Norman & Ors, R. v

For qualifying determinate sentences, Criminal Justice Act 2003 section 240 requires the sentencing court to direct, and state in open court, the days spent on relevant remand that count as time served. Any departure requires the statutory basis and, where discretion is exercised, reasons.

An erroneous remand-credit direction can ordinarily be varied only within the statutory 28-day period. The court record may nevertheless be corrected later where it fails to record the order actually pronounced. A failure to give, or correctly give, a required section 240 direction makes the sentence wrong in principle and may found an appeal.

Six related sentencing appeals raised practical issues about credit for time spent on remand under section 240 of the Criminal Justice Act 2003, including inaccurate custody information, concurrent and consecutive sentences, an intervening detention and training order, and late purported variations of sentence.

The appeals also concerned an imprisonment for public protection, the statutory maxima for sentences following committal from the magistrates’ court, totality after recall to custody, and alleged sentencing disparity. They came from sentencing decisions in Crown Courts at Middlesbrough, Wolverhampton, Middlesex Guildhall, Inner London, Blackfriars and Swansea.

1. The court allowed several appeals and varied or restored remand-credit directions. Section 240 applies to determinate sentences for offences committed on or after 4 April 2005. Subject to section 240(4), the court must direct the relevant days on remand to count as time served, state the figures in open court, and explain any reduction in credit.

2. A sentencing court may generally correct an erroneous sentence only under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 within 28 days. It may correct the record outside that period where the record does not reflect the order pronounced in open court, including a simple miscalculation of days identified by the judge. It has no power to alter a sentence administratively.

3. In Norman, no section 240 direction could apply to the later consecutive sentences because the earlier offences fell under section 67 of the Criminal Justice Act 1967 and Rule 2(b) of the 2005 Rules. The purported administrative direction was rescinded. In Egan, the court corrected unlawful sentence lengths and reduced the total to 26 months. In Igbanoi, it substituted 146 days for 114 days because the judge had directed that the whole identified remand period should count. In Miller, it quashed the late reduction of credit and restored 98 days.

4. A detention and training order is not a sentence of imprisonment for section 240(4)(a)(i). Therefore, in Walton, remand time overlapping that order had to count unless the judge properly exercised the section 240(4)(b) discretion and gave reasons. The appeal was dismissed if the original 182-day direction remained recorded; otherwise it was allowed to restore that direction.

5. In Hussain, the statutory presumption of dangerousness was unreasonable on the facts. Repeated violence did not demonstrate a real risk of death or serious personal injury. The imprisonment for public protection was replaced with a determinate seven-year sentence, with concurrent two-year sentences for the additional offences and 152 days’ credit. Cory’s appeal against a three-year sentence was dismissed.

6. The court declined to follow the suggestion in R v Oosthuizen [2005] EWCA Crim 1978 that a non-direction under section 240 would normally not ground an appeal where the sentence was otherwise appropriate. The offender is entitled to the direction, and its absence or inaccuracy makes the sentence wrong in principle where section 155 or record correction is unavailable.

• Court of Appeal (Criminal Division) — in [2006] EWCA Crim 1792, determined six related sentencing appeals, allowing several appeals to correct sentence structure or remand-credit directions and dismissing others as stated.
• Crown Court — the appeals arose from sentencing decisions at Middlesbrough, Wolverhampton, Middlesex Guildhall, Inner London, Blackfriars and Swansea.