McKenzie, R. v

For a sentence of imprisonment for public protection, the actual minimum term is fixed under Powers of Criminal Courts (Sentencing) Act 2000, section 82A. The court must give effect to credit for time spent in custody on remand under section 240 of the Criminal Justice Act 2003.

The notional minimum term in section 225(3C) of the 2003 Act serves only to determine whether the statutory threshold for such a sentence is met. It does not govern the actual minimum term imposed.

The appellant was convicted of robbery at Northampton Crown Court on 30 July 2010. On 1 October 2010, Judge Alexander QC imposed a sentence of imprisonment for public protection, with a minimum term of four years.

The appellant had spent 216 days in custody. The sentencing judge refused to direct that period to count towards the minimum term because he considered section 225(3C) of the Criminal Justice Act 2003 prevented such a direction. The appellant appealed that refusal with the single judge's leave.

The issue was whether the statutory concept of a notional minimum term prevented credit being given for time spent on remand when fixing the actual minimum term.

1. Appeal allowed. The court substituted a minimum term of three years and 149 days.

2. Section 225 of the Criminal Justice Act 2003 authorises a sentence of imprisonment for public protection, but does not itself prescribe its minimum term. Such a sentence is subject to section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, which requires the court to specify the term after which the defendant becomes eligible for early release.

3. By section 82A(3)(b), the court fixing that term must take account of the direction it would have made under section 240 of the 2003 Act for time in custody on remand to count as time served. The statutory scheme was set out in paragraph 10 of R v Lang [2006] 2 Cr.App.R ( S) 3.

4. The judge should therefore have reduced the four-year minimum term by the 216 days already spent in custody. Section 225(3C) was irrelevant because its notional minimum term is concerned only with the threshold for imposing imprisonment for public protection, not with fixing the actual minimum term.

• Court of Appeal (Criminal Division): Allowed the appeal against the refusal to credit remand custody and substituted a minimum term of three years and 149 days.

• Crown Court at Northampton: Following conviction for robbery, imposed imprisonment for public protection with a four-year minimum term and refused to direct that 216 days in custody should count towards it.