Melady, R v

When sentencing an offender for offences committed during the unexpired part of an earlier sentence, a court exercising its power under section 116 should ordinarily allow for time already spent in custody following an administrative revocation of the earlier licence. That custody is not creditable by the Prison Service under section 67. The sentencing court must therefore make the allowance when fixing the period to be served from the earlier sentence. For a short-term prisoner, each day of such custody counts as two days of sentence.

The appellant had been conditionally released from a composite sentence when he committed further offences during both the licence period and the unexpired part of that sentence. After his licence was administratively revoked, he spent 125 days in custody as a licence revokee while also on remand for the new offences.

At sentence, the Crown Court ordered him under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to serve 315 days of the earlier sentence before a three-year sentence for the new offences. It made no allowance for the 125 days. The Criminal Cases Review Commission referred the sentence after the Prison Service declined to credit that period under section 67 of the Criminal Justice Act 1967.

1. Appeal allowed to a limited extent. The 315-day period ordered under section 116 was replaced by 65 days, to be followed by the three-year sentence for the new offences.

2. Time spent in custody because of administrative revocation of a licence does not fall within section 67 of the Criminal Justice Act 1967. The Prison Service could therefore not deduct the 125 days from either the period imposed under section 116 or the sentence for the new offences.

3. That statutory absence of credit did not mean that the time could be ignored at sentence. Following Sharkey, R v [2001] 1 Cr App R 409, a sentencing court would ordinarily wish to allow for custody served after an administrative licence recall when exercising its section 116 power.

4. The appellant was a short-term prisoner. Each day already spent in custody was equivalent to two days of sentence. The 125 days therefore required a 250-day reduction from 315 days, leaving 65 days.

• Court of Appeal (Criminal Division): following a reference by the Criminal Cases Review Commission, allowed the appeal against sentence to the stated extent.
• Court of Appeal (Criminal Division): a single judge refused leave to appeal against sentence on 3 April 2003. The application was not renewed.
• Crown Court at Nottingham: on 10 January 2003 imposed a total of three years' imprisonment for the new offences and ordered 315 days of the earlier sentence to be served under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.