Boutell, R. v

LORD JUSTICE THOMAS:

1. In R v Nnaji and Johnson[2009] EWCA Crim 468, [2009] 2 Cr App R(S) 107, the court began its judgment:

"1. There are before the court two appeals which demonstrate the continuation of significant problems which arise out of the change of the law brought about in April 2005 by the implementation of section 240 of the Criminal Justice Act 2003."

At paragraph 8 of its judgment the court referred to the fact that an amendment to that Act to add s.240A, brought about by section 22 of the Criminal Justice and Immigration Act 2008, provides that time spent on curfew, if the curfew is for more than a certain number of hours, accompanied by tagging, will count as time on remand for half the time of the curfew. The court observed:

"It is apparent that obtaining this information will add to the complexity of these calculations for the trial court and no doubt, if the calculation is not made correctly when the matter is before the trial court, will add significantly to the complexity of trying to resolve the matters in this court."

2. In the current applications this court could have begun its judgment:

"There are before the court two cases which demonstrate the continuation of yet further significant problems which arise out of the change to the criminal law brought about by section 22 of the Criminal Justice and Immigration Act 2008, brought into force in November 2008 which added section 240A to the Criminal Justice Act 2003."

3. The problems that have arisen under the amendment by adding s.240A became apparent in decisions of this court given in R v Irving and Squires[2010] EWCA Crim 2010 and R v Smith and Others[2010] EWCA Crim 1439. Each of those cases dealt with the calculations and difficulties that arise where an offender is given bail with a condition of curfew and electronic tagging of more than nine hours.

4. The calculations under section 240 were difficult enough. Those under section 240A have proved more complicated because it appears that it is not often appreciated that tagging has taken place, and information is not therefore before the court in relation to it. The problems under sections 240 and 240A have caused not only difficulties for the staff in the Crown Court and in the Prison Service, and for defence counsel and counsel for the Crown in checking the calculations, but often those calculations are proved to be wrong or matters have not been correctly appreciated.

5. In Nnaji this court drew attention to the costs that were incurred in rectifying those errors. It was calculated that the costs of this court were in the region of £1,000; but that is not the end of the cost that the State has to pay. It does not include the costs incurred by the Prison Service in their calculations, nor the time taken in the Crown Court to retrieve a file some time after the event. It does not include the costs that have to be paid to the legal representative to draft the Notice of Appeal in an attempt to rectify the error, nor those incurred by the Crown Prosecution Service in re-checking the position some time later.

6. It is very disappointing that, seventeen months after the judgment in Nnaji and at a time of acute financial problems, the plea that the Court made then that these sections be revisited has gone unheeded; that plea was re-iterated in Irving and Squires. Public money is plainly needlessly being thrown away because of inaction in dealing with a problem that has brought nothing but difficulties, despite every attempt by the judiciary to try to cure it. These two cases are a further illustration of the continuing difficulties.

R v Darren William Ricketts

7. On 24 April 2008, in the Crown Court at Leicester, for two offences of damaging property and assault, the applicant Ricketts was sentenced to 26 weeks' imprisonment suspended for a period of two years. On 24 September 2009, in the Crown Court at Leicester, before Mr Recorder Rafferty QC, the applicant was convicted of wounding with intent and sentenced to five years' imprisonment. The suspended sentence was activated in full, but ordered to run concurrently with the sentence of five years' imprisonment.

8. In accordance with a formula that this court had suggested in R v Gordon[2007] EWCA Crim 165, the Recorder said:

"You will serve one half of that sentence, less any time that you have already spent in custody. I am told it is 176 days. If it proves to be a different figure then you will serve the figure that is calculated, in the sense you will serve one half less that calculated figure."

9. Some months later, but more than the time allowed to correct sentences under the slip rule, it became apparent that the applicant had also spent 56 days on bail with a condition of curfew of more than nine hours, accompanied by electronic tagging. The advocate who had appeared on behalf of the applicant at the Crown Court on 24 September 2009, the Prison Service and everyone else had overlooked that matter. No blame can be attributed to the Recorder because he was not told that there was any question of electronic tagging. The Crown Court was asked to rectify the matter, but it took the view that in the light of what the Recorder had said, its power was limited to correcting the time that had been spent in custody on remand and that the Crown Court did not have power to correct the time that had been spent subject to an electronic curfew.

10. In December 2009 an application was prepared for this court. However, yet again due to errors that occurred the application was not lodged until 30 June 2010. Checks carried out by this court have confirmed that the period of 56 days was spent on electronic curfew. That would mean that the applicant would be entitled to a credit of 28 days if the time was to be deducted from his sentence. We shall return to that after we have dealt with the second application.

R v Mark Boutell

11. On 19 October 2009, in the Crown Court at Doncaster, having pleaded guilty to supplying a controlled drug of Class A (heroin), the applicant Boutell was sentenced by Her Honour Judge Davies to three years and three months' imprisonment. A suspended sentence of twelve months' imprisonment passed at the same court on an earlier occasion was activated to the extent of six months, which was ordered to run consecutively to the three years and three months, making a total sentence of three years and nine months' imprisonment.

12. No one drew to the judge's attention that the applicant had been subject to a curfew with electronic tagging for twelve hours a day during the period 13 February to 30 March 2009. Thereafter, the applicant had been on unconditional bail. As the applicant had spent no time in custody on remand, and as no one drew to the court's attention the time he had spent on curfew, the judge did not use any version of the various formulae that have been suggested to cover errors in the calculation of the period.

13. The error was not spotted until an application for leave to appeal was lodged some considerable period after the date of the sentencing hearing. Checks have now been made and it is apparent that he did spend time subject to an electronic curfew and therefore an allowance should ordinarily be made.

Cases where the judge has used words expressly encompassing custody but has not expressly mentioned curfew/tagging

15. As regards Ricketts, the question is what did the Recorder intend when he made the remark that he did? Was he confining himself to the period that the applicant had spent in custody; or did he intend to include the periods that might have been spent under electronic curfew? This is not a question of statutory construction but of trying to interpret what the judge meant. We are quite sure that if he had been told that there was a period of relevant curfew he would have said that should count towards sentence.

16. It seems to us that for the future, where a judge uses words that refer only to remand in custody, but there transpires subsequently to be a period of curfew that should be taken into account, the words used can be understood to encompass the period on curfew. That is plainly what any judge would ordinarily intend. He would have allowed such a period, as the greater form would have included the lesser. In the future therefore, where a judge has merely referred to a "period in custody", we consider that that can ordinarily be understood to include any period for which an offender has been on a tagged curfew so that the power to deal with the matter at the Crown Court, where a reference to time spent in custody on remand has been made, will include a power to deal with time spent on curfew, even if there has been no express statement to that effect.

Position where a judge says nothing at all about time on remand in custody

17. However, in the case of the applicant Boutell, nothing at all was said. The Crown Court therefore had no power and we must deal with the matter. For the future, if an urgent amendment to the legislation is not made, consideration will have to be given to dealing with the possibility that periods spent either in custody on remand or on curfew have been wholly overlooked, and therefore nothing has been said to the judge about it, and therefore the judge has said nothing about time spent on remand in custody or under curfew.

18. In an earlier case in our list today, it appears that the judges at another Crown Court centre deal with the problem by saying the following:

"I direct that any days which you have been remanded in custody or which otherwise are capable of counting for the purposes of section 240 should count towards the service of your sentence. Thereafter you will be released."

It seems to us that it could be said that the use of such a formula was a reductio ad absurdum of the position under section 240 and 240A, if the position has been reached that a judge in a Crown Court centre is driven to using a formula such as that. It seems to have arisen because the accuracy of the information or mistakes are such that it is thought at that Crown Court centre that a judge has to make a statement, even though no information is available before him that there are any relevant periods. However this practice can be seen as negating the intended transparency of the exercise the judge is called upon to perform under s.240 and s.240A.

Conclusion in the present appeals

21. Cases like that of Boutell will have to come to this court in the absence of legislative amendment. However we remind defence advocates and defence counsel of their duty to enquire into these matters at the sentence hearing as set out in Irving and Squires and the difficulties which may face them in this court if they do not. We trust in cases such as that of Ricketts they can now ordinarily be dealt with in the Crown Courts and thus sums well in excess of £1,000 (probably nearer £2,000) can be saved in this way on each such case in this time of national austerity.

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