Fontella, R v

Where an offender was remanded on bail subject to both a qualifying curfew condition and electronic monitoring, Criminal Justice Act 2003, section 240A requires the sentencing court to direct that the statutory credit period counts as time served, unless it would be unjust in all the circumstances to do so. An offender should not lose that credit because counsel failed to identify the qualifying remand conditions at sentence.

When correcting an omission, the court should state the custody and qualifying-curfew credit clearly, using the practical formula identified in R v Johnson 2009 EWCA Crim 468.

The appellant was sentenced at the Crown Court at Cardiff on 14 July 2009 to four and a half years’ imprisonment for aggravated burglary. He did not challenge the term of imprisonment.

The sentencing judge directed that time in custody on remand should count, but neither counsel nor the court had been told the number of days or that the appellant had also spent 195 days on bail subject to an electronically monitored qualifying curfew. The issue on appeal was whether he should receive the statutory credit for that bail period as well as the 15 days in custody.

Appeal allowed. Holroyde J, giving the judgment of the court, held that the appellant was entitled to a direction crediting both periods of remand.

1. The Crown Court’s direction under section 240 of the Criminal Justice Act 2003 correctly covered the 15 days spent in custody before sentence.
2. The appellant’s 195 days on bail were subject to both conditions required by section 240A(12): a qualifying curfew and electronic monitoring. Under section 240A(2) and (4), the court was therefore required to direct that the credit period counted as time served, unless it considered that such a direction would be unjust.
3. There was no circumstance making it just to withhold credit. The statutory effect of section 240A(3) was a credit period of 98 days. Counsel’s failure to draw the conditions to the sentencing judge’s attention did not justify depriving the appellant of that entitlement. The judge would no doubt have made the direction had the matter been identified.
4. The court allowed the appeal to correct the omission. Following the practical formula set out in R v Johnson 2009 EWCA Crim 468, it directed full credit for time in custody and half the time spent on a qualifying curfew. The resulting credit was 113 days, subject to amendment of the record if that total proved mistaken.

• Court of Appeal (Criminal Division) — Allowed the appeal and directed credit of 113 days for remand in custody and qualifying curfew time: [2010] EWCA Crim 1990.
• Crown Court at Cardiff — On 14 July 2009 imposed four and a half years’ imprisonment for aggravated burglary and directed that custody remand time should count, without addressing qualifying-curfew credit.