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Neutral Citation No [2025] EWCA Crim 979 IN THE COURT OF APPEAL (CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT PRESTON Mr Justice David Clarke T20057540) |
Case No:202404255 A5 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE ANDREWS
MRS JUSTICE CUTTS
HIS HONOUR JUDGE HIRST
REX
v
SHANE FITZPATRICK
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Computer Aided Transcript of Epiq Europe Ltd,
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Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
_________
Non-counsel application
_________
JUDGMENT
LADY JUSTICE ANDREWS:
This matter has been referred to the Full Court by the Registrar.
The applicant, Shane Fitzpatrick, is currently serving a sentence of life imprisonment for the murder of a man named David Guilfoyle. Following his conviction, he was sentenced in the Crown Court at Preston by David Clarke J on 13 July 2006. The judge sentenced without a pre-sentence report, and for reasons which will become apparent, we consider it unnecessary to order such a report before dealing with this application.
When a sentencing judge passes a Life sentence they are required to specify the minimum term to be served before the individual is eligible for consideration for release on licence by the Parole Board.
Section 269 of the Criminal Justice Act 2003, in the form in which it applied on 13 July 2006, provided as follows:
This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.
The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as 'the early release provisions') are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.
The part of his sentence is to be such as the court considers appropriate taking into account—
the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and
the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment."
Section 240 of the Criminal Justice Act 2006, in the form in which it was in force on 13 July 2006 when the appellant was sentenced, provided that:
This section applies where—
a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section, and
the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence, that is to say, any other offence ...
...
Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.
...
Where the court gives a direction under subsection (3), it shall state in open court—
the number of days for which the offender was remanded in custody, and
the number of days in relation to which the direction is given."
Unfortunately, when pronouncing sentence, the learned judge failed to specify the number of days which the applicant had spent on remand which were to count towards the minimum term of 20 years. He merely said that the minimum term to be served was 20 years "less any time spent in custody". That was an error. The precise number of remand days to be deducted from the minimum term must be specified in open court.
Whereas it was previously the practice for judges to express minimum terms as 'X years less Y days' spent on remand, this court has more recently indicated in R v Sesay [2024] EWCA Crim 483; [2024] 2 Cr App R (S) 30 that the sentencing judge must do the arithmetic and calculate the resulting minimum term so that the term is to be announced as "A years and B days". The judge must also specify the number of remand days or time spent on qualifying curfew or awaiting extradition (as the case may be) that were taken into account in carrying out the calculation.
Sadly, as the end of the applicant's sentence approached, it emerged that the length of time that he had spent on remand was a matter of dispute between him and the prison authorities. He was told that it was 94 days. In fact, as he was aware, he had spent far longer than that on remand. It is now accepted that the correct figure is 244 days. Once the mistake was discovered, the applicant and those advising him acted as swiftly as they could to put it right. As Sesay confirms, such an error cannot be cured administratively. The appropriate course is to appeal against the sentence, which in this case was not lawfully pronounced.
It is plainly in the interests of justice to grant the application for an extension of 6,689 days in which to seek leave to appeal in order that the sentence can be properly pronounced and Mr Fitzpatrick afforded the appropriate credit for the time he actually served on remand.
We therefore grant the necessary extension and give leave to appeal. We allow the appeal and quash the sentence pronounced by the judge. The amount of time spent on remand to be deducted from the notional minimum term of 20 years imprisonment is 244 days. Accordingly, the correct sentence is one of life imprisonment with a minimum term of 19 years and 121 days.
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