Marshall & Ors, R v

A sentencing court must calculate credit for time spent on a qualifying tagged curfew under section 240A of the Criminal Justice Act 2003 by identifying qualifying days, making the required deductions, and allowing credit for one half of the resulting period. It should record the prescribed formula in the sentencing order.

Where that formula is used, the Crown Court retains jurisdiction to correct the recorded period after 56 days. A defendant remains subject to qualifying curfew and electronic-monitoring conditions despite an administrative failure to implement the monitoring. In the Court of Appeal, a represented applicant must provide the relevant evidence, seek agreement on the calculation, and explain any delay.

Three defendants sought correction of directions concerning credit for time spent on qualifying tagged curfews under section 240A of the Criminal Justice Act 2003.

Ramos had obtained an out-of-time Crown Court direction for 54 days' credit, although the calculation was wrong and the Crown Court lacked jurisdiction to make that direction. Marshall challenged a reduction in his credited days after an administrative error concerning his electronic tag. Hussain sought an extension of time and curfew credit which had been overlooked at sentence.

The court used the appeals to re-emphasise the procedures stated in R Hoggard [2013] EWCA Crim 1024 and R v Thorsby and Others [2015] EWCA Crim 1, and to determine the proper credit in each case.

1. The appeals were allowed and the relevant directions were amended. The court convened specially to re-affirm the procedural guidance in R Hoggard [2013] EWCA Crim 1024 and R v Thorsby and Others [2015] EWCA Crim 1.

2. Under section 240A of the Criminal Justice Act 2003, the sentencing court must count qualifying-curfew days, including the first but ordinarily excluding a final day on which the defendant is taken into custody. It must deduct days of concurrent monitoring or temporary release and days of breach, divide the result by two, and round up where necessary. The prescribed wording should be used in the sentencing record.

3. Use of that wording preserves the Crown Court's jurisdiction to correct the number of days after the 56-day slip-rule period. If the parties disagree, the court must determine the issue, although it may resolve it on the papers in the defendant's favour where an oral hearing would be disproportionate. Without the wording, an out-of-time correction requires an application to the Court of Appeal.

4. A represented applicant in the Court of Appeal must provide agreed calculations or supporting documents, identify any dispute, and explain when and how the error was discovered. The applicant's representatives, rather than the Criminal Appeal Office, must make the necessary enquiries. The court stated that non-compliant applications by represented applicants would not be progressed.

5. In Ramos's case, the Crown Court's out-of-time direction was unlawful. Although the correct calculation was no more than 43 days, the court considered that requiring his return to custody could raise a difficulty under section 11(3) of the Criminal Appeal Act 1968 and would be disproportionate. It substituted a lawful direction for 54 days. Marshall was entitled to 456 days because he remained subject to the required conditions despite the administrative failure to maintain the tag. Hussain was allowed 48 days.

• Court of Appeal (Criminal Division): Allowed the appeals, where necessary granted leave, and substituted or amended the curfew-credit directions: [2015] EWCA Crim 1999.
• Crown Court: The defendants had been sentenced in separate proceedings. The judgment states no neutral citations for the sentencing decisions.