Bennett, R v

A court sentencing an offender for breach of licence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 must normally give full credit for custody on administrative recall before the licence expiry date. The Prison Service does not credit that period against either the unexpired earlier sentence or the sentence for later offending. Since a section 116 order is an independent sentence normally served to its halfway point, each day of administrative recall must be reflected as two days in the section 116 calculation. Accurate prison records should be obtained before sentence. A sentencing court cannot leave the required adjustment to the Prison Service.

The appellant pleaded guilty at Liverpool Crown Court to supplying heroin while on licence from an earlier four-year sentence for similar offending. He had been recalled to prison on two occasions and had also spent periods unlawfully at large.

On 5 July 2004, the judge imposed 502 days’ imprisonment for breach of licence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, consecutive to three years for the new offence. Leave to appeal was granted only in respect of the breach-of-licence sentence.

The issue was the proper allowance for time spent in custody on administrative recall before the expiry of the appellant’s licence.

1. The appeal was allowed to the extent of setting aside the 502-day sentence for breach of licence and substituting 92 days’ imprisonment.

2. The court applied Sharkey [2000] 1 Cr App R(S) 409. Administrative recall under section 39 of the Criminal Justice Act 1991 has a different effect from a court order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. Before the licence expiry date, the Prison Service does not treat time in custody on recall as credit against either the unexpired earlier sentence or a later sentence. After that date, custody on remand for the later offence is credited in the ordinary way.

3. A sentencing court must therefore normally give full account of pre-expiry administrative recall when fixing the section 116 term. A section 116 term is an independent sentence, normally served to its halfway point. Accordingly, each day of relevant administrative recall is the equivalent of two days in the court’s calculation. On the prison information accepted by the court, 205 days of recall custody required a 410-day allowance, leaving 92 days properly payable for the breach.

4. If it later emerged that the licence had expired before the appellant returned to custody on 21 January 2004, the matter could be restored on paper for recalculation, which would produce a longer breach-of-licence term.

5. The court further observed that prosecutors should obtain precise prison information about recall custody before sentence. Where it is unavailable, the sentencing judge cannot rely on prison authorities to make the adjustment later.

• Court of Appeal (Criminal Division): In [2005] EWCA Crim 218, the court allowed the sentence appeal to the limited extent of substituting 92 days’ imprisonment for the breach-of-licence term.

• Crown Court at Liverpool: On 5 July 2004, His Honour Judge Holloway imposed 502 days’ imprisonment under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, consecutive to three years for the new heroin-supply offence.