Factual and Procedural Background
This opinion addresses multiple applications for leave to appeal against sentence concerning how periods spent on remand or on bail under a qualifying curfew should be credited towards time served. One application also raises procedural issues. The cases discussed involve sentencing errors related to calculation of time served on remand, the legislative framework governing such calculations, and the court’s approach to correcting errors in sentencing orders. The opinion reviews specific cases including Leacock, Blacker, Trevis, Nutting, and Morin, focusing on the application of sections 240 and 240A of the Criminal Justice Act 2003 and their amendments by subsequent legislation.
Legal Issues Presented
- How much of the period spent on remand or on bail under a qualifying curfew should be credited as time served in relation to a sentence?
- Whether the court has the power to correct errors in sentencing orders concerning credit for time served on remand, particularly where the remand period overlaps with service of another sentence.
- The procedural requirements and limitations on applications for extensions of time to appeal based on errors in crediting time served.
Arguments of the Parties
Appellant's Arguments
- In the case of Leacock, the appellant relied on the decision in R (Hicks) v The Crown Court at Snaresbrook to argue that the court had no power to amend the sentencing order to reduce the credited remand time after sentence had been passed.
Respondent's Arguments
- The Crown argued that the decision in Hicks could be distinguished because the sentencing judge had used the recommended form of words allowing correction of errors in crediting remand time.
- The Crown submitted that the original order was made under section 240(3) of the Criminal Justice Act 2003, which permits correction, and that the court had no power to count time spent serving another sentence as remand time credit.
- It was contended that the court in Hicks erred in treating the amended order as one under section 240(4), when in fact section 240(4) restricts the discretion under section 240(3) rather than creating a separate order.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Gordon [2007] EWCA Crim 165 |
Guidance on how sentencing courts should phrase orders to allow clerical correction of errors in crediting remand time. |
Used to confirm that judges should use language enabling correction of miscalculations and that orders under s.240(3) can be amended administratively. |
| R v Nnaji and Johnson [2009] EWCA Crim 468 |
Refinement of the formulation for sentencing courts to avoid errors in remand time crediting. |
Reinforced the need for clear orders and acknowledged practical difficulties in calculating remand time. |
| R v Boutell [2010] EWCA Crim 2054 |
Further development of principles regarding remand time crediting. |
Referenced as part of evolving guidance on the issue. |
| R v Irving and Squires [2010] EWCA Crim 189 |
Emphasized the duty of defence advocates to ensure accurate remand time information and cautioned against late applications for extensions of time to appeal. |
Applied to stress the importance of prompt and diligent appeals concerning remand credit errors. |
| R v Hoggard [2013] EWCA Crim 1024 |
Explanation of amendments to the law under LASPO regarding administrative calculation of remand time. |
Not directly applicable to the appeals but cited for legislative context. |
| R (Hicks) v The Crown Court at Snaresbrook [2012] EWHC 3348 (Admin), [2012] EWCA Crim 2515 |
Held that the court had no power to amend a sentencing order under s.240(3) to reduce remand credit where the error involved concurrent sentences. |
Considered and distinguished in this opinion; the court rejected Hicks’ interpretation of s.240(4) as creating a separate order. |
| R v Norman [2006] EWCA Crim 1792 |
Clarified the limited ability of courts to correct remand credit errors administratively and the mandatory nature of s.240 procedures. |
Reaffirmed the requirement for reasons when credit is not given and the limited correction period. |
| R v C [2011] EWCA Crim 1872 |
Addressed practical operation of complex sentencing provisions and ability to reconsider decisions when material facts were not before the court. |
Supported the conclusion that correction of remand credit errors is possible where appropriate. |
| R v Trevis [2005] EWHC 1840 (QB) |
Consideration of minimum term fixing for life sentences and the effect of remand credit. |
Referenced in relation to one of the appeals concerning minimum term calculation. |
Court's Reasoning and Analysis
The court began by outlining the legislative background, noting the problems under section 240 of the Criminal Justice Act 2003 with specifying remand credit at sentencing and the limited correction window. It reviewed established case law, particularly the decisions in Gordon, Norman, and Nnaji and Johnson, which provided guidance on how sentencing courts should phrase orders to allow clerical amendment of remand credit errors. The court acknowledged the complexity introduced by amendments concerning qualifying curfews and concurrent sentences.
In the case of Leacock, the court analyzed the facts where an error was made by counting time spent serving another sentence as remand credit. Although the original order overstated remand credit, it was amended administratively by the court clerk without a hearing. The appellant challenged this amendment citing Hicks, which held that such amendments were impermissible.
The court rejected the reasoning in Hicks, concluding that there is only one type of order under s.240(3), and s.240(4) merely restricts the court’s discretion rather than creating a separate order. The court held that the correction was lawful because the sentencing judge had used the recommended language permitting amendment, and the amended order remained under s.240(3).
The court emphasized the mandatory nature of s.240(4)(a) and (b), requiring courts to exclude remand time concurrent with another sentence and to give reasons when credit is not given. It confirmed that courts can correct administrative errors in remand credit beyond the 28-day limit if the sentencing order allows for such corrections.
Regarding other appellants (Blacker, Trevis, Nutting, and Morin), the court applied principles of promptness and diligence. It refused late applications where the error was unlikely or impossible to determine after many years (Blacker and Trevis). However, it granted exceptional leave in Nutting and Morin, where advocates failed to make proper inquiries at sentencing, but stressed that future applications of this nature would be scrutinized strictly and likely refused.
Holding and Implications
The court’s final decision was to dismiss the appeal in the case of Leacock, affirming the power to correct remand credit errors administratively where the sentencing order permits it and the correction complies with statutory provisions. The court refused late extensions of time to appeal in Blacker and Trevis, emphasizing the duty of advocates to raise remand credit issues promptly. Exceptionally, leave was granted to Nutting and Morin due to advocate oversight, but with a strong warning that such leniency will not be repeated.
The direct effect is that sentencing courts retain the ability to correct remand credit errors administratively within the framework of s.240(3), provided the judge’s order uses appropriate language. The decision clarifies the proper interpretation of s.240(4) as a limitation on discretion rather than a separate order. No new precedent was set beyond confirming and applying existing principles. The court underscored the importance of timely and diligent advocacy to avoid unnecessary appeals and judicial resource expenditure.