Boutell, R. v

Where qualifying bail includes an electronically monitored curfew of more than nine hours, one half of that period must be credited against the sentence under section 240A of the Criminal Justice Act 2003.

A sentencing judge's direction that time on remand in custody is to count will ordinarily encompass a qualifying tagged-curfew period, even if curfew was not expressly mentioned. The Crown Court may therefore correct that omission. Where the judge made no direction at all about remand custody or curfew, the Crown Court has no such power and appellate intervention is required.

These were two applications for leave to appeal against sentence. In each case, the applicant had spent 56 days on bail subject to an electronically monitored curfew of more than nine hours. The qualifying curfew had not been identified at the sentencing hearing.

At Leicester Crown Court, Ricketts received five years' imprisonment for wounding with intent, with an activated suspended sentence to run concurrently. The Recorder directed credit for time in custody on remand but did not know of the curfew. At Doncaster Crown Court, Boutell received a total of three years and nine months' imprisonment for supplying heroin and an activated suspended sentence. The judge made no direction about remand time or curfew.

The central issue was whether, and by which court, each omitted curfew credit could be corrected.

1. The court extended time, granted leave and allowed both appeals. Each applicant had spent 56 qualifying days on tagged curfew. One half of that period, namely 28 days, was to be credited against the sentence under section 240A of the Criminal Justice Act 2003.
2. In Ricketts's case, the Recorder had directed that time spent in custody on remand should count against the sentence. Although that direction did not expressly mention tagged curfew, it was to be understood as ordinarily including any qualifying curfew period. A sentencing judge who refers only to custody would ordinarily intend to allow the lesser qualifying period on curfew if it had been disclosed. The Crown Court consequently has power to correct such an omission.
3. In Boutell's case, the sentencing judge had said nothing at all about either remand custody or curfew. The Crown Court therefore had no power to make the credit correction, and the Court of Appeal made the necessary direction itself.
4. The court repeated its concern that sections 240 and 240A had generated costly and recurring calculation errors. It urged legislative reconsideration. It also reminded defence advocates and counsel to enquire about qualifying custody and tagged-curfew periods at the sentencing hearing, since failure to do so could require an unnecessary appeal.

• Court of Appeal (Criminal Division) — extended time, granted leave and allowed both sentence appeals, directing 28 days' credit in each case: [2010] EWCA Crim 2054 .
• Crown Court at Doncaster — on 19 October 2009, Boutell received a total sentence of three years and nine months' imprisonment. No tagged-curfew period was brought to the judge's attention.
• Crown Court at Leicester — on 24 September 2009, Ricketts received five years' imprisonment, with an activated suspended sentence concurrent. The Recorder allowed credit for custody on remand but was not informed of the tagged curfew.