Keogh, R v

Where sentencing and recall calculations contain errors, the court should consider the sentence that would have been imposed had the true position been known. An offender is not entitled to a lower overall sentence merely because an error initially produced an earlier anticipated release date. However, the court may make a just allowance for an administrative error and the expectation it created by varying the period to be served on licence.

The appellant was sentenced at the Crown Court at Wood Green to two and a half years’ imprisonment for burglary. The judge also activated what was thought to be five and a half months of an earlier sentence remaining on licence.

On an earlier appeal, the burglary sentence was reduced to 18 months, with no change to the licence period. The Criminal Cases Review Commission later referred the sentence after it emerged that time thought to count towards the new sentence had instead been served as a recalled prisoner. A further error showed that the outstanding licence period had been understated.

The issue was whether the appellant should benefit from the earlier calculation errors and receive the release date he had expected.

1. The court varied the sentence by reducing the period to be served on licence to 78 days, thereby permitting the appellant’s immediate release.

2. The period between recall and sentence for the burglary had been served as a recalled prisoner. It therefore did not count towards the aggregate period that had been used to calculate the appellant’s anticipated release date. That error supported the contention that the sentencing court had not considered the true custodial position.

3. There was also an error favourable to the appellant. The outstanding period on licence was not five and a half months but just over ten months. The sentencing judge had expressly intended to impose the full outstanding period and would have done so had the correct information been supplied. The earlier appellate court could likewise have reduced the burglary sentence while increasing the licence period without increasing the overall custodial term.

4. The appellant was therefore not entitled to receive a sentence lower than that which the true facts would have warranted, or to retain the release date of 1 May 2004. Nevertheless, justice required some allowance for the error and for the expectation of earlier release which it had generated.

5. The court stressed that authorities advising sentencing courts and the prosecution must provide accurate information about existing sentences and licence status so that lawful and accurate sentencing decisions can be made.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court varied the sentence in [2004] EWCA Crim 1406 by reducing the period to be served on licence to 78 days.
• Earlier Court of Appeal hearing: The burglary sentence was reduced from two and a half years to 18 months. The licence period was left unchanged.
• Crown Court at Wood Green: On 10 July 2003, the appellant was sentenced to two and a half years’ imprisonment for burglary and a period thought to be five and a half months was activated for breach of licence.