Marshall & Ors, R v

Since section 240A of the Criminal Justice Act 2003 (introduced by section 21 of the Criminal Justice and Immigration Act 2008) came into force in November 2008, it has been necessary for the sentencing court to specify the number of days that will count towards sentence in consequence of time spent on remand subject to a qualifying curfew.

Despite the court's best endeavours, guidance in R Hoggard [2013] EWCA Crim 1024, [2014] 1 Cr App R(S) 42, as to the procedure to be adopted in the Crown Court, and additional guidance in R v Thorsby and Others [2015] EWCA Crim 1, as to the procedure to be adopted in this court, is being ignored. Hence this Special Court has been convened today so as to re-affirm and re-emphasise the relevant principles.

So as to ensure that the court has the fullest possible information, any court imposing a curfew with a tagging condition should use the relevant form (the record of electronic monitoring of curfew). The form should be included with the case papers and accompany them wherever the case is sent. At any subsequent sentencing hearing solicitors and/or counsel for the defendant should ask him whether he has been subject to curfew and tagging. If he says that he has, they should ascertain the details. It is also the duty of the Crown Prosecution Service to have in place a system to assist the court. The parties should then be in a position to inform the court of any issue as to time spent on a qualifying curfew.

With the necessary information to hand the sentencing court must take the following steps:

To avoid difficulties the court in Hoggard helpfully provided a form of words for sentencers to use:

For present purposes the two relevant paragraphs of Thorsby are paragraphs 28 and 29. An applicant who applies for leave to appeal will be expected to attach to his application either his agreement with the prosecution as to the number of days credit, or the relevant documentation to support his assertion that he is entitled to X days' credit under section 240A. It is the responsibility of the applicant's representatives, not the Court of Appeal Office, to make enquiries with the lower court and the monitoring company, and then seek the agreement of the prosecution. The applicant must then state that the calculation is agreed, or identify the nature and extent of any dispute. The court expects the Crown Prosecution Service to investigate as a matter of urgency and at a sufficiently high level.

Applicants (or their lawyers) will be expected to provide a witness statement explaining when and how they became aware of an error in the court's calculations or order. There should be no further unnecessary delay.

The advice in Thorsby could not be clearer; yet still applications are being lodged without agreement from the Crown on the number of days spent on qualifying curfew, and with no accompanying statement from the applicant's solicitor setting out why an extension of time should be granted. They are being lodged late, so that they demand an urgent response from the Court of Appeal Office. Further, some local Crown Prosecution Units are not responding to requests from the defence solicitors for an agreement. As a result, the Court of Appeal Office is spending a disproportionate amount of time and resources on correcting errors.

In future, if the requirements in Thorsby have not been complied with, the Criminal Appeal Office will no longer progress applications on behalf of represented applicants. The Registrar will notify the applicant's solicitor of the duty to comply with Thorsby before anything can happen. The CPS Appeals Unit has undertaken to assess the number of days. If the calculations are agreed, the single judge will be able to give leave and send the mater to the full court for a formal declaration without any need for representation. If the calculations are not agreed, the single judge may prefer simply to refer the matter to the full court for resolution, without giving leave or making a representation order. If the Registrar is satisfied that the Crown Court has used the appropriate words, allowing them to amend the days administratively, he will notify the parties that the Crown Court retains jurisdiction and that initially he intends to treat the application as ineffective. The applicant can then ask the Crown Court to re-list the matter and resolve the issue.

Practitioners must appreciate that they have a duty to comply with the court's requirements. If they continue to ignore those requirements there may come a time when, in the case of serious misconduct, the court will be forced to report any offender to their professional body for a failure to comply with their professional obligations and/or consider making a costs order. The liberty of the subject is at stake and this issue is not to be taken lightly.

We turn to the facts of the individual cases.

On 7^th April 2014 the applicant (who was disqualified from driving), took a valuable Mercedes without consent. He drove without insurance. The car was traced and police tried to stop the vehicle. The applicant drove dangerously at speeds between 30 and 80mph in a built-up area, pursued by police cars and a helicopter. He caused a moped driver to crash and to sustain injury. Following his arrest he was released on bail with a qualifying curfew.

On 3^rd July 2014 he was seen driving a van. He reversed at speeds in excess of 50 to 60mph, knocking over several bins and crashing into a Citroen car, causing it to mount a pavement and hit another car. Police officers on foot waved their arms to try to get the applicant to stop. He drove towards them, causing them to move out of the way, and he then drove off. The van was later found abandoned. The applicant then failed to comply with his bail conditions in respect of his tagged curfew and effectively went on the run.

On 23^rd July 2014 he was arrested. On 25^th July he was remanded in custody for other matters.

On 6^th January 2015 he pleaded guilty to various offences and was sentenced to a total of two years and three months' imprisonment. On 28^th April 2015 an application for leave to appeal against sentence was received in the Court of Appeal Office, accompanied by a short Advice from the applicant's legal representative, Mr Sharma, simply setting out dates of the time on curfew and amount of credit allegedly due.

The Court of Appeal Office was forced to conduct its own inquiries. On 7^th May 2015 it requested bail documents and other relevant documents from Croydon Crown Court. The Registrar then directed that the applicant's solicitor must lodge a statement and agree the number of days with the prosecution, pursuant to the judgment in Thorsby.

On 26^th May 2015 the matter was re-listed before the Crown Court. No one has accepted responsibility for the listing. Mr Sharma appeared for the applicant. He invited the sentencing Judge to direct that time spent on qualifying curfew should count towards the sentence. The Judge questioned whether she had the power, given that this was outside the slip rule. Mr Sharma informed her, wrongly, that the Court of Appeal had refused to deal with the matter and had sent it back to the Crown Court. He claimed that he had telephoned the office and had received no response to his inquiries. Miss Milson, who appeared for the Crown, in the belief that the Court of Appeal had refused to deal with the matter, agreed that the Crown Court Judge must have jurisdiction. The Judge asserted several times that she would only act on the basis that the matter had been sent back to her by this court. She then purported to give a direction that the advocates invited her to do: she directed that 54 days spent on a qualifying curfew should count towards the sentence (this being half of the 108 days that the applicant was said to have spent on curfew).

In July 2015 the applicant was released. The same month Mr Sharma confirmed by email that the sentence had been amended by the Crown Court. On 7^th September 2015 the Registrar referred the application for leave to the full court and directed that Mr Sharma provide an explanation to the court as to how the matter came to be re-listed.

In a witness statement dated 21^st September 2015, Mr Sharma provided a similar explanation to that he had given to the Crown Court Judge: that he had understood that the matter was to be heard in the Court of Appeal, but that he had obtained no response from the Court of Appeal Office and therefore assumed that somehow the matter had been re-listed at the Crown Court as a result of a Court of Appeal decision.

The court directed that Mr Sharma should attend, because this explanation was not considered adequate. Mr Sharma did not respond to that direction, and therefore the court had to issue a witness order. He attended before us this morning. He accepted that we should not have been forced to issue a witness order and he apologised for the way in which he had conducted aspects of the case. He assured us that he had not deliberately misled the court or failed in his duty. However, when pressed, he was forced to concede that his choice of words on 26^th May may have had misled the court and the prosecutor. Further, we now know that his calculations were wrong.

The Crown Court had no jurisdiction to make a direction under section 240A outside the 56 days allowed for the slip rule, and in the absence of the form of words used in Thorsby. Had the advocates at the sentencing hearing raised the issue, and had these words been used, this hearing would not have been necessary. Considerable time and effort have gone into preparing the case for us; time and effort better spent elsewhere. However, having heard from Mr Sharma this morning, we have decided on this occasion to make no further order as far as costs are concerned.

We are left in the position that the applicant was entitled to credit for no more than one-half of 85 days – not 108. The unlawful order has resulted in his early release from prison and he has benefitted from an additional 12 days' credit.

Mr Heptonstall, in his customary helpful submissions, has considered and rejected a number of options. There remain two. One would involve giving leave, quashing the order and substituting the new figure of 43 days. This would mean the applicant having to return to prison and, arguably, would be beyond our powers, falling foul of section 11(3) of the Criminal Appeal Act 1968. Section 11(3) provides that this court cannot pass a sentence that would result in a harsher sentence overall. The other option would involve giving leave, quashing the direction made by the judge and substituting for it a figure that would not lead to the applicant's return to prison.

Given the circumstances, in our judgment it would be disproportionate and wrong to pursue this matter any further. We shall determine the issue in the applicant's favour.

Accordingly, we give leave. We allow the appeal and we substitute a lawful direction under section 240A for one-half of 108 days, namely 54 days. For the avoidance of doubt, we shall use the words in Hoggard: the appellant (as he now is) will receive full credit for half the time spent under curfew because the curfew qualified under the provisions of section 240A. On the information before us the total period is 108 days, but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded.

We should add that the application for leave to appeal against sentence was far too optimistic. There was nothing excessive about the total sentence in the light of the repeated and serious nature of the applicant's offending.

Marshall faced different sets of charges and this led to confusion. The first set of charges stemmed from October 2007, when he was charged and remanded into custody. In April 2008 he was bailed with a qualifying curfew. In November 2008, section 240A came into force. In January 2009 there was a hearing. There was then a second set of charges. In June 2010 he was charged and remanded into custody. In June 2011 he was bailed with a qualifying curfew on both cases which were later joined. In March 2012 the curfew condition was removed.

On 7^th August 2013 Marshall was convicted of a single count of possession with intent to supply cocaine. He was surprisingly bailed yet again until sentence with a qualifying curfew.

On 20^th September 2013 he was sentenced to ten years' imprisonment. The judge directed that credit be given for ten days spent on remand on custody and whilst on qualifying tagged curfew. The record of qualifying curfew runs on to 25^th September. There seems to have been a failure to inform the monitoring company to cancel the tag. Pursuant to this order credit was initially given for 553 days of tagged curfew. By order of 19^th November 2013 His Honour Judge Parker QC, acting on information provided by the monitoring company Serco, directed that the number of days should be reduced to 159.

Marshall has been granted leave to appeal against sentence limited to the calculation under section 240A. It is said that insufficient credit was given for days spent on tagged curfew between April 2008 and November 2008 (period one), and after 3^rd November 2008 (period two). The difference is significant: 264 effective days.

The single judge Warby J has dealt with the application in an extremely helpful manner. The application first came before him in May 2015, at which time it was wholly unclear how many days had been spent on tagged curfew. He gave directions for the applicant and the prosecution to address the matter. As a result, the Crown Prosecution Service investigated and, by a letter dated 2^nd June 2015, provided a schedule of the days spent on tagged curfew. It became apparent that the appellant had not been given sufficient credit.

In this case the judge did use the form of words set out in Thorsby and the sentence could be amended administratively. However, the figures were not agreed. Not surprisingly, the appellant maintains that he should have been given the opportunity to address the court on an issue that materially affected his sentence.

There can be no doubt that the court had the power to reduce the number of days: see R v Leacock [2013] EWCA Crim 1994. However, in Leacock there was no real dispute that Leacock would not ordinarily have been entitled to the days.

As we have already indicated, where there is a dispute as to the days that should be allowed, particularly where it would materially affect somebody's sentence, the Crown Court should offer the defence the opportunity to be heard. In this case we have no doubt that had His Honour Judge Parker been alerted to the fact that there was a dispute, he would have called for submissions from the defence.

We cannot now ascertain exactly what has happened, because tape-recordings of various hearings have been destroyed. That is an example of why it is important to address these issues at the time of sentence. It looks as if the appellant was made subject to a qualifying curfew, but the tagging equipment was removed in error and not replaced until 2011.

The requirements of section 240A apply where the offender's bail is "subject to a qualifying curfew condition and an electronic monitoring condition". In this case the appellant was subject at all relevant times to a qualifying curfew condition and an electronic monitoring condition. The fact that there was an administrative error and the court's order was not implemented does not alter the fact that he was subject to a qualifying curfew. He must receive the credit.

The appellant is therefore entitled to 456 days credit. Again, using the words in Hoggard, he will receive full credit on the information before us for the total period of 456 days, but if this period is mistaken, the court will order an amendment of the record for the correct period to be recorded.

This case is much more straightforward, thanks to Mr Heptonstall's diligence. On 24^th October 2014 at the Burnley Crown Court the applicant was convicted of robbery and fraud. On 28^th January 2015 he was sentenced to three and a half years' imprisonment.

The advocates failed to draw to the Recorder's attention the fact that at the time of sentence he had been subject to a qualifying curfew condition. This was an oversight on their part. The applicant only recently become aware of the position and drew it immediately to the attention of his solicitors. His applications for an extension of time of 166 days and for leave to appeal were referred directly to this court.

Mr Heptonstall apologised for the prosecution’s part in the error and for the fact that this application has been required. He confirmed that Hussain was subject to a qualifying curfew for a period of 96 days. There were 14 recorded breaches of relatively short duration, Mr Heptonstall did not seek to persuade us to embark upon a factual resolution of how much reduction should be made for those breaches on the basis it would be disproportionate. He agreed that the number of days for which Hussain should be credited is 48.

Again, we give leave and using the words in Hoggard, on the information before us the total period that we credit under section 240A is 48 days, but if this period is mistaken the court will order an amendment to the record for the correct period to be recorded.

To that extent, where necessary, leave is granted, the appeals are allowed and amendments to the directions are made in each case.