Defendant being sentenced to 12 months' imprisonment following breaches of community order – Judge failing to direct on number of days spent on remand and bail with conditions would count towards service of sentence
R v Hoggard: Court of Appeal, Criminal Division: 20 June 2013
For a number of days between February and May 2012, the defendant was on bail, subjected to a qualifying curfew condition and an electronic monitoring condition. In May, following offences consisting of one count of burglary and two breaches of a non-molestation order, the defendant was sentenced to a two year community order with a requirement to attend an integrated domestic abuse programme, a six month drug rehabilitation requirement and a six-month electronically monitored curfew order.
In July, following a breach, the community order was extended by two months. In December, following a further breach, the community order was revoked and the defendant was re-sentenced to 12 months' imprisonment. It was clear that in re-sentencing the defendant, the judge had intended that the defendant should receive credit for 38 days he had spent on remand and for half the number of days that he had spent on bail whilst subject to the relevant conditions.
The judge, however, did not give such a direction because he had believed credit would be given automatically following the coming into force of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (the 2012 act) amendments in relation to sections 240 and 240A of the Criminal Justice Act 2003 (the 2003 act). Thereafter, an attempt was made to invite the judge to give a direction in relation to the days spent on bail whilst subject to the relevant conditions. However, the papers were not placed before the judge until after the expiry of the 56-day period provided by section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. The defendant appealed against sentence.
It fell to be determined whether there should have been a direction under section 240A of the 2003 act, as amended by the 2012 act, and, if so, how many days spent on qualifying curfew and electronic monitoring conditions should have counted towards service of the sentence of 12 months' imprisonment imposed upon the defendant. Consideration was given to the guidance set out in sections 108 and 109 of the 2012 act (see - of the judgment). Further consideration was given to the cases of R v Nnaji; R v Johnson  All ER (D) 270 (Nov) (Nnaji), R v Irving; R v Squires  EWCA Crim 189 (Irving), and R v Williams  EWCA Crim 1590 (Williams). The appeal would be allowed.
Against the background of sections 108 and 109 of the 2012 act, together with the guidance given in Irving and Williams, it was established law that, amongst other things: (i) it remained essential that every court which imposed a curfew and tagging condition used the Court Service form entitled 'Record of Electronic Monitoring of Curfew Bail' (or its up-to-date equivalent) which was required to follow the defendant from court to court; (ii) solicitors and counsel were required to ask the defendant whether he had been subject to curfew and tagging, and, if so, they were required to find out, from the court record, for which periods; (iii) the consideration of steps 1-3 of section 240A(3) of the 2003 act would be part of the post-conviction proceedings and not subject to the application of strict rules of evidence; (iv) if there was a dispute under, in particular, step 2 and/or step 3, then the prosecution had to prove to the criminal standard that the days sought to be deducted from the number of days identified under step 1 were caught by the relevant step; (v) if the court was of the opinion that the resolution of the dispute, or part of it, would be likely to amount to the disproportionate use of time and expense then the dispute, or relevant part of it, should be resolved in the defendant's favour; (vi) save in the case where it was clear that there was no possibility of crediting a period of remand on bail, the order of the court should be along the lines suggested in Nnaji and Williams; and (vii) it remained the case that it should not be expected that the court would routinely grant long extensions of time to correct errors when no one had applied his mind to the issue until long after the event (see  of the judgment).
In the present case, the judge had been right to conclude that, in accordance with s 240ZA of the 2003 act, the 38 days which the defendant had spent on remand in custody would automatically count towards the service of his sentence. However, the judge had erred in concluding that no direction had been required in relation to the days that the defendant had spent on bail whilst subject to qualifying curfew and electronic monitoring conditions. A direction complying with section 240A of the 2003 act (as amended) was required. Having considered section 240A(3) of the 2003 act steps 1-5, it was concluded that further proceedings would be likely to amount to a disproportionate use of time and expense. Accordingly, the dispute would be resolved in the defendant's favour (see  of the judgment). 47 days would be ordered to count towards the service of the defendant's sentence (see  of the judgment).
R v Nnaji; R v Johnson  All ER (D) 270 (Nov) applied; R v Irving; R v Squires  EWCA Crim 189 applied; R v Williams  EWCA Crim 1590 applied; R v Gordon  All ER (D) 121 (Feb) considered; R v Monaghan  All ER (D) 225 (Dec) considered.
Felicity Campbell (solicitor advocate) (instructed by The Johnson Partnership, Nottingham) for the defendant.