R v Mahmood Hussain

The Registrar of Criminal Appeals has referred to the full court Mr Hussain's application for an extension of time of 242 days in order to apply for leave to appeal against sentence, his application otherwise being out of time. We grant the extension of time and we grant leave to appeal.

The sole issue on this appeal is whether the sentencing court should have directed that the credit period due to the appellant by reason of his having been subject to a bail condition of a curfew with electronic monitoring should have been directed to count as time served as part of the sentence, pursuant to section 325 of the Sentencing Act 2020.

The background facts are that the appellant was sentenced on 15 April 2024 by His Honour Judge Andrew Jefferies KC sitting in the Crown Court at Burnley to a total term of 4½ years' imprisonment for offences of assisting unlawful immigration to a Member State, contrary to section 355(1) of the Immigration Act 1971. Prior to 15 April, on 1 December 2023 the appellant was granted conditional bail pending sentence with the following conditions: (a) to live and sleep each night at 273 Chapel House Road, Nelson BB9 0QU, (b) to observe a curfew between the hours of 8.00 pm and 7.00 am electronically monitored, (c) to report to Burnley Police Station every Wednesday and Saturday between 10 and 12, and (d) not to apply for any travel documents of any description.

However, at the sentencing hearing neither counsel for the prosecution or defence reminded the court that Mr Hussain had by that date served 135 days on a qualifying tagged curfew. Consequently the learned judge did not make a direction under section 325 of the 2020 Act that the days that Mr Hussain spent on tagged curfew be taken into account as part of his sentence. This failure came to the attention of the appellant's solicitors on 11 December 2024, hence the late application and the need for an extension of time.

By section 325 of the Sentencing Act 2020 where the court passes a determinate sentence on an offender in respect of an offence, the offender was remanded on bail and the bail was subject to a qualifying curfew condition and an electronic monitoring condition, the court must specify the credit period for the purposes of section 240A of the Criminal Justice Act 2003 which deals with time remanded on bail to count towards time served in relation to the sentence.

In Hoggard [2013] EWCA Crim 1024 it was decided that there is no discretion not to give a direction under section 325 or to give a direction as to a period of days less than the credit period. In the present case it is agreed that the credit period which should have been specified is 68 days.

In Marshall [2015] EWCA Crim 1999, it was stated that in cases where the credit is not specified by the sentencing court in accordance with section 325 and 56 days expired before the error is spotted, an application must be made to the Court of Appeal and the error cannot be corrected under the slip rule. Hence the need for this application.

Accordingly, we allow the appeal and order that 68 days should count towards service of the appellant's sentence and that the certificate of conviction should be amended to read: