Judgment Approved by the court for handing down. | Monaghan |
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE HOOPER
MRS JUSTICE SWIFT DBE
and
HHJ MORRIS QC
sitting as a judge of the Court of Appeal Criminal Division
Between:
Rudie Aaron Monaghan, Robert Douglas Tyler, Chay Gilbert, Asim Naser, Aquib Khan | Appellants |
- and - | |
The Crown | Respondent |
Mr A Amer for R.A. Monaghan
Mr S Gitttins for R.D. Tyler
Mr D Higgins for C. Gilbert
Mr N Mian for A. Naser
Mr A Hook for Aquib Khan
Mr T Chaize for the respondent in Tyler and Gilbert
Mr K Barry for the respondent in Naser
Hearing date: 21 October 2009
LORD JUSTICE HOOPER
MR JUSTICE SAUNDERS
Between:
Ben Chaplin | Appellant |
- and - | |
The Crown | Respondent |
The appellant was unrepresented
Hearing date: 17/12/2009
Approved Judgment
LORD JUSTICE HOOPER:
All of these applications for leave to appeal or appeals concern section 240A of the Criminal Justice Act 2003 (“the 2003 Act”) as inserted by section 21 of the Criminal Justice and Immigration Act 2008 (“the 2008 Act”). Section 240A came into force on 3 November 2008.
Section 240A applies to an offender who is sentenced to imprisonment or detention or in respect of whom a minimum term is set as part of a sentence of life imprisonment or IPP. If the offender has spent time on bail subject to a curfew of 9 hours or more in any given day coupled with an electronic monitoring condition (“the relevant conditions”), he is generally entitled to an order the effect of which is that half the number of days spent on bail subject to these conditions shall count as time served by the offender as part of his sentence. Thus a defendant sentenced to 2 years’ imprisonment who has spent 100 days on bail subject to these relevant conditions is generally entitled to an order the effect of which is that 50 days shall count as part of his sentence and he would have to serve 12 months less 50 days.
Section 240A is worded in similar terms to section 240 which makes provision for time spent on remand in custody.
The questions raised by these appeals are:
Does section 240A apply to a period on bail prior to November 3 2008 subject to what were to become relevant conditions on November 3 2008.
If a defendant was remanded on bail before November 3 2008 subject to what were to become relevant conditions on November 3 2008 and continues to be on bail for a period on or after that date subject to those conditions without a further court order, does section 240A apply to the period on or after that date?
What account, if any, should be taken by a trial judge of a period on bail subject to an electronically monitored curfew prior to November 3 2008 or subject to an electronically monitored curfew of less than nine hours after that date?
Section 240A provides:
(1) This section applies where—
(a) a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005,
(b) the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008, and
(c) the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”).
(2) Subject to subsection (4), the court must direct that the credit period is to count as time served by the offender as part of the sentence.
(3) The “credit period” is the number of days represented by half of the sum of—
(a) the day on which the offender's bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and
(b) the number of other days on which the offender's bail was subject to those conditions (excluding the last day on which it was so subject),
rounded up to the nearest whole number.
(4) Subsection (2) does not apply if and to the extent that—
(a) rules made by the Secretary of State so provide, 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 as a result of paragraph (a) or (b) of subsection (4) the court does not give a direction under subsection (2), it may give a direction in accordance with either of those paragraphs to the effect that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.
(6) Rules made under subsection (4)(a) may, in particular, make provision in relation to—
(a) sentences of imprisonment for consecutive terms;
(b) sentences of imprisonment for terms which are wholly or partly concurrent;
(c) periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State.
(7) In considering whether it is of the opinion mentioned in subsection (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them.
(8) Where the court gives a direction under subsection (2) or (5) it shall state in open court—
(a) the number of days on which the offender was subject to the relevant conditions, and
(b) the number of days in relation to which the direction is given.
(9) Subsection (10) applies where the court—
(a) does not give a direction under subsection (2) but gives a direction under subsection (5), or
(b) decides not to give a direction under this section.
(10) The court 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.
(11) Subsections (7) to (10) of section 240 apply for the purposes of this section as they apply for the purposes of that section but as if—
(a) in subsection (7)—
(i) the reference to a suspended sentence is to be read as including a reference to a sentence to which an order under section 118(1) of the Sentencing Act relates;
(ii) in paragraph (a) after “Schedule 12” there were inserted “or section 119(1)(a) or (b) of the Sentencing Act”; and
(b) in subsection (8) the reference to subsection (3) of section 240 is to be read as a reference to subsection (2) of this section and, in paragraph (b), after “Chapter” there were inserted “or Part 2 of the Criminal Justice Act 1991”.
(12) In this section—
“electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 [see below] for the purpose of securing the electronic monitoring of a person's compliance with a qualifying curfew condition;
“qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day; and
“related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.
Section 3(6ZAA) of the Bail Act 1976
Section 3 of the Bail Act 1976, as amended, provides that a person
(6) ... may be required . . . to comply, before release on bail or later, with such requirements as appear to the court to be necessary
(a) to secure that he surrenders to custody,
(b) to secure that he does not commit an offence while on bail,
(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person ... .
Section 3(6ZAA), substituted by the 2008 Act section 51 and Schedule 11, paras. 1 and 2 which came into force on 3 November 2008 reads:
The requirements which may be imposed under subsection (6) include electronic monitoring requirements.
The imposition of electronic monitoring requirements is subject to section 3AA (in the case of a child or young person), section 3AB (in the case of other persons) and section 3AC (in all cases).
Section 3AA as inserted by the 2008 Act section 51 and Schedule 11, paras. 1 and 3 (which came into force on 3 November 2008) now reads:
(1) A court may not impose electronic monitoring requirements on a child or young person unless each of the following conditions is met.
(2) The first condition is that the child or young person has attained the age of twelve years.
(3) The second condition is that—
(a) the child or young person is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or
(b) he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings—
(i) amount, or
(ii) would, if he were convicted of the offences with which he is charged, amount,
to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation.
(4) The third condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.
(5) The fourth condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in the case of the child or young person.
...
In this section 'local authority accommodation' has the same meaning as in the Children and Young Persons Act 1969 (c 54).
...
Section 3AB, as inserted by the 2008 Act section 51 and Schedule 11, paras. 1 and 4 (which also came into force on 3 November 2008) provides:
(1) A court may not impose electronic monitoring requirements on a person who has attained the age of seventeen unless each of the following conditions is met.
(2) The first condition is that the court is satisfied that without the electronic monitoring requirements the person would not be granted bail.
(3) The second condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.
(4) If the person is aged seventeen, the third condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in his case.
Section 3AC, as inserted by the 2008 Act section 51 and Schedule 11, paras. 1 and 4 (which also came into force on 3 November 2008), provides:
1) Where a court imposes electronic monitoring requirements as a condition of bail, the requirements must include provision for making a person responsible for the monitoring.
(2) A person may not be made responsible for the electronic monitoring of a person on bail unless he is of a description specified in an order made by the Secretary of State.
(3) The Secretary of State may make rules for regulating—
(a) the electronic monitoring of persons on bail;
(b) without prejudice to the generality of paragraph (a), the functions of persons made responsible for such monitoring.
...
The Secretary of State made an Order setting out who are responsible persons for electronic monitoring of adults in each police area: Bail (Electronic Monitoring of Requirements) (Responsible Officer) Order 2008 (SI 2008/2713), which came into force on 3 November 2008. According to a Ministry of Justice document with which we were provided no rules have been made regulating the functions of such persons.
Prior to 3 November 2008 the position in respect of the electronically monitored curfew of children and young persons was specifically recognised by old section 3(6ZAA) of the Bail Act, inserted by the Criminal Justice and Police Act 2001, section 131. The old section 3(6ZAA) read:
Subject to section 3AA below, if he is a child or young person he may be required to comply with requirements imposed for the purpose of securing the electronic monitoring of his compliance with any other requirement imposed on him as a condition of bail.
Mr Chaize has kindly researched the history of electronic monitoring and tells us that the first statutory recognition of electronic monitoring for adults is to be found in section 3(6ZAA) as inserted by the 2008 Act. However, as he says, there seems little doubt that it was lawful before that date to impose an electronically monitored curfew given sub-section 3(6) which provides that a person “may be required to comply ..... with such requirements as appear to the court to be necessary...".
Certainly there must have been a significant number of remands on electronically monitored curfew prior to November 3 2008 to support the conclusion that giving credit for time spent on this kind of remand would free up 200 prison places. There were pilot runs in Manchester and Norwich between April 1998 and August 1999: see a report published by the Home Office in 2000, entitled “Electronically monitored curfew as a condition of bail – report of the pilot.” A sample of 9,000 remand decisions was examined leading to 198 electronically monitored curfews, mostly on male adults.
To what offences does section 240A apply?
It is important to note that section 240A only applies to offences committed on or after 4 April 2005.
If the offence was committed before 4th April 2005 then, by virtue of section 23 of the 2008 Act, Schedule 6 of the 2008 Act comes into play. The effect of Schedule 6 is to require the court to specify the credit period which is then taken into account by the prison service in accordance with section 67 of the Criminal Justice Act 1967. Section 67 was repealed by the Crime (Sentences) Act 1997, s 56(2), Schedule 6, which was brought into force eight years later on 4 April 2005 by the Crime (Sentences) Act 1997 (Commencement No 4) Order 2005, SI 2005/932. However the Commencement Order had the effect of preserving section 67 in relation to offences committed before 4th April 2005. Section 67(1) (to be found on the UK Statute Law database, as amended by later legislation), provides that the length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period. Schedule 6 of the 2008 Act adds a further meaning to the words “relevant period” in section 67 of the Criminal Justice Act 1967.
Schedule 6 of the 2008 Act provides:
1. A period specified under paragraph 2 is to be treated as being a relevant period within the meaning of section 67 of the Criminal Justice Act 1967 (c 80).
2 . (1) This paragraph applies where—
(a) a court sentences an offender to a term of imprisonment for an offence that was committed before 4th April 2005,
(b) the offender was remanded on bail by a court in the course of or in connection with proceedings for the offence, or any related offence, after the coming into force of paragraph 1, and
(c) the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”).
(2) Subject to sub-paragraph (4), the court must by order specify the credit period.
(3) The “credit period” is the number days represented by half of the sum of—
(a) the day on which the offender's bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and
(b) the number of other days on which the offender's bail was subject to those conditions (excluding the last day on which it was so subject),
rounded up to the nearest whole number.
(4) Sub-paragraph (2) does not apply if and to the extent that—
(a) rules made by the Secretary of State so provide, 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 as a result of paragraph (a) or (b) of sub-paragraph (4) the court does not specify the credit period under sub-paragraph (2), it may in accordance with either of those paragraphs by order specify a lesser period.
(6) Rules under sub-paragraph (4)(a) may, in particular, make provision in relation to—
(a) sentences of imprisonment for consecutive terms;
(b) sentences of imprisonment for terms which are wholly or partly concurrent;
(c) periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State.
(7) In considering whether it is of the opinion mentioned in sub-paragraph (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them.
(8) Where the court specifies a period under sub-paragraph (2) or (5) it shall state in open court—
(a) the number of days on which the offender was subject to the relevant conditions, and
(b) the number of days in the period specified.
(9) Sub-paragraph (10) applies where the court—
(a) does not specify the credit period under sub-paragraph (2) but does specify a lesser period under sub-paragraph (5), or
(b) does not specify a period under either sub-paragraph (2) or (5).
(10) The court shall state in open court—
(a) that its decision is in accordance with rules made under paragraph (a) of sub-paragraph (4), or
(b) that it is of the opinion mentioned in paragraph (b) of that sub-paragraph and what the circumstances are.
(11) In this paragraph—
“electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 (c 63) for the purpose of securing the electronic monitoring of a person's compliance with a qualifying curfew condition;
“qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day; and
“related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.
Why section 240A was introduced
The introduction of section 240A was one of a number of measures designed to increase the capacity of the prison estate and reduce the projected need for new prison places. In other words it was introduced to free up spaces in prison. The measures were recommended by Lord Carter of Coles in his “Review of Prisons, Securing the Future: Proposals for the efficient and sustainable use of custody in England and Wales.”
The House of Commons was told that the introduction of what became section 240A could provide approximately 200 extra spaces in prison (see Hansard, 9 January 2008, column 366).
By requiring electronic monitoring in addition to the curfew, courts are in a position to ascertain whether or not the records show that there has been compliance with the curfew and thus whether the defendant is entitled to credit.
Does section 240A apply to a period on bail prior to November 3 2008 subject to what were to become relevant conditions on November 3 2008
During the course of the hearing we answered this question “No.”
The submission was made to us that section 240A applies to a person sentenced after 3 November 2008 but whose period on bail subject to the relevant conditions includes a period before that date. Reliance was placed on the words “first” in sub-section (3)(a) of section 240A. As we have seen sub-section (3)(a) provides:
(3) The "credit period" is the number of days represented by half of the sum of--
(a) the day on which the offender's bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, ... (emphasis added).
This argument cannot succeed because, by virtue of sub-section 240A(1)(b), section 240A only applies if the offender was remanded on bail by a court after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008. By virtue of the Criminal Justice and Immigration Act 2008 (Commencement No 3 and Transitional Provisions) Order 2008SI 2008/2712, art 2 and the Schedule, section 240A came into force, as we have said, on 3 November 2008.
We were referred by the respondent to Sherif and others [2008] EWCA Crim 2563; [2009] 2 Cr App R (S) 33 but we do not think that it helps on this point.
If a defendant was remanded on bail before 3 November 2008 subject to what were to become relevant conditions on 3 November 2008 and continues to be on bail for a period on or after that date subject to those conditions without a further court order, does section 240A apply to the period on or after that date?
With the agreement of all parties we answered the question in the affirmative during the course of the appeals and made the consequential orders.
We give an example. D is remanded on bail on subject to the two relevant conditions on 1 October 2008. On 3 November section 240A comes into force. From 3 November D remains on bail for a further 4 weeks subject to those conditions without any further order being made on or after 3 November. Do those 4 weeks count towards sentence in accordance with section 240A?
Common sense would suggest that Parliament intended the days to count. Otherwise every defendant in this position would have to have returned to court and asked to be remanded again on bail subject to the relevant conditions thus clogging up the courts and wasting money. We do not know how many defendants were in this position, although we were told that over 3000 persons were awaiting trial on bail on 3 November.
We were shown a document entitled: “Custodial sentences- credit against time spent on bail with an electronically monitored curfew condition – Guidance for Court Staff” in which it is stated that:
Any person who is subject to an order made before that date [3 November 2008] should not receive credit for that order. However, if the order is varied after 3 November, or a new one made, then the defendant should receive credit from the date of the variation or the new order.”
The argument in favour of this interpretation may be put simply. No defendant remanded on bail before November 3 could be remanded on bail subject to an “electronic monitoring condition” because:
those words mean, by virtue of section 240A “any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person's compliance with a qualifying curfew condition”; and
the section 3(6ZAA) to which reference is there being made is not the old 3(6ZAA) (as to which see paragraph 12 above) but the new one set out in paragraph 7 above which came into force on November 3.
This being so, so the argument would continue, an offender remanded on bail by a court before November 3 2008 subject to what were to become the relevant conditions on November 3, has not been “remanded on bail by a court ... after the coming into force [on November 3] of section 21 of the Criminal Justice and Immigration Act 2008” (see sub-section 1(b) of section 240A). In the absence of an order of the court made after November 3, so it would be argued, section 240A does not apply.
In our view Parliament did not intend that a person in this situation would have to return to court and we give section 240A a purposive interpretation to achieve the sensible outcome that he did not have to do so to enjoy the benefit of section 240A, being a benefit given to make available more prison spaces. We read sub-section 1(b) of section 240A as requiring only that the offender was remanded on bail after the coming into force on November 3 of section 21 of the Criminal Justice and Immigration Act 2008.
What account, if any, should be taken by a trial judge of a period on bail subject to an electronically monitored curfew prior to November 3 or subject to an electronically monitored curfew of less that 9 hours after that date?
At both hearings this issue was reserved for further consideration.
It was submitted that some credit should be given for any period on bail prior to November 3 subject to what were to become relevant conditions on that date and for any period on bail before or after that date subject to conditions which fell just short of the requirements of a qualifying curfew, e.g. electronically monitored curfew for 7 or 8 hours. If credit is to be given it should lead, so it is submitted, to a modest reduction in the sentence.
In Glover and others [2008] EWCA Crim 1782 the appellant Glover had been sentenced to 5 years’ imprisonment, about which there was no complaint subject to an argument that he should have been given credit for a period during which, it was said, he was subject to house arrest. Hughes LJ said:
12. Glover has leave to appeal from the single judge on a particular point individual to him. He was convicted on 8th February 2007 and sentenced to 123 days later on 11th June. Unlike the other defendants he was not remanded in custody between conviction and sentence. The reason for that was because he was seriously ill. He had a very serious heart condition; he was very overweight and the judge was advised by doctors attending him that there was a serious risk that he might suffer a stroke. The judge was advised that he ought, if possible, to be at home. Accordingly, pending sentence, Glover was on bail but subject to both tagging and stringent conditions which prevented him from leaving what we accept was a small house. For the first month he was not allowed out of it at all. After about a month he was permitted two half-hour outings per day.
13. There is no complaint about the five year sentence which was imposed upon Glover, which is accepted rightly to be appropriate to his place in the conspiracy. ... The submission is simply that the period under house arrest on bail between conviction and sentence was for Glover the equivalent of a remand in custody. Whereas if he had been in custody the 123 days would count towards his sentence, unless the judge adjusted the five year sentence Mr Glover's 123 days under house arrest would not. Says Mr Ageros for Glover, the right way to deal with that is to reduce the sentence by eight months to achieve the result which would be the same as if the four months had been spent in custody and counted towards the sentence. Alternatively, says Mr Ageros, if the first submission fails there ought to be some recognition in the sentence by way of reduction of the fact that there was this period of house arrest.
14. The judge was asked to make this adjustment. Clearly after thought, he did not do so. The question for us is whether that was wrong in principle. It seems to us that the judge was quite entitled to decide that the onerous conditions of Glover's bail did not put him in a position equivalent to being in prison, where no doubt he would have been in the hospital. It is perfectly true that bail on conditions which amount to house arrest are not conditions which individuals would choose to have applied to them, but the judge was entitled to say that it is distinctly different from being in prison. In prison Glover would not have been in his own home; he would not have had his own things around him; he would not have been attended by his own family. He would have been subjected to a very much more severe regime -- prison officers, institutional treatment, security and limited visits. It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question for assessment by the judge in each case. This judge was, we are quite satisfied, perfectly entitled to say that this was not the same as being in prison. He cannot be criticised for taking that view. ...
In Sherif Latham LJ said
45. ...
(c)(i) All the appellants were ultimately granted bail subject to an electronically monitored curfew. Siraj Ali, Sherif, Mohamed, and Muhedin Ali were all subject to a 24 hour curfew, in other words house arrest. Abdurahman was subject for a time to a curfew between 7pm and 8am, then 10pm to 8am, and finally during trial to 10pm to 7am. Fardosa Abdullahi was subject to a 12 hour curfew. We have been asked to reflect these periods of curfew in our consideration of the sentences that have been imposed as, in particular in relation to those who have been subjected to house arrest, that is a deprivation of liberty which although not as serious as a remand in custody, nonetheless has a similar effect. It is accepted that under the current legislation, there is no statutory provision which requires the court to do so. But s. 21 (4) of the Criminal Justice and Immigration Act 2008, which received royal assent in May introduces a new s. 240A into the Criminal Justice Act 2003. It came into force on the 8th [sic] November 2008. But it provides that, subject to rules to be made by the Secretary of State, the court will, unless it considers that it is not just to do so, give credit against the ultimate sentence of one half the number of days when a defendant has been subject to an electronically monitored curfew of at least 9 hours a day. It is submitted that we should reflect the fact that Parliament has passed this Act in our consideration of these appeals.
(ii) The issue arose in R v Glover, Cox and Issitt [2008] EWCA Crim 1782. In that case the relevant appellant had been effectively subject to a 24 hour curfew electronically monitored. Hughes LJ in paragraph 14 of his judgment indicated that it was incorrect to equate time spent under a home curfew with time in prison, because life at home was clearly preferable to life in prison; however, he continued:
“It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case”.
(iii) It does not appear as though the court was there addressed on the effect that should be given to the passing of the 2008 Act. In our view, until s. 240A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest. This may justify a modest period of credit in cases such as the present one. The period spent under house arrest were substantial, in the region of 16 months, the figure we consider appropriate is 3 months. But the same considerations do not apply where the curfew is in the night. A curfew period of this sort has been a common place for many years; and whilst the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew. (Underlining added)
Glover and Sherif were followed in Barrett [2009] EWCA Crim 2213 in which the court said that the judge was right to decline to give any credit for a period of time during which the appellant was on a 12-hour night time curfew. Rix LJ went on to say:
14. We are very far from saying, however, that every example of a curfew without electronic tagging should not be reflected in some allowance. There may be particular circumstances in which a judge might think it right to do so. One example might be where both defendants are bailed on curfew, but for some reason one defendant only is bailed on curfew with electronic tagging and the other defendant is not. In such a case the judge may seek to adjust the effect of his sentence between the two defendants by taking account outside section 240A of the curfew suffered by that defendant who did not have imposed upon him in addition an electronic curfew.
The only other case to which we were referred was Cahill [2009] EWCA Crim 1918 in which the court (Hooper LJ, Underhill and Irwin JJ) said that a court should:
consider giving to some modest extent, credit in respect of a significant or substantial period of time spent on electronically monitored curfew but which falls short of the specified amounts set out by Parliament in the provision to which we have made reference. Whether such credit falls to be given and how much is a matter for the judge to take into account given all the facts of the case before the court.
In Cahill the court did not refer to Glover and Sherif.
In our view, following Sherif, no reduction in sentence should normally be given for a period spent on night time curfew. Section 240A was introduced for pragmatic reasons. Those reasons do not justify a departure from the position taken by the court in Sherif.
We now turn briefly to the individual cases.
Rudie Aaron Monaghan
Monaghan was on bail subject to an electronically monitored curfew for 9 hours from 8/9/2007 to 20/05/08 and to an electronically monitored curfew for 8 hours from 20/05/08 to 1/12/08. He was sentenced on 1/12/08 to a total of 30 months’ detention. His application for leave to appeal the sentence relates only to the period which he spent on bail. The judge in respect of the first period ordered that 127 days were to count. In the light of what we have said, he ought not to have done so given that the first period came to an end before November 3 2008.
Mr Amer submits further that credit in the amount of 97 days should have been given for the second period (a total of 194 days). His argument is as follows. By virtue of section 240A(1)(c) one of the conditions for the application of the section is that the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition. He submits that it is sufficient to satisfy the condition at some point during the period on remand and that it is not necessary to satisfy it for the whole period on remand. It is not arguable that section 240A can be interpreted to lead to this result. It is clear that Parliament intended that credit should be given only for any period (on or after November 3) during which the offender was remanded on bail subject to the relevant conditions.
In these circumstances the applicant’s application for leave to appeal his sentence fails. He has been the fortunate recipient of an a credit which he ought not to have received.
Robert Douglas Tyler, Chay Gilbert and Ben Chaplin
Tyler was sentenced to one years’ detention, Gilbert and Chaplin to two years’ detention. All three had been remanded on bail subject to an electronically monitored curfew of 9 hours during the period 24/07/2008 to 11/05/2009. No further order had been made on or after 3 November.
The Recorder declined to give any credit under section 240A for the period spent on remand both at the sentence hearing and at a further hearing sought under the “slip rule” when the Recorder was taken to section 240A in more detail. Mr Chaize for the respondent accepts that the Recorder should have given credit for 95 days in respect of the period 3/11/2008 to 11/05/2009. We agree and so ordered at the Tyler/Gilbert hearing on 21/10/2009 and, albeit with differently constituted court, at the 17/12/2009 hearing for Chaplin.
For the reasons given above there can be no complaint about the failure of the Recorder to reduce the sentences to reflect in some way the period during which the defendants were subject to an electronically monitored curfew prior to November 3.
The Recorder, both at the first and second hearing, said that he would not give any credit because the sentences which he had passed were the appropriate sentences and should not be reduced any further. Such an approach runs contrary to section 240A which comes into play after the judge has decided what the appropriate sentence is. Although section 240A recognises that the court may decide that it is just in all the circumstances not to give a direction under that subsection, the Recorder’s approach would make section 240A ineffective.
Asim Naser
On 23 November 2007 the applicant was sentenced to 4½years’ imprisonment. The judge gave a direction under section 240 of the 2008 Act that 104 days on remand count towards the sentence. He applies for an extension of time of 1 year and 143 days and for leave to appeal his sentence. It is submitted in the grounds of appeal that section 240A should be applied retrospectively to entitle the applicant to credit for a periods whilst he was on bail subject to an electronically monitored curfew of 9 hours and more. Given that he was sentenced on 23 November 2007 and in the light of the reasons which we have already given, this is not arguable. There was also a period of some two months in late 2006 and early 2007 when he was subject to a 24 hour electronically monitored curfew. It is now too late to take any point arising out of that. The application for an extension of time is refused.
Aquib Khan
Khan seeks leave to appeal a sentence of 4 years detention for robbery pursuant to section 91 of the Criminal Courts (Sentencing) Act 2000. The sentence was passed following a trial. Khan was 15 ¾ years old at the time of the offence, having been born in July 1992. It was submitted that the sentence was manifestly excessive. We refused leave to appeal on this ground and we shall now give brief reasons for our conclusion.
The complainant, Granville Johnson, was a taxi driver. At about 9.15pm on Sunday 23rd April 2008 he was called to collect a passenger in Derby. On arrival at Mount Carmel Street, he called the telephone number given by the person who booked the taxi under the name “James”. The call was answered by a person who said, “I’ll be down in two minutes.” The applicant and Idnan Khan, his co-defendant who was also sentenced to 4 years detention, came along Mount Carmel Street. The applicant stood away from the taxi at the side of the road. Idnan Khan approached the taxi and made to grab the taxi’s coin rack, which held about £60. Johnson tried to grab Idnan Khan’s arm, at which point Idnan Khan produced a claw hammer and said, “give me the money you white bastard.” He struck Johnson about 3-5 times with the hammer. The blows hit Johnson on the hands and arms but he said, “I don’t think the hammer connected properly it just grazed me.” He suffered slight cuts and grazes. The applicant then approached Johnson and kicked his legs, which were half out of the car (Johnson having opened his door). The applicant and Idnan Khan then ran off. At some stage Johnson dropped his mobile phone. He did not see the applicant or Idnan Khan take it, but could not find it once they had left. Johnson drove around the area looking for the applicant and Idnan Khan. He did not find for them. The police were called. The applicant’s fingerprints were recovered from exterior of the rear door of the car. During two interviews he admitted being present, but said he only intervened when he saw Idnan struggling with the taxi driver. He denied making any calls to the taxi firm, denied seeing any money after they ran off and denied punching or kicking the taxi driver.
The applicant was linked to the offence by a call having been made to his phone earlier in the day by the number that had been used to request the taxi. His evidence was that he did not know who the number belonged to and the call from this number was a “missed call” with no message left. Telephone records showed the call lasted only a few seconds: consistent with the applicant’s claim that he had not spoken to the caller. The Recorder took the view when passing sentence that this call was evidence of his connection to the planning for the taxi to come to the place of attack.
The Recorder applied the SGC Guideline and found the following aggravating features: more than one offender, the offence was pre-planned and was committed at night. He placed the robbery in level 2. The Recorder noted that the applicant had previous convictions, including for three mobile phone robberies for which in July 2007 he had received an 8 month detention and training order. The index offence was committed four weeks after the expiry of the licence element of the detention and training Order. The Recorder described the applicant as the brains behind the robbery with Idnan Khan being described as “the muscle”.
It is submitted that having regard, amongst other things, to the age of the applicant and to the YOT report recommending a non-custodial sentence, the sentence is manifestly excessive.
Having regard to the facts of the offence, the Recorder’s findings and the previous convictions for robberies, it is not arguable that the sentence is manifestly excessive.
It was also submitted that the applicant was entitled to credit under section 240A for a period on bail subject to an electronically monitored curfew of twelve hours. The period for which credit was claimed was from 30/04/08 to 17/03/09. At the hearing we granted leave to appeal in respect of the period from 3/11/08 to 17/03/09 and directed that 67 days should count towards his sentence. The Recorder had declined to give any credit under section 240A in the light of the Guidance referred to in paragraph 28 above.
We refuse permission in so far as the pre-November 3rd period is concerned. In any event the Recorder said that he had borne in mind the considerable period spent subject to the curfew.