Neutral Citation Number: [2011] EWCA Crim 2278
Case No: 2011/2295/A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday 29 September 2011
 
B e f o r e:
 
LORD JUSTICE RICHARDS 

MR JUSTICE CALVERT SMITH 
 
MR JUSTICE UNDERHILL 

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R E G I N A 

v 

DAVID MCKENZIE
 
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Mr L Leake appeared on behalf of the Appellant 
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J U D G M E N T 

1.	MR JUSTICE UNDERHILL:  On 30th July 2010 at the Crown Court at Northampton, the appellant was convicted of robbery, and on 1st October he was sentenced by His Honour Judge Alexander QC to a sentence of imprisonment for public protection.  The judge specified a minimum term of four years, representing a notional determinate term of eight years.  The appellant had as at that date spent 216 days in custody, and his counsel applied for a direction that that period count towards the minimum term.  The judge declined to make any such direction because he believed that section 225(3C) of the Criminal Justice Act 2003 precluded him from doing so.  The appellant appeals against that refusal with the leave of the single judge.  
2.	In our view the appeal is plainly well‑founded.  The scheme of the legislation is as follows.  Section 225, which is the provision giving the courts the power to impose a sentence of imprisonment for public protection, does not itself say anything about a minimum term.  However, any such sentence is subject to the familiar provisions of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 relating to tariffs for life sentences, which require the court to specify the term at the end of which the defendant would be eligible for early release, ie the "minimum term".  That is the effect of section 82A(7), which incorporates the definition of life sentence from section 34 of the Crime (Sentences) Act 1997.  Subsection 3(b) of section 82A requires the court in fixing the minimum term to take into account the effect of any direction which it would have given under section 240 of the 2003 Act ‑ in other words, a direction that time spent in custody on remand should be counted as time served.
3.	All this sounds very complicated but it can in fact be found in paragraph 10 of the well‑known judgment of this court on the first set of cases to come before it under the 2003 Act, R v Lang [2006] 2 Cr.App.R (S) 3.
4.	Thus what the judge should have done in the present case is to specify a minimum term of fours years less 216 days or, to put it the other way round, three years and 149 days.  His reference to section 225(3C) was, with respect to him, a red herring.  The concept of the notional minimum term there defined is concerned only with whether the threshold for the imposition of a term of imprisonment for public protection is met, and it is irrelevant to the setting of the actual minimum term which, as we have said, follows section 82A.  
5.	We will accordingly allow the appeal and substitute a minimum term of three years 149 days.