No: 2005/05889/A5
Neutral Citation Number: [2006] EWCA Crim 328
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday, 2 February 2006

B e f o r e:

LORD  JUSTICE  GAGE

MR  JUSTICE  NELSON

SIR  JOHN  ALLIOTT

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R E G I N A

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VINCENT  MURRAY

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MR J KELLY appeared on behalf of THE APPELLANT

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J U D G M E N T
Thursday, 2 February 2006

LORD JUSTICE GAGE:  I will ask Mr Justice Nelson to give the judgment of the court.

MR JUSTICE NELSON:

1.	This is a reference by the Criminal Cases Review Commission of part of the appellant's sentence passed upon him at Leeds Crown Court on 2 July 2003.  On that date the appellant had pleaded guilty to wounding with intent and had admitted breach of the early release licence from a sentence of 12 months' imprisonment imposed on 21 May 2002 for having an offensive weapon in a public place and for affray.  On 2 July 2003, he was sentenced to seven years' imprisonment for the wounding with intent, which was a very serious offence involving an attack by the appellant and his co-accused with machetes and knives on an unarmed victim, causing him very serious injuries.  The appellant was also ordered, pursuant to section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, to serve the five months remaining of his previous 12 month prison sentence in addition to the seven years, making a total of seven years and five months, or seven years and 153 days. 

2.	Neither the sentencing judge, nor the single judge who dealt with the application for leave to appeal against sentence, nor the full court who rejected the application for leave to appeal against the sentence on 4 May 2004, were aware of the fact that the appellant had been administratively recalled by the Secretary of State on 19 December 2002 under section 39 of the Criminal Justice Act 1991 to serve the balance of his 12 month sentence imposed in May 2002 until the licence expiry date under that sentence, 16 February 2003.  The appellant, therefore, served from 19 December 2002 until 16 February 2003, a period of 60 days, but that has at no time been taken into account by the sentencing court or the appellate court, who were not, as they should have been, made aware that that period had been served.  A letter by the appellant's solicitors giving this information in July 2003 did not, unfortunately, reach the appellate court.  The matter was therefore rightly raised with the Criminal Cases Review Commission, who have referred the case to this court.  

3.	The Criminal Cases Review Commission point out that it is established law that time served on administrative recall should be taken into account.  In their reasons they cite (amongst others) the case of R v Bingham [2004] EWCA Crim 1865, where this court said:

		"Therefore as is clear from the decisions of the Court of Appeal in R v Sharkey [2001] 1 Cr App R(S) 541 and R v Stocker [2003] 2 Cr App R(S) 54, page 35, when a judge passes a sentence pursuant to section 116 of the 2000 Act he must take account of any period that the offender spends in custody following 'administrative recall' pursuant to section 39 of the 1991 Act.  In taking account of that period, it must be remembered that the time spent in custody on recall under section 39 will not count for the purposes of calculating the date of the offender's date of release on licence under the early release provisions of sections 33 to 35 of the Criminal Justice Act 1991.  Therefore, if the offender is a short term prisoner, that would mean that for the purposes of calculating the maximum period available for a sentence under section 116 of the 2000 Act, the judge must reduce the maximum period available by twice the time spent in custody pursuant to section 39 of the 1991 Act: see R v Stocker [2003] 2 Cr App R(S) 54, in particular at page 337, and section 67 of the Criminal Justice Act 1967."

Thus the Criminal Cases Review Commission says that the 60 days served should be doubled to 120 days to account for the fact that one day spent in custody following the revocation of licence was the equivalent of two days' return to custody under section 116 of the 2000 Act.  

4.	The Criminal Cases Review Commission is undoubtedly right.  The consequence is that the five months, or the 153 day period, ordered to be served for breach of licence under section 116 is quashed and an order made that only 33 days is to be served under section 116 (in other words 153 days less 120 amounts to 33).  The appeal is allowed accordingly by reduction of the appellant's sentence by 120 days.