Irving, R. v

THE VICE PRESIDENT: We have heard these two applications together. Each is an application for a considerable extension of time and for leave to appeal if that extension be granted. Each application arises out of omission at the time of sentence to consider the provisions of section 240A of the Criminal Justice Act 2003 which provides for credit to be given against sentence for periods of remand on bail when subject to curfew and tagging conditions.

Section 240A was inserted in the 2003 Act by section 21 of the Criminal Justice and Immigration Act 2008. It was introduced for good and intelligible reasons, that is to say to help free up spaces in this country's overcrowded prisons by encouraging the imposition in appropriate cases of curfew conditions with electronic tagging attached to bail when otherwise a remand in custody might have been ordered.

Sadly, like many other over-complicated provisions relating to the sentencing of offenders, the manner in which the legislation is framed has the unintended consequence of generating frequent uncertainty and sometimes confusion which can lead to purely technical errors being made by sentencing courts and after that to quite significant numbers of wholly unnecessary appeals to this court. All this costs the taxpayer money which ought to be spent on something more useful.

The rule under section 240A is, we hope and believe, now generally well-known. We do not think it is necessary to rehearse the provisions which achieve its effect. For reference they are set out with crystal clarity by Hooper LJ in Monaghan and others [2009] EWCA Crim. 269 and it is to be observed that setting them out takes a number of pages and involves three Acts and a Statutory Instrument. The net effect is that the court is required to make when passing sentence a specific order as to the number of days for which credit is to be given. That number is one-half of the days on which the defendant was subject to a court order for bail containing a condition imposing a curfew for at least nine hours per day and requiring electronic tagging. The first day of such conditions is counted, however long the curfew lasted that day; the last day is not. If the process of halving the number produces a half, that half number is rounded up. The rule only applies to bail conditions imposed after the commencement of section 240A which was 3rd November 2008.

It was no doubt thought to be simple to have the necessary information always before the sentencing court. However, as this court observed in R v Nnaji and Johnson [2009] EWCA Crim. 468, in relation to the similar provisions contained in section 240 in relation to credit for remand in custody, real life is not like that. There have been considerable efforts made by the Court Service to institute procedures which are designed to ensure that the right information is always before the court. Sadly, it sometimes is not. We confess that we are not particularly surprised, although efforts must be redoubled.

What this court said about section 240 in Nnaji applies in very similar manner to section 240A:

Irvine committed three unpleasant bullying robberies at night in the streets in November 2008. After arrest he was granted bail by the magistrates on 1st December 2008. As it turns out that was without the tagging condition. After plea of guilty he was sentenced on 24th April 2009 to two years' detention in a young offender institution. No one appreciated at that hearing that he might have been subject to tagging. That did not occur to anyone until October. The result was an application lodged in this court for leave to appeal in November 2009 which sought no less than six months extension of time. By then the trail was cold. Enquiries of the courts and the tagging contractors yielded contradictory answers. The contractors appear to have had records indicating that he had been subject to tagging from 31st March 2009 to 23rd July 2009. The latter date cannot have been correct because it was three months after he was sent to prison. Eventually, it has now been determined that the true position is that there was a curfew from 1st December 2008 (initially without tagging), but from 31st March 2009 there was added tagging to the curfew because there had been a breach of bail.

To discover this simple fact has involved four different bodies, all paid for by the taxpayer: the solicitors who acted for the defendant, the Crown Prosecution Service, the contractors and this Court's office. There has been correspondence back and forth between virtually every possible combination of those four bodies. In the meantime, because there appeared to be a dispute, a representation order for the instruction of Mr Evans (counsel for the applicant) was necessary and, sensibly, the Crown Prosecution Service has instructed Mr Ellis to be here as well. Every single one of those steps has had to be paid for by the taxpayer. The net result after the expenditure of at least several hundred pounds, and probably a four figure sum, is that Irving is now known to have been on tagged bailed for 24 days, so that the maximum difference which that fact can make to his two year sentence is 12 days.

Squires committed an offence of wounding with intent to do grievous bodily harm on 30th September 2008. After arrest he was before the magistrates first on 4th October 2008. He arrived at the Crown Court on bail. In due course he was convicted after trial on 23rd March 2009 and remanded in custody pending sentence. On 7th May 2009 he was sentenced to five years' imprisonment. The sentencing court knew that he had been in custody since the end of the trial for a period of 51 days and it correctly made an order under section 240 directing that that period should count towards his sentence. What the sentencing court did not know was (a) that he had also been in custody right back at the beginning for about a fortnight from 4th to 21st October, nor (b) that thereafter his bail had had attached to it a curfew and tagging condition. Neither of those facts were appreciated until October and the result is an application to this court for an extension of time of five months or thereabouts. Fortunately the trail was not quite so cold in this case and the efforts of all involved has resolved the position but again not without enquiry at public expense. In his case it is now agreed that if the correct facts had been before the sentencing court there should have been credit for 75 days in custody rather than 51 plus half of 140 days tagged curfew, thus making 75 plus 70, equals 145 days in all. In this case it was possible to avoid the instruction of counsel and the case is listed, as this court will sometimes do, for consideration of the application on agreed facts and without attendance.

These are the two of numerous cases of this kind which occupy the time of this court quite unnecessarily. The principal expense is not judicial time; it is considerable administrative time. The staffing of this Court's office is limited and fixed. The court is overloaded and the result is that other meritorious cases are pushed back in the queue. That is especially so where, as often happens, the error is appreciated only when the prisoner's release on licence draws near and there is then a request for urgent attention to be given to the case.

Quite apart from the expense and time-wasting which this involves, these cases must also leave prisoners in a state of uncertainty about how long they must serve. Likewise, their families, wives and children in particular, who do not know when the defendant is coming home. That is unfair to them and, as it seems to us, it can only worsen the prospects of orderly transition from custody to licence which is something upon the success of which the public at large depends. None of it need happen.

The first remedy is out of our hands, but we echo what the court said in Nnaji. If section 240 and 240A provided that time, or half time as the case may be, should be credited against sentence unless the judge directed otherwise, rather than requiring attention by every sentencing judge in every case, most of the undesirable consequences which we have rehearsed would be avoided and they would be avoided without in any way detracting from the aims of the statute. Only Parliament can achieve this change and only of course if Parliament judges that it is the right thing to do. We would merely urge that consideration be given to making that change. If it is to be done it would be better if it be accomplished as soon as a convenient opportunity presents itself.

In the meantime there are four things which courts and practitioners can and, we are afraid, must do:

In Irving the total time at stake is 12 days in the context of a two year sentence. The trial judge did not make a formal deduction under section 240A although he did indicate that he was aware that the defendant had been subject to a curfew for some little time. He had no reason to distinguish between qualifying tagged curfew and unqualifying untagged curfew.

In future that kind of case is likely to encounter severe difficulties in obtaining a long extension of time for leave to appeal. We are conscious, however, that at the time that this happened to Irving the legislation was new, he would not have been expected to appreciate it and, as Mr Evans has been at commendable pains to explain, he did not appreciate the point either.

In the circumstances, we shall in this case, but not necessarily in future similar ones, grant leave, grant the extension of time and substitute for the sentence passed one giving credit for 12 additional days.

In Squires the time at stake is much longer. It amounts to nearly three months. We are troubled by the delay in spotting the error and again in such a case we would expect that there may well be an uphill task in future in obtaining an extension as long as five months. But again we are dealing with this case before the warning which we have now issued had been known. We are prepared to grant the extension. We vary the sentence passed to the extent of substituting for 51 days to count against sentence the period of 145 days. Otherwise in each case the sentences remain unaltered.