Carruthers v Hampshire Probation Service

When a suspended custodial sentence is activated, the court must consider afresh whether remand time should count towards the sentence under section 240 of the Criminal Justice Act 2003. The relevant circumstances are those existing when the sentence is activated, not merely those considered when the suspended sentence was imposed. Although the court may activate the whole sentence for breach of supervision requirements, withholding credit for remand time may be unreasonable where the activation already constitutes the punishment for the breach and withholding credit would impose an additional period of imprisonment. An extension of time for a case-stated appeal may be granted where refusing it would produce a disproportionate or unjust result.

The appellant pleaded guilty to numerous theft, assault and motoring offences. He received a suspended six-month custodial sentence, together with supervision and drug rehabilitation requirements. The sentencing judge indicated that remand time would not count if the sentence were activated.

Following alleged breaches of the requirements, the judge activated what she believed was a four-month sentence and directed that 26 days spent on remand should not count. The appellant applied late for a case-stated appeal after earlier judicial review proceedings had required a case to be stated. The central issues were whether time should be extended, whether activation of the whole sentence was lawful, and whether the remand-time direction was lawful.

1. The court granted the approximately 14-month extension required to bring the appeal. Although the delay was inadequately explained, refusing an extension would have caused the appellant’s appeal to fail automatically and might have required him to return to custody, producing a potentially unjust and disproportionate result.

2. The activation of the whole suspended sentence was lawful. Under paragraph 8 of Part 2 of Schedule 12 to the Criminal Justice Act 2003, the court was required to order activation with the original term unaltered unless it considered that unjust in all the circumstances. The appellant’s partial compliance did not compel a lesser activation. Given the probation report, it was open to the District Judge to conclude that his response to supervision had been very poor.

3. The District Judge was entitled to impose and suspend the sentence originally. However, the proper time to decide whether remand time should count under section 240 was when the suspended sentence was activated. The court then had to consider the circumstances as they existed at that time and make the decision afresh.

4. If the District Judge had merely relied on her earlier decision, she had erred in law. Even assuming that she reconsidered the matter, directing that the 26 remand days should not count was unreasonable in the Wednesbury sense. The breach proceedings concerned failures to comply with supervision requirements, and activation of the full sentence was already the punishment for those breaches. Withholding remand credit risked imposing a further 26-day punishment without sufficient justification.

5. The court answered the first question in the affirmative and the second in the negative. The appeal was allowed on the remand-credit issue. Questions concerning bail and custody were left to the magistrates, and the case was directed to be listed before them within 14 days.

• High Court (Administrative Court): On the case-stated appeal, the court granted an extension of time, held that activation of the whole suspended sentence was lawful, but held that the refusal to credit 26 days spent on remand was unlawful and allowed the appeal on that ground.
• Magistrates' Court: The District Judge activated the suspended sentence and directed that the remand period should not count. The appellant did not pursue his ordinary Crown Court appeal and instead pursued a case-stated route.