Case No:  CCRT1 2000/0262/B1 
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL ( CIVIL DIVISION)
ON APPEAL FROM  HER HONOUR JUDGE ANDREWS MAIDSTONE COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Monday, 6th November 2000

B e f o r e :

 THE MASTER OF THE ROLLS    
LORD JUSTICE  MAY
and 
LORD JUSTICE  LAWS
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	 THE HOME OFFICE    		Appellant	
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	 PETER MAURICE BURGESS    	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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  Mr Sean Wilken  (instructed by  The Treasury Solicitor, London SW1H 9JS) for the  Appellant 
 Mr Edward Fitzgerald, QC and Mr Jonathan Hall (instructed by Clarke Kiernan, London TN9 1DV) for the  Respondent

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JUDGMENT
(As Approved by the Court)

Crown Cpyright

Lord Phillips M.R.

1.	On 26th October 1992 Mr Justice Wright, sitting at Chelmsford Crown Court, sentenced the Respondent, Mr Burgess, to eight years imprisonment for rape.  Mr Burgess served his sentence in Maidstone Prison.  He was released on licence on 23rd February 1998.  He contended that he should have been released five days earlier.  He brought an action against the Home Office claiming aggravated damages for false imprisonment in respect of those last five days.  The Home Office contended that the claim was manifestly bad in law and applied for summary judgment pursuant to CPR Part 24.2.  On 22nd February 2000 Her Honour Judge Andrews, sitting in Maidstone County Court, dismissed that application but gave the Home Office permission to appeal to this Court.  It falls to us to resolve a short, but important, point of law.
The Right to a Reduction of Sentence
2.	S.67 of the Criminal Justice Act 1967 provides:

(1)   The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period…

(1A) In subsection (1) above ‘relevant period’ means-
(a)	any period during which the offender was in police detention in connection with the offence for which the sentence was passed; or
(b)	any period during which he was in custody-
(i)	by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose;

3.	The issue raised on this appeal is whether a number of periods during which Mr Burgess was detained in custody during the course of his trial constituted ‘relevant periods’ within S.67.

The Facts
4.	On Tuesday 20 October, which was the second day of the trial, an application for bail during the course of the trial was made to the Judge.  His Order was recorded on a standard form, S.102, which is designed to record decisions under the Bail Act 1976.  This recorded that bail was granted, subject to conditions, which included:

To surrender to custody at 9.30.a.m. and not to be released until 30 minutes after end of hearing at Court each day.

5.	The reasons recorded for imposing the conditions were:

To ensure attendance at Court and prevent obstruction of course of public justice.

6.	The consequence of the Judge’s Order was that the Respondent reported to the cell area at the Court at 9.30.a.m. each day where he was taken into custody by the gaolers.   There he remained for an hour until the Court sat.  He returned to the cell area for the hour of the luncheon adjournment, and again for one half-hour after the Court rose.  He complied with this regime for a total of five days.  

Mr Burgess’ case
7.	On behalf of Mr Burgess, Mr Edward Fitzgerald, QC, submitted that these relatively short periods during which Mr Burgess was in custody when the Court was not sitting, were periods during which he was in custody ‘by reason only of having been committed to custody by an Order of a Court made in connection with’ the proceedings relating to the offence for which he was sentenced – see S.67.  He submitted that the normal position of a Defendant on bail is that he surrenders to the custody of the Court by reporting to a court officer, after which he remains at liberty within the precincts of the Court.  When the Court is not in session, whether the Defendant remains at liberty or is taken to the cells depends on whether or not he is granted bail.  In order to refuse bail a specific Order of the Court is required.  Such an Order is one which commits the Defendant to custody within S.67.  

8.	Mr Fitzgerald further submitted that periods of custody in the course of a day, however short, count as a full day for the purposes of the reduction in sentence required by S.67.  On this basis Mr Burgess should have been credited with 5 full days.

Ex Parte Burke
9.	Mr Fitzgerald submitted, correctly, that his submissions were supported by the decision of the Divisional Court in R v Governor of Kirkham Prison, ex parte Burke. (Transcript 18 March 1994)  In that case the principle issue raised was whether time spent by the Defendant in the dock over periods totalling 24 days, during committal proceedings and trial, fell to be credited against sentence under S.67.  In delivering the leading judgment, Butler-Sloss LJ held that the Defendant was not entitled to credit for these periods.  Her reasoning appears in the following passage of her judgment:

….in my view the period spent in the dock is clearly not within section 67(1A).  The Bail Act, in my view, was the operative statute.  The Applicant was granted bail, and he surrendered to custody during the trial. At the end of each day, he was again under the Bail Act, granted bail until the following day.

I accept that there has been in recent years a more liberal approach to the relevant days for the purpose of reducing sentence, but such a more liberal approach cannot, in my judgment, fly in the face of the clear words that a person is in custody ‘by reason only of having been committed to custody’.  There has to be, in my judgment, a specific act of the court to commit to custody, such as indeed occurred on 3rd August, when having been in the dock during the morning the Judge decided that he should not be given his liberty during lunch and, instead of giving him bail, specifically committed him into custody for the period of lunch.  But in the usual case, the person granted bail surrenders to custody and remains, under the provisions of that Act, in custody until either he is sentenced, or unless, or until, he is again given bail.

One cannot imply a committal by the court to custody.  That is too important to be done by implication.  It has to be done by a specific act which can clearly be seen.  Further, as a more general proposition, if Parliament intended that the days spent in the dock, whether it be during committal, pre-trial review and trial, are in fact to be treated as the ‘relevant period’ for the purposes of reducing the sentence of a man who is convicted, Parliament would undoubtedly have said so.

10.	Mr Fitzgerald relied upon the acknowledgement by Butler-Sloss L.J. that the Defendant was entitled to credit for the hour during which he was in custody over the lunch adjournment on 3rd August.  Mr Pannick, QC, for the Secretary of State, had in fact conceded that this hour fell to be treated as a ‘relevant period’ and that the Defendant should have credit for a full day in relation to it.  

11.	Mr Wilken, for the Secretary of State, made it plain that the Home Office had withdrawn the concession made by Mr Pannick in ex parte Burke.  He submitted that the reason why Mr Burgess spent periods in custody each day was not because he had been committed to custody by an Order of the Court, but because he was required to spend those periods in custody as a condition of being granted bail by the Court. 

Position on Surrender to Custody
12.	The starting point in considering the respective submissions made to us is the position of Mr Burgess when he first surrendered to the custody of the Chelmsford Crown Court.  Mr Burgess was under a duty to surrender to the custody of the Court by virtue of the provisions of the Bail Act 1976.  S.3 of  that Act provides:

(1)	A person granted bail in criminal proceedings shall be under a duty to surrender to custody…

S.2 of the Act provides:

	‘Surrender to custody’ means, in relation to a person released on bail, surrendering himself into the custody of the Court… at the time and place for the time being appointed for him to do so.

13.	Thus the grant of bail carries with it the requirement to surrender to the custody of the court.  Thereafter the Defendant is under an obligation to remain in the custody of the Court unless and until granted bail by the court.  This obligation to remain in the custody of the Court is not one that is imposed as a condition of bail.  Nor is it one imposed by the Bail Act l976.  S.7 of the Bail Act provides:

(1)	If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest; but no warrant shall be issued under this subsection where that person is absent in accordance with leave given to him by or on behalf of the court.

14.	While this provision grants power to arrest a person who has absconded from the custody of the court, it is not the source of the Defendant’s obligation to remain in that custody.

15.	The position of a Defendant who has surrendered to the custody of the court was described by Lord Steyn in R v Central Criminal Court ex parte Guney [1996] AC616:

	“The duty of a defendant who has been granted bail by the magistrates’ court is to surrender to the custody of the court at the required time and place….  From that moment the defendant’s further detention lies solely within the discretion and power of the judge.  Unless the judge grants bail the defendant will remain in custody pending and during his trial.  This is a readily comprehensible system which causes no problems for the administration of justice.”
	
16.	It follows that, at least while the Court is sitting, the detention of the Defendant in the custody of the Court is not ‘by reason of having been committed to custody by an order of a court’.  For this reason I am in agreement with the decision in ex parte Burke that time spent by a Defendant in the dock during trial does not fall to be credited against sentence.

17.	Does the period that a Defendant is held in the custody of the court when the court is not sitting fall to be treated differently?  It is at least arguable that it does if it is a period in respect of which the court is under a duty to make an order granting or refusing bail.

18.	S. 81 of the Supreme Court Act 1981 provides:
	“(1) The Crown Court may grant bail to any person–
(a)	who is in custody of the Crown Court pending the disposal of his case by that court; 
and the time during which a person is released on bail under any provision of this subsection shall not count as part of any term of imprisonment or detention under his sentence.”

19.	These provisions appear to contemplate that if a person who is in the custody of the Crown Court pending disposal of his case is refused bail, the time spent in custody consequent upon such refusal may count as part of his sentence.

20.	S.4 of the Bail Act 1976 provides:
	“(1)  A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.
		(2) This section applies to a person who is accused of an offence when–
(a)	he appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence, or
(b)	he applies to a court for bail in connection with the proceedings.

21.	Plainly this section does not entitle a Defendant to be released on bail while the Court is sitting, but what of periods where, for the purposes of the orderly and efficient conduct of the trial, the Judge requires a Defendant to remain within the custody of the court before or after the trial is actually proceeding?  I do not consider that S.4 of the Bail Act, or S.5 which imposes requirements in relation to the recording of reasons for withholding bail, applies to such periods.  There can be no duty to grant bail so long as the Judge requires the Defendant to remain in custody in furtherance of the conduct of the trial.

22.	Once the court no longer needs to detain the Defendant in custody in furtherance of the conduct of the trial, it is arguable that an obligation arises to grant bail, or make an order refusing bail in accordance with the provisions of Schedule 1 to the Bail Act, and that an order refusing bail constitutes an order committing the Defendant to custody for the purposes of S.67.  That is not this case.

23.	The periods during which Mr Burgess was held within the custody of Chelmsford Crown Court in the course of his trial, were clearly periods when the Judge considered it necessary that he should be detained for the orderly and efficient conduct of the trial.  Such a requirement is not uncommon where a Judge considers it desirable that a Defendant should not come into contact in the court precincts with a complainant, witnesses, or with others who have an involvement in the trial.

Human Rights
24.	Perhaps predictably, as this appeal came on for hearing on the 2nd October, reference was made to Article 5 of the European Convention of Human Rights.  It was common ground, however, that this added nothing to Mr Burgess’ case.  Had he been wrongly detained for 5 days, the Secretary of State accepted that he would have had a remedy in damages.  Mr Fitzgerald did not suggest that the periods during which Mr Burgess was detained in the course of the trial infringed Article 5.

25.	For the reasons I have given I would allow this appeal and enter judgement in favour of the Secretary of State.

Lord Justice May
I agree

Lord Justice Laws

I also agree

Order:
1.	Appeal allowed.
2.	No order as to costs.
3.	Leave to appeal to House of Lords adjourned to be determined, by agreement between the parties, on paper by the three-judge constitution on Lord Phillip’s return.

(Order does not form part of approved judgment.)