A [2019] EWCA Crim 106; [2019] 4 W.L.R. 45, CA.
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R v A [2019] EWCA Crim 106; [2019] 4 W.L.R. 45 was an appeal by the Attorney General against sentence in which the Court of Appeal (Lord Justice Holroyde, Mr Justice Sweeney and Her Honour Judge Wendy Joseph QC) quashed a sentence of five years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and substituted a sentence of four years 269 days’ detention.
The respondent, aged 16 at the time of the offence, had pleaded guilty to manslaughter. On 17 October 2017 he and a co-accused, Michael Idehen, had attended a pre-arranged meeting with a 15-year-old boy, Kyron Webb, in a street in Moston, Manchester. Idehen was armed with a knife and the respondent with a metal pole or cosh. CCTV footage showed the two intimidating Kyron Webb before moving in on him in a pincer movement. Without provocation, Idehen stabbed him in the heart. The pair moved away but returned after about a minute and attacked the victim again, Idehen stabbing him in the back. Kyron Webb died three days later.
The respondent was remanded for eight days in custody at HMYOI Wetherby under section 91(4) of the Legal Aid Sentencing and Punishment of Offenders Act 2012, and thereafter for 192 days to local authority accommodation under section 91(3) of that Act. Throughout the latter period he was subject to an electronically monitored curfew from 7pm to 7am imposed under sections 93 and 94 of the 2012 Act, was excluded from Greater Manchester, was subject to supervision for a minimum of 25 hours per week, and was required to report to Preston Police Station every Saturday and Sunday between 12pm and 5pm.
At the sentencing hearing before HHJ Stockdale QC, the Honorary Recorder of Manchester, the parties failed to inform the judge of the two different types of remand to which the respondent had been subject or of the significance of the electronically monitored curfew. When the judge repeatedly sought help as to whether account was to be taken by the court of time spent on remand when imposing a sentence under section 91, he was told variously that this was correct, that there was no statutory credit but that he would have to take the time into account when deciding sentence length, and ultimately that all time spent on remand would be automatically deducted by the authorities in calculating the release date. The judge imposed five years’ detention, explaining that he had started at nine years after trial, reduced by a third to reflect the respondent’s age, and then by a further year to reflect the eventual plea.
On 8 August 2018 those representing the respondent were informed by the authorities at HMYOI Wetherby that only the eight days spent remanded under section 91(4) could be automatically credited, not the 192 days in local authority accommodation under section 91(3). By then it was too late to invoke the slip rule under section 155 of the 2000 Act. An out-of-time application for permission to appeal was therefore lodged, arguing first that the judge had been led into error in passing a sentence not adjusted to reflect the period in local authority accommodation and second that, in the alternative, an adjustment should have been made for the period on an electronically monitored curfew.
The Court of Appeal observed that there was a need for practitioners, particularly prosecutors, to give accurate assistance to judges on sentencing issues, though judges carried primary responsibility for their sentences. The court examined sections 240ZA and 242 of the Criminal Justice Act 2003, which provide for automatic administrative deduction of time on remand in custody. Section 242(2)(b) defines remand in custody as including remand to youth detention accommodation under section 91(4) of the 2012 Act, but makes no mention of remand to local authority accommodation under section 91(3). The court noted that the system had changed from one in which the court stated the number of days to count towards sentence to the current automatic system, but that time in local authority accommodation under section 91(3) could not be the subject of automatic credit because section 242(2)(b) referred only to remands under section 91(4).
The court considered R v D & H [2016] EWCA Crim 1807, in which this Court held that if a young offender was remanded to detention pursuant to the 2012 Act, time spent in custody or on electronic curfew would count, but that there was an anomaly in the statutory provisions because a young person remanded into local authority accommodation with an electronic curfew provision did not fall within the definition of a remand in custody for the purposes of the 2003 Act. In that case the court held that by analogy with section 240A(2) of the 2003 Act, the same provisions which apply to qualifying curfews under that section should apply by way of analogy, so that a person on curfew in local authority accommodation should have the same credit as a person remanded under an electronic curfew under the 2003 Act. The court also considered R v Anderson [2017] EWCA Crim 2604, which had concluded that time spent on remand in local authority accommodation under section 91(3) did not count as time served and did not fall to be deducted from sentence, but that by analogy with section 240A the offender was entitled to credit for being on a qualifying electronically monitored curfew whilst on remand to local authority accommodation.
The court held that the critical conclusion in Anderson was that a period of remand in local authority accommodation under section 91(3) of the 2012 Act could not be the subject of automatic credit under the current administrative system. However, the court did not regard the statutory framework as excluding altogether the possibility of a judge giving credit for time spent on remand under section 91(3) when calculating the length of sentence to be imposed. R v D & H illustrated that the requisite proportion of such time ought to be credited when the offender had been subject to a qualifying curfew. There might be cases in which the length of the remand combined with the restrictive nature of the conditions ought to be reflected in the calculation of sentence beyond any credit for qualifying curfew, albeit that such occasions were likely to be rare. The amount of such credit would depend on the facts of the particular case and the judge’s assessment of what the interests of justice required, and would not be a purely mathematical exercise.
In the present case the court concluded that the interests of justice did not require the giving of any further credit beyond 96 days for the time spent on qualifying curfew in accordance with R v D & H (being half of the 192 days on which the curfew applied). The court further held that, given the statutory framework, there was no power to order the authorities to give credit for time spent on remand under section 91(3) or for time spent on qualifying curfew whilst on such remand, whether in the Crown Court or in this Court. The only way such credit could be awarded was for it to be included in the calculation of sentence, with the sentence imposed being net of the credit given.
The court therefore quashed the sentence of five years’ detention and substituted a sentence of four years 269 days’ detention, reflecting credit of 96 days for the time spent on qualifying curfew. The respondent would continue to receive automatic credit for the eight days spent on remand under section 91(4) of the 2012 Act. In short, the appeal was allowed in part to ensure that the respondent received proper credit for the qualifying curfew period during his remand in local authority accommodation, achieved by reducing the headline sentence rather than by ordering the authorities to grant credit.