Farrell, R. v

Where an offence was committed over a period spanning the commencement of section 240 of the Criminal Justice Act 2003, the statutory last-day rule governs unless the court clearly finds that its rebuttable presumption is displaced. A sentencing court must make that ruling unambiguously where the applicable sentencing regime affects time in custody.

Once section 240 applies, the court must direct that qualifying remand time counts towards the sentence unless a statutory exception applies. A decision that it would be unjust to give credit requires an express statement in open court and reasons.

The appellant pleaded guilty at Liverpool Crown Court to conspiracies to supply Class A and Class B controlled drugs. He received concurrent sentences of nine and eight years’ imprisonment, with a consecutive 12-month period imposed because he had offended while on licence. He had spent 206 days on remand.

He appealed on the basis that the sentencing judge should have directed that the remand period count towards his sentence under section 240 of the Criminal Justice Act 2003. His offences were alleged to have continued across the Act’s commencement date. He also challenged a confiscation order, contending that a property treated as his available asset had been effectively transferred to his parents and seeking to adduce fresh evidence.

1. The appeal was allowed in part. The court directed that the appellant’s 206 days on remand count towards the sentences imposed at Liverpool Crown Court. His challenge to the confiscation order, including his application to adduce fresh evidence, was refused.

2. Section 240 applied. Although the court proceeded on the assumption, consistent with R v Howe [2007] 2 Cr App R(S) 11, that section 240(9) creates a rebuttable presumption, no clear finding had been made at sentencing that it was rebutted. The indictment and the statutory last-day rule therefore governed. Both conspiracies were to be treated as committed on 17 November 2005, after the relevant commencement date.

3. Under section 240(3) of the Criminal Justice Act 2003, the judge was consequently obliged to direct that qualifying remand time count towards the sentence. The double-counting exception did not apply because section 67 of the Criminal Justice Act 1967 would not reduce the sentence for the same period. Nor had the judge invoked the injustice exception in section 240(4)(b): he had not stated in open court that it would be unjust to give credit or given reasons as section 240(6)(b) required.

4. The confiscation challenge disclosed no arguable perversity. The Crown Court was entitled to find that the apparent transfer of 166 St Helens Road was a device concealing the appellant’s continuing equitable interest. The proposed documents and witness evidence did not offer a reasonable chance of displacing that finding. They were also available, without reasonable explanation for their omission, at the hearing below. The court therefore refused their admission under section 23 of the Criminal Appeal Act 1968.

• Court of Appeal (Criminal Division): allowed the sentencing appeal to the extent of directing credit for 206 days on remand; refused the confiscation challenge and the application to adduce fresh evidence.
• Liverpool Crown Court: following guilty pleas, imposed concurrent terms for drug conspiracies, a consecutive 12-month licence-recall period, and later a confiscation order of £504,031.08.