Hoggard, R. v

Credit for time spent on remand in custody is administratively applied under section 240ZA of the Criminal Justice Act 2003. By contrast, credit for qualifying electronically monitored curfew bail under section 240A requires a judicial direction.

The court must calculate the credit period through the statutory steps. The prosecution must prove, to the criminal standard, any days said to require deduction under Steps 2 or 3. Where resolving a modest dispute about such days would cause disproportionate use of time and expense, the dispute should be resolved in the offender’s favour.

The appellant had received a community order for burglary and breaches of a non-molestation order. Following further breaches, the Crown Court at Leicester revoked that order on 13 December 2012 and imposed twelve months’ imprisonment.

The sentencing judge intended to allow credit for 38 days in custody and for eligible curfew bail, but believed that amendments made by the Legal Aid Sentencing and Punishment of Offenders Act 2012 made the latter credit automatic. No direction under section 240A of the Criminal Justice Act 2003 was made.

The appeal concerned whether a direction was required and, if so, the number of days that should count. A later Probation Service letter alleged breaches of the qualifying conditions on eight days, which the appellant denied.

1. Appeal allowed. The sentencing judge correctly treated the 38 days spent in custody as automatically counting under section 240ZA of the Criminal Justice Act 2003. He erred, however, in treating credit for electronically monitored curfew bail in the same way. Amended section 240A required the court to give a direction that the statutory credit period should count towards the sentence.

2. Section 240A(3) requires the court to identify the qualifying days, deduct any days falling within Steps 2 and 3, divide the result by two, and round up if necessary. The former discretion to refuse or reduce credit on a broad assessment of justice had been removed. The court must also state the requisite figures in open court.

3. For disputes under Steps 2 and 3, post-conviction procedures should be flexible and fair. The prosecution bears the criminal standard of proof for days it seeks to deduct. If resolving a dispute would entail disproportionate time and expense, particularly where relatively few days are involved, the court should resolve it in the offender’s favour.

4. Here, Step 1 produced 94 qualifying days. There was no basis for a Step 2 deduction. The eight alleged breach days raised a net dispute of four credit days. Determining it would have required an adjournment and evidence, and would have been disproportionate. The court therefore made no Step 3 deduction and, after applying Steps 4 and 5, directed that 47 days count towards service of the sentence.

5. The court reaffirmed the need for accurate records of curfew bail to accompany a defendant between courts and for practitioners and the prosecution to obtain the relevant information before sentence.

• Court of Appeal (Criminal Division)—Allowed the appeal against sentence and directed that 47 days count towards the appellant’s twelve-month sentence.
• Crown Court at Leicester—On 13 December 2012 revoked the community order following a further breach and imposed twelve months’ imprisonment, without a direction under section 240A of the Criminal Justice Act 2003.
• Crown Court at Nottingham—On 18 May 2012 imposed a two-year community order, later extended following breach.