Metcalfe, R. v

Under section 240 of the Criminal Justice Act 2003, credit for time spent on remand is the ordinary requirement. A court should refuse credit under section 240(4)(b) only where that is just in all the circumstances.

It will not ordinarily be just to withhold credit because an offender was on licence and might otherwise have been recalled, where the responsible authorities have considered the position and decided not to recall. Withholding credit in those circumstances would indirectly impose the custodial consequence of recall.

If a sentencing judge is considering refusing remand credit, defence counsel must first be given a proper opportunity to make submissions.

The appellant was sentenced at Sheffield Crown Court for two offences of handling stolen goods and one offence of theft. The total sentence was fourteen months’ imprisonment. He had spent 88 days on remand in custody in connection with those offences.

The sentencing judge directed that the remand period should not count towards sentence. The judge relied on the appellant’s status as a licence prisoner who, in the judge’s view, should still have been serving an earlier sentence. The Probation Service had, however, considered recall and decided against it.

The appellant appealed against sentence, challenging both the refusal of credit under section 240 of the Criminal Justice Act 2003 and the absence of an opportunity to address that proposed course.

1. Appeal allowed. The court granted leave despite the late application and directed that the 88 days spent on remand should count towards the appellant’s sentence.

2. Section 240(3) of the Criminal Justice Act 2003 requires credit for time spent on remand in connection with the offence or a related offence, subject to the statutory exceptions. The relevant exception was section 240(4)(b): whether it was just in all the circumstances to withhold a direction.

3. It was not just to withhold credit on these facts. The appellant had been on licence when he committed the offences, but the Probation Service had made a considered decision not to recall him. The sentencing judge’s refusal of credit because the appellant should still have been serving the earlier sentence effectively imposed a custodial consequence arising from the licence period, despite that decision.

4. The court accepted the approach stated in R v Gordon [2007] 2 Cr App R(S) 66: a prisoner should not be detained beyond the period justified by the sentence, and remand credit should ordinarily be given unless a statutory provision or double credit prevents it.

5. The court also repeated the good-practice requirement from R v Barber [2006] 2 Cr App R(S) 81. Before refusing remand credit, a sentencing judge must raise the issue squarely with defence counsel and allow submissions.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and directed that the 88 days on remand count towards the fourteen-month sentence.

• Crown Court at Sheffield: Sentenced the appellant on 22 October 2008 to a total of fourteen months’ imprisonment and directed that the remand period should not count.

• Barnsley Magistrates’ Court: Committed the appellant to the Crown Court for sentence after convictions and guilty pleas for the relevant theft and handling offences.