Johnson (RT) v R

Under Criminal Justice Act 2003 s 240, time spent in custody on remand should ordinarily count towards a custodial sentence. The sentencing court must make the required direction using reliable information.

Where a direction has been omitted or contains an agreed error, and the statutory period for correction has expired, the proper course is an appeal to correct the number of days. Sentencing judges should use a direction that gives credit for the full qualifying period while allowing the record to be amended if an administrative error in the calculation is later found.

This was a conjoined appeal concerning errors in directions under Criminal Justice Act 2003 s 240 for time spent in custody on remand.

Johnson had been convicted at Chelmsford Crown Court of two counts of possessing heroin with intent to supply. He received concurrent four-year sentences. The sentencing judge directed that 81 days on remand should count. Subsequent enquiries established that the correct figure was 84 days.

The court also considered Nnaji's appeal, in which no remand-credit direction had been made. The central issue was how errors or omissions in remand-credit directions should be corrected after the ordinary statutory correction period.

1. The court granted leave and allowed both appeals to the limited extent necessary to correct the remand-credit directions. In Johnson's case, the direction was varied from 81 to 84 days. His sentence was therefore four years less 84 days spent on remand. Nnaji's sentence was corrected by directing that 106 days should count.

2. Section 240 of the Criminal Justice Act 2003 changed the calculation of remand credit from an administrative process to a judicial direction. It did not displace the broad principle that qualifying time on remand should count, subject to the court's power to direct otherwise. A court can properly discharge its duty only if it receives reliable information.

3. Following R v Norman [2006] EWCA Crim 1792, an agreed misstatement or omission which cannot be corrected within the period allowed by section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 should be corrected through an appeal. The court applied that procedure in each appeal.

4. The court endorsed the practical guidance in R v Gordon [2007] EWCA Crim 165. A sentencing judge should direct that full credit be given for qualifying remand time, state the calculated figure on the information then available, and provide for amendment of the record if an administrative error later emerges. A continuing dispute requires a judicial decision in open court. This guidance was intended to avoid needless appellate and administrative cost.

• Court of Appeal (Criminal Division): Allowed Johnson's appeal in part and varied the direction under Criminal Justice Act 2003 s 240 so that 84, rather than 81, days on remand counted towards the concurrent four-year sentences.
• Crown Court at Chelmsford: Convicted Johnson on 13 July 2007 of two counts of possession of heroin with intent to supply; imposed concurrent four-year sentences and directed that 81 days on remand should count.