Needham & Ors, R. v

These cases come before the court for consideration of the effect of the introduction into the Road Traffic Offenders Act 1988 (RTOA) of sections 35A and 35B. Those provisions were originally inserted by section 137 and schedule 16 of the Coroners and Justice Act 2009. However those provisions were not brought into force at that time and they were amended by section 30 of the Criminal Justice and Courts Act 2015 (the 2015 Act). The provisions as amended came into force on 13th April 2015 and, in broad terms, do not apply to offences committed wholly or partly before that date.

It was common ground before us that the purpose of this legislation is to avoid offenders to have been disqualified from driving and to have had a custodial sentence imposed at the same time, serving all or part of their disqualification whilst in custody. The clear intention of Parliament is that periods of disqualification should be served by an offender whilst he or she is at liberty in the community.

Sections 35A and 35B employ different mechanisms for achieving this purpose. There have been disputes before the court as to the correct interpretation of and inter-relationship between those two sections. It is also apparent from the cases before us that the effect of these provisions has not been fully understood by practitioners, court officials and, indeed, judges.

Sections 35A and 35B relate to situations where a person is to be disqualified under section 34 RTOA (disqualification for specific offences) or section 35 RTOA (totting up disqualification). There are mirror provisions inserted by the 2015 Act into the Powers of Criminal Courts (Sentencing) Act 2000 at sections 147(A) and 147(B). They deal with situations where the court has imposed disqualification under section 146 (disqualification for any offence) and section 147 (disqualification where vehicle used for purposes of crime).

The cases before us did not involve those latter sections, but since they are mirror provisions, our interpretation of and observations upon sections 35A and 35B apply to them as well.

We next set out the two new sections. The relevant parts of sections 35A and 35B of the RTOA are in the following terms:

“35A.— Extension of disqualification where custodial sentence also imposed

(1)

This section applies where a person is convicted in England and Wales of an offence for which the court—

(a)

imposes a custodial sentence, and

(b)

orders the person to be disqualified under section 34 or 35.

(2)

The order under section 34 or 35 must provide for the person to be disqualified for the appropriate extension period, in addition to the discretionary disqualification period.

(3)

The discretionary disqualification period is the period for which, in the absence of this section, the court would have disqualified the person under section 34 or 35.

(4)

The appropriate extension period is—

(a)

where an order under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (life sentence: determination of tariffs) is made in relation to the custodial sentence, a period equal to the part of the sentence specified in that order;

(b)

in the case of a detention and training order under section 100 of that Act (offenders under 18: detention and training orders), a period equal to half the term of that order;

…

(e)

where section 226A of the Criminal Justice Act 2003 (extended sentence for certain violent or sexual offences: persons 18 or over) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226A(5)(a) of that Act;

(f)

where section 226B of that Act (extended sentence for certain violent or sexual offences: persons under 18) applies in relation to the custodial sentence, a period equal to two-thirds of the term imposed pursuant to section 226B(3)(a) of that Act;

(fa) in the case of a sentence under section 236A of that Act (special custodial sentence for certain offenders of particular concern), a period equal to half of the term imposed pursuant to section 236A(2)(a) of that Act;

(g)

where an order under section 269(2) of that Act (determination of minimum term in relation to mandatory life sentence: early release) is made in relation to the custodial sentence, a period equal to the part of the sentence specified in that order;

(h)

in any other case, a period equal to half the custodial sentence imposed.

(5)

If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days.

…

(7)

This section does not apply where—

(a)

the custodial sentence was a suspended sentence,

(b)

the court has made an order under section 269(4) of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence: no early release) in relation to the custodial sentence, or

(c)

the court has made an order under section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in relation to discretionary life sentence: no early release) in relation to the custodial sentence.

(8)

Subsection (9) applies where an amending order provides that the proportion of a prisoner’s sentence referred to in section 243A(3)(a), 244(3)(a) of the Criminal Justice Act 2003 (release of prisoners in certain circumstances) is to be read as a reference to another proportion (“the new proportion”).

(9)

The Secretary of State may by order—

(a)

if the amending order makes provision in respect of section 243A(3)(a) or 244(3)(a) of that Act, provide that the proportion specified in subsection (4)(h) of this section is to be read, in the case of a custodial sentence to which the amending order applies, as a reference to the new proportion;….

(10)

[Procedure for making order under subs. (9).]

(11)

In this section—

“amending order” means an order under section 267 of the Criminal Justice Act 2003 (alteration by order of relevant proportion of sentence);

“custodial sentence” has the meaning given by section 76 of the Powers of Criminal Courts (Sentencing) Act 2000;

“suspended sentence” has the meaning given by section 189 of the Criminal Justice Act 2003.

35B.— Effect of custodial sentence in other cases

(1)

This section applies where a person is convicted in England and Wales of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and—

(a)

the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b)

at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2)

In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3)

The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4)

If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

(5)

In this section “custodial sentence” and “suspended sentence” have the same meaning as in section 35A.”

Before turning to these new sections, we should say a word about the commencement provisions of which there has been some criticism, albeit not at the present hearing. All parties accepted that the new provisions are in force, and an issue which has been raised about transitional provisions did not arise in the present cases.

The relevant provision is the Coroners and Justice Act 2009 (Commencement No. 17) Order 2015 (SI) 2015 No. 819 (C. 51)). Paragraph 2 of the Order provides:

“The following provisions of the Coroners and Justice Act 2009 come into force on 13th April 2015 –

(a)

section 137 (extension of driving disqualification);

(b)

paragraphs 2(1) and (2) and 5 of schedule 16 (extension of driving disqualification); and

(c)

paragraphs 29-34 of schedule 22 (transitional, transitory and saving provision).”

Sub-paragraphs (a) and (b) of paragraph 2 of the Order have the effect of bringing both section 35A and 35B and also section 147A and 147B into force with effect from 13th April 2015. Although section 137 does no more than provide a signpost to schedule 16, the necessary detail is incorporated within schedule 16. We are satisfied that those provisions were properly brought into force.

By way of contrast, sub-paragraph (c) of paragraph 2 of the Order refers to certain paragraphs of schedule 22 which contain transitional provisions. It has been pointed out correctly that there is no section of the Act referred to as introducing schedule 22 in the way that section 137 introduces schedule 16. The relevant section is in fact section 177(2) which is again a simple signposting section declaring the existence of schedule 22. On the face of it, it is odd that there is no reference to section 177(2), since reference was made to section 137, but given the nature of the section as a signposting provision it does not seem to us that reference to section 177(2) was necessary in order for the particular paragraphs of schedule 22 to come into force. We are satisfied that the order had the effect of bringing those parts of schedule 22 into force on 13th April 2015.

Although no issue arose in the cases before us, Mr Little on behalf of the Crown has drawn our attention to a potential commencement issue arising under paragraph 29 of schedule 22 which has been the subject of tentative comment in Wilkinson’s Road Traffic Offences (28th edition) at chapter 20.20.

Paragraph 29 is in the following terms:

“(1)

No provision of Schedule 16 applies in relation to, or has effect by reference to, offences committed wholly or partly before the commencement of the provision in question.

(2)

An offence is partly committed before the commencement of a provision if—

(a)

a relevant event occurs before commencement, and

(b)

another relevant event occurs on or after commencement.

(3)

“Relevant event” in relation to an offence means any act or other event (including any consequence of an act) proof of which is required for conviction of the offence.”

Paragraph 29 has the effect that the new sections do not apply to offences committed wholly or partly before 13th April 2015. An offence is partly committed before that date if a “relevant event” occurred before commencement. “Relevant event” means any act or other event (including any consequence of an act) proof of which is required for conviction of the offence. A clear example of this would be a case of causing death by dangerous driving where the driving took place before 13th April but the victim did not die of his injuries until some days after that date. The editors of Wilkinson suggest that similar reasoning would apply to an offence of driving whilst disqualified on 14th April where the offender had been disqualified on 12th April 2015. The reasoning for this is based on the wording of paragraph 29(3) which provides that “relevant event” in relation to an offence means any act or other event proof of which is required for conviction of the offence. Since the Crown must prove the driver was disqualified and since that occurred prior to the commencement date, the offence should be seen as falling outside the new sections.

We do not accept this suggestion. It seems to us that the key words are “offences committed wholly or partly before the commencement …”. A person driving on 14th April 2015 while the subject of a prior disqualification would be committing all the elements of the offence on that day. Section 103(1) of the Road Traffic Act 1988 provides: “A person is guilty of an offence if, while disqualified for holding or obtaining a licence he … drives a motor vehicle on a road”. The offence is committed when driving takes place while disqualified. There is a distinction to be drawn between the date upon which disqualification was imposed and the fact that the offender was driving on a date while he was disqualified. The proof which is required for conviction of the offence is that on the date the driving took place the offender was in fact disqualified. It is not a necessary part of proof of the offence that the disqualification itself took place on a particular date.

An additional consideration arises in relation to the commencement provisions where the court is dealing with motoring and other offences and those other offences were committed prior to 13th April 2015. An example can be found in the case of Smythe below where an offence of handling stolen goods was committed in October 2014 and the motoring related offences were committed in October 2015. The issue is whether the court is precluded from considering section 35B in relation to the handling count and uplifting the disqualification to reflect the custodial sentence passed on that count since the offence was committed before 13th April 2015. We consider that the correct interpretation of the transitional provisions is that once sections 35A and 35B are engaged by an offence committed on or after 13th April 2015 for which disqualification is being imposed, the court must consider the “diminished effect of disqualification as a distinct punishment” under section 35B(3) where a custodial sentence is imposed in respect of another offence regardless of the date of that other offence. The focus of the new legislation is on the offence attracting disqualification under section 34 or section 35, not on the other offence. On proper analysis no question of unfairness or retrospectivity arises any more than if Parliament had increased sentences for motoring offences committed from the commencement date.

We turn next to consider section 35A. The section applies where a person is convicted of an offence for which the court (a) imposes a custodial sentence and (b) orders the person to be disqualified under section 34 or section 35. (See subsection (1)). When that subsection is satisfied the order of disqualification is comprised of two elements: the “discretionary” disqualification period and the appropriate “extension” period. (Subsection (2)). The discretionary period is the period for which, in the absence of section 35A, the court would have disqualified the person under section 34 or section 35. In other words the discretionary period will be fixed by the court in accordance with the law prior to the implementation of these new sections.

The general purposes of disqualification were expressed in R v Backhouse [2010] EWCA Crim 1111 at [21]:

“An order of disqualification has the purpose of protecting the public … disqualification is also intended to punish and deter offenders and others. A balance, however, has to be struck and the court should not disqualify for a period that is longer than necessary and should bear in mind the effects of a ban on employment or employment prospects”.

Principles of the sort referred to above will continue to hold good for judges in calculating the “discretionary” element of a sentence of disqualification. As is obvious the new provisions importing an “extension period” or applying section 35B have the potential to alter the overall approach of the court where disqualification and custody are imposed.

Whilst the meaning of the “discretionary” disqualification period under this legislation is clear, it is worthy of comment that the use of the word “discretionary” is something of a misnomer since many of the offences to which section 34 RTOA applies are offences involving periods of obligatory disqualification, albeit for a minimum period.

Section 35A(4) identifies the length of the extension period by reference to different types of sentence imposed. Subsection (4)(h) covers immediate sentences of imprisonment or detention in a Young Offender Institution and stipulates that the extension period is to be one half of the custodial sentence imposed. This is the point of time at which the duty to release under section 244 of the Criminal Justice Act 2003 arises. It seems to us that the likelihood is that this subsection will cover the vast majority of cases.

A major issue between the Crown and applicants or appellants was whether the phrase “half the custodial sentence imposed” in subsection (4)(h) related to the global custodial term imposed at the sentencing hearing or whether it was referable only to those motoring related matters which attracted both a sentence of custody and a disqualification. For the avoidance of doubt, by “global term” we mean the total term imposed for the motoring related matter(s) and any non-motoring related matter(s).

An example was taken of a person convicted of dangerous driving for which he received one year’s custody and one year’s disqualification. If that matter stood alone, there would be no problem; section 35A would apply, the judge would impose a period of disqualification comprising the discretionary element (one year) plus the extension period (six months) representing half the custodial term making an overall disqualification of 18 months. If however that same offender was also convicted after trial of a significant section 18 offence and was sentenced to 9 years’ imprisonment consecutively, the parties disagreed as to the effect of this upon the extension period. The Crown contended that the extension period should be one of 5 years whereas the applicants/appellants contended that it should only be 6 months, relating only to the offence for which disqualification had been imposed.

The Crown’s argument was that to adopt the latter interpretation would be to defeat the intention of Parliament. In such a case the period of disqualification even with the extension period would still be served in custody. The applicants/appellants argued that the language of section 35A(1) and in particular the words “convicted … of an offence for which the court … imposes a custodial sentence and … orders the person to be disqualified” were clear and related solely to the motoring related offence. Moreover, they argued that to adopt the Crown’s interpretation would mean that the phrase “half the custodial sentence imposed” at section 4(h) would be given a different meaning to “custodial sentence” from that in subsection (1). The Crown in riposte pointed to examples within subsection (4) of other types of offence (for example extended sentences) which provided for extension periods in circumstances where it was difficult to envisage a motoring offence element. This, the Crown argued, favoured its interpretation.

The other matters referred in subsection (4) apart from (h) do pose a degree of difficulty in interpreting section 35A, but it seems to us that the language of section 35A(1) clearly relates to the specific offence or offences for which both a sentence of custody and an order of disqualification were made. That interpretation will in no way offend the intention of Parliament in the straightforward case where, for an offence of dangerous driving, for example, a term of custody and a disqualification is imposed. In the first example given at paragraph 22, the effect of imposing an 18 month term of disqualification, comprised of a 12 month discretionary period and a 6 month extension period, will be that the offender will be released after serving half of his 12 month sentence. By that time half of the discretionary period will have elapsed, and while at liberty, the offender will have to serve the remainder of his disqualification, namely 6 months of the discretionary period plus the 6 months of the extension period, thus serving the exact equivalent of the intended period of disqualification represented by the discretionary period of 12 months. However, that is not an end of the story. There remains the question of how our conclusion above plays into the situation where the court is sentencing for other offences or where no custodial sentence has been imposed for an offence attracting disqualification.

Where other offences are involved (the section 18 offence in our second example at paragraph 22), section 35B comes into play in addition to section 35A. The cross heading to section 35B is “Effect of custodial sentence in other cases”. This is to be distinguished from section 35A where there is a disqualification under sections 34 or 35 and a custodial sentence is also imposed. As subsection (1) of section 35B states, it applies where a person is convicted of an offence for which a court proposes to order a person to be disqualified under section 34 or section 35 and (a) the court proposes to impose a custodial sentence for another offence, or (b) at the time of sentencing for the offence a previously imposed custodial sentence has not expired.

This section does not use the mechanism of a discretionary period and an extension period of disqualification as section 35A does. Instead, where this section applies, the effect of subsections (2) and (3) is that in determining the length of disqualification, the court “must have regard … if and to the extent that it is appropriate to do so” to the diminished effect of disqualification as a distinct punishment on a person who is also detained pursuant to a custodial sentence. Clearly then, where this section is engaged the phrase “must have regard”, cited above, appears to give a greater degree of latitude to the sentencer in fixing the term of disqualification than that which is achieved by the extension period mechanism under section 35A.

There was disagreement between the Crown and the other parties as to the effect of section 35B(4). The Crown contended that the effect was to exclude from the operation of section 35B any case where section 35A applied, including those cases involving another offence or offences where the Crown urged that a global approach to the custodial sentence for the purpose of calculating the extension period applied. The applicants/appellants contended that subsection (4) did not have that effect: firstly, because the Crown’s contention on the global approach in section 35A was incorrect; and secondly, because the language of subsection (4) “a custodial sentence for the same offence” and “the court may not in relation to that disqualification take that custodial sentence into account” simply represented a mechanism to avoid the custodial part of the section 35A offence, being counted twice for the purposes of the upward adjustment to disqualification under section 35B. Section 35B should be regarded as a means of increasing what would otherwise be a disqualification under section 35A so as to cater for the other offence or offences. In this respect section 35B should be regarded as complementary to section 35A rather than something distinct from it. We consider that, given our previously stated conclusion as to the meaning of section 35A, the Crown’s submission as to section 35B(4) cannot be sustained, and that for that reason together with a consideration of the language used in subsection (4) the applicants’/appellants’ general contentions are correct.

It seems to us that there are a number of situations which arise. We refer to them below as (A) to (D).

It is to be noted that that approach will not apply in some cases. In section 35B Parliament in using the phrases “must have regard” and “if and to the extent that it is appropriate” has clearly entrusted some measure of discretion to the court as to whether to adjust the disqualification under the section to any extent or at all. In a case where a very lengthy custodial sentence is to be served for “another offence” which is not motoring related, it might be anomalous or run counter to considerations of rehabilitation to impose an extremely long period of disqualification under section 35B in order that a comparatively short period of disqualification should take place after release from custody. Examples might include a motoring offence combined with a non-motoring related homicide attracting a life sentence with a long minimum term, or a case involving a very long extended sentence passed for sexual offending.

In the ordinary run of cases, however, we would expect a more arithmetical approach to apply so as to give effect to the intention of Parliament. Whilst section 35B is couched in language which recognises judicial discretion, we consider and anticipate that in those cases the court would make the section 35B adjustment or uplift in a way which ensures that the full period of disqualification is served outside custody.

It may be helpful to judges and practitioners for us to set out at this stage a checklist of steps as to the approach under the two new sections.

The next issue that arises is whether time spent subject to curfew or on remand prior to sentencing should be credited against the period of disqualification imposed. In cases where an interim disqualification has been imposed pursuant to section 26 RTOA coupled with a remand in custody, this issue will plainly not arise - see section 26(12). Equally, the fact that someone was subject to curfew prior to sentence does not inhibit their ability to drive so that no question of credit in respect of that arises.

We wish to comment in passing on the question of interim disqualification in this context. It seems to us that in the light of the new legislation it may be inappropriate for an order of interim disqualification to be made in relation to an offender remanded in custody. To do so would appear to run counter to the will of Parliament that disqualification should be served while the offender is at liberty in the community. In addition, to make an order in such cases will be to introduce unnecessary complications in the light of our interpretation of the legislation. Courts should therefore be hesitant before exercising this power in the case of those remanded in custody.

It is, however, necessary to consider in more detail the question of time spent on remand. When the new sections were originally enacted in the 2009 Act, sections 35A(6) and 147A(6) expressly provided that the extension period of disqualification was to be reduced where the offender had been remanded in custody or had been on bail subject to a qualifying curfew. Section 30 of the 2015 Act removed the ability for the court to take into such time account. It removed both subsections. Thus, it was the clear intention of Parliament that time spent on remand would not count when calculating the extension period under section 35A. There was no corresponding provision as to time on remand under section 35B because that section did not incorporate any extension period, and because a different mechanism for adjusting the length of disqualification was provided by subsections (2)-(4).

Both sides pointed out to us the potential for unfairness which might arise if an offender who had spent a lengthy period on remand was disqualified and found himself on release facing the full period of disqualification (i.e. the combined discretionary and extension period). He would be in a worse position than an offender who had not been in custody prior to sentence. Because the extension period under section 35A must be determined solely by reference to section 35A(4), this has the potential to produce injustice.

It seems to us that it is open to the court to avoid such injustice by permitting a court to take into account a significant remand period in determining the appropriate discretionary period under section 35A. Many of the offences to which section 35A applies involve obligatory minimum periods of disqualification. There can be no question of such a minimum period being reduced to take account of time spent on remand, but there may be scope for some reduction if the sentencer has in mind a longer period than the statutory minimum.

We have considered the decision of this court in R v Harkins [2011] EWCA Crim 2227. At [16] Wilkie J said:

“There is, it is said, an unacceptable disparity between the period of disqualification and the workings of the custodial sentence. We observe that the point of the disqualification under that particular section of the Act [section 147] is to punish and to deter, by removing access to a lawful use of a vehicle used in commission of the offences for which the sentences were passed. Thus, if the disqualification is to be effective at all, it is implicit that it must apply after release from custody and normally that will be a proportionate result provided it does not seriously impair rehabilitation … Furthermore, proportionality is preserved by the general practice of keeping the period of disqualification broadly commensurate with the custodial sentence. That is not the same however as requiring the judge to fine tune the period of disqualification in order to accord with the precise calculation of release dates and periods spent on licence. Furthermore it does not require the judge to have regard to any direction he has made for credit against the sentence for time spent on remand unless it would result in a gross disparity between the sentence passed and the period of disqualification.”

It seems to us that this points to the correct approach to the question of time spent on remand under section 35A. If the time spent on remand would lead to a disproportionate result in terms of the period of disqualification, then the court has power in fixing the discretionary element to adjust that period to take account of time spent on remand. We do not envisage a precise arithmetical calculation taking place. We wish to avoid the sort of problems which beset the courts after the introduction of section 240 of the Criminal Justice Act 2003 and consider that the court should take a broad brush approach to the question of adjustment. We stress that the scope for such adjustment would only arise (a) if there had been no interim disqualification, (b) if the period of remand was of such a nature that the term of disqualification would otherwise be disproportionate, and (c) would not reduce the discretionary term below the obligatory statutory minimum period of disqualification. A similar approach would apply when the court is assessing the correct period of disqualification under section 35B.

A further issue raised related to obligatory minimum periods of disqualification. The issue was whether that minimum period related to the discretionary period alone or to the discretionary period plus the extension period. In our judgment the minimum term encompasses the discretionary period of disqualification alone. To hold otherwise would run counter to the intention of the legislation and to the provisions of section 35A(3).

For the sake of completeness, and following the approach in Harkins at [12], we confirm that the length of the custodial term imposed for calculating the appropriate extension period under section 35A(4) relates to the term of custody pronounced by the court at the time of sentence and does not take account of the possibility of release earlier than the point identified in subsection (4), for example under the home detention curfew scheme.

The Sentencing Guidelines Council’s definitive guideline on credit for a guilty plea states at paragraph 2.6 “A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving.” There have been no submissions that that approach should be modified as a result of the introduction of the new sections. We consider that the existing guidance should continue to apply.

In two of the cases before us, the judge’s sentencing remarks or the court record is expressed in terms of the disqualification commencing upon release. That is a misapprehension. Although the legislation has provided for the effects of disqualification to be felt after the release from custody, it has not altered the existing principle which is that disqualification starts from the day upon which it is pronounced by the court. Indeed, it is for that very reason that Parliament has amended the law in order to avoid the whole or part of a period of disqualification being served in custody.

Two of these cases have highlighted the need to be alert to section 36(7) of the RTOA and the decision in R v Anderson [2012] EWCA Crim 3060 that the imposition of an extended retest is precluded where an order for such a test is already in force.

We have considered section 34A RTOA which provides for a reduced disqualification period for drink drive offenders who have attended on a special course. That section contains provisions which have not yet been brought into force and which make reference to the extension period under section 35A. As presently in force any reduction in the disqualification period for attendance on courses would come off the entire disqualification including the extension period under section 35A. If fully enacted, the reduction would only apply to the discretionary part of the disqualification. A similar situation applies to section 42 RTOA (removal of disqualification) in relation to the time which must elapse before an application can be made.

The Sentencing Guidelines Council’s guideline on causing death by dangerous driving provides at [31]:

“When ordering disqualification from driving, the duration of the order should allow for the length of any custodial period in order to ensure that the disqualification has the desired impact. In principle, the minimum period of disqualification should either equate to the length of the custodial sentence imposed (in the knowledge that the offender is likely to be released having served half of that term), or the relevant statutory minimum disqualification period, whichever results in the longer period of disqualification.”

We note that this guidance itself appears to depart from guidelines given in R v Cooksley & ors [2003] 2 Crim App Rep 18 at [43] where the court said: “We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender”. It seems to us that the Sentencing Guidelines Council’s approach went part of the way towards the subsequently enacted legislation, but clearly well short of the provisions now in force. We consider that if that guidance were now applied in the setting of the discretionary period with the new legislation then superimposed upon that, there would be a risk of double counting. Accordingly, in the light of the new legislation, we think that courts should focus on the legislation rather than [31] of the guideline. The court’s approach should be to fix the discretionary term taking account of relevant factors including the need for protection of the public. There will often be close correlation between that factor and the levels of harm and culpability involved in the offence of causing death by dangerous driving. If the case is a section 35A case, then, as mandated, the court will fix a discretionary period plus an extension period. If the case is a section 35B case, then the court will apply section 35B as explained above.

It is important that there is a degree of clarity in judges’ sentencing remarks so that others may identify the correct extension period pursuant to section 35A and any uplift pursuant to section 35B. Such information will be important for police, the courts, and DVLA in terms of record keeping. It will also be important to this court. If, on appeal, a conviction on a count is quashed or a sentence is reduced, the court will need to know precisely by how much the period of disqualification was extended pursuant to section 35A or increased pursuant to section 35B in order to make appropriate adjustments to the disqualification imposed. Both section 34A (reduced disqualification for attendance on courses) and section 42 RTOA (removal of disqualification) would require identification of the extension period if certain provisions relating to them were brought into force.

Accordingly, we consider that the judge in sentencing under section 35A should state the total period of disqualification but breaking that period down into the discretionary and extension periods. He should also give brief reasons for the length of the discretionary disqualification. When sentencing under section 35B the court should state the total period of disqualification imposed but then explain how the legislative steer of this section has been taken into account by indicating what the period of disqualification would have been but for section 35B and then indicating the period added by way of upward adjustment for the purposes of section 35B. Again, brief reasons should be given for the imposition of both these elements.

Judges may wish to refer to the checklist at [31] above. The conclusions set out in bold type show an appropriate way of making the formal sentencing announcement.

We recognise that this requirement represents yet another imposition on busy sentencing judges who are already beset by other sentencing technicalities. However, for the reasons stated above, it seems to us necessary that sentencing remarks should cover these matters.

We next turn to the individual cases.

This is an application for permission to appeal against sentence referred by the Registrar. The applicant pleaded guilty to an offence of affray on one indictment and subsequently to a number of counts on a further indictment at Lincoln Crown Court. That latter indictment contained eight counts: dangerous driving (count 1), driving whilst disqualified (count 2), three counts of damaging property (counts 3, 5 and 7) and three counts of assault occasioning actual bodily harm (counts 4, 6 and 8). In addition there was an associated summary offence of using a motor vehicle without insurance.

The applicant was sentenced on 12th November 2015 to a total term of 52 months’ imprisonment. That was made up as follows: 22 months for the dangerous driving; 12 months’ consecutive for affray; three consecutive terms of 6 months for each of the section 47 offences. For each of the three counts of damaging property concurrent terms of 6 months were imposed. A further concurrent 6 month term was imposed for driving whilst disqualified, with no separate penalty for the no insurance offence.

In relation to the dangerous driving count the applicant was disqualified from driving for 3 years with an extension period pronounced by the judge as “equal to half the custodial term”.

The Crown Court record shows a requirement to complete an extended retest which is ordinarily obligatory after a conviction for dangerous driving. That record also shows that the disqualification was for a period of 3 years “to start on release from custody”. Neither of those matters was mentioned by the judge in passing sentence, and indeed it is technically impossible for a period of disqualification to be postponed in that way. There was also a calculation of the length of disqualification as 1096 days disqualification plus a disqualification extension of 791 days, that is 3 years plus the 26 month extension. That extension period reflected half of the global custodial sentence imposed.

At one stage it was thought that the court might have exceeded its powers in relation to the criminal damage offences. However, investigation with the Magistrates Court shows that no determination as to value was made pursuant to section 22 Magistrates Court Act 1980, so that the offences were not included in the indictment as summary offences pursuant to section 40 Criminal Justice Act 1988. Accordingly the Crown Court’s sentencing powers were not limited to 3 months per offence. Moreover, we now know that the value of the damage done in the three closely linked offences exceeded £14,000, so that by reason of section 22(11) of the 1980 Act the relevant figure was the aggregate of the values involved. In the circumstances no issue arises in relation to the criminal damage counts.

As to the question of an extended re-test, although this would ordinarily follow an order of disqualification for the offence of dangerous driving, it was held in R v Anderson [2012] EWCA Crim 3060 that section 36(7) of the RTOA precludes the imposition of an extended re-test where an order for one is already in force. This applicant had been disqualified from driving for 2 years in July 2011 at Lincoln Crown Court and until he passed an extended re-test. It does not appear that he ever passed such a test. Accordingly, following Anderson, we order that the Crown Court record be amended so as to delete references to the requirement for an extended re-test. This applicant, however, remains subject to an order to take such a test by reason of the order made on 1st July 2011.

We now turn to the facts. The affray took place on 27th June 2015. The applicant was at home when a domestic argument developed. In the course of this the applicant threw a pint glass at his ex-wife. He left the room and returned and threw a hot mug of coffee over her. His son intervened and the applicant grabbed him around the neck causing scratch marks. A struggle took place. Eventually the applicant was restrained after he had made a number of threats to kill. A short time later he approached his son and ex-wife carrying two knives. The police were called after which the ex-wife persuaded the applicant to hand back the knives. When the police arrived the applicant locked himself inside the property and initially threatened to assault the police. They gained entry to the property and the applicant picked up a metal pump and tried to hit an officer with it. He then picked up a plastic bottle and said he was going to set fire to himself. He was tasered but managed to snap the wires. He ran towards a police officer brandishing a chair above his head and was tasered a second time. He was eventually arrested having been sprayed with CS gas.

After this incident the applicant was on bail on 29th July 2015. That afternoon police officers on duty followed a vehicle being driven by the applicant. The applicant’s son was a passenger in the vehicle and this was a breach of the applicant’s bail conditions. The vehicle accelerated away and ignored police lights and sirens. A chase followed over a period of about 30 minutes during which three police vehicles were damaged and three police officers suffered injury.

The applicant drove at very high speeds well in excess of the speed limit. He drove on the wrong side of the road in order to overtake traffic. He caused other vehicles to take evasive action and went through traffic lights. The journey was both in busy residential areas and on narrow country lanes. On three separate occasions he deliberately rammed a police vehicle by stopping and reversing into it or by performing a U-turn and driving at it head on. These actions caused significant damage to the applicant’s vehicle but he continued to drive it in a dangerous manner including driving on the wrong side of the road and in excess of the speed limit, at one point causing a double decker bus travelling in the opposite direction to have to pull off the road. He continued to manoeuvre in a way intended to cause a collision involving the vehicles pursuing him or to try to ram them. Eventually he was boxed in and arrested. The chase was captured on CCTV which members of the Court have seen. Officers had suffered injuries when their vehicles had been rammed. Those injuries included whiplash and a bang on the head causing dizziness and nausea.

The applicant has a bad criminal record. He has previously been convicted on 21 occasions for 47 offences. They included reckless driving and 9 convictions for driving whilst disqualified. He also had convictions for aggravated vehicle taking and for violence.

The judge described the dangerous driving as the worst he had seen involving high speed driving, deliberate ramming of police vehicles, significant risk to pedestrians and other road users and injury caused to police officers. He observed that the applicant had no option but to plead guilty to the driving matter and related offences. There was a psychiatric report showing a number of psychiatric issues but they did not require transfer to a psychiatric hospital and could be addressed in the custodial setting.

The grounds of appeal urged that the total custodial sentence of 52 months was manifestly excessive. The sentence of 22 months imposed for dangerous driving represented less than 10% discount for a prompt guilty plea: the six months imposed for driving whilst disqualified was the maximum sentence. The dangerous driving should not be regarded as the worst example of the offence since no injury had been caused to members of the public and much of the driving was in a rural setting. Moreover, the injuries caused had been reflected by consecutive sentences. Insufficient weight was attached to impulsivity revealed by the psychiatric report. The overall sentence imposed offended the principle of totality.

As far as disqualification and sections 35A and B are concerned, two matters are raised. Firstly, it is submitted that the extension period imposed was unlawful as it was calculated by reference to the total custodial term imposed rather than by reference to the dangerous driving count only. The appropriate extension period should be half of the custodial term imposed for dangerous driving. It was, however, conceded that the overall disqualification might be adjusted by reference to section 35B. Secondly, it was said that the judge was in error in failing to take into account a period of about 102 days spent on remand in calculating the disqualification period.

We deal first with the submissions relating to the custodial term. We accept, as the judge did, that early guilty pleas had been tendered. Ordinarily this would attract credit of one third but in the case of the dangerous driving indictment the judge was entitled to treat this as a case where the evidence against the applicant was overwhelming and thus only to grant credit of one fifth in accordance with the relevant Sentencing Guidelines Council’s guideline. There is no complaint about the sentence imposed for the offence of affray for which the judge was entitled to pass a sentence consecutive to the driving indictment concerning offences committed whilst on bail.

We deal next with the dangerous driving. The judge clearly had in mind to pass the maximum sentence of 2 years after a trial taking account of a very prolonged piece of dangerous driving with a number of clearly aggravating features, coupled with the applicant’s poor previous record. We note that the three criminal damage offences and the driving whilst disqualified offence were all dealt with by terms to run concurrently to the 22 months for dangerous driving. The judge clearly made the decision to reflect all those offences in the sentence imposed for the dangerous driving offence. He was entitled to do this, just as he would have been entitled to take an alternative course of, for example, passing a somewhat lesser sentence for the dangerous driving but combining it with a consecutive term for the driving whilst disqualified. He could, for example, have imposed a term of 18 months to cover both the dangerous driving and criminal damage offences after giving reduced credit for guilty plea, and then imposed a term of 4 months for driving whilst disqualified, again giving credit for guilty plea, but ordering it to run consecutively. Thus the same period of 22 months could legitimately have been imposed by a different route. Although the complaint about the absence of credit for the guilty plea for driving whilst disqualified is technically correct, in the event it makes no difference to the outcome and we do not propose to adjust it.

We then turn to the question of the section 47 offences. In this context we have considered a submission based on the Sentencing Council’s totality guideline which indicates that concurrent sentences will ordinarily be appropriate where offences arise out of the same incident or facts, an example being given of a single incident of dangerous driving resulting in injuries to multiple victims. Reference is made to R v Lawrence [1989] 11 Crim App Rep (S) 580. Having considered Lawrence, it seems to us that the principle might better have been illustrated by a reference to R v Noble [2003] 1 Crim App Rep (S) 65. It seems to us important to note that the court in that case had in mind the chance element of injury or death arising to more than one person from a single piece of dangerous driving. What occurred in the present case was somewhat different. The injuries to the officers were caused by separate and deliberate acts of assault undertaken at different stages of a very lengthy course of dangerous driving. The injuries were occasioned by discrete and deliberate manoeuvres carried out at different points during the lengthy pursuit. Moreover it is clear that the court is entitled to take into account the nature and number of injuries caused in considering the appropriate overall sentence. As the totality guideline makes clear, there is no inflexible rule governing whether sentences should be structured as concurrent or consecutive components. The overriding principle is that the overall sentence must be just and proportionate. It seems to us that the use of a vehicle to ram others as a weapon of assault resulting in injury on three separate occasions during an extended course of dangerous driving involving multiple elements is something which raises the gravity of this offending above and beyond the allegation of dangerous driving. The overall criminality would not sufficiently be reflected by concurrent sentences.

The essential question here is whether stepping back and looking at the overall sentence imposed, the aggregate length was just and proportionate. The sentence imposed was undoubtedly firm but having regard to all the circumstances and the offender’s criminal record we are not persuaded that it was manifestly excessive. The affray was serious. The driving and assault offences contain some seriously aggravating features in themselves and are exacerbated by the past record in circumstances where reduced credit for guilty plea was justified.

We turn next to issues arising from the disqualification.

The judge imposed 3 years disqualification which clearly reflects an appropriate discretionary period. However, he then added an extension term equivalent to half of the global custodial sentence which included non-motoring matters. He thus sentenced in accordance with the Crown’s submissions which we have not accepted. Based on our analysis, section 35B also comes into play because a custodial sentence was imposed for the assault offences. Those sentences were to run consecutively to the term imposed for dangerous driving, and an adjustment to the period of disqualification was required in order to give effect to Parliament’s intention that periods of disqualification should be imposed in the community.

Applying section 35A alone would not have this effect. It would produce a disqualification period of 3 years and 11 months (discretionary period plus extension period). More than half of this period would be served in custody during a 52 month custodial sentence. Accordingly, the judge who clearly intended to give full effect to the new legislation, would need to adjust what would have been an 11 month extension period, had the dangerous driving matter stood alone, by using section 35B. The additional adjustment to achieve the intention of the legislation would be a further 15 months over and above the 11 month extension period. Whilst the result will be the same, the judge was wrong to pronounce the 26 month period as an extension period because that term is confined to cases where section 35A alone is involved.

Having used section 35B, the judge should have pronounced an overall term of disqualification of 5 years 2 months (3 years plus 26 months), and then stated that that term was reached by taking the initial discretionary disqualification of 3 years, adding the section 35A extension period of 11 months, and then applying a section 35B adjustment of 15 months to the discretionary disqualification.

We have previously stated that the 3 year discretionary period of disqualification was appropriate. It is, however, necessary for us to have regard to the further submission made in relation to 102 days spent on remand. As we have indicated, in an appropriate case adjustments relating to a remand period may be made to the discretionary period under section 35A or the broader discretion under section 35B. Although that period is substantial, we are not persuaded that it is of an order which makes the term of disqualification disproportionately long. Accordingly we make no further adjustment.

In summary then, we refuse the application since we are satisfied that neither the custodial sentence nor the overall disqualification imposed was excessive. Whilst there was, for the reasons explained, a degree of infelicity in explaining the disqualification, we do not find fault with its length. We order that the Crown Court record be amended to delete the reference to a re-test and to disqualification taking effect release. The record should show a period of disqualification of 5 years 2 months comprising an initial discretionary disqualification of 3 years, an 11 month section 35A extension and a section 35B adjustment of 15 months to the discretionary disqualification.

This is an application for permission to appeal against sentence referred to the Court by the Registrar. The applicant pleaded guilty at an early stage and was sentenced at Birmingham Crown Court on 26th October 2015. For two offences of possession of a class A drug with intent to supply he was sentenced to 3 years’ detention in a young offender institution to run concurrently. An offence of driving whilst disqualified had been sent to the Crown Court as a related summary offence. No separate custodial penalty was imposed but the applicant was disqualified from driving for 12 months with an extension period of 18 months. The applicant requires an extension of time of about 1 month which we are prepared to grant.

The facts show that on 16th July 2015 the applicant was seen by police officers driving in the Aston area of Birmingham. They followed him since he had been disqualified from driving on 6th May 2015 for a period of 6 months for an offence of involving a vehicle without insurance. The applicant stopped the vehicle and ran away from the police, discarding packages of drugs as he went. There were twenty-two wraps of cocaine and twenty-three wraps of heroin with a combined street value of about £450. The applicant was apprehended. During the course of his apprehension he deliberately smashed his mobile phone. He was found to be in possession of £201 in cash. His home address was searched and three mobile phones were found including one containing text messages consistent with drug dealing.

The applicant was 19 at the time. He had a caution for aggravated vehicle taking in 2014 and one for possession of heroin recorded on the day before these offences. In October 2014 he was disqualified for 6 months for using a vehicle without insurance. In March 2015 he received a community order for failing to report an accident and for using a vehicle without insurance. As already stated, on 6th May 2015 he was disqualified for six months for using a vehicle without insurance.

In passing sentence the judge assessed the applicant as having been a street dealer with a significant role. The relevant Sentencing Council Guideline for a category 3 offence shows a starting point of 4 years 6 months with a range of 3 years 6 months to 7 years. The judge noted that two types of drug were involved, which might have justified an increase in sentence but, taking account of the applicant’s age, said he would not take that course. The judge was prepared to grant full credit for plea although pleas could have been entered in the Magistrates Court.

The grounds of appeal submit that the custodial sentence imposed was too long. Whilst it is accepted that this is a category three offence, it is submitted that the applicant should have been placed at the upper end of a lesser role. This has a starting point of 3 years with a range between 2 and 4 years 6 months. It is also contended that the sentence failed adequately to reflect the applicant’s youth and personal mitigation. That is said to arise from the fact that the applicant admitted being involved in street dealing for a period of less than a month and that he was in debt to those who had supplied drugs to him. We are not impressed by this mitigation. It firstly confirms that the two offences have to be seen against a background of other drug dealing, a fact which emerges also from the multiple messages found on the mobile phone recovered from the applicant’s home. Secondly, the text messages showed features consistent with a significant role as the judge found. We are not persuaded that the sentence of 3 years was arguably excessive in any way. The judge did have regard to this applicant’s age, and the assessment of the offender’s role was one to which the judge was entitled to come. No error is demonstrated. For the sake of completeness we indicate that we consider that R v Khatib [2013] EWCA Crim 566 which was relied on is a decision based upon its own facts and not of wider assistance.

We turn then to matters relating to disqualification. The judge imposed no separate penalty for driving whilst disqualified, but disqualified Ali from driving for 12 months together with an extension period of 18 months representing half of the custodial term imposed for the drugs offences. Since no custodial term had been imposed for driving whilst disqualified section 35A could not apply and the judge had no power to order disqualification including an extension period under that provision. Mr Rashid therefore argued that the judge was in error in the way he expressed the sentence. He acknowledged that section 35B applied to enable disqualification, but urged that in the case of a 19 year old offender, the greater latitude given to sentencers under section 35B should enable the court to order a lesser period of disqualification to be served after release from custody.

The judge was wrong to order disqualification comprised of a discretionary period plus an extension period. Section 35A did not apply since no custodial term was imposed for driving whilst disqualified. Section 35B applied. It is accepted that the judge could have used that to ensure that disqualification took place after release. We see no reason in this case, given this offender’s history, for reducing the term of disqualification intended by the judge. The application is refused. However, the Crown Court record will need to be amended to show an overall period of disqualification imposed under section 35B of 30 months comprising 12 months initial discretionary disqualification and 18 months added by way of adjustment for the purposes of section 35B(2).

This appellant has been given permission by the single judge in respect of the bladed article offence which initially formed the sole basis for appeal. This appellant pleaded guilty before the Magistrates Court and was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of possession of a bladed article and dangerous driving. He was also committed for sentence under section 6 for using a vehicle without insurance and driving whilst disqualified.

On 13th October 2015 at Durham Crown Court he was sentenced as follows: dangerous driving 14 months’ imprisonment; driving whilst disqualified 4 months’ imprisonment consecutive; no insurance no separate penalty; possession of a bladed article 6 months’ imprisonment consecutive. In all 24 months’ imprisonment was imposed.

In addition the judge imposed a period of disqualification of 2 years with an extension period of 12 months for the dangerous driving offence. The judge made no order for an extended driving test, having correctly had regard to a previous order made and section 36(7) RTOA. The Crown Court record wrongly makes reference to a requirement to take an extended test.

The facts show that on the morning of 28th September 2015 officers conducted a check on a vehicle being driven by the appellant. He was in a residential area and had three passengers with him. They found that the vehicle did not have insurance or an MOT. The appellant stopped his car as requested by police, but as they got out of their vehicle he sped away. He drove through red traffic lights, mounted a kerb at speed and went on to a grassed area outside some houses. A member of the public pushing a pushchair was nearby. An officer drove his van onto the kerb to pin the appellant’s car into a hedge and prevent him driving any further. The appellant then attempted to drive away. The dangerous driving took place over about 10 minutes.

As the police moved in to arrest him, he picked up a Stanley knife which had been in the door of the car and placed it in his pocket. It was found after arrival at the police station. The appellant could give no explanation for placing the article in his pocket. Even when asked by the judge at the hearing. The judge observed in sentencing that it was no coincidence that he put the knife there moments before the police removed him from the vehicle. The judge noted that there had been a car chase in a residential area with pedestrians present. Although nobody had been hurt, there was potential for death or serious injury to be caused.

Full credit was due for guilty pleas. The appellant is 26, he is heavily convicted. There are convictions for 72 offences recorded on 26 different occasions. Those convictions include arson, robbery, drug supply and breach of court orders. Numerous custodial sentences have been served. The convictions cover vehicle and motoring crime, including aggravated vehicle taking and theft from or interference with vehicles. The appellant was sentenced to 15 months’ imprisonment in 2013 for dangerous driving and has six previous convictions for driving whilst disqualified. His record was such that a two year period of disqualified for a relevant offence from driving was obligatory (see section 34(4)(b) RTOA). The appellant had on more than one occasion within the previous three years been disqualified for 56 days or more. In January 2013 he was disqualified for 2 years and in April 2013 he was disqualified for 3 years.

The grounds of appeal focussed on the sentence for possession of a bladed article. It was accepted that the sentences imposed for dangerous and disqualified driving were not manifestly excessive but it was urged that a sentence of 9 months for possession of the bladed article consecutively was manifestly excessive. The appellant had no previous conviction for possession of a bladed article or a weapon.

We were referred to the decision in R v Povey [2009] 1 Crim App Rep (S) 42. At [4] Lord Judge stated that sentencing courts must have at the forefront of their thinking that sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. He went on to say “Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm that the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness it deserves.” The court went on to recommend that any guidance from the Sentencing Guidelines Council to magistrates should normally be applied at the most severe end of the appropriate range of sentences.

Miss Landin then referred us to the Magistrates Court Sentencing Guidelines. They provide (page 32): “When assessing offence seriousness, consider the offender’s intention, the circumstances of the offence and the nature of the weapon involved”. At page 33 the sentencing ranges are shown as follows:

Miss Landin relies on the absence of any threat or confrontation between the appellant and the police officers until the discovery of the knife at the police station. Thus, she argues, the case falls into category (a) or (b) under the guidelines, which represent a sentence after a trial for a first time offender. In the circumstances the sentence was manifestly excessive, particularly when the appellant’s extensive previous record shows no relevant previous convictions for violence or possession of weapons. Were it not for the driving matters, Miss Landin contends that the matter would have been dealt with in the Magistrates Court.

We consider that the judge was right to be concerned about the appellant’s unexplained decision to place a Stanley knife in his pocket immediately prior to his emergence from the vehicle at a time when police officers were about to apprehend him. Given his amply demonstrated desire to evade the attentions of the police in the preceding minutes we are satisfied that the situation was a dangerous one, but we recognise that no confrontation in fact took place, nor was any threat made in relation to the knife.

Accordingly, we consider that the case falls within category (b) set out at page 33 of the guidelines. The indication there however, has to be read in the light of additional guidance given after Povey. That guidance provides as follows: “Applying Povey where the offensive weapon is a knife the starting point for a first time adult offender who has pleaded not guilty is committal to the Crown Court and, therefore, a custodial sentence in excess of 6 months.” It follows, therefore, that given the post-Povey approach to knife crime, the starting point of 9 months adopted by the judge is not open to criticism in the circumstances.

It was appropriate for the term in relation to the knife to run consecutively to that imposed for the motoring matters. Miss Landin raised the issue of totality but looking at the circumstances and taking account of this appellant’s past record we do not consider that there is an arguable ground.

We next turn to matters pertaining to disqualification. A total term of 24 months’ imprisonment had been imposed leading the judge to impose what was an obligatory period of disqualification for 2 years as the discretionary period with an extension period of 12 months representing half the global term of imprisonment. Unlike other defence counsel, Miss Landin did not complain of the judge’s adoption of the global approach to section 35A when she made her written submissions. In effect she accepted that the Crown’s argument was correct. However, having heard oral submissions made by other counsel at the hearing, she modified her position so that if the court accepted that the Crown’s global approach was incorrect, modification of the order made would be required.

Ms Landin made a discrete submission concerning time on remand. Williams had spent some 14 days on remand prior to sentence. Whilst accepting that failure to adjust to that period would not lead to a disproportionate period of disqualification in Williams’ case, Miss Landin supported general arguments that allowance should be made. Williams had in fact been the subject of an order for interim disqualification pursuant to section 26 RTOA for the period of his remand. Since section 26(12) provides that such interim disqualification would be counted towards the final disqualification order, there could never in such circumstances be unfairness or disproportionality arising from the failure to credit time spent on remand.

There is no complaint about the overall length of disqualification imposed. However, in the light of our construction of the sections the matter was not correctly expressed by the judge who applied section 35A comprising a discretionary period plus an extension period. The judge should also have gone on to apply section 35B. Had the dangerous driving for which the period of disqualification was imposed stood alone the matter would have attracted 2 years 7 months disqualification (2 years as the discretionary period plus a 7 month extension period). This would mean that a significant part of the disqualification would elapse whilst the offender was in custody. Since section 35B also applies, the court is enabled to make an upward adjustment to the disqualification to reflect both the judge’s and Parliament’s intention. This is achieved by making an order of disqualification of 3 years under section 35B including an upward adjustment of 5 months for the purposes of section 35B(2).

There being no complaint save as to the formalities we refuse this appeal. We direct amendment of the Crown Court order to delete any reference to the re-test and to express the order of disqualification and a total of 36 months comprising an initial discretionary disqualification of 2 year, a 7 month extension period and a section 35B adjustment to the discretionary disqualification of 5 months.

This application for permission to appeal against sentence has been referred by the Registrar. On 25th November 2015 at the Birmingham Crown Court the applicant during his trial changed his plea to guilty to handling stolen goods. Two days later he pleaded guilty to offences of dangerous driving, driving whilst disqualified as well as associated summary offences of using a vehicle without insurance and driving otherwise than in accordance with a licence. For the handling offence he was sentenced to 27 months’ imprisonment, 12 months consecutive was imposed for dangerous driving and a further 3 months consecutive was imposed for driving whilst disqualified. No separate penalty was imposed on the other matters. The total prison sentence therefore was one of 42 months’ imprisonment.

In addition the judge imposed 30 months’ disqualification plus an extension period of 21 months and until an extended re-test was passed. We take the judge to have imposed the 30 months’ discretionary disqualification to the dangerous driving offence since he made no reference to disqualification for the offence of driving whilst disqualified.

The facts relating to the handling show that in the small hours of 15th October 2014 a dwelling house burglary took place. Two laptops were stolen as well as a Mercedes E class motor car worth £25,000. Five days later the police went to the applicant’s home. They found both the applicant and a man called Cogger, an associate of the applicant who was the burglar, present. The key to the stolen Mercedes was in the applicant’s pocket. The car was parked close to his address and had had its registration plates altered.

On 22nd October 2015 whilst the applicant was on bail police saw a black BMW being driven past them in the small hours of the morning. The driver was attempting to conceal his face. The officer tried to catch up with the vehicle but it was travelling at speeds of 80 mph in a 30 mph limit. The vehicle drove the wrong way down a dual carriageway and the officer abandoned pursuit considering it too dangerous. However a helicopter filmed the vehicle travelling until it stopped and the applicant and a female passenger alighted. The applicant was subsequently arrested in bushes nearby. At the time he had been disqualified from driving in December 2014 for a period of 12 months for using a vehicle without insurance. In sentencing the judge observed that an expensive car had been stolen in a burglary. The applicant knew that Cogger was a persistent burglar who habitually stole cars and indeed the applicant had previously committed a burglary with him when a vehicle was stolen. The applicant was very close to the serious primary offence. He had pleaded guilty albeit it at a very late stage. The driving represented a bad case of dangerous driving.

The applicant is 28 years old. He has been convicted in the past of 38 offences. They included taking a vehicle without consent, aggravated vehicle taking, multiple offences of driving whilst disqualified and conspiracy to burgle. There was a conviction in 2010 for handling stolen goods which included a BMW displaying false number plates. In December 2011 the applicant received 3 years’ imprisonment for burglary and attempted theft. That burglary had been committed with Cogger. The pair had travelled to the burglary in a stolen vehicle bearing false plates. They stole keys to a Mercedes and after a police pursuit, crashed.

The grounds of appeal argued that a sentence of 27 months was too high for the handling. The sentence was too far up the scale in the range indicated by R v Webbe & ors [2002] 1 Crim App Rep (S) 22. That range was between 1-4 years with values up to around £100,000. As to the starting point for 18 months for dangerous driving, that was too high. The driving had not been prolonged and was not of the worst. Looking at matters in the round insufficient regard was had to the principle of totality.

We do not consider that there is any merit in these grounds. The guilty plea to handling was tendered at a very late stage indeed so that the 10% discount granted was generous. The offence was serious and involving a high value motor vehicle, stolen in the course of a dwelling house burglary. Given the applicant’s history with the co-accused the judge was fully entitled to conclude that this applicant should be viewed as having been in very close proximity to the serious primary offence. The value of the goods is not the only relevant factor. Given the applicant’s record, particularly for this type of offence, we do not consider that the term imposed was arguably manifestly excessive.

As to the driving matters, these were offences committed whilst on bail. In addition the applicant’s previous convictions merited substantial upward adjustment in the sentence and the offence was committed in the context of an attempt to escape from the police. It was a matter of good fortune that no harm in fact resulted from driving at a very high speed in a residential area. We note that the nature of the driving was such that the pursing officer thought it prudent to abandon the chase. In the circumstances we are not persuaded that there was anything wrong with the term imposed. Additionally, the judge was entitled to impose a consecutive term for driving whilst disqualified. Standing back and looking at the total sentence there is nothing disproportionate about it in our view in all the circumstances. The sentence was firm, but not arguably too long. This part of the application does not succeed.

We turn next to disqualification grounds. The judge imposed 30 months disqualification plus an extension period of 21 months based on the global prison sentence rather than on the dangerous driving offence. Mr Close argued that this was an incorrect approach. The judge should have confined the use of section 35A to identifying what would be the appropriate extension period by reference only to the motoring offences. Because in addition the handling offence fell to be sentenced, he should move to section 35B and, should calculate an appropriate period of disqualification. Smythe had served a period of 38 days on remand. Mr Close did not seek to argue that a failure to take account of that period would render any period of disqualification to be served after release unfair or disproportionate. He sought no remedy in this respect.

As in other cases the judge expressed the disqualification as if he had sentenced under section 35A alone. Section 35B also applies. There can be no complaint about the overall period of disqualification intended by the judge but the exercise needs to be carried out in accordance with the statutory provisions. If the dangerous driving stood alone the disqualification would have been for 3 years (30 months as the discretionary element plus 6 months extension period). Unless adjusted, this would mean that more than half of the disqualification period would be served in prison. Accordingly an adjustment was required under section 35B. The order should have been one of 51 months disqualification, comprising an initial discretionary disqualification of 30 months, an extension period of 6 months and a section 35B adjustment of 15 months to the discretionary period. The Crown Court record should be amended accordingly. There being no change of substance to the order made by the judge, this application is refused.

This application relating to sentence has been referred to the court by the Registrar. The applicant pleaded guilty before the Magistrates' Court and was committed for sentence pursuant to section 3 of the 2000 Act for dangerous driving and under section 6 for driving with excess alcohol. Those pleas were entered on 3rd September 2015 and an order of interim disqualification from driving was imposed at that stage. On 17th November 2015 in the Crown Court at Chester Deakin was sentenced as follows: for dangerous driving 6 months’ imprisonment; for driving with excess alcohol 1 month imprisonment concurrent. In addition the judge disqualified the applicant from driving for a period of 3 years plus an extension period of 3 months. An order for an extended re-test was made.

The facts show that the applicant went to a nightclub in Warrington. He gave three people a lift home at about 2.30 am. A passenger described him as initially driving normally but then accelerating hard, failing to slow down at a roundabout and travelling at an estimated speed of 70 mph. She told him to slow down and had been terrified. The applicant then stopped at a petrol station to buy cigarettes, almost colliding with the pumps. The passenger said she was shaking with fear. On his return to the vehicle the applicant continued to drive at excessive speed. He went through two red traffic signals and drove at speeds estimated at 80 mph in a 40 mph limit. The applicant ignored repeated protests from the passenger. Eventually he lost control of the car on a right hand turn and crashed into a shop window. He caused damage estimated at between £20,000-30,000 and caused the shop to close for a week.

He was arrested at the scene. At the police station he provided a reading in breath of 80 mgs per 100 ml, more than twice the legal limit. He said he could not recall what had happened but apologised. One passenger suffered back pain and a sore pelvis. Another suffered soreness to her neck, back and hips, a swollen ankle and wrist and scratches to her shoulder and face.

The applicant is now 23 years old. He was of previous good character, apart from a speeding matter whose 3 points had expired. In sentencing the judge identified a number of aggravating features including the level of intoxication, the fact that the driving was persisted in despite the passengers’ protests, the damage caused to the building and the business, and the resumption of driving after stopping at the petrol station. There was a pre-sentence report and two character references. The report disclosed that the applicant had sold his car and did not have access to a private vehicle, and that the applicant’s business partner would drive the work van whilst he was disqualified.

It is submitted that the disqualification imposed was manifestly excessive, bearing in mind the applicant’s previous good character and the fact that he had recently started a business installing security cameras which required him to travel long distances to complete contracts. Emphasis was laid on the potential impact of disqualification upon his livelihood. The disqualification risked having a disproportionately damaging effect on the applicant’s future prospects.

It seems to us that the applicant may have been fortunate in the term of imprisonment imposed for the dangerous driving given the number of aggravating features identified. It may well be that the judge was influenced by the applicant’s previous good character and lack of any relevant motoring record. In any event what we have to consider is the question of the length of disqualification. The extension period of 3 months under section 35A is, of course, governed by the length of the custodial sentence.

The reality of this appeal, as is accepted by Mr Evans, is that the focus of our consideration should be on the discretionary period of 3 years imposed, it being accepted that the additional 3 months does not make a material difference as to the appropriateness of the period of disqualification. Accordingly, the discretionary period is to be determined in accordance with the principles which governed sentencing prior to the introduction of section 35A and section 35B, although, of course, in this particular case section 35A applies, and was correctly applied by the sentencing judge.

In that context, it is well established that the purpose of an order of disqualification was protection of the public as well as punishment and deterrence. As previously stated, however, a balance has to be struck and the court should not disqualify for a period that is longer than necessary and should have in mind the effect of a ban on employment or employment prospects. Here the situation is that the applicant has served the short custodial sentence imposed and is faced with the prospect of 3 years disqualification after release.

The applicant has now served his prison sentence. In his absence his partner has kept the business going and now the pair of them are both involved. When driving is necessary, that is done by the partner. Mr Evans did not submit that the situation threatened the viability of the business or the security of this applicant’s employment. The highest he could put the matter was that the disqualification was an inconvenience which made conduct of the business more difficult. We, of course, have regard to the general approach stated above, and in performing the necessary balancing act, consider that this was a particularly serious case which required a significant ban for the protection of the public. This was, after all not only a case of inherently dangerous driving, but was one committed in the context of a very high alcohol reading. In the circumstances, we think the judge got the balance right. Accordingly this application is refused.

This is an application for permission to appeal against sentence referred to the court by the Registrar. On 20th November 2015 at Nottingham Crown Court the applicant pleaded guilty to various offences and was sentenced. Count 1 involved causing death by dangerous driving and a sentence of 5 years and 6 months’ imprisonment was imposed. There were associated summary offences of using a vehicle without insurance and driving a vehicle otherwise than in accordance with a licence. No separate penalty was imposed.

In addition the judge imposed a period of disqualification from driving for 7 years and until an extended re-test is passed. In his sentencing remarks he did not identify any discretionary period or any extension period under the new legislation.

The facts show that the applicant attended his son’s twelfth birthday party at a public house on 4th May 2015. At some stage his friend David Johnson arrived at the public house with a Ford Tipper motor vehicle which he had driven illegally from the work site at which he and the applicant worked. Neither of them had lawful authority to drive the vehicle. The applicant did not hold a driving licence. The vehicle had a single bank of seats designed to carry the driver and two passengers. The applicant decided that since his son was bored he would take his son, his son’s friend and his own five year old youngest son in the vehicle.

The applicant drove to the local industrial estate where he worked. He then proceeded to undertake stunts in the vehicle, including skids and other careless manoeuvres. Nobody in the vehicle was wearing a seatbelt. There was no petrol cap on the vehicle and as the manoeuvres took place petrol was spilling from the vehicle. The manoeuvres included performing a slalom on the asphalt and driving at speeds estimated at 40 mph as well as the skidding. One of the boys told the applicant to stop. The applicant in fact lost control of the vehicle and collided with a concrete pillar, which caused the vehicle to tip over onto the passenger side. The applicant’s 12 year old son was partially ejected from the vehicle and his head was crushed. He died instantly from catastrophic head injuries witnessed by all in graphic detail. Both surviving boys were severely traumatised, cut and bruised. One boy suffered a fractured arm.

In interview the applicant admitted driving dangerously but denied being told to stop. He accepted that he had had two pints of lager but was found to be well under the legal limit. There are victim personal statements from the mother of the deceased and the grandmother of the third boy.

In sentencing the judge said that it was difficult to contemplate more irresponsible behaviour by someone who had no authority to drive the vehicle, held no driving licence or insurance and drove three children without their seatbelts on. The judge noted the trauma caused to the two surviving boys and said that this was a case of deliberate bad driving. He regarded the case as falling within category 1 of the Sentencing Guidelines Council’s definitive guideline for causing death by dangerous driving. The sentence imposed reflected a starting point of 9 years, credit for a prompt guilty plea and some additional credit as an act of mercy. The applicant is now 33 years old. He has no previous convictions. There is a wholly irrelevant caution very many years ago. There was no pre-sentence report but the judge received a series of references.

The grounds of appeal submit that the judge’s starting point was too high and that the judge should not have placed the case into category 1; level 2 was the appropriate category. Moreover, the applicant had no intention to cause harm and would always suffer the consequences of his actions as would his surviving son and his partner, the deceased’s mother. We note that the judge did not refer to the consumption of alcohol as an aggravating feature, nor did he base any part of his sentencing on the allegation that one of the boys had told him to stop. That was a matter which was disputed by the applicant. The driving, it is pointed out, albeit at an excessive speed of 30-40 mph in a 10 mph area was over a relatively short distance and it is argued that the driving fell at level 2, namely driving that created a substantial risk of danger.

Level 1 covers “the most serious offences encompassing driving that involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an apparent disregard for the great danger being caused to others”. The facts of this case are somewhat unusual but we see no basis to differ from the trial judge’s assessment that this case went beyond level 2 and reached level 1.

There were aggravating factors to be taken into account, such as the significant injury to one of the boys, the serious psychological trauma caused to both of them, the on-going effects upon others, the use of a vehicle without authority and the absence of a valid driving licence or insurance. These factors would clearly justify an increase of the starting point.

They of course may be balanced to some extent by the fact that the victim was this applicant’s own son, no doubt something he will have to live with until his dying day.

Notwithstanding the submissions made to us, we are not persuaded that the judge wrongly categorised this case, or that the allowance which he made resulted in a sentence which was manifestly excessive.

We turn next to issues arising from the disqualification. There is no complaint about the period of 7 years’ disqualification. However, since the judge passed a sentence of imprisonment for causing death by dangerous driving and imposed a disqualification for it, section 35A applies. To give proper effect to section 35A the judge should have added an extension period to the discretionary term of 7 years disqualification which he had identified. The correct term of disqualification should have been 7 years plus a 33 month extension period. We have no power to make that order now because of section 11(3) of the Criminal Appeal Act 1968. The applicant has been fortunate in this respect. He will serve a significant part of his disqualification whilst in custody. It illustrates the need for these new provisions to be adhered to. All we can do at this stage is to regularise the form in which the disqualification is to be expressed. There will be an order of disqualification pursuant to section 35A of 7 years comprising a 51 month discretionary period plus a 33 month extension period.

This application relating to sentence is refused. We consider that the correct course is to order an amendment of the Crown Court record so that it shows an overall period of disqualification of 7 years comprising a 51 month discretionary period plus a 33 month extension period.

This application for permission to appeal against sentence has been referred by the Registrar. A fourteen day extension of time is also required. We grant it. Khan pleaded guilty to an offence of assault occasioning actual bodily harm. He subsequently pleaded guilty to a second indictment representing offences committed on bail. Those were offences of dangerous driving, driving whilst disqualified and associated summary offences of failing to stop after an accident, failing to stop when required by a police constable and using a vehicle without insurance.

At Preston Crown Court on 3rd December 2015 he was sentenced to 15 months’ imprisonment for dangerous driving, 4 months consecutive for driving whilst disqualified, 3 months consecutive for failing to stop, with no separate penalty for the two other summary offences. For assault occasioning actual bodily harm he was sentenced to 8 months’ imprisonment to run consecutively. This gave a total of 30 months’ imprisonment.

In addition the judge imposed a term of 2 years disqualification from driving for the dangerous driving offence. The disqualification would remain operative until an extended re-test was passed. He passed an identical term of disqualification, which would run concurrently, for the offence of driving whilst disqualified. The judge made no reference to any extension period. The transcript of his sentencing remarks shows that he said that the disqualification would be “for a period of 2 years on his release from custody”. This was a case where the court was obliged to disqualify for a period of at least 2 years by reason of previous recent disqualifications of 56 days or more incurred within the previous 3 years (section 34(4)(b) RTOA 1988). The relevant convictions were for 3 years in April 2014, for using a vehicle without insurance, and for 697 days in November 2014 for driving whilst disqualified.

The facts of the section 47 allegation show that on 3rd July 2015 the complainant leased a vehicle to the applicant whom he knew. The vehicle was due to be returned within a few days but was not. The vehicle was reported stolen and an associate of the applicant was arrested. The applicant telephoned the complainant and blamed him for his associate’s arrest. The pair agreed to meet on 10th July at a shop and an altercation took place in which the applicant assaulted the victim, punching and kicking him before and after he went to the floor. The victim was then dragged outside the shop and the applicant stamped on his head on a number of occasions. The victim sustained swelling to his face and the back of his head, together with various scratches and grazes and significant pain to his face, neck and left hand.

The motoring offences were committed whilst on bail. On 25th September 2015 during the evening police officers signalled a vehicle with a defective rear light to stop. It failed to do so, ignored a no entry sign and drove down a one way street at 50 mph in a 30 mph area. It turned left into another street and collided with a parked van, whereupon the applicant jumped out and ran away. He was detained after a chase on foot. The owner of the van said it would have to be scrapped.

The applicant is heavily convicted. There are some fifty-one offences on his record. They include six offences of battery, one of assault occasioning actual bodily harm, two of affray and one of wounding. There are also convictions for dishonesty, drug supply, aggravated vehicle taking and breaches of court order as well as multiple no insurance offences. The applicant had been on licence from a custodial sentence for driving whilst disqualified and section 20 wounding at the time the assault in this case was committed.

The grounds of appeal urged that the overall custodial sentence was manifestly excessive, in particular a starting point of one year for assault occasioning actual bodily harm was outside the range for a category 2 assault where the maximum is 51 weeks. Further, the sentence for dangerous driving represents a starting point of 22.5 months which in all the circumstances was too high. Moreover, although it was conceded that consecutive sentences for each matter were justified, the overall sentence breached totality principles.

Dealing first with the assault offence, we do not accept that the case necessarily falls within category 2 as the judge appeared to accept. This was a sustained assault in which the shod foot was used. Those factors alone could put the case into category 1. At the very least, if category 2 was appropriate, as the judge thought, it would put the case at the very top end of the range. The difference between 51 weeks and a year’s custody is immaterial. We are not persuaded that there is anything untoward with the sentence passed for the assault offence.

Turning then to the dangerous driving, it was of relatively short duration and not of the worst kind. Leaving aside that the applicant was disqualified (which was separately dealt with), the main aggravating feature was the damage caused to the parked van. We think there is force in the argument that a starting point after trial very close to the statutory maximum was excessive, when the driving whilst disqualified was dealt with consecutively.

Taking account of that, and having regard to the further imposition of a consecutive sentence for failing to stop after an accident, we think that the overall sentence was too long and that some reduction should be made. We grant leave. We give effect to that view by reducing the sentence for the dangerous driving offence from 15 months to 12 months, and ordering that the failing to stop sentence runs concurrently with the other terms, so that the total sentence is reduced from 30 months to 24 months’ imprisonment.

In the light of that we turn to issues relating to disqualification. Mr Barton correctly observed that the judge was in error in pronouncing a disqualification starting on release from custody. It is axiomatic that disqualification commences on the day sentence is pronounced. It is for that reason that Parliament has legislated in sections 35A and 35B. Something was said to the judge about the new legislation, and it may be that he misapprehended its effect. The judge also failed to say anything about an extension period or the impact of section 35B as a result of the section 47 offence.

Mr Barton submitted that what the judge should have done was to look at the two custodial sentences which had attracted disqualification, namely dangerous driving and driving whilst disqualified. (We have now identified a total term of 16 months rather than 19 months for those two matters). Had those matters stood alone, he submitted that an extension period under section 35A would have been appropriate. The judge should also have identified that by reason of section 34(4)(b) RTOA an obligatory 2 year period of disqualification would have represented the discretionary disqualification period had the matter been dealt with solely under section 35A. He then submitted that, since a consecutive sentence of 8 months had been imposed for the section 47 offence, the court had to go on to consider the position under section 35B. A judge wishing to give effect to the new legislative provisions could reflect that in a term of disqualification ordered under section 35B(2). The judge would therefore have been entitled to make an order of disqualification for a period which meant that the offender served his disqualification after release into the community. (In the light of our re-adjustment of the length of the sentence that would have required an order of disqualification for 3 years). If, however, the application relating to sentence failed this court could not increase the disqualification because of section 11(3). Those submissions were correct.

Had we not reduced the custodial term, section 11(3) of the Criminal Appeal Act 1968 would have precluded us from increasing the sentence of disqualification. Were we limited to the period of 2 years pronounced by the judge, but wrongly stated to commence at the point of release from custody, the correct effect of that order would have been that the applicant served no disqualification whatsoever in the community. It is plainly right that he should do so given the clear intention of Parliament, and we take into account that the judge clearly envisaged that he should do so even if he got the mechanism for securing this wrong. Accordingly we are satisfied that the correct course in this case is to substitute an order of disqualification pursuant to section 35B for a period of 3 years in place of the order made below. We are satisfied that to do so falls within the parameters of fairness and section 11(3). For the avoidance of doubt, that term runs from 3rd December 2015.

This offender spent some 10 days on remand. Mr Barton argued that a court could allow such a period against the term of disqualification ordered under section 35B. We regard such a period as being de minimis so that it would not be appropriate to make any adjustment for this.

This appeal therefore is allowed to the extent indicated above involving a reduction in the custodial term and an alteration in the period of disqualification.

In addition to reflecting the reduced term of custody, the Crown Court record should delete a reference to the period of disqualification commencing on release from custody. The disqualification applies from the date of the Crown Court sentence. The disqualification is to be expressed as a term of 3 years pursuant to section 35B comprising an initial discretionary disqualification of 2 years, an extension period of 8 months and a section 35B adjustment of 4 months to the discretionary disqualification.