Irving, R. v

On passing sentence, a court must make a specific order giving credit under section 240A of the Criminal Justice Act 2003 for qualifying electronically monitored curfew bail. Credit is one half of the qualifying days. A qualifying day requires a court-ordered curfew of at least nine hours with electronic tagging. The first day counts, the last does not, and an odd half-day is rounded up.

Technical errors about remand credit should be identified and raised promptly. Long extensions of time to correct small errors will be closely scrutinised, although the novelty of the regime and the significance of the omitted credit may justify relief in an appropriate case.

Two applications for extensions of time and leave to appeal sentence were heard together. In each case, the sentencing court had failed to consider credit for remand on electronically monitored curfew bail under section 240A of the Criminal Justice Act 2003.

Irving had pleaded guilty to three robberies and received two years’ detention in a young offender institution. He had completed 24 qualifying days of tagged curfew bail. Squires was convicted of wounding with intent to do grievous bodily harm and received five years’ imprisonment. His sentence credited 51 days in custody, but the correct combined custody and tagged-curfew credit was 145 days.

The central issues were whether late applications should be permitted and what correction to each sentence was required.

1. Disposition. The court granted extensions of time and leave to appeal in both cases. Irving’s sentence was varied to give a further 12 days’ credit. Squires’s sentence was varied so that 145, rather than 51, days counted against it. Otherwise, both sentences remained unaltered.
2. Section 240A of the Criminal Justice Act 2003 required the sentencing court to make a specific credit order. The credit was half the days on which the defendant was subject to court-ordered bail conditions imposing a curfew of at least nine hours and electronic tagging. The first qualifying day counted, the last did not, and a fractional result after halving was rounded up. The provision applied only to conditions imposed after 3 November 2008.
3. The court applied that calculation to the established facts. Irving had 24 qualifying days and was entitled to 12 days’ additional credit. Squires was entitled to credit for 75 days in custody under section 240 and 70 days for 140 qualifying tagged-curfew days.
4. The court endorsed the practical observations in R v Nnaji and Johnson [2009] EWCA Crim. 468. Administrative uncertainty about remand status can produce errors and unnecessary appeals. It directed courts and practitioners to use the established sentencing formula, maintain and transfer the electronic-monitoring record, and obtain accurate bail information before sentence. The formula derived from R v Gordon [2007] EWCA Crim. 165 allowed an error in the recorded credit to be corrected after the ordinary 56-day slip-rule period.
5. The court warned that future applications for lengthy extensions based only on technical errors under sections 240 or 240A would receive careful scrutiny. The applicants nevertheless received relief because the legislation was new when they were sentenced, and Squires’s omitted credit was substantial. The court also urged Parliament to consider an automatic-credit regime, subject to judicial direction otherwise.

• Court of Appeal (Criminal Division). Granted extensions of time and leave to appeal sentence, and varied each sentence solely to correct remand-credit calculations.
• Crown Court — Irving. Following guilty pleas to three robberies, imposed two years’ detention in a young offender institution on 24 April 2009 without a section 240A credit order.
• Crown Court — Squires. Following conviction for wounding with intent to do grievous bodily harm, imposed five years’ imprisonment on 7 May 2009 and credited 51 days in custody.