Brown, R v

When an offender has been administratively recalled to custody after licence revocation, time served on recall which cannot be credited under statute against either the new sentence or the return-to-custody order must ordinarily be allowed for by the sentencing court when fixing the period of return under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. The adjustment must reflect the offender’s release regime. For a long-term prisoner released after two-thirds of the term, 60 days served on recall required a 90-day reduction in the section 116 period.

The appellant pleaded guilty at Sheffield Crown Court to a dwelling-house burglary committed while he was on licence from an earlier burglary sentence. His licence was administratively revoked after his arrest.

The sentencing judge ordered his return to prison for the whole unexpired balance of the earlier sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, and imposed a consecutive four-year sentence for the new offence. Of 174 days spent in custody before sentence, 60 days resulted from the administrative recall and 114 days from remand for the new offence.

Following a reference by the Criminal Cases Review Commission, the central issue was whether the 60 days on recall had to be reflected in fixing the section 116 period, although they received no automatic statutory credit.

1. The appeal was allowed in part. The court reduced by 90 days the section 116 return-to-custody period of one year, four months and 24 days. The consecutive four-year sentence for the new burglary was not reduced.

2. The 60 days served following administrative revocation of the appellant’s licence could not reduce the new four-year sentence. Nor did they automatically reduce the section 116 period. Sections 67(1) and 67(1A) of the Criminal Justice Act 1967 did not treat that period as relevant custody for either purpose.

3. However, the sentencing court had to recognise that period when setting the section 116 term. The court applied the approach in R v Sharkey [2000] 1 Cr App R 409 and R v Stocker [2003] 2 Cr App R(S) 54. Those authorities showed that custody on administrative recall should ordinarily be allowed for unless it will otherwise be credited against the sentence for the new offences.

4. The judge had imposed the statutory maximum section 116 period without making that allowance. As the appellant was a long-term prisoner who would be released after serving two-thirds of the term, a 60-day period of recall custody required a grossed-up reduction of 90 days. The Crown did not challenge that calculation.

5. The fresh psychological report did not justify any further reduction in sentence.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the sentence appeal to a limited extent in [2004] EWCA Crim 496.
• Sheffield Crown Court: On 29 January 2003, Judge Keen QC ordered return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 for the full unexpired balance of the earlier sentence and imposed a consecutive four-year sentence for burglary.