Hunt, R. v

An order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 may be made although an offender has already been administratively recalled after revocation of a licence. The order takes effect immediately. From that date, custody counts towards the outstanding period specified by the court; it does not begin only after the administrative-recall period has expired.

Time spent in custody following recall before the order does not automatically count. The sentencing court should normally allow for it, and should deduct twice that period from the outstanding sentence to give full credit after applying early-release provisions.

The appellant pleaded guilty in the magistrates’ court to burglary, theft, dangerous driving, making off without payment, driving without insurance and driving without a licence. He was committed to the Crown Court at Swindon for sentence and asked for further offences to be taken into consideration.

The Recorder imposed consecutive sentences totalling three years and six months’ imprisonment. She also ordered the appellant’s return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, but did not specify the outstanding period to be served. He appealed against the burglary sentence, the return-to-custody order, and the overall length of sentence.

The central issues were the proper operation of a section 116 order after administrative recall and the credit to be given for pre-order custody.

1. The appeal was allowed in part. The burglary sentence was reduced from 18 months to 12 months. The resulting sentence for the new offences was therefore three years’ imprisonment.

2. The Recorder had power under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 to return the appellant to prison despite the earlier revocation of his licence and administrative recall. Sharkey [2000] 1 Cr App R(S) 541 established that the two mechanisms have different purposes: administrative recall protects the public, whereas a return-to-custody order is punitive.

3. The prison service’s proposed calculation was wrong. An offender returned to custody after administrative recall is serving the same original sentence by either route. A section 116 order takes effect immediately. From the date of the order, custody counts towards the number of outstanding days specified in it. The new sentence begins once that ordered period has been served.

4. Custody before the section 116 order did not automatically count against the ordered outstanding period. However, following Stockler [2003] EWCA Crim 1212 and Teesdale [2003] EWCA Crim 1641, the court should normally make an allowance. To give full credit in light of early release, the allowance is twice the days spent in custody after administrative recall and before the order.

5. The appellant had spent 51 such days in custody. Twice that period, 102 days, was deducted from the 180 outstanding days. The return-to-custody order was varied to 78 days, commencing on 6 January 2006. No further reduction was justified because the sentence as a whole properly reflected the offending.

• Court of Appeal (Criminal Division) — allowed the sentence appeal in part in [2006] EWCA Crim 1679, substituting three years’ imprisonment and varying the return-to-custody period to 78 days.
• Crown Court at Swindon — imposed consecutive sentences totalling three years and six months’ imprisonment and made a return-to-custody order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.
• Magistrates’ court — accepted the appellant’s guilty pleas and committed him to the Crown Court for sentence.