Barber, R. v

Where section 240 of the Criminal Justice Act 2003 applies, the sentencing court must direct that qualifying remand custody counts as time served unless a statutory exception applies. If it makes no direction, or a limited direction, because it considers that just in all the circumstances, it must state that conclusion and identify the circumstances in open court. The court must also explain clearly the practical effect of a custodial sentence under section 174. Counsel must draw omissions or ambiguities to the court’s attention. A sentence appropriate in nominal length may nevertheless be manifestly excessive when refusal to credit qualifying remand time creates a disproportionate effective term.

The appellant pleaded guilty at the first opportunity to assault occasioning actual bodily harm and criminal damage after the prosecution offered no evidence on an original robbery count. The Crown Court imposed consecutive terms totalling nine months’ imprisonment.

He had spent 161 days on remand in connection with the robbery, a related offence, after completing the custodial part of an earlier sentence. The sentencing judge referred to that period but did not clearly direct that it counted towards the new sentence, nor state reasons for withholding credit. The issue was whether the sentencing remarks complied with sections 240 and 174 of the Criminal Justice Act 2003, and whether the resulting effective sentence was excessive.

1. Appeal allowed. The court ordered that the 161 days spent on remand in connection with the related robbery charge should count as time served towards the nine-month sentence. That order permitted the appellant’s immediate release. His licence period ran from the sentencing date for four and a half months.

2. Section 240 of the Criminal Justice Act 2003 imposed a duty to direct that qualifying remand time counted as time served. The fact that the offender was also in custody for other matters did not prevent section 240 applying. A court could make no direction, or a limited one, where the statutory rules so required or where it considered that just in all the circumstances, but it then had to state that conclusion and the relevant circumstances in open court.

3. The judge’s reference to bearing in mind the 161 days did not satisfy section 240(6). It did not clearly state that no credit was being allowed or identify why that was just. Its ambiguity misled both counsel. The court considered the practical guidance in Regina v Oosthuizen [2005] EWCA Crim 1978: judges must give the required information clearly, and counsel must seek immediate clarification of omissions or ambiguities.

4. Section 174 required the judge to explain, in ordinary language, the effect of the custodial sentence, including the time to be served and the ensuing licence period. Such an explanation would have exposed the intended refusal of remand credit and enabled submissions to be made.

5. The nine-month nominal sentence was not challenged as excessive. However, refusing all remand credit produced an effective 20-month term. Even allowing for the seriousness of the offending and giving full credit for the guilty pleas, that effective sentence was manifestly excessive.

• Court of Appeal (Criminal Division): allowed the sentence appeal and directed that 161 days’ qualifying remand custody count as time served towards the nine-month sentence.
• Crown Court at Middlesex Guildhall: on 7 December 2005 imposed six months’ imprisonment for assault occasioning actual bodily harm and three months’ imprisonment consecutive for criminal damage, without a clear section 240 direction.