Court of Appeal
Criminal Division
Published February 13, 2007
Regina v Gordon
Regina v Taylor
Regina v D
Regina v Pusey
Regina v Shaukat
Regina v McManus
Before Sir Igor Judge, President, Mr Justice Treacy and Sir Michael Wright Judgment February 9, 2007

The issue of time spent on remand had to be directly addressed at the sentence hearing. If the number of days of credit to which a defendant was entitled was misstated, that would almost invariably be the product of administrative error.

There was no reason why a judge could not use language making it clear that he was directing that the defendant should receive credit for the full period of time spent in custody on remand but, if the actual period stated proved to be based on an administrative error, the court would order an amendment of the record to enable the correct period to be recorded.

Approaching the problem in that way, the number of days to be credited might properly be regarded as a temporary rather than a final order and therefore open to correction if an error emerged; such arrangements would not fall foul of the 28-day rule.

The Court of Appeal, Criminal Division, so stated when:

(i) allowing an appeal by Gavin Stephen Gordon against a prison sentence of 18 months imposed by Mr Recorder Mainds at Northampton Crown Court on his conviction of conspiracy to supply cannabis resin and ordered to run consecutively to the unexpired period of an earlier sentence;

(ii) ordering that eight days spent on remand in custody by Mark Wil-liam Taylor should be taken into account in his sentence imposed by Judge Adrian Smith at Manchester Crown Court;

(iii) ordering that 322 days spent on remand by D should be taken into account in his appeal against a minimum specified period to be served in relation to detention for public protection imposed by Judge Pardoe, QC, at Snaresbrook Crown Court;

(iv) refusing to credit 20 days spent on remand by Lloyd Aaron Pusey in his appeal against sentence imposed by Judge Campbell at Inner London Crown Court;

(v) ordering that 161 days spent on remand by Mirza Hamayou Shaukat should be taken into account in his appeal against sentence imposed by Judge Boggis, QC, at Southampton Crown Court, and

(vi) ordering that 24 days spent on remand by Kevin Peter McManus should be taken into account in his appeal against sentence imposed by Mr Recorder Sanghera at Stafford Crown Court.

Miss Veronica Ramsden, assigned by the Registrar of Criminal Appeals, for Gordon; Miss Maria Savvides for the Crown; Miss Brenda Campbell, assigned by the Registrar of Criminal Appeals, for D; Mr Mark Ellison and Mr Adrian Darbishire as friends of the court; Taylor, Pusey and Shaukat were not represented.

THE PRESIDENT, giving the reserved judgment of the court, said that section 240 of the Criminal Justice Act 2003, which came into force on April 4, 2005, required the court positively to order that the days during which an offender was remanded in custody in connection with the offence should count as part of the sentence. Without a specific order no deduction could be made.

By section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, the crown court could vary or rescind the sentence provided the variation was made within 28 days of the day on which the sentence was imposed but, once the 28-day period had expired, the power to vary or rescind a sentence imposed in the crown court expired.

Their Lordships had been encouraged, however, by the commentary of Dr David Thomas on R v Norman ( The Times August 4, 2006) in ([2006] Crim LR 1073) to consider R v Annesley ([1975] 1 WLR 106) in relation to the crown court's jurisdiction to adjourn part of the sentence and they had reexamined Norman in the light of the Annesley principle.

The starting point was that any misstatement of the number of days’ credit to which a defendant was entitled would almost invariably be the product of administrative error.

Once the court had decided that credit should be given it should say so and could then adjourn for appropriate information to be provided about the relevant number of days.

The final decision should, save in exceptional circumstances, be concluded within 28 days but even if delayed beyond that period it would be permissible for the crown court to deal with what was no more than the final implementation of its order since that would merely represent the conclusion of an adjourned part of the sentencing process rather than a variation or rescission of sentence.

Only in very limited circumstances was an extension of the 28-day period permissible. If the 28-day period allowed under section 155 were extended to, say, 42 days, a number of appeals against sentence in particular could probably be dealt with by referring them back to the original crown court to correct an oversight.

At present, once the 28-day period allowed under section 155 had expired, such cases required the attention of the Court of Appeal, Criminal Division. That was not an appropriate use of limited resources.

Solicitors: Crown Prosecution Service, Northampton; Treasury Solicitor.

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