No. 2009/00647/A8

Neutral Citation Number: [2009] EWCA Crim 374
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 18 February 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  WYN  WILLIAMS

and

MR  JUSTICE  HOLROYDE
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R E G I N A

- v -

BILLY  METCALFE
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Mr R S Sandford appeared on behalf of the Applicant

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J U D G M E N T

THE LORD CHIEF JUSTICE:  I shall ask Mr Justice Wyn Williams to give the judgment of the court.

MR JUSTICE WYN WILLIAMS:
1.  On 24 September 2008, at Barnsley Magistrates' Court, the applicant pleaded guilty to one offence of handling stolen goods and he was convicted of a second such offence.  He was committed to the Crown Court for sentence.  On 17 October 2008, again at Barnsley Magistrates' Court, the applicant pleaded guilty to an offence of theft.  He was committed to the Crown Court for sentence in respect of that offence.  On 22 October 2008, at the Crown Court at Sheffield, before the Recorder of Sheffield, His Honour Judge Goldsack QC, the applicant was sentenced as follows: in respect of the offence of handling stolen goods of which he had been found guilty, twelve months' imprisonment; in respect of the offence of handling stolen goods to which he had pleaded guilty, eight months' imprisonment, concurrent; and in respect of the offence of theft, two months' imprisonment, consecutively.  The total sentence passed was therefore fourteen months' imprisonment.  

2.  By the time that he appeared at the Crown Court for sentence, the applicant had spent 88 days in custody on remand in connection with the offences for which he was sentenced.  Mr Sandford, his counsel, assumed that the judge would direct that those 88 days spent on remand should count towards the applicant's sentence.  He therefore made no submissions to the judge about that aspect of the sentencing process during the course of mitigation.  When the judge passed sentence, however, he expressly specified that the 88 days should not count towards the sentence.

3.  On 26 October 2008 (that is four days after sentence was passed), Mr Sandford settled grounds of appeal against sentence.  He took one point, namely that the judge fell into error in directing that the 88 days should not count towards sentence.  For reasons about which we are not entirely clear, the grounds of appeal were not lodged in time.  Indeed, they were lodged 82 days late.  However, upon consideration of the documents lodged, the Registrar granted an extension of time in which to apply for leave to appeal and referred the application to the full court.  For reasons which will become obvious, we consider that this is an appropriate case for leave and accordingly we grant it.  Henceforth in this judgment we will refer to the applicant as the appellant.

4.  The facts of the three offences for which the appellant was sentenced can be stated very briefly.  In the early hours of the morning of 8 June 2008, police officers came across some male persons acting suspiciously.  When the men saw the police they ran off.  The appellant was one of the men.  After a short chase he was found hiding in some long grass.  He was searched and found to be in possession of a toy and a car stereo lead which had been stolen from a car which had been parked outside a house.  This was the offence of theft for which the appellant was given two months' imprisonment.

5.  He was arrested.  Upon arrest and during interview he denied any wrongdoing.

6.  Approximately six weeks later, on 24 July 2008, the appellant's home was searched.  A power drill and drill bits worth £210, which had been stolen during the course of a burglary of a garden shed the previous day, were discovered.  Also discovered and recovered were some tools consisting of a wrecking bar, two saws, two boxes of screws, a transformer and battery, which had all been stolen from a building site the previous night.  Those constituted the two offences of handling stolen goods.

7.  The appellant was arrested.  When interviewed he did not admit his involvement in either offence.

8.  When the appellant appeared for sentence on 22 October 2008 he was aged 24.  He had a large number of previous convictions.  In summary, he had appeared before courts on 17 occasions in relation to 30 offences.  For present purposes by far the most significant of those appearances was that which occurred on 6 March 2006.  On that occasion the appellant appeared before the Sheffield Crown Court and was sentenced to a total term of four years' imprisonment.  He was sentenced to two years' imprisonment for the offence of assault with intent to rob, and a consecutive term of two years' imprisonment for the offence of possessing an imitation firearm with intent to cause fear of violence.  

9.  The appellant was released from the sentence of four years' imprisonment on 26 October 2007.  It follows that he was being supervised on licence at the time that he committed the offences of handling and theft in June and July 2008.  By virtue of section 254 of the Criminal Justice Act 2003 it would have been open to the Secretary of State, or those persons to whom she delegated the relevant function, to recall the appellant to prison once it had been discovered that he had committed offences in June and July 2008.  It appears, however, that a considered decision was made that the appellant should not be recalled.  The information we have about that is contained in the pre-sentence report which was before His Honour Judge Goldsack QC.  The pre-sentence report indicated that the Probation Service had taken the decision that there should be no recall and that there were two bases for that decision.  The first was that the appellant had been remanded in custody.  The second was that the view had been taken that the offences committed were offences of dishonesty, not violence, and that in those circumstances the appellant could be appropriately managed in the community.  In fact, the pre-sentence report presented to the sentencing judge suggested sentencing options other than immediate custody. 

10.  Judge Goldsack QC decided not to follow the recommendation in the pre-sentence report, but imposed immediate custodial sentences.  No complaint is made about this aspect of the sentencing process.

11.   The judge also expressly considered what he should do about the 88 days spent on remand.  On this topic he said this:

"It is outside the power now of the court to order you to go back and serve the balance of the four year sentence.  That power has apparently been given by Parliament to either the Prison Governor or the Probation Service, and the Probation Service in this case decided not to recommend your recall because these were not offences of violence."

The judge then went on to explain the nature of the sentences he was to pass and why he was passing them.  At the end of his sentencing remarks he returned to the question of the 88 days.  He said:

"I then have to consider whether I should direct that the 88 days spent on remand should count towards your sentence.  In my judgment, in this case, they should not, given that you were on licence at the time and really should still have been serving your sentence, so it is fourteen months from today."

12.  The relevant parts of section 240 of the Criminal Justice Act 2003 are in the following terms:

"(3)  Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.

(4)  Subsection (3) does not apply if and to the extent that --

(a)	rules made by the Secretary of State so provide ....

(b)	it is in the opinion of the court just in all the circumstances not to give a direction under that subsection."

13.  The issue raised by Mr Sandford in this appeal relates to sub-paragraph (b).  He submits that it was not just in all the circumstances not to give a direction under the subsection.  He has developed his submission most helpfully in his advice and grounds of appeal.  In paragraph 22 he makes the following submission:

"In the case of R v Gordon [2007] 2 Cr App R(S) 66, paragraph 31, the Court of Appeal stated as follows: 

'The imperative is that no prisoner should be detained for a day longer than the period justified by the sentence of the court.  Section 240 of the 2003 Act is clearly directed to achieve that, save in cases specifically identified for express reasons, credit should be given to the prisoner for time spent in custody on remand, unless such credit would contravene some other statutory provision or result in double crediting.  That is why the Sentencing Guidelines Council in "New Sentences: Criminal Justice Act" explained that "The court should seek to give credit for time spent on remand in all cases .... it should explain its reasons for not giving credit ....'"

In paragraph 23 Mr Sandford continues by submitting that one of the effects of the Criminal Justice Act 2003 was to take decision-making on the issue of recall to prison during a licence period out of the hands of the judiciary and to place it in the hands of the Home Office and Probation Service.  He therefore submits that in the instant case, where the Probation Service has made a conscious decision not to recall the appellant, it was not just in all the circumstances to decline to credit the remand period against sentence, thereby indirectly and in effect triggering a custodial period arising from the licence period.

14.  On the particular facts of this case we agree with those submissions.  We accept them to be well-founded.  Accordingly we take the view that the judge should have made a direction under section 240, as opposed expressly declining so to do.

15.  Mr Sandford makes a further complaint about the sentencing process.  He complains that he was not given the opportunity to deal with the possibility that the judge would make no direction under section 240 before the judge took that course.  In his grounds he referred to the decision of this court in R v Barber [2006] 2 Cr App R(S) 81, which makes it clear that a sentencing judge who has it in mind to direct that time spent in custody on remand should not count towards sentence should raise the issue squarely with defence counsel before sentence is passed, thereby affording him the opportunity to make appropriate submissions on the point.

16.  We repeat what was said in Barber.  In our judgment good practice demands that counsel is given the opportunity to address the point head-on if a sentencing judge is considering not making a direction under section 240 of the 2003 Act.  

17.  For the reasons we have indicated, this appeal is allowed.  This court directs, pursuant to section 240 of the Criminal Justice Act 2003, that the 88 days spent in custody on remand should count towards the appellant's sentence.