Round & Anor v R

Factual and Procedural Background

This opinion concerns two applicants who seek leave to appeal against their sentences. Neither challenges the length of their sentences, but both contend that due to the manner in which sentencing legislation has been commenced, an anomaly arises affecting their eligibility for release under home detention curfew ("HDC"). Specifically, they argue that their sentences, although identical in length to differently constructed sentences, do not allow for as early an HDC release.

The root of the problem lies in the piecemeal commencement of sentencing provisions in the Criminal Justice Act 2003 ("CJA 2003"), particularly sections 181-182 which introduced the 'custody plus' sentencing regime for sentences under 12 months. These provisions were never brought into force, leading to complex transitional arrangements and a bifurcation of sentencing regimes between the CJA 1991 and the CJA 2003.

The applicants' cases exemplify difficulties arising from consecutive sentences that straddle the 12-month threshold, governed by different statutory schemes, resulting in significant differences in HDC eligibility and licence periods depending on the order in which sentences are structured.

Legal Issues Presented

1. Whether it is incumbent on sentencing judges to structure consecutive sentences in a manner that maximises the defendant's eligibility for HDC, even if that requires an unconventional order of sentences.
2. Whether the existence of two separate statutory regimes for sentences under and over 12 months, and their differing rules on early release and licence, create an anomaly that courts should address by altering sentence structure.
3. Whether considerations of early release, licence periods, and HDC eligibility should influence the manner or order in which sentences are expressed by the court.

Arguments of the Parties

Applicants' Arguments

• There exists a statutory anomaly due to the non-commencement of custody plus provisions leading to inconsistent treatment of sentences under and over 12 months.
• Sentencing judges should structure consecutive sentences, even unnaturally, to enable the earliest possible HDC release for the defendant.
• The current statutory regime, as applied, produces unfair and inconsistent results depending on the order of sentences, which is often incidental to the offences or indictment order.

Respondent's Arguments (Secretary of State)

• The anomaly is acknowledged but is a matter of executive policy and statutory framework, not for courts to remedy by altering sentence structure.
• It is not appropriate for courts to consider early release or HDC eligibility when passing sentence, as these are matters for the Secretary of State and prison authorities.
• Sentencing should not be adjusted to speculative or discretionary future release possibilities, consistent with established case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Noone) v Governor of HMP Drake Hall and Secretary of State for Justice [2008] EWCA Civ 1097; [2009] 1 WLR 1321	Interpretation of the 2005 Commencement Order and the statutory regimes governing sentences under and over 12 months, especially regarding early release and HDC eligibility.	The court accepted the binding interpretation from Noone, confirming the complex bifurcation of regimes and the resulting anomalies, which must be respected unless overturned by the Supreme Court.
Al Buhairi [2004] 1 Cr App R (S) 496	Sentencing judges should not adjust sentences to account for discretionary HDC release, which is an executive matter.	The court reaffirmed that HDC eligibility is too speculative and discretionary to influence sentencing decisions.
Al Kazraji [2004] 2 Cr App R (S) 291	Approval of the principle in Al Buhairi regarding non-consideration of HDC in sentencing.	Confirmed the established principle that sentencing should not be tailored to early release schemes.
Dale [2004] 2 Cr App Rep (S)	Sentencing judges should avoid precise calculations based on discretionary early release schemes such as HDC.	Supported the view that sentencing should remain unaffected by executive policies on early release.
Bright [2008] EWCA Crim 462	Sentencing judges should impose the correct sentence without regard to early release provisions, which do not affect the sentence itself.	The court emphasized that release provisions do not and should not influence the judicial sentencing decision.
Giga [2008] EWCA Crim 703	Followed Bright in affirming the principle that sentencing is independent of early release considerations.	Reinforced the principle that sentencing should not be adjusted to reflect early release policies.
Wolstenholme [2009] EWCA Crim 1902	Considered the effect of sentence order on HDC eligibility and reversed sentence order to benefit the defendant.	The court granted relief by reversing sentence order but did not consider wider principles or licence implications.
Isse [2009] EWCA Crim 1354	Similar to Wolstenholme, sentence order reversed to maximize HDC eligibility.	Relief granted on sentence order without addressing broader legal principles.
Hurren [2009] EWCA Crim 2351	Similar reasoning to Wolstenholme and Isse on sentence order and HDC.	Sentence order reversed to benefit defendant's HDC eligibility.

Court's Reasoning and Analysis

The court undertook a detailed examination of the statutory framework governing sentences and early release, focusing on the bifurcation caused by the partial commencement of the Criminal Justice Act 2003. It identified that sentences under 12 months remain governed by the Criminal Justice Act 1991, while those of 12 months or more fall under the 2003 Act, each with differing rules on early release, home detention curfew (HDC), and licence periods.

The court analyzed the practical implications of consecutive sentences crossing the 12-month threshold, demonstrating through examples how the order of sentences affects HDC eligibility dates and licence durations. It noted that while placing the shorter sentence first often results in earlier HDC eligibility, the effect on licence periods is variable and not consistently beneficial.

The court reviewed prior decisions where sentence order was reversed to benefit HDC eligibility but observed that those cases did not consider the wider implications such as licence periods or the application of section 116 Powers of Criminal Courts Act 2000. It emphasized established legal principles that sentencing should be independent of early release considerations, which are matters for the executive discretion of the Secretary of State.

The court rejected the argument that there exists a statutory policy mandating the earliest possible HDC release or that sentencing judges should structure sentences unnaturally to achieve this. It highlighted the statutory obligation to explain sentences clearly and naturally to offenders, which would be undermined by artificial sentence ordering.

Furthermore, the court stressed the discretionary nature of HDC, the variability in policy and application, and the practical difficulties and potential unfairness that would arise if sentencing were adjusted to accommodate uncertain future executive decisions.

Finally, the court recognized the anomalies and complexities inherent in the current statutory regime and urged the Ministry of Justice to explore legislative or policy solutions but concluded that it was not the court's role to impose a rule requiring sentencing judges to alter sentence structure to maximize HDC eligibility.

Holding and Implications

The court DISMISSED the appeals against sentence.

The holding establishes that it is not wrong in principle for sentencing judges to refuse to consider early release possibilities, including HDC eligibility, when structuring consecutive sentences. Judges are entitled and expected to impose sentences in the natural and comprehensible order, typically with the principal (longer) sentence first.

This decision reinforces the principle that sentencing is a judicial function distinct from executive decisions regarding early release and licence conditions. It confirms that sentencing should not be adjusted to speculative or discretionary future release opportunities, preserving clarity and consistency in sentencing practice.

No new precedent was set to alter the established separation between sentencing and executive administration of early release, but the court acknowledged the statutory anomalies and encouraged legislative attention to address the resulting unfairness.