Hewitt, R. v

When a suspended sentence is activated, time spent on remand before its imposition will generally be credited under section 240 of the Criminal Justice Act 2003. The activating court must not assume that the sentencing court had already allowed that credit unless this is clear and obvious. A sentencing court should ordinarily fix the length of a suspended sentence without reducing it for remand time.

A court receiving an offender on a section 6 committal has only the sentencing powers available to the committing magistrates. It must therefore observe the statutory maximum aggregate sentence. A sentence above the statutory maximum for obstructing a constable is unlawful even if concurrent.

The appellant appealed against an aggregate sentence of 17 months imposed at Newcastle-upon-Tyne Crown Court after the activation of part of a suspended sentence and convictions for assaults on police officers, criminal damage, and obstructing or resisting a police officer.

The activating judge gave credit for remand time relating to the later offences, but not for 204 days spent on remand before the suspended sentence for threats to kill was imposed. The appellant also challenged a three-month sentence for obstructing a police officer and the aggregate sentence for summary offences committed to the Crown Court for sentence.

The central issues were the operation of section 240 of the Criminal Justice Act 2003 on activation of a suspended sentence, and the limits on sentence following a section 6 committal.

1. Appeal allowed. The court varied the sentences and made directions for remand time to count towards the custodial terms.

2. Under section 240 of the Criminal Justice Act 2003, a suspended sentence is treated as a sentence of imprisonment when it takes effect on activation. Time spent on remand before its imposition will therefore generally be addressed at activation. The activating court must direct that the relevant days count unless it would be unjust to do so, after hearing submissions and giving reasons.

3. A judge imposing a suspended sentence should ordinarily fix the term merited by the offence without allowing credit for remand time. If activation later becomes necessary, the credit can then be given under section 240. The judge may decline credit on activation to prevent double credit only where it is clear that the original sentencing judge took the particular remand days into account. There was no such clear basis here. The court therefore directed that the appellant's 204 remand days count against the activated 10-month term.

4. The court added that the sentencing court must know the remand period before imposing a suspended sentence. If that period exceeds the custodial time that would properly be served for an immediate sentence, a suspended sentence will usually be wrong in principle, either because it is more severe than the appropriate immediate sentence or because activation would have no practical effect.

5. The three-month concurrent sentence for obstructing or resisting a police officer exceeded the one-month maximum in section 89(2) of the Police Act 1996. It was replaced with one month concurrent.

6. As the later summary offences had been committed for sentence under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000, the Crown Court could impose no greater aggregate sentence than the magistrates could have imposed. By section 133 of the Magistrates' Courts Act 1980, that maximum was six months. The October assault sentences were reduced to three months each concurrently, producing a six-month aggregate for the committed offences. The court directed that 102 days on remand count towards that aggregate term.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 885, the court granted leave and allowed the appeal to the extent of varying the sentences and directing credit for remand time.

• Crown Court at Newcastle-upon-Tyne: On 24 January 2011, Judge Thorn QC activated 10 months of a suspended sentence and imposed further sentences producing an aggregate of 17 months.