Barrett, R v

Credit for time spent on bail under section 240A of the Criminal Justice Act 2003 is available only where the statutory conditions are met, including electronic monitoring of a qualifying curfew. A court cannot extend that entitlement to an untagged curfew.

Outside the statute, a sentencing judge may make a modest, fact-specific adjustment for a lengthy and severe curfew. An ordinary untagged night-time curfew will not ordinarily require a formal reduction. The comparison with a co-offender who was remanded in custody does not make that conclusion unfair.

The appellant pleaded guilty at Preston Crown Court to burglary with intent to cause unlawful damage. He was sentenced to 44 weeks’ imprisonment. His co-accused received the same sentence, with credit for 132 days spent in custody on remand.

The appellant had spent only six days in custody. For the remaining 126 days before sentence, he was subject to an untagged curfew from 7 pm to 7 am, with which he complied. He appealed by leave of the single judge, contending that his sentence should reflect that restriction under section 240A of the Criminal Justice Act 2003 or at common law.

The central issue was whether an untagged night-time curfew required any credit against the custodial sentence.

Appeal dismissed.

1. Section 240A of the Criminal Justice Act 2003 required both a qualifying curfew of at least nine hours a day and electronic monitoring before statutory credit could be given. The appellant was not electronically tagged. The court could not rewrite the statutory scheme so as to confer statutory credit for an untagged curfew.

2. At common law, a sentencing judge could in an appropriate case make a modest adjustment for a lengthy curfew outside the statute, particularly where it was electronically monitored. That remained a matter of assessment on the particular facts. Time subject to a home curfew could not be equated with imprisonment.

3. An ordinary untagged night-time curfew differed materially from lengthy house arrest. It had long been commonplace and did not ordinarily call for a formal sentence reduction. The sentencing judge was therefore entitled to make no allowance for the appellant’s 126-day curfew.

4. There was no unfair disparity with the co-accused. The co-accused had spent 132 days in custody, whereas the appellant had spent six days in custody and otherwise remained at liberty, subject only to the night-time restriction. Although exceptional circumstances might justify an adjustment for an untagged curfew, none arose here.

• Court of Appeal (Criminal Division): Dismissed the appeal against sentence: [2009] EWCA Crim 2213.
• Crown Court at Preston: The appellant pleaded guilty on 11 May 2009 and, on 12 June 2009, was sentenced to 44 weeks’ imprisonment for burglary with intent to cause unlawful damage.