R v Jordan Ian Linsay

On 2 February 2024, at Oxford Crown Court, the Applicant pleaded guilty to a number of offences. He was sentenced for those offences on 19 March 2024 by Recorder Alex Young. The recorder imposed sentences of imprisonment totalling 40 months and disqualified the Applicant from driving for 26 months from 19 March 2024. The disqualification will, therefore, expire on 19 May 2026. The Applicant does not challenge the custodial term imposed on him but does seek to appeal the period of his disqualification from driving and applies for an extension of time to do so. The matter is now before the court following reference by the single judge.

The Applicant had been arrested on 19 December 2023 and remained in custody until his release in the circumstance we will set out shortly.

The Applicant received concurrent sentences of 40 months’ imprisonment for two offences of being concerned in the supply of class A drugs. There were further concurrent custodial sentences for offences of perverting the course of justice (6 months) and two offences of driving whilst disqualified (2 months). Save for the disqualification to which we will refer shortly, the recorder imposed no separate penalty for two offences of driving without insurance.

The recorder initially said that he was disqualifying the Applicant from driving for 29 months in these terms:

“The total custodial sentence therefore in your case is 40 months’ imprisonment. For each of the four motoring offences, your licence will be endorsed with the fact of those convictions and you will be disqualified from driving for a further period concurrently on each of those four charges. I set the discretionary period of that disqualification at nine months. I am required by law to add a period of equivalent to half of the custodial sentence which I have imposed, in other words 20 months, and therefore the total disqualification will be adding nine and 20 months, giving 29 months, which will start today.”

However, it was then pointed out that the Applicant had been remanded in custody for 3 months. The recorder then reduced the period of disqualification to one of 26 months, doing so by reducing the discretionary disqualification to one of 6 months.

The Applicant does not take issue with the custodial sentence imposed but does seek to appeal the period of disqualification in light of the following events.

The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024 was made on 30 July 2024 and came into force in relation to the Applicant on 22 October 2024. It introduced the SDS40 early release scheme and had the effect that the Applicant was to be released on licence after having served 40% of his sentence rather than the period of one-half of the sentence as had been the position at the time he was sentenced.

The effect of the SDS40 scheme was, therefore, that the Applicant was due to be released on 19 April 2025 (as opposed to 19 August 2025). He was, however, released some months earlier than the April date. That was a consequence, as we will explain shortly, of his release under the Home Detention Curfew.

It follows that at the time of the Applicant’s actual release his disqualification had a further period approaching 18 months still to run. This is to be contrasted with the period of 9 months which would have been the position if he had been released on 19 August 2025 as had been anticipated at the time of his sentencing.

The Applicant contends that the combined effect of the SDS40 scheme and of his release on Home Detention Curfew is that he has been banned from driving for 18 months or thereabouts rather than the 9 month period for which the recorder intended him to be disqualified. He, next, contends that as a consequence the length of the disqualification is manifestly excessive. It is to be noted that he does not say that it was manifestly excessive when it was imposed. Instead, the Applicant’s case is that it has become so as a consequence of the introduction of the SDS40 scheme and of his release on Home Detention Curfew. He says that this court should conclude that he should now be sentenced differently in respect of the disqualification and that s11(3) of the Criminal Appeal Act 1968 has the effect that we are not confined to considering the matters as they were at the time of the sentence.

In referring the application to the full court, the single judge set out the history which had led to the Applicant being released earlier than had been anticipated by the recorder and said:

“It follows from this that the two questions that arise on your application for leave to appeal are (1) whether it is arguable that the period of your disqualification should be reduced by 4 months because of your release after serving 40% of your sentence under the SDS40 early release scheme; and (2) whether it arguable that your disqualification should be reduced by another 5 months because you were released earlier under the home detention curfew scheme.

I consider that (1) raises an issue that should be considered by the full Court. As I understand it, section 35B of the Road Traffic Act 1988 applies to your case. You were ordered to be disqualified under section 35 of that Act and at the same time a custodial sentence was imposed for other offences (the drug offences). In such cases, the court must take account of the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence. The judge designed the disqualification on the basis that you would be disqualified for 9 months after the mandatory release halfway through your sentence took effect.

However, your mandatory release took effect 4 months earlier, because of the effect of SDS40. It may well be that this does not retrospectively render your disqualification manifestly excessive or wrong in principle, because the judge had no way of knowing, when he imposed the sentence that the change to mandatory release would come into force or would affect you.

However, this is an issue which may potentially affect a number of people and I consider that your ground of appeal is just arguable and should be considered by the Court of Appeal. …

So far as (2) is concerned, on the other hand, I consider that the position is probably clear: no reduction is made to the disqualification period because of home detention curfew. The Court of Appeal has made this clear in Parkin [2020] EWCA Crim 614, albeit that this was a section 35A case.

…

However, I appreciate that your period of disqualification does not have long to go, and I do not want to raise your hopes too high. As I have said, it may well be that the full Court will take the view that it should not interfere with the judge’s discretion, which was exercised at a time when he could not have anticipated early release at 40% of sentence.”

In R v Needham [2016] EWCA Crim 455, this court set out the terms of ss35A and 35B of the Road Traffic Offenders Act 1988 and gave detailed guidance, including a checklist, as to their application in practice. The guidance set out there remains required reading for those undertaking any sentencing exercise which includes or which might include disqualification from driving. We do not believe that that guidance needs any substantial revision but the following additional points of guidance should be read alongside it.

First, at [4] Treacy LJ referred to ss147A and 147B of the Powers of Criminal Courts (Sentencing) Act 2000 as being “mirror provisions” to ss35A and 35B and as being governed by the same approach. Those sections have now been replaced by ss166 and 167 of the Sentencing Act 2020 which again mirror ss35A and 35B and are again subject to the same approach.

Second, the duration of the extension period is set out expressly in s35A. That provides for the extension to be either two-thirds or one-half of the custodial term or sentence, as the case may be, depending on the type of term or sentence being imposed. It also lays down expressly the custodial terms and sentences to which extensions of two-thirds are to apply and those where the extension period is to be one-half of the sentence. The operation of s35A is wholly unaffected by the introduction of the SDS40 scheme or by the possibility of release on the Home Detention Curfew (see also R v Parkin [2020] EWCA Crim 614, [2020] 2 Cr App R (S) 44 at [10]). Where s35A applies the extension period set out in that section is to be added to the period of disqualification.

Third, the introduction of the SPS40 scheme can, however, be relevant to the term of any discretionary disqualification and to the length of the uplift to be imposed pursuant to s35B as follows.

As explained in Needham at [17]:

“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.’”

It was against that background that the court in Needham said, at [2], that the purpose of ss35A and 35B is:

“To avoid offenders [who] have been disqualified from driving and [who] 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.”

In light of those twin purposes the introduction of SDS40 with the consequence that prisoners will be released on licence after having served 40% rather than one-half of their sentences will be relevant to the determination of the period of disqualification in two situations.

Fourth, the possibility of a subsequent release on Home Detention Curfew can play no part in determining the period of disqualification at the time of passing sentence. Release on Home Detention Curfew is a form of early release on licence at a time before such release is required to be made. The power to order such a release is given to the Secretary of State by s246 of the Criminal Justice Act 2003. The decision to release a particular prisoner on Home Detention Curfew will typically be made on behalf of the Secretary of State by a prison governor or director applying the approach set out in HM Prison and Probation Service’s “Home Detention Curfew (HDC) Policy Framework” of June 2025. As we have already noted, the possibility that a defendant will be released on Home Detention Curfew can play no part in determining the extension period pursuant to s35A. Similarly, no account is to be taken of the possibility of such release in determining the duration of any uplift imposed pursuant to s35B or in the determination of the duration of the discretionary disqualification period. That is because whether the defendant will ultimately be released on Home Detention Curfew will depend on decisions made subsequently under the Policy Framework in light of the circumstances at the time when the relevant prison governor or other decision-maker considers that issue. Any assessment at the time of the passing of the sentence as to whether or when there will be such a release can be no more than speculation and must be of no account when the court is considering either the s35B uplift or the duration of the discretionary disqualification period.

The recorder expressed the period of disqualification as being one of 26 months made up of a discretionary disqualification period of 6 months and further period of 20 months. At points in his sentencing remarks the recorder’s comments could not be caught on the recording equipment. Nonetheless, it does appear that he was treating the 20-month period as being a single period of extension required by s35A by virtue of being one-half of the total sentence of 40 months. To that extent he was in error. The total period should have been expressed as being made up of periods of (a) 6 months as the discretionary disqualification period in respect of the driving offences; (b) 1 month as the s35A extension period resulting from the sentences of 2 months imposed for the offences of driving while disqualified; and (c) a period of 19 months as an uplift imposed pursuant to s35B by reason of the total period of imprisonment being 40 months by virtue of the sentences for the offences of supplying drugs.

As we have explained, the recorder was correct not to take any account of the possibility of the Applicant being released on Home Detention Curfew at the time that he was sentencing the Applicant. In addition, the recorder clearly could take no account of the SDS40 scheme in circumstances where the order introducing that scheme was not made until July 2024. It follows that save in respect of the form in which it was expressed the decision as to the period of disqualification was unimpeachable at the time it was made. Does either the subsequent introduction of the SDS40 scheme or the Applicant’s release on Home Detention Curfew make the period of disqualification manifestly excessive or otherwise capable of being the subject of appeal?

On behalf of the Applicant Mr Bartholomeusz submitted that the effect of s11(3) of the 1968 Act is that this court should consider the position as it is now and impose a sentence which this court concludes should be imposed in light of the current circumstances notwithstanding the absence of any failing on the part of the court below. It is said that this court is capable of taking account of changes in law or practice occurring after sentence but before appeal. That argument repeats the essence of the argument which was advanced and rejected in clear terms in R v Roberts [2016] EWCA Crim 71, [2016] 2 Cr App R (S) 14. As the then Lord Chief Justice explained at [17] and following:

“17.

It was submitted on behalf of the applicants as their first general submission that s.11 of the … 1968 [Act] permitted the court to allow an appeal if the court considered that the appellant should be sentenced differently. This was in contrast to the power under the original Act, the Criminal Appeal Act 1907, where the court’s power arose where the court considered a different sentence ‘should have been’ passed. This court was therefore entitled to review the reality of the sentence ... In the cases of these sentences of IPP, they have been manifestly excessive in the result. Sentencing judges could not have foreseen the effect that the sentences would have had. The court was therefore entitled years later to sentence again on a different basis.”

The Lord Chief Justice then set out the terms of Section 11 and said at [19]:

We see no reason for departing from that approach in this case and it provides a complete answer to the arguments which are being advanced on the Applicant’s behalf. Neither the decision of the Secretary of State to release the Applicant early on Home Detention Curfew nor the change in the time of release on licence resulting from the introduction of the SDS40 scheme can render manifestly excessive a period of disqualification which was not manifestly excessive at the time it was imposed. This court will not entertain appeals against sentences which complied with the law at the time they were imposed and which were not manifestly excessive. Changes in the release date occurring after the time of sentence do not affect that principle.

The approach taken by this court in Ashman does not cause us to depart from that assessment. In that case the court applied an uplift of 40% of the custodial sentence when calculating the duration of the s35B uplift. It did so notwithstanding the fact that the applicant had been sentenced on 5 September 2024 and so before the SDS40 scheme took effect. The court had to calculate the appropriate disqualification period afresh in circumstances where the judge below had erred in the application of s35A. It does not follow from the use of the 40% figure to calculate the s35B uplift in those circumstances (and where there does not appear to have been argument on the issue) that the sentence in question in this case is to be retrospectively characterized as having been manifestly excessive.

As the single judge noted, there may well be a number of others in the same position as the Applicant. The effect of the change brought about by the introduction of the SDS40 scheme is that such persons will be at liberty but disqualified from driving at a time when the relevant sentencing judge thought and intended that they should be in custody. Even if that could legitimately be regarded as a source of hardship to such persons, which is debateable at best, it is not hardship such as to warrant a departure from the established principles on which this court acts.

In light of that analysis, we extend time to the extent necessary and grant leave and a representation order. However, although just arguable the Applicant’s contentions do not provide a basis for challenge to the recorder’s decision. The sentence of disqualification, therefore, stands save that we direct that the Crown Court record be amended to record the disqualification as being one of 26 months' disqualification consisting of an initial discretionary disqualification period of 6 months; an extension period of 1 month pursuant to s35A; and an uplift period of 19 months pursuant to s35B.