Bell, R. v

Where imprisonment is imposed after breach of a community order, Criminal Justice Act 2003, section 240 ordinarily requires relevant remand custody to count towards the sentence. A court may decline to give credit only where it is just to do so and must state the circumstances supporting that conclusion. A prior intention to avoid "double credit", or the fact that remand was on a more serious charge which was not pursued, does not itself provide a valid reason.

A community order which should arguably not have been imposed may nevertheless remain valid, but any later re-sentence must be lawful. A Crown Court cannot revoke separate magistrates’ court community orders without a statutory power to do so.

The appellant pleaded guilty in the Crown Court at Chelmsford to harassment contrary to section 2 of the Protection from Harassment Act 1997. He had spent more than five months on remand while charged with the more serious section 4 offence. In June 2009, the Crown Court imposed a community order.

After repeated non-compliance, the judge dealt with the breach in March 2010 by re-sentencing the appellant for the original offence to four months’ imprisonment. The judge declined to credit the earlier remand custody. He also purported to revoke two later community orders imposed by the magistrates’ court.

The appeal concerned the application of section 240 of the Criminal Justice Act 2003 to the re-sentence and the Crown Court’s power to revoke the magistrates’ court orders.

1. Appeal allowed. The four-month prison sentence was quashed. It was replaced by a conditional discharge for six weeks from 16 March 2010. Leave to appeal against sentence was granted.

2. Section 240 of the Criminal Justice Act 2003 required the court to direct that relevant remand custody count towards a later prison sentence, unless it was just in all the circumstances not to do so. The judge gave no valid reason for withholding that credit. The prior remand was connected with the same events, and the more serious charge had never resulted in a conviction or been pursued by the Crown. A warning that breach would lead to custody did not satisfy the statutory duty to state why credit was withheld.

3. The original community order was valid, as were the breach proceedings. Nevertheless, the court considered that, under R v Hemmings [2007] EWCA Crim 2413, the order should not initially have been imposed if the judge had intended to give full credit for the remand period. The maximum sentence for the lesser harassment offence had in substance already been served. The appropriate re-sentence was therefore a conditional discharge, removing any further risk of re-sentence for that offence.

4. The result was consistent with R v Stickley [2007] EWCA Crim 3184, but did not depend directly on it. The court noted that Stickley remained binding on a two-judge constitution, although the effect of section 149 and the decision’s reasoning might require reconsideration by a full court.

5. The Crown Court had no identified power to revoke the two later community orders made by the magistrates’ court. There was no indication that the judge had reconstituted himself as a district judge under section 66 of the Courts Act 2003. Those orders, including the unpaid-work requirement, therefore remained in force.

• Court of Appeal (Criminal Division) — Granted leave, allowed the appeal, quashed the four-month prison sentence, and substituted a six-week conditional discharge: [2010] EWCA Crim 1075.

• Crown Court at Chelmsford — Imposed a community order for harassment in June 2009. On breach in March 2010, re-sentenced the appellant to four months’ imprisonment and purported to revoke two later magistrates’ court community orders.