Burgess v Home Office

For sentence-credit purposes under section 67(1A)(b)(i) of the Criminal Justice Act 1967, custody must result from an order committing the defendant to custody. A defendant granted bail must surrender to the court and, after surrender, remains in its custody unless the judge grants bail. Custody required for the orderly and efficient conduct of a trial is not imposed by a committal order, and the statutory duty to grant bail does not apply during that period. Time spent in custody during trial adjournments therefore does not count as a relevant period. A different question may arise once the court no longer needs to detain the defendant for trial management.

Mr Burgess, sentenced to eight years’ imprisonment for rape, was released on licence after serving his sentence. He claimed damages from the Home Office for alleged false imprisonment during the final five days before his release and contended that periods spent in custody during his trial should have reduced his sentence.

The Home Office applied for summary judgment under CPR Part 24.2. Her Honour Judge Andrews dismissed the application in Maidstone County Court on 22 February 2000 and granted permission to appeal. The Court of Appeal considered whether custody during trial, including periods when the court was not sitting, constituted a relevant period under section 67 of the Criminal Justice Act 1967.

Disposition. The appeal was allowed unanimously. Lord Phillips MR delivered the judgment, with Lord Justice May and Lord Justice Laws agreeing. Judgment was entered for the Secretary of State, with no order as to costs.

1. Section 67 of the Criminal Justice Act 1967 gives credit only for custody falling within the statutory definition of a relevant period. The grant of bail under the Bail Act 1976 requires the defendant to surrender to the custody of the court. After surrender, the defendant remains in that custody unless and until the judge grants bail. This continuing obligation is not itself a condition of bail and is not created by section 7 of the Act. The position was described by Lord Steyn in R v Central Criminal Court ex parte Guney [1996] AC616.
2. While the court is sitting, detention following surrender to the court is not detention by reason of an order committing the defendant to custody for the purposes of section 67(1A). The Court therefore agreed with R v Governor of Kirkham Prison, ex parte Burke Transcript 18 March 1994 that time spent in the dock during trial does not count towards sentence.
3. The statutory duty to grant bail under section 4 of the Bail Act 1976 does not apply while the judge requires the defendant to remain in custody to further the orderly and efficient conduct of the trial. Section 81 of the Supreme Court Act 1981 supported the view that custody consequent upon refusal of bail may count, but did not make every period of trial custody creditable.
4. Once the court no longer needs to detain the defendant for trial management, it is arguable that a duty arises to grant bail or make an order refusing bail under Schedule 1 to the Bail Act 1976. The court did not decide that question because it did not arise on the facts.
5. The periods during which Mr Burgess was held in the cells were required for the orderly and efficient conduct of the trial, including avoiding contact with complainants or witnesses. They were not relevant periods under section 67. Article 5 of the European Convention on Human Rights added nothing to the appeal.

• Court of Appeal (Civil Division): Allowed the Home Office’s appeal and entered judgment for the Secretary of State. [2000] EWCA Civ 279.
• Maidstone County Court: On 22 February 2000, Her Honour Judge Andrews dismissed the Home Office’s application for summary judgment under CPR Part 24.2 and granted permission to appeal.