Gordon, R v

For offences committed before 4 April 2005, credit for qualifying remand custody is automatic under Criminal Justice Act 1967. For later offences, the sentencing court must make an express direction under Criminal Justice Act 2003, section 240, if remand days are to count as time served. The court must state the relevant days and give reasons in open court if it refuses or limits credit.

Section 240 does not permit double credit where custody is serving an earlier sentence after recall. A Crown Court ordinarily cannot vary a sentence after 28 days, but it may adjourn the implementation of a credit direction while accurate remand information is obtained. Completing that adjourned exercise is not an impermissible variation.

Six appeals or applications concerning sentences imposed in different Crown Courts were heard together. They raised common questions about remand-time credit under section 67 of the Criminal Justice Act 1967 and section 240 of the Criminal Justice Act 2003, including mixed pre- and post-4 April 2005 offending, recall on licence, return-to-prison orders, and detention for public protection.

The court also considered the Crown Court’s 28-day power to correct sentencing orders and the effect of an omitted or inaccurate direction for remand credit. The individual cases concerned an unlawful return-to-prison order, omitted credit directions, a recalled prisoner, and a minimum term for detention for public protection.

1. The court held that the date of the offence determines the applicable remand-credit regime. For pre-4 April 2005 offences, section 67 of the Criminal Justice Act 1967 operates automatically. For later offences, section 240 of the Criminal Justice Act 2003 requires an express direction before remand days count as time served. The sentencing court must address the issue at the sentencing hearing and give open-court reasons for refusing or reducing credit.

2. Section 240 must be applied so that custody is not credited twice. In mixed cases, the 2005 Rules may remove the need for a section 240 direction where the same days are automatically credited against an earlier sentence. Time spent in custody after recall on licence is service of the original sentence and does not ordinarily attract credit against a fresh sentence. A court may, where justice requires, withhold credit to avoid that result.

3. The 28-day limit in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 generally prevents a later variation or rescission of sentence. It does not prevent correction of a record which fails to reflect the order actually pronounced. Nor does it prevent the court from completing an expressly adjourned calculation of remand days after it has directed that the whole or an identified period of remand is to count. The final order should be pronounced in open court.

4. In Gordon, the return-to-prison order was unlawful because the new offence had been committed before release on licence. The court quashed that order and substituted a sentence of three years’ imprisonment for the conspiracy, running from 2 June 2006. It could do so without impermissibly increasing the sentence when the case was considered as a whole.

5. The court ordered credit of eight days for Taylor, 322 days from the specified minimum term for D, 161 days for Shaukat, and 24 days for McManus. It refused credit for the 20 days claimed by Pusey, holding that withholding credit was just in the circumstances of his recall.

• Court of Appeal (Criminal Division) Conjoined appeals and applications concerning sentence and remand-time credit. The court allowed relief in the cases of Gordon, Taylor, D, Shaukat and McManus, but declined to credit Pusey’s disputed remand period.
• Crown Courts Sentences had been imposed at Northampton, Snaresbrook, Manchester, Inner London, Southampton and Stafford Crown Courts. No lower-court citations are stated in the judgment.