R v Jason Nelson

LORD JUSTICE WARBY: This application for an extension of time for seeking leave to appeal against sentence has been referred to the full court by the Registrar. The single ground of appeal is that the sentence imposed in the Crown Court was unlawful and wrong in principle in so far as it included the partial activation of a suspended sentence. The point is clearly correct. The Crown accepts it. We therefore grant the necessary extension of time. We grant leave to appeal and for the reasons we shall briefly explain we allow the appeal and quash that element of the sentence. The remainder of the sentence is unaffected.

The appellant, Jason Nelson, is a prolific offender. By 2 October 2023, his 49th birthday, he had accumulated 70 convictions for 147 offences. Two-thirds of those offences were of theft or kindred offences and included ten dwelling-house burglaries and many burglaries of commercial premises.

On 7 November 2023 the appellant appeared before the Magistrates' Court and pleaded guilty to two charges of non-dwelling burglary. On 29 November 2023 he pleaded guilty to a third such offence and was sentenced on each of the three charges to 16 weeks' imprisonment. Each sentence was then suspended for 12 months with various requirements, including a drug rehabilitation requirement.

Some six months later on 27 March 2024 the appellant appeared again before the Magistrates' Court, this time at Stockport, and pleaded guilty to a charge of theft of a pedal cycle on 18 March 2024. For that offence he was sentenced to two weeks' imprisonment. As the offence had been committed during the operational period of the suspended sentence order of 29 November 2023, the Magistrates' Court was obliged to activate the suspended sentence unless it was unjust to do so.

It has to be said that the records of the decision making on this occasion are not, even now, entirely clear or consistent. Having now reviewed them all, however, two things are plain, in our judgment. First the Magistrates' Court did decide to activate in full the sentence of 16 weeks' imprisonment imposed in respect of one of the burglary offences. The two weeks for the theft were imposed consecutively leading to a total custodial period of 18 weeks. All of this is apparent from the Common Platform Records read with the Court Records. Secondly, however, it is clear that none of this was entered in the appellant's antecedents on the Police National Computer ("PNC"). The conviction was not recorded, nor consequently was the sentence including the activation of the suspended sentence order.

On 2 July 2024 the appellant appeared before the Magistrates' Court again, this time for an attempted burglary on 25 April 2024. He pleaded guilty and was sentenced to imprisonment for 15 weeks. This conviction and sentence were both entered on the PNC. The offending was again during the operational period of the suspended sentence order but there is no record of any consideration being given on that occasion to activate any part of the suspended sentence order of November 2023.

On 27 November 2024 before His Honour Judge Gilbart in the Crown Court at Manchester the appellant pleaded guilty to three offences of burglary committed at student accommodation in Manchester on 4 October 2024. On 10 January 2025 in the same court he was sentenced for those offences by His Honour Judge Davies. The judge passed a total sentence of two years and six months' imprisonment for the burglaries.

The prosecution invited the judge to consider in addition the 16 week suspended sentence imposed on 29 November 2023. It appeared from the PNC that this had remained active when the magistrates sentenced the appellant on 2 July 2023.

The judge was informed, correctly, that the suspended sentence had not been activated on that occasion. On that basis the judge decided that three months should be activated consecutively to the sentence for the burglaries. It appears that nobody present at the sentencing hearing was aware of the conviction and sentence of March 2024, save for the defendant himself who, we are told, was not able to give his counsel appropriate instructions.

On or about 13/14 May 2025, the prison to which the appellant had been sent alerted the court to the fact that the suspended sentence order had previously been activated. This was brought to the attention of the Recorder of Manchester, His Honour Judge Dean, who convened a hearing to review the position. This took place on 15 May 2025 by which time it was too late to take advantage of the so-called “slip rule”. The only means by which the sentence could be corrected was by way of appeal. The Recorder undertook to help in having the case looked at urgently by this court. Papers were filed in good time thereafter, hence our grant of an extension of time.

Plainly the suspended sentence order could be activated only once. That having been done in March 2024 the effect of the order was exhausted by the time His Honour Judge Davies came to sentence the appellant in January 2025. The imposition of an additional three months' imprisonment was wrong in principle, unlawful and that sentence must be quashed. The appeal is therefore allowed as we have indicated.

We add this. The cause of the mistake was a failure of record keeping of a kind that is most unusual, indeed in the experience of this court unprecedented. Mr Malone, who appears today for the prosecution as he did at the sentencing hearing, has offered apologies on the basis that the prosecution bears the responsibility of assisting the court. In our judgment however it was reasonable for the prosecution to rely on the accuracy of the PNC in formulating its sentencing note and oral submissions to the judge. There was nothing to place prosecution counsel on notice that the PNC was inaccurate or incomplete. Counsel for the defence was unaware of the error and therefore did not correct the point.

For these reasons we do not think that the conduct of the sentencing hearing is open to criticism. The errors are however troubling. The main cause for concern is the failure to record the March 2024 conviction and sentence on the PNC. That is an error by the State that could have had significant consequences for the appellant. At the instigation of the Registrar the PNC has now been corrected and a revised version is before us. The Registrar also directed the prosecution to assist in identifying the cause of the error.

Mr Malone has however, understandably, been unable to assist us as to how the administration of the PNC came to be flawed in the way that we have identified. We can only observe that in our judgment there should be an investigation by those directly responsible for the operation of the PNC. This is a critical element of the sentencing regime. The integrity and efficiency of the process will be undermined if those involved cannot be confident that the PNC is accurate and complete.