McElwee

When fixing the period to be served on a return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, time already spent in custody after revocation of a licence must be credited. Each day so spent has the equivalent effect of two days’ return to custody. The court may also take account of an extension to the original sentence expiry date caused by a breach of licence and bail conditions. The balance must be recalculated before consecutive sentences for later offending take effect.

The appellant had been released on licence from a sentence for burglary and handling stolen goods. After committing two further burglaries, his licence was revoked and he was returned to custody. The Crown Court later ordered him to serve the remaining 417 days of the original sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, followed by consecutive sentences for the new burglaries.

On a reference by the Criminal Cases Review Commission, he contended that the sentencing judge had failed to credit custody served after recall. The central issue was the correct calculation of the unexpired period of the original sentence.

1. Appeal allowed in part. The order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 was varied. The appellant was required to serve 117 days before serving the consecutive sentences imposed for the two new burglaries.

2. The court held that time spent in custody following revocation of a licence had to be taken into account when calculating a return-to-custody period under section 116. Relying on Sharkey [2001] 1 Cr.App.R 409, Stocker [2003] EWCA Crim 121 and Bingham [2004] EWCA Crim 1865, the court held that one day in custody after recall was equivalent to two days of return to custody under that section.

3. The appellant had spent 162 days in custody between 26 May and 21 December 2004. The unexpired period was increased from 418 to 441 days to reflect the 23-day extension arising from his breach of licence and bail conditions. The 162 days counted as 324 days’ credit, leaving 117 days to be served.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court allowed the appeal to the extent of varying the return-to-custody order: [2007] EWCA Crim 1005.
• Earlier appeal: An earlier appeal against the sentences had been dismissed. No citation is stated in the judgment.
• Crown Court at Lewes: On 21 December 2004, Judge Niblett ordered 417 days’ return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, followed by concurrent five-year sentences for two burglaries.