive to the other sentences. No separate penalty was imposed for unlawful possession of a class B drug. The total sentence therefore was fifteen months’ imprisonment in all.

We are not concerned with any submission that this sentence was wrong in principle or manifestly excessive.

The judge ordered in terms that the thirteen days on remand in June/July 2006 should count towards the sentence. He was told about the period spent in prison in early December 2005, but was not satisfied with the evidence relating to that period or why the applicant had been in custody. If the necessary evidence became available he made clear that the appropriate further deduction could be made without the attendance of the applicant.

The facts were checked and details confirmed. On 6th July a letter was written to the court by the applicant’s solicitors. For some unexplained reason it was not received, or if received, by oversight was not brought to the attention of the judge. Follow up letters were hand delivered to the court on 11th August.

There is no dispute before us that the applicant did indeed spend nine days in custody as a result of the burglary offence committed in November 2005, for eight of which he was entitled to be credited against the sentence imposed by the judge. At the Crown Court, the judge concluded that he lacked jurisdiction to alter the sentence, and credit what were described as the additional nine days. He confirmed that in the light of the recent decision in Norman that he could not alter the sentence outside the 28 day period.

In the light of this judgment it would have been open to the judge to regard his decision as an adjournment for further information, subject to which the appellant should be credited with the time served. However, his decision made without the advantage of the commentary of Dr David Thomas, and our conclusions on it, is not to be criticised. The reality is that the application of s 240 meant that the 8 day period should be taken into account as time served. We shall so order.

D was born in November 1989. He is now seventeen years old. A previous court appearance for indecent assault led to a 12 month supervision order.

On 3 August 2005, in the Crown Court at Snaresbrook he pleaded guilty to robbery and sexual assault, and not guilty to a further offence of sexual assault on count three of the indictment. Subsequently he pleaded guilty on re-arraignment to this offence.

On 3 April 2006 he was sentenced to detention for public protection pursuant to section 226 of the Criminal Justice Act 2003 on count three of the indictment, with a minimum determinate term of two years’ custody. No separate penalty was imposed on robbery and the first of the sexual assaults before the court. Appropriate notification orders were made. By now D had been on remand for eleven months.

The facts of the case can be taken briefly. Counts one and two related to an incident which took place at 4 o’clock in the morning of 18^th March 2005. The applicant and two other young men were travelling on a night bus. As the others knew, one of them was carrying a knife. The complainant was travelling in the same bus. She alighted from it. D and his co-accused also alighted and followed her to the alleyway leading to her front door. While she was standing at the door looking through her handbag for her keys, they approached her and ordered her to give them the handbag. She refused. They continued to demand her handbag. Eventually one of the co-accused produced the knife and held it to her throat. The appellant stood next to her with the third man nearby. Faced with this intimidation she handed over her handbag. While the other two were rifling through it, the appellant approached her and said “give me sex”. He started to lift up her T-shirt. She pressed the entry phone buzzer outside her door. All three then ran away.

The police were called. They were able to track the appellant and his co-accused and eventually arrested them on another bus. The applicant was carrying the complainant’s mobile phone. Varying accounts were given in interview. The appellant was bailed to 5th May 2005.

On the evening before, at about 11pm on 4th May, the complainant in count three was walking along a residential street. She saw the appellant walking towards her on the other side of the road.

The appellant crossed over to her side of the road, and as they walked past each other, he stopped and said, “can I chat to you?” She looked briefly at the appellant but carried on walking. With that he turned round and started walking beside her. He put his arm round her shoulders and said, “I want to chat to you”. She asked him to leave her alone, but he persisted. To discourage him she said that she was on her way to her boyfriend’s house. Eventually he stepped behind her and put his arm around her neck. He forced her to bend forward and thrust his groin against her buttocks, saying “I want to fuck you. You want it, don’t you?”

She managed to break free, but he grabbed hold of her top. She lashed out at him with her keys and swung a carrier bag with a bottle of wine in it. He managed to grab hold of her around the neck, and again thrust his groin against her buttocks. He pushed his hand inside her top and inside her brassiere and squeezed her breast, and then moved his hand down towards her belt, pushing her against a wall and trying to undo the belt, saying repeatedly that he would “fuck her”.

With great determination she was able to struggle free and run away towards the house. The appellant ran off. The complainant went to her friend’s home and called the police. She agreed to be driven round the area in a police car. She identified the appellant nearby. He was arrested and made no comment in interview. Thereafter he was remanded in custody.

The pre-sentence report recorded a problematic and turbulent childhood, and a good deal of disruption in the appellant’s early life. He had absconded from home and been excluded from school for fighting, truancy and disruptive behaviour. He minimised and continued to deny the seriousness of the sexual offences. He was said to pose a high risk of re-offending and causing harm.

No comfort was to be found in the psychiatric report. There was no evidence of mental illness. Some expression of remorse was noted, as the first sign that he was gaining some insight into his behaviour. The risk he posed would be reduced if he was able to explore his offending behaviour with expert assistance.

The judge concluded that the appellant posed a significant risk of serious harm as the result of the commission of further violence and sexual offences. The original supervision order had been strikingly ineffective. An extended sentence would not be adequate to protect the public. The necessary sentence was detention for public protection. The sentence actually imposed on count three took account of the facts and circumstances of the robbery offence and the first of the sexual assaults to which the appellant had pleaded guilty.

In fixing the specified minimum term, no allowance was made in respect of the time the appellant had been in custody on remand.

We have considered recent reports from custody. These show that the period on remand was “particularly negative”, but that since sentence was imposed some real improvement had been observed.

The submission on D’s behalf is that the sentence of detention for public protection was inappropriate. As to this contention, our views need no elaboration.

The judge had to deal with three serious offences, all committed while under supervision for indecent assault, and two of which were sexual offences, the latest and most serious of which was committed while on bail for the earlier sexual offence and for involvement in a knifepoint robbery. The judge was entitled to conclude that an order for public protection was essential. The four year starting point for the determinate period reflected D’s overall criminality. The time spent on remand before sentence could provide the sentencer with no comfort for the future, but there are now some early indications of maturing. However, despite the appellant’s age, at this stage we can see no reason for interfering with the judge’s conclusion that an order of custody for public protection was necessary, or that the determinate period to reflect the appellant’s criminality was excessive.

That leaves a single question, arising from the absence of credit for the 11 month period spent in custody on remand. As we have noted in paragraphs 31 and 32, the arrangements for such credit to be given applied to this case. We can discern no reason why the appropriate order was not or should not have been made. This specified minimum period will be reduced by the period of 322 days spent on remand.

On 3 August 2006, at the Crown Court at Inner London, Pusey was convicted of a dwelling house burglary, committed in May 2006. He was sentenced to five years’ imprisonment. No direction was made under s 240 in respect of time spent in custody on remand.

His application for leave to appeal against sentence was refused by the single judge. The application is now renewed simply in respect of the omission of s 240 direction.

On 18^th June 2004 Pusey was sentenced to three years’ imprisonment. He was then released on licence. On 5 May 2006 he committed the burglary offence referred to in paragraph 86. He was remanded in custody for this offence on 25^th May 2006. He was recalled from licence on 14^th June. From that date, his continuing remand was based on the recall order. On the face of it, the 20 day period immediately preceding 14^th June fell within s 240. However either the sentencer overlooked the requirement to consider a s240 direction, or he failed to explain why he would exercise his discretion to disapply the normal rule. It seems to us that the judge might well have imposed a substantial term under s116 of the 2000 Act, and there is no obvious reason why he did not do so. Although not actually recalled until 14 June, Pusey put himself at risk of immediate recall when he committed the offence on 5 May. He was equally liable to recall when he was remanded in custody after his arrest. In situations like this, the administrative arrangements for recall need a little time to be put in place. That was done on 14^th June. In our view it would have been just in all the circumstances for a direction under s240 to have been omitted pursuant to s240(4). Accordingly the 20 day period will not be credited.

On 14th October 2005, in the Crown Court at Southampton, Shaukat was convicted on one count of being knowingly concerned between 20th March 2005 and 5th May 2005 in the fraudulent evasion of the prohibition on the importation of a class A drug. He was arrested on 5th May and remained in custody for 161 days before he was sentenced to 15 years’ imprisonment. No direction was made under s 240 in respect of 161 days spent on remand.

The omission was recognised in July 2006. The attention of the court was drawn to it. Initially the court amended the order as appeared appropriate, but shortly afterwards it was decided that the Crown Court lacked the necessary jurisdiction. The case was outside the “twenty eight day correction period”, and as the case was concerned with a failure to make any direction under s 240, the case had to be considered in the Court of Appeal.

No-one appears to have considered whether and if so how, the provisions of s 240 applied to an offence committed during the period March-May 2005. As we have seen from this judgment, these provisions did apply, and there was no reason why a direction under s 240 should not have been given. We shall order that the 161 days spent on remand shall count as time served. To that extent this appeal will be allowed.

On 20th February 2006, at the Cannock and Seisdon Magistrates Court, Kevin McManus pleaded guilty to one offence of robbery committed on 15th January 2006. On 20th February he was remanded in custody and committed to the Crown Court for sentence. On 16th March 2006, at Stafford Crown Court, he was sentenced to two years’ imprisonment. No direction was made under s 240. It rather looks as though the judge was misled into believing that no such direction was required, and that the remand time would be deducted automatically. Certainly it appears that he intended that credit for this period should be given.

The sentence itself is not criticised in these proceedings, and there is no issue that a direction under s 240 would have been appropriate.

The submission is that the 25 days spent on remand should count towards sentence. However it was thought too late to apply to the Crown Court to achieve the appropriate credit, and although out of time for the purposes of an appeal against sentence to this court, an application for further time and for that credit to be given was made.

According to the information provided by the prison authorities, the time spent on remand for which credit is due is 24 rather than 25 days. The judge intended that this credit should be given, and there was no reason why it should not. We shall allow the application for further time, and order that the 24 days spent in custody will count towards the sentence. To that extent the appeal will be allowed.