‘Tagged bail – Time to be credited’
The main role of the Criminal Cases Review Commission (CCRC) is to review alleged miscarriages of justice in England Wales and Northern Ireland. Another important task for the CCRC is to draw attention to areas where it sees the justice system not working as well as it should. This article, researched and written for Crimeline by CCRC Case Review Manager Miles Trent and CCRC interns Melina Mukherjee and Karen Cockitt, draws attention to the need for practitioners to ensure that clients receiving prison sentences get the credit to which they are entitled for time spent either on remand or on tagged bail as part of a qualifying curfew.
Over the last year or so, the CCRC has seen a significant increase in the number of applications from prisoners, aggrieved that they have not received the proper credit for time spent on remand pursuant to s.240ZA or s.240A of the Criminal Justice Act 2003 (CJA 2003). The phrase ‘time spent on remand’ is often used to refer both to time spent on remand in prison and to time spent on tagged bail with a qualifying curfew, but in most cases there is a stark difference between the two in terms of how credit is given. This is because since 3 December 2012, time spent on remand in prison is calculated by the prison and is not directed by the court, whereas time spent on tagged bail is still calculated by the court. Therefore, the court will only announce credit for time spent on tagged bail with a qualifying curfew and, subject to certain exceptions mentioned below, will leave credit for time spent on remand to be calculated by the prison.
The first exception is the judicial discretion to take into account time spent on remand outside of the circumstances specified in ss240ZA and 240A of the CJA 2003. A sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. This discretion flows from the requirement in Article 6 ECHR that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one. The emphasis must be on exceptional circumstances, the result of which is that this discretion will rarely be used.
Another exception applies to juveniles (under 18s) facing a detention and training order, so the judge will have to adjust such a sentence to take account of any time served, whether that was on remand or on curfew. In R v A [2019] EWCA Crim 106 the Court of Appeal found that credit for time spent on remand to local authority accommodation (RLAA) and time spent on a qualifying curfew as part of RLAA can only be given by the sentencing judge deducting it from the sentence. This is owing to an anomaly in the statutory provisions: if a young person is RLAA with a curfew, that does not amount to a remand in custody for the purposes of the 2003 Act. There is no power to order the authorities to give credit for time spent on remand under S91(3) Legal Aid Sentencing and Punishment of Offenders Act 2012, and/or for time spent on qualifying curfew whilst on remand under S91(3) 2012 Act. The only way such credit can be awarded is for it be included in the calculation of sentence.
A further exception applies to when a life sentence that is not fixed by law (other than a whole life sentence) is imposed. In such cases the minimum term must be specifically adjusted by the judge to take into account time spent remanded into custody (s.82A(3)(b) of the Powers of Criminal Courts (Sentencing) Act 2000).
Aside from these exceptions, where credit should be given for time served on remand, this credit will not be announced by the sentencing judge but will be calculated by the prison. If time spent on remand has not been correctly calculated as counting towards an offender’s sentence, corrections are no longer directed by the court (s.240ZA of the CJA 2003 (as inserted by s.108 of LASPO 2012)). This is now an administrative task completed by the prison and as such, most applications to the CCRC which relate to lack of credit for time spent on remand will be dealt with by signposting the applicant to the relevant prison service.
Tagged bail with a qualifying curfew is dealt with differently. If an offender has spent time on tagged bail with a curfew requirement of 9 hours per day or longer, s.240A of the CJA 2003 sets out the full calculation which determines the credit to which the offender is entitled. In summary, this is a half-day for every day spent on an electronically monitored curfew. However, the CCRC has seen a number of cases where legal representatives at the sentencing hearing have failed to point out that the offender has spent time on a qualifying curfew and so the appropriate credit has not been given. As the court must calculate credit for time spent on a qualifying curfew, there must be an onus on the advocates to bring any such time to the attention of the court. The case of R v A [2019] EWCA Crim 106 makes it clear that the application of this provision is not automatic, i.e. it must be formally addressed in court and will not be automatically calculated by the court if the issue is not raised by advocates. If the appropriate credit is not given on the date of sentence, the only way to allow for it thereafter is under the slip rule (if the error is spotted in time) or by way of appeal – for which see below. It is therefore crucial that any potential credit is raised at the sentencing hearing.
The ‘slip rule’ in s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 gives the sentencing court the power to correct errors in sentencing. Under the slip rule Magistrates’ Courts and Crown Courts have the power to vary or rescind a sentence or other order made on conviction if it is in the interests of justice to do so. This power enables the court to correct errors in sentencing so that the parties do not have to incur the time and cost of embarking on a full appeal against sentence. It can be used for correcting errors in the calculation of credit for time spent on remand (i.e. in those exceptional cases where the calculation is not done by the prison system), correcting errors in calculating credit for time on tagged bail, and also for other minor errors in sentencing, such as periods of disqualification, victim surcharge order amounts or, in the Crown Court, errors made in confiscation orders.
The slip rule allows an application to be made for the court to correct any sentencing error but this must be done within 56 days. After the time limit has expired, the offender should apply to the Court of Appeal for permission to appeal against sentence in the normal manner. However, the Court will require that the offender and/or advocates acted with “due diligence” after spotting the error. If due diligence can be shown then it is likely that the Court will grant even a lengthy extension of leave so that the error can be corrected. The Court has warned that where an offender, knowing of the error, fails to act with due diligence, an extension may be refused (see Hoggard [2013] EWCA Crim 1024, at [17]). Clearly, an offender who spots the error in prison where they lack ready access to legal advice may struggle to show the diligence the Court appears to expect. It is therefore imperative that advocates are alert to issues of eligibility for credit for time on remand, in particular for time on tagged bail, and they ensure that the point is explicitly raised at the sentencing hearing.
The Court of Appeal in R v Thorsby [2015] EWCA Crim 1 again emphasised the importance of getting it right first time on such issues, explaining that it should not be expected that the Court will routinely grant long extensions of time to correct errors when counsel in the case had not applied his or her mind to the issue until long after the event. The Court added: “It follows that on appeal, solicitors’ firms, the Crown Prosecution Service and counsel can be involved in the time and cost wasting exercise of attempting to ascertain and, if successful, to agree the number of days to which the Defendant was entitled at the time of sentence. Plainly the advice given on previous occasions by this court has not been heeded. It is important that all Crown Court centres should understand the importance of these provisions so that the waste of time and money can be stemmed.” The CCRC observes that there is a duty on those representing an offender (and in fact all advocates present in court) to make sure that the information is passed to the court at the time of sentence so that the appropriate deduction can be made. However, it is right to say that where the advocates fail, the court is not absolved of its responsibility to give credit where credit is due.
As with any other sentencing point, a prisoner wishing to appeal against their sentence should seek leave to appeal to the Court of Appeal before approaching the CCRC. Where they have not tried to appeal, the CCRC can only assist if there are ‘exceptional circumstances’ (s.13 of the Criminal Appeals Act 1995). The fact that an offender is unrepresented and may struggle to appeal by themselves will generally not constitute ‘exceptional circumstances’ – although in such cases the CCRC will of course do what it can to facilitate an application to the Court. If the offender attempts to raise an argument regarding credit for tagged bail with the Court of Appeal but is refused leave by the Single Judge, the CCRC will normally expect them to renew their application to the Full Court of Appeal before seeking to raise the point with the CCRC.
In times of continued financial pressures on the Criminal Justice System, when practitioners are ever more stretched in terms of their time, there is a real danger that issues of credit for time on remand and/or on tagged bail will be missed. There is a clear need for all involved in these cases to remain vigilant in order to ensure that prisoners are not inadvertently deprived of their liberty for a day longer than the law allows.