Needham & Ors, R. v

Where custody and driving disqualification are imposed for the same offence, section 35A of the Road Traffic Offenders Act 1988 requires a disqualification comprising the ordinary discretionary period and a statutory extension calculated only from the custodial term for that offence. It does not use the global custodial term for unrelated offences.

Section 35B is complementary. Where another custodial sentence, or an unexpired earlier sentence, reduces the punitive effect of disqualification, the court must consider an uplift sufficient in the ordinary case to ensure that the intended ban is served in the community. It retains discretion where such an uplift would be anomalous or disproportionate. Sentencers must state the components of the order clearly.

Seven applicants or appellants challenged sentences imposed at Crown Courts for motoring and associated offences. The cases raised common questions about sections 35A and 35B of the Road Traffic Offenders Act 1988, introduced with effect from 13 April 2015.

The sentencing courts had variously calculated the extension period by reference to the total custodial sentence, described disqualification as beginning on release, or failed to distinguish the statutory extension from an adjustment for custody imposed on another offence. Other challenges concerned custody, totality, re-tests and the effect of time on remand.

The central issue was the correct operation and interaction of sections 35A and 35B where a defendant receives a driving ban together with custody for the disqualifying offence, for other offences, or both.

1. The applications and appeals were mostly refused. Khan’s appeal was allowed in part. His total custodial sentence was reduced from 30 to 24 months, and a three-year disqualification under section 35B was substituted. The other orders were refused or formally corrected without changing their substantive length.

2. Section 35A applies only where custody and disqualification are imposed for the same offence. The extension period is additional to the discretionary period which the court would otherwise have imposed. In the usual case it is half of the custodial term pronounced for that disqualifying offence, not half of the global sentence. The discretionary period continues to be fixed by the established purposes of disqualification: public protection, punishment and deterrence, balanced against effects on employment and rehabilitation: R v Backhouse [2010] EWCA Crim 1111.

3. Section 35B is complementary to section 35A. It applies where custody is imposed for another offence, or where an earlier custodial sentence remains unexpired. The court must have regard, so far as appropriate, to the diminished effect of disqualification while the offender is detained. In ordinary cases it should make an arithmetical uplift so that the intended disqualification is served after release. It may decline or limit an uplift where a very long unrelated sentence would make it anomalous or inconsistent with rehabilitation.

4. Section 35B(4) prevents double counting only of custody for the same disqualifying offence. It does not prevent section 35B applying alongside section 35A when there is custody for another offence. The court supplied a four-step checklist for identifying the applicable provisions and calculating the discretionary period, section 35A extension, and any section 35B uplift.

5. Time on remand cannot reduce the statutory extension period. However, where there was no interim disqualification, a substantial remand period would otherwise make the result disproportionate, and the statutory minimum remains preserved, the court may make a broad-brush adjustment to the discretionary period. This was consistent with the approach in R v Harkins [2011] EWCA Crim 2227.

6. A statutory minimum ban applies to the discretionary period alone. A guilty plea does not reduce driving disqualification. Disqualification starts on the date it is pronounced, rather than on release. Sentencing remarks must identify the total ban, its discretionary and extension elements, and any section 35B uplift. An extended re-test cannot be imposed where one remains in force: R v Anderson [2012] EWCA Crim 3060.

• Court of Appeal (Criminal Division). In [2016] EWCA Crim 455, the court determined seven sentence appeals or applications referred by the Registrar. It allowed Khan’s appeal in part and otherwise refused relief, while correcting the form of several driving-disqualification orders.
• Crown Courts. The sentences under review had been imposed at Lincoln, Birmingham, Durham, Chester, Nottingham and Preston. No lower-court neutral citations were stated in the judgment.