Kerrigan & Anor, R. v

THE VICE PRESIDENT: These two otherwise unconnected appeals have been heard together this morning because they raise the same issue. The appellants have leave to argue whether they were entitled to credit for time spent in custody awaiting sentence which coincided with time spent in custody having been recalled on licence.

Walker was born on 29th August 1992. He was aged 20 on conviction, he is now 22. He had one previous conviction for aggravated burglary. In 2010 he committed an extremely serious offence of burglary of an isolated farmhouse occupied by an elderly couple. This offence was committed jointly with Stephen Killip. In April 2011 he was sentenced to 44 months' detention. On 30th July 2012 he was released on licence with a condition of non-association with Killip. On 24th February 2013 Killip committed an unrelated offence of grievous bodily harm. On 26th February 2013 both the appellant and Killip committed the instant offence of attempted robbery.

The facts are that the appellant provided Killip with a large hunting knife and drove him to a petrol station on the A590 in Cumbria, where he waited for him to commit a robbery in the station shop. At around 1.30 pm Killip entered the shop, wearing ski gloves and a full stocking-type head covering, and holding the knife. He stood five feet from Michelle Rawlinson, the only member of staff present. He threatened her with the knife and demanded cash. Terrified, she screamed. This drew the attention of a mechanic working nearby. Killip ran off and was driven away from the scene by the appellant Walker.

Following the attempted robbery police were able to locate Walker quite quickly and arrest him. His vehicle was searched and various items recovered, but at that time not the knife. Messages on Walker's phone implicated Killip. Walker was charged and remanded in custody. He was then recalled to prison on 28th February 2013.

Efforts were made to trace Killip, and after several days he was located and arrested for the robbery and another matter. He denied both offences put to him but he too was recalled to prison on licence.

The investigation continued in relation to forensic examination of the items that had been found, as well as analysis of telephone traffic and cell site data. At the same time another police force was investigating Killip for a serious assault. This all caused some difficulties for the officers investigating the attempted robbery in gaining access to Killip in prison.

On 21st May 2013 the appellant pleaded guilty to the offence of attempted robbery. That summer the knife was recovered from the vehicle in which it had been hidden and police gained access to Killip in prison at last to interview him. He too was charged with the robbery.

On 17th February 2014 Killip pleaded guilty to the attempted robbery. On 19th February 2014 he pleaded guilty to the separate offence of grievous bodily harm and was committed for sentence.

On 3rd April 2014 both Walker and Killip appeared for sentence before Her Honour Judge Beech. During the course of submissions the judge was invited to allow the appellant credit for the time he had spent in custody. In rejecting those submissions she observed:

The appellant received an extended sentence of 98 months: 50 months with an extension of 48 months. Killip received an extended sentence of 11 years six months and a five year extension for the offences of grievous bodily harm and attempted robbery.

10th October 2014 would have been the sentence expiry date for the original offence of aggravated burglary. The appellant Walker now has a conditional release date for the attempted robbery offence of 10th January 2017 and an expiry date for that sentence of 1st June 2022.

Grounds of Appeal for Walker

Mr Dyer's grounds on behalf of Walker fell into three categories. First, he argued that the sentence was manifestly excessive in that it failed to give sufficient weight to the mitigating factors. In particular the judge should have placed greater emphasis on the facts:

The second category consisted of a challenge to the finding of dangerousness. Mr Dyer argued that the finding and the imposition of an extended sentence were not justified because:

In his third category Mr Dyer focussed on the effect of recall. Mr Dyer observed that the appellant Walker had served approximately ten and a half months in custody for breach of his licence prior to sentence. There was a significant delay between his plea of guilty and his sentence which was not his fault.

The basic principle of sentencing offenders to custody is that a custodial sentence shall be for the shortest term which in the opinion of the court is commensurate with the offence committed (see section 153(2) of the Criminal Justice Act 2003). A court should always consider the total period of time that a defendant will spend in custody from the date of recall and decide whether any adjustment should be made to the sentence. This was said to be particularly important where it is only the new offence which has put the offender in breach of his licence, the delay is outside his control and the breach of licence has been treated as an aggravating feature of the new offence.

Mr Dyer foresaw entirely arbitrary results if judges simply ignore the length of time that an offender spends in custody while effectively serving two sentences. Some defendants may effectively serve little or nothing by way of an additional punishment for the new offence; others may serve many months which will not count towards the sentence for the new offence as the appellant did.

Mr Dyer criticised the judge for failing to understand that the appellant was not bound to serve the whole of the balance of his original sentence. He submitted the judge was obliged to take account not only of the fact that the new offence was committed in breach of licence, but also of the effect of the delay before he was sentenced. He rejected the notion that Walker brought the delay upon himself by continuing to associate and offend with his co-accused. He contended the delay was all to do with the proceedings against the co-accused and totally outside his control.

In summary, he complained that the appellant Walker has been suffered undue prejudice the remedy for which is to make some reduction in the sentence.

The single judge was impressed by only one of those grounds, the last. He observed:

With those observations we whole-heartedly agree and we can dispose of the grounds rejected by the single judge swiftly. Compared to some, the appellant Walker's criminal record may have been relatively short, but the offences were serious and suggested a very worrying trend. Having considered all relevant aspects of the appellant's life, the author of the pre-sentence report concluded that Walker posed a high risk of serious harm to the general public. There was ample material to support that assessment and the judge cannot be criticised for reaching the same conclusion.

Thereafter the judge followed the guidance of the Sentencing Council to the letter. This was an attempted robbery that involved planning, the use of face covering and a lethal weapon to ensure the compliance of a vulnerable victim. The facts that the offence was committed when on licence for an earlier offence also committed with Killip, and which also involved the use of face covering, weapons and violence towards vulnerable victims, were significant aggravating features. They provided ample justification for the sentence passed, subject only to the issue of time spent in custody to which we shall return.

We turn to the facts in Kerrigan. Kerrigan was born on 5th May 1988, he is now 26. He had 17 previous convictions. Most recently, on 20th March 2011 was sentenced to three years' imprisonment for an offence of domestic burglary. He was released on licence at the halfway point on 19th September 2012. He committed an offence of robbery on 28th July 2013.

The facts of that robbery that are that the complainant, Matthew Starnes, was walking home at about 4.15 am from a nightclub in York. He became aware of two men on the opposite pavement walking slightly ahead of him. He overtook them and a few seconds later, Male 2 appeared at his shoulder, asking for a cigarette. The complainant said he did not smoke. The complainant then felt an arm around his neck from behind and he felt the grip tighten. This was Male 1. Male 2 said, "Put him to sleep, put him to sleep". As the complainant sank to the ground, he heard Male 1 say, "Punch him, punch him" and then felt several blows to his face from Male 1. Male 2 then said, "Tell us where your stuff is". The complainant lost consciousness for a few seconds. When he came round he could still see and hear the men. He checked his pockets and realised his belongings were missing. He reported the robbery at the police station and the loss of a £250 mobile phone, a set of keys and his wallet containing cash and bank cards.

At 4.52 am his girlfriend was woken by a missed call from his mobile phone. She called the number and a male voice said, "We have your boyfriend. If you want to see him again you will have to pay". She hung up. Shortly afterwards she called the number again on two occasions and, in response to her request to speak to the complainant, she was told by the person at the other end that they had him in the back of a car and if she wanted to see him again she would have to pay money, otherwise they would shoot him. At this stage she wisely called the police.

The appellant was identified from CCTV footage as one of the suspects. When officers attended his home they seized a SIM card which came from the complainant's phone. He was arrested and made no comment in interview. His suspected accomplice in the robbery was a young man called Shaun Chapman.

After being charged, Kerrigan was recalled on licence on 29th July 2013 to serve part or the remainder of the sentence for the burglary, with an expiry date of 20th March 2014.

On 12th August 2013 he indicated a plea of guilty to the robbery but still faced trial on two further counts of robbery allegedly committed in July 2013. On 25th November he appeared at York Crown Court for a preliminary hearing in relation to those other counts. Chapman also faced a trial on the charge of robbery. Following good sentencing practice, the judge adjourned all matters so that all offences and all co-accused could be dealt with together.

On 27th November 2013 the prosecution offered no evidence against Chapman. On 30th January 2014, at the plea and case management hearing for the two other counts of robbery Kerrigan faced, the prosecution did not oppose an application to dismiss one of them. Fresh prosecuting counsel was instructed to advise. On the basis of that advice, on 21st March 2014, the Friday before the trial of the remaining count, the prosecution formally offered no evidence.

The judge, the Recorder of York, His Honour Judge Ashurst, then proceeded to sentence on the Starnes robbery to which the appellant had pleaded guilty some months before. He sentenced the appellant to four years' imprisonment. His conditional release date is 20th March 2016, with a sentence expiry date of 20th March 2018.

Grounds of Appeal: Kerrigan

On Kerrigan's behalf, Mr Blatchford submitted that the sentence is manifestly in all the circumstances, particularly the return to prison. He complains that the sentencing judge failed to give Kerrigan any reduction in sentence for the time that Kerrigan had served between pleading guilty and being sentenced, some seven months later. This would equate to a 14 month custodial sentence. The delay in sentencing, Mr Blatchford argued, was entirely the fault of the prosecution and caused unfair prejudice to the appellant. The Crown Prosecution Service should have reviewed the two outstanding robbery counts at an earlier stage. Had they done so they would have offered no evidence significantly earlier. The appellant would have been sentenced earlier and he would have begun serving his sentence earlier. The sentence would have run concurrently with his recall to prison and he would have received limited additional punishment. Because of the delay the appellant has served a significant period of time on licence recall. His remand that has not counted towards his new sentence. The timing of events means that, but for one week of remand time, the court has effectively passed a consecutive sentence. This, Mr Blatchford reminded us, is unlawful pursuant to section 265(1) of the Criminal Justice Act 2003.

Legal framework

We turn to the legal framework. A helpful analysis of the complex statutory provisions governing this area of the law is to be found in the decision in Costello [2011] 1 WLR 638 and the judgment of Hughes LJ, Vice President of the Court of Appeal Criminal Division. The court considered the problem presented by the cumulative effect of sections 255A to 255D, 256 and 265 of the Criminal Justice Act 2003 and the repeal of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. We do not propose treading the same complicated ground in unnecessary detail.

In summary, the court concluded that judges do not have the power to ensure that an offender receives additional punishment for an offence committed during a period of release on licence. A judge may no longer order that a defendant be returned to prison to serve such remaining part of an existing sentence the court considers appropriate and a judge may not order that a sentence for an offence committed on licence should run consecutively to the original sentence. Further, any attempt to inflate the sentence for a later offence, as the judge did in Costello, would circumvent the effect of the enactment of section 265 and the repeal of section 116 and would be wrong. The court reached this conclusion unenthusiastically and suggested that consideration be given to reinstating the power formerly contained in section 116. In the meantime the court was forced to accept what it described as an unjust statutory anomaly.

Next, to calculate time spent remanded in custody as time served we must turn to the provisions of section 240ZA of the Criminal Justice Act as amended by the Legal Aid, Sentencing and Punishment of Offenders act 2012. Where relevant, it provides:

These provisions were considered by the Divisional Court in Archer v Governor of HMP Low Newton [2014] EWHC 2407 (Admin). At paragraph 8 of the judgment Treacy LJ described the provisions in this way:

Much to their relief, judges are therefore no longer responsible for calculating and announcing how many days spent on remand should count towards sentence.

Mr Lodato for the respondent, in his extremely helpful submissions, described the grounds of appeal in both cases as a call to return to the system whereby the judges did just that. He argued the appellants are asking in some form or another for judicial directions that time spent on remand for offences committed on licence should be counted as time served, notwithstanding that the time coincides with serving another sentence on recall. This, he submitted, would be in clear breach of the provisions. Section 260ZA could not be clearer: offenders have no right to receive double credit for time spent in custody in relation to two different matters.

Mr Lodato conceded that there may be circumstances where a sentencing judge may reduce the sentence she would otherwise impose to do justice on the particular facts and to reflect exceptional factors, such as lengthy delay. He took us to the provisions of Article 6 of the European Convention on Human Rights, which provides that proceedings must be concluded within a reasonable time and delay may count as a mitigating factor in some circumstances. However, he rightly pointed out that the reasonable time requirement is designed to protect against prolonged and unreasonable periods of delay that cause an accused person to remain too long in a state of uncertainty about their fate. The threshold is a high one. Accordingly, Mr Lodato asserted, with little or no dissent from the appellants' counsel, that it cannot be said that delay alone here breached the appellant's rights under Article 6.

In Dyer v Watson; K v HM Advocate [2004] 1 AC 379, Lord Bingham of Cornhill set out at paragraphs 52 to 55 the key principles to be applied. He observed:

In the Attorney General's Reference No 79 of 2009 [2010] EWCA Crim 338, the Court of Appeal considered the effect of delay on sentence. At paragraph 19, Hughes LJ VP held that delay:

Relevant Principles

We extract from these decisions and the statutory provisions themselves the following principles relevant to these appeals:

Applying those principles to the facts here, the appellants do not qualify for any automatic reduction in their sentences. They breached their licence, they were recalled to serve the balance, or part of the balance, of an existing sentence and they were, therefore, detained pursuant to a custodial sentence for most, if not all, the time they were on remand in relation to the subsequent offence. In those circumstances Parliament's intention is clear: a day counts as time served in relation to only one sentence. Section 240ZA prohibits double counting. Unless, therefore, the appellants can bring themselves within the judge's general discretion to do justice, the periods they spent on remand which coincided with time spent in custody on recall should not be counted twice.

We turn to the overall circumstances of both their cases and the effect of delay. We consider whether there has been any injustice that requires correcting.

First, we should observe that we are satisfied that neither appellant comes close to satisfying the high threshold for the breach of the reasonable time requirement. The delay in each case may not have been ideal, but it was far from excessive and there was a satisfactory explanation. The general principle is clear that, where possible, an offender should be sentenced for all outstanding matters at the same time and with any co-accused.

Second, we accept that the delay has meant the appellants have been prejudiced, but only in the sense that they cannot benefit from what the court has described as an “unjust anomaly”. They were well aware of the possible consequences of committing an offence on licence and their fate was far from uncertain. They may have had to wait rather longer than would normally be the case to know their ultimate fate, but throughout they could not have been in any doubt that they were to receive a further sentence of imprisonment of some length. As Mr Lodato observed, the ultimate sentences fell within a predictable and limited range of available sentences; any uncertainty was restricted to fine margins.

Thus, Walker's ten and a half months in custody for breach of his licence prior to sentence was the consequence of his associating with Killip and offending on licence, about which he had been warned. Had he not continued to associate with Killip and commit offences with him, he would not have found himself in the position he did. The delay therefore was in part due to his own conduct and in part due to the normal trial and sentencing process.

Similar considerations apply to Kerrigan. It might have been better had the prosecution been able to review the evidence in his case and his co-accused’s case to reach a decision on the progress of outstanding matters, but the delay was far from excessive. It was not of a kind which has caused the court concern in the way Lord Bingham described.

Accordingly, we can see no injustice in either case which would merit our interference and a reduction in their sentence.

Further, although each may well be behaving appropriately in prison, there is nothing to suggest that either has made exceptional progress or turned his life around during the course of the delay in his case. They have no legitimate expectations of any kind.

We are satisfied that the sentences were not excessive and the appeals must be dismissed.