Monaghan & Ors v R.

Section 240A of the Criminal Justice Act 2003 gives credit only for qualifying electronically monitored bail curfews after its commencement on 3 November 2008. It cannot credit earlier days, even if the conditions would later have qualified. However, a defendant already on qualifying bail who remains on it after commencement need not obtain a fresh bail order; the post-commencement days qualify.

The court must first fix the appropriate sentence and then give the statutory credit, unless the statutory exception applies. It cannot withhold credit merely because it considers the sentence otherwise appropriate. A night-time curfew will not normally justify a separate discretionary reduction in sentence.

These conjoined applications and appeals concerned sentences imposed on several defendants who had spent periods on bail subject to electronically monitored curfews. The court considered the newly commenced section 240A credit scheme in the Criminal Justice Act 2003.

The common questions were whether credit could be given for qualifying bail before 3 November 2008, whether credit could be given after that date where the original bail order pre-dated it, and whether sentencing judges should otherwise reflect restrictive curfews. The court also determined the individual claims for sentence credit and the remaining sentence challenges.

1. Appeals allowed in part. The court directed statutory credit for the qualifying post-commencement bail periods of Tyler, Gilbert, Chaplin and Khan. It rejected the claims for pre-3 November 2008 credit and otherwise refused the applications and sentence challenges.

2. Section 240A did not apply to any period before 3 November 2008. Section 240A(1)(b) required a remand on bail after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008. The word “first” in the calculation provision could not displace that commencement condition.

3. Where an offender had been granted bail before 3 November 2008 on conditions which became the relevant conditions, and remained on that bail after commencement, the post-commencement days qualified. A purposive reading avoided requiring a fresh remand order merely to secure statutory credit. That construction accorded with the scheme’s practical aim of reducing pressure on prison places.

4. Credit was confined to days on which the relevant conditions actually applied. A curfew of fewer than nine hours did not qualify under section 240A. The court also held that a sentencing judge must determine the proper sentence independently before applying the statutory credit. A refusal to give credit simply because the sentence was already appropriate would defeat the statutory scheme, subject to the court’s separate power to find that a direction would not be just in all the circumstances.

5. Following Sherif and others [2008] EWCA Crim 2563, no separate reduction should normally be made for a night-time curfew outside the statutory scheme. The pragmatic introduction of section 240A did not justify departure from that approach. The earlier observations in Glover and others [2008] EWCA Crim 1782 remained relevant to the fact-sensitive possibility of a modest adjustment in an appropriate case.

• Court of Appeal (Criminal Division) The court allowed the relevant appeals to the extent of directing credit under section 240A for qualifying bail after 3 November 2008. It otherwise refused leave or dismissed the challenges.
• Sentencing courts The defendants had received custodial sentences. In several cases the sentencing court had declined credit for electronically monitored bail curfews.