Thorsby & Ors v The Queen

A sentencing court must calculate and direct qualifying-curfew credit under section 240 A of the Criminal Justice Act 2003. Failure to perform that mandatory duty is an error of law and principle, rather than an error in the exercise of sentencing discretion.

When deciding whether to extend time for a sentence appeal, the court must act in the interests of justice. It must weigh finality and efficient administration against the justice of the individual case and the offender’s liberty. A substantial extension will generally be appropriate where the statutory error is clear, the offender was not responsible for the delay, the entitlement can still be established, and refusal would prolong detention beyond that justified by the sentence.

Four offenders were sentenced at different Crown Courts without directions crediting time spent on qualifying curfew before sentence. Adrian Thorsby appealed against sentence. Davin Glasson, Keith Pilkington and Zoe Robinson sought substantial extensions of time in which to apply for leave to appeal.

In each case, the omitted credit was significant. The failure resulted from omissions by advocates and the sentencing court, rather than delay by the offender after learning of the entitlement. The common issues were whether the omission was an error of law and when late applications should be permitted.

1. The court allowed Thorsby’s appeal. It granted extensions of time and leave to appeal to Glasson, Pilkington and Robinson, and allowed each appeal.

2. Section 240 A of the Criminal Justice Act 2003 imposed a mandatory duty on the sentencing court to calculate the credit period and direct that it count as time served. The credit broadly equalled half the qualifying days spent on electronically monitored curfew of at least nine hours, subject to the statutory exclusions. The Crown Court had no discretion to omit the calculation.

3. An omission of mandatory qualifying-curfew credit was an error of law and principle. It was not merely an assessment of sentence with which the Court of Appeal would interfere only if the sentence were manifestly excessive or wrong in principle. The professional failures of advocates did not relieve the Crown Court of its statutory responsibility.

4. The discretion to extend time under the Criminal Appeal Act 1968 depended on the interests of justice. That assessment included finality, efficient administration, the merits of the proposed appeal, the offender’s liberty, personal responsibility for delay, and whether the entitlement could still be determined. A clear statutory error would ordinarily be corrected despite a substantial delay where the offender was not at fault. The position could differ where the offender knew of the error but delayed, or where time had made the entitlement incapable of reliable resolution.

5. Each appellant had a provable entitlement and was not personally responsible for the delay. The court directed credit of 133 days for Thorsby, 77 days for Glasson, 93 days for Pilkington and 86 days for Robinson. In Glasson’s case, it also corrected the separate omission of the mandatory £120 victim surcharge.

6. The court gave prospective procedural guidance. Representatives must obtain and verify curfew information promptly, applicants must evidence when they discovered the error and act without further delay, and the prosecution must investigate promptly. A clear sentencing direction preserving the full statutory entitlement may permit later correction by the Crown Court beyond the period in section 155 of the Powers of the Criminal Courts (Sentencing) Act 2000.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 1, allowed Thorsby’s sentence appeal and granted extensions of time and leave to appeal to Glasson, Pilkington and Robinson. It allowed all four appeals and directed qualifying-curfew credit.
• Crown Court: Thorsby was sentenced at Kingston upon Hull Crown Court on 8 February 2013 to four and a half years’ imprisonment without qualifying-curfew credit.
• Crown Court: Glasson was sentenced at Peterborough Crown Court on 12 December 2013 to 27 months’ imprisonment without qualifying-curfew credit.
• Crown Court: Pilkington was sentenced at Manchester Crown Court on 15 July 2014 to 15 months’ imprisonment without qualifying-curfew credit.
• Crown Court: Robinson was sentenced at Grimsby Crown Court on 17 July 2014 to 20 months’ imprisonment without qualifying-curfew credit.