Johnson (RT) v R [2009] EWCA Crim 468

[2009] EWCA Crim 468Case Nos: 2009/00479/A5 & 2008/05127/A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURTS AT
MIDDLESEX GUILDHALL and CHELMSFORD
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/03/2009
Before
LORD JUSTICE THOMASMR JUSTICE PENRY-DAVEYJUDGE RADFORD
Between
NNAJIAppellantJOHNSON (RT)AppellantREGINARespondent
Hearing Hearing date: 17 March 2009
JudgmentLord Justice Thomas :
[1]There are before the Court two appeals which demonstrate the continuation of significant problems which arise out of the change of the law brought about in April 2005 by the implementation of s.240 of the Criminal Justice Act 2003. That section imposes an obligation on the Judge, when passing sentence, to make a specific direction as to the number of days the offender has spent in custody on remand in connection with the offence or related offence which should count as part of the sentence to be served. Prior to the bringing into force of s.240, s.67 of the Criminal Justice Act 1967 had provided that time spent in custody on remand should count automatically towards a custodial sentence, but the number of days to be counted was calculated administratively without judicial involvement. S.240 did not change the broad principle that time on remand should count (though it gave the court a new power to direct that some or all of the time should not count), only the way the calculation should be done. It became a judicial decision and not an administrative process. The avowed purpose of this section was to bring clarity and transparency to the process of sentencing and in particular to the effect of any particular sentence.[2]It became apparent shortly after the bringing into force of s.240 that problems had arisen in relation to the difficulties in making an accurate calculation at the time of sentence. These were considered by this court in R v Norman [2006] EWCA Crim 1792. This court made clear that in passing sentence a Court could only properly meet its obligations if it was provided with reliable information (see paragraph 7 of the judgment). If inaccurate information was provided, the only power the Crown Court had to correct it was under s.155 of the Powers of Criminal Courts (Sentencing) Act 2000 but that power had to be exercised within 28 days. This court made clear at paragraph 50 vi) that if subsequently it was agreed that the direction given under s.240 had misstated the number of days, and more than 28 days had elapsed since the sentence was imposed, the procedure to be followed was to appeal. “If the period for which the direction has been given is wrong, and both parties agree, but more than 28 days have elapsed since the sentence was imposed, the application for leave to appeal should so state, in which event, on receipt of confirmation of that agreement from both the prosecution and the defence, the matter will be remitted by the Registrar direct to the Court for it to correct the mistake. He will not normally make a representation order for that purpose. The court will then hear the application as the appeal; and the appellant will be informed that as no purpose would be served by his attendance the Court will assume that he does not intend to exercise his right to do so unless informed to the contrary within 28 days. But that will only apply where the mistake has been to the detriment of the appellant.” It was made clear that in cases where the judge had failed to give a direction, it was the responsibility of counsel to bring the matter to the attention of the judge. If that did not happen, the same procedural mechanism as set out in the case of a mistake should be used. The reference to 28 days is to section 155 Powers of Criminal Courts Act 2000 – often misleadingly referred to as the ‘slip rule’. The period during which the Crown Court can correct an error in sentencing is now 56 days: Criminal Justice and Immigration Act 2008 section 47 and Schedule 8, paragraph 28, which applies to sentences imposed after 14 July 2008. But as will be seen, section 155 will not always provide the solution to problems of this kind, and there is a better solution, which appears not to be well enough known.[3]In accordance with the Norman procedure there are now two appeals before this court.[4]In the first appeal, Nnaji, i) The appellant after pleading guilty was sentenced at the Crown Court at Middlesex Guildhall on 1 November 2005 to 8 years imprisonment for a drugs offence. The appellant had spent time in custody on remand, but no direction was made under s.240. The Crown advocate failed to draw this omission to the attention of the judge. ii) Three years and 40 days later in December 2008 this appellant sought leave to appeal out of time on the basis a direction of 106 days, being the time spent in custody on remand, should have counted towards his sentence and that there were no grounds in the case such as to warrant disallowing credit. It is the appellant’s case that he did not realise the mistake at the time as neither his legal representatives nor the prison service had told him of the error. iii) It appears that he made attempts to obtain legal advice thereafter, but some of that advice was wrong. One firm of solicitors advised an application for leave to issue judicial review which they did only to find that leave was rightly refused. iv) On receipt of the application, the office of this Court had to make enquiry of HM Prison Service and the CPS as to the time on remand and whether they agreed with the figure put forward. They did so. It is common ground that 106 days had been spent on remand and should therefore have counted against the sentence of 8 years. We grant leave to appeal. v) Therefore, in accordance with the decision of this Court in Norman, we allow the appeal to the extent of directing that 106 days spent by the appellant on remand should count towards sentence. The sentence is therefore 8 years, less 106 days on remand.[5]In the second appeal, Johnson i) The appellant was convicted on 13 July 2007 at the Crown Court at Chelmsford on two counts of possession of heroin with intent to supply. He was sentenced to four years imprisonment on each count, the sentences being concurrent with each other. A direction was made under s.240 that 81 days on remand should count towards sentence. That direction was made after enquiries had been made as to the correct number of days. ii) One year and 43 days later, in June 2008 the appellant sought leave to appeal on the basis that the correct time on remand which should have counted against his sentence was 130 days. The advice accompanying the appeal stated: “5. Prior to the conclusion of the sentencing of the appellant there was some confusion regarding the number of days the appellant had spent on remand recorded by the prison service, the matter was adjourned so that both the Crown and the defence could make further enquiries. 6. Following efforts made by Counsel for both the Crown and the appellant, in conjunction with the clerk of the Court who had called both Harlow and Stratford Magistrates Court, a figure of 81 days was thought to be the correct figure.” iii) It appears that in June 2008, HM Prison Chelmsford wrote to the appellant’s former solicitors identifying further days during which it appeared the appellant had been in custody. On the basis of that letter the appellant’s notice of appeal calculated the additional days at 130. There was correspondence with the CPS who calculated the number of days as 123. iv) Extensive enquiries were then undertaken by the office of this Court. In the course of those enquiries the prison service initially stated that the correct number of days should have been 49, but on re-checking they came to the view they should be 84. The position arrived at as a result of the work of this Court is that the period is 84 days calculated as follows: a) 4 September 2006: the appellant was remanded into custody. b) 9 October 2006: he was released on bail (that date was taken from the prison and defence records though the CPS records had a date three days earlier). c) 11 April 2007: the appellant breached his bail conditions and was remanded into custody. At the same time he started serving a sentence of 45 days for non-payment of fines. d) 25 May 2007: the sentence of 45 days having been concluded on 24 May 2007, the appellant was remanded for a second time in connection with the offence. v) In the light of this information, therefore, leave to appeal was granted by the single judge and the matter referred to us. We allow the appeal to the extent of varying the amount of time on remand to count from 81 to 84 days. The sentence is therefore 4 years, less 84 days spent on remand.[6]These two cases illustrate the continuation of the problems arising out of s.240. Attempts have been made to try and deal with the problems: i) A group under the chairmanship of HH John Samuels QC working closely with HMCS and the Home Office (which then had responsibility for prisons) devised a form in relation to the number of days spent on remand which should be completed and agreed prior to sentence. It is not perhaps surprising that despite the introduction of this form errors of calculation are made, often because information is incomplete. ii) Guidance as to a means of overcoming the need to appeal was given in R v Gordon [2007] EWCA Crim 165 (also reported [2007] 1 W.L.R. 2117; [2007] 2 All E.R. 768; [2007] 2 Cr. App. R. (S.) 66; [2007] Crim. L.R. 402; (2007) 151 S.J.L.B. 264; Times, February 13, 2007) by Sir Igor Judge, then President of the Queen’s Bench Division, at paragraph 47:
“We have re-examined the decision in Norman in the light of the Annesley principle [(1975) 62 Cr App R 113] and in particular the observations of the Vice President at paragraph 50 (ii) of the judgment. The starting point is that any mis-statement of the number of days credit to which a defendant is entitled would almost invariably be the product of administrative error. We see no reason why the judge cannot use language making clear that he is directing that the defendant should receive credit for the full period of time spent in custody on remand, (or any particular part of that period), that on the basis of the information currently before him the relevant period is X days, but if this period proved to be based on an administrative error, on being informed, the court would order an amendment of the record for the correct period to be recorded. Approaching the problem in this way, the number of days to be credited may properly be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges. If of course there were any continuing issue about the number of days, the case would have to be re-listed for a judicial decision in open court. Again, the corrected order should be listed and pronounced in open court. Arrangements like these would not fall foul of the 28 day rule.”
Despite the extensive reporting of this decision, it appears that courts are not adopting the formulation suggested in an attempt to mitigate the problems caused by s.240.[7]If the Judge does not, when sentencing, use the formulation suggested in Gordon in relation to time on remand, then where errors have occurred, in cases such as the two we have considered today, very significant costs are incurred. i) This court incurs cost of enquiries made by this office, obtaining transcripts of the judgment and the cost of this hearing. An estimate made at the request of this court is that the costs are in the region of £1,300 in the case of Johnson and £800 in the case of Nnaji. ii) The Crown Court will incur costs associated with lodging the form and finding the papers, particularly where the case is old. iii) HM Prison Service incurs costs in making enquiries and in re-calculating the sentence. iv) The Legal Service Commission incurs the costs of payment to counsel for drafting the grounds of appeal. v) The CPS (which this Court always consults) incurs the cost of retrieving the papers from storage, making enquiries and writing to this court. It is estimated that each enquiry costs the CPS about £100.[8]As a result of further changes introduced by s.22 of the Criminal Justice and Immigration Act 2008, time spent on curfew, if the curfew is for more than a certain number of hours, will count as time on remand for half the time of the curfew. It is apparent that obtaining this information will add to the complexity of these calculations for the trial court and no doubt, if the calculation is not made correctly when the matter is before the trial court, will add significantly to the complexity of trying to resolve the matters in this Court.[9]We appreciate that every effort has been made to try and reduce errors in making the correct calculation at the time of the sentence, but experience has shown that there are greater practical difficulties in eliminating errors than seems to have been appreciated when the legislation was enacted and brought into force. It may seem straightforward to ascertain the number of days, but experience shows that it is frequently not so. Defendants often offend more than once and may be on remand in relation to one set of proceedings but not another. Others, like Johnson in this case, move in and out of remand. In the case of yet more, the position is confused by absconding and its consequences. The addition of a curfew calculation will plainly add to the danger of administrative uncertainty as to how many days are to be counted. As these cases show, any error may often not be picked up until well after the elapse of even the 56 days now allowed under section 155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain. There are two solutions to the problem: i) Reconsideration ought to be given by Parliament to s.240 of the Criminal Justice Act 2003. We understand clearly the need for transparency, but perhaps this would be more reliably achieved by a default provision to the effect that the time spent on remand was to count unless the Judge otherwise ordered. It seems that the practice of requiring the Judge to specify the number of days, bearing in mind the mistakes that can be made and the increased likelihood of mistakes, is adding a wholly unnecessary and disproportionate expenditure of funds at the present time. ii) Pending reconsideration of the provisions of s.240, we would hope that each Judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in Gordon along the following lines:
“The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240. On the information before me the total period is … days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded.”
We hope that, if this formulation is used in every sentence, then the unnecessary costs that are incurred in this Court will be avoided if it transpires that mistakes have been made.

Cited in 6 later judgments