Anderson, R. v

Time spent by a child remanded to local authority accommodation under section 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is not a remand in custody for section 242 of the Criminal Justice Act 2003. It therefore receives no automatic credit under section 240ZA. Time spent in youth detention accommodation under section 91(4) does count.

An error, or alleged error, in explaining how credit will operate does not itself make an otherwise appropriate sentence wrong in principle or manifestly excessive. However, where a young offender in local authority accommodation was subject to an electronically monitored qualifying curfew, credit equivalent to that available under section 240A should be directed.

The appellant, aged 14 at the time of the offending and 15 when sentenced, pleaded guilty at Birmingham Crown Court to conspiracy to rob. The conspiracy comprised 13 linked robberies. He participated in seven, including offences committed after his release on police bail.

On 5 May 2017, the Crown Court imposed three years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. He sought permission to appeal because 28 weeks spent in local authority accommodation before sentence did not count as time served, contrary to his asserted understanding at sentence.

The appeal also raised whether credit was due for 14 days in youth detention accommodation and for an electronically monitored curfew imposed during the later local-authority remand.

1. Appeal allowed to a limited extent. The three-year sentence was not excessive and remained in force. The court directed credit for 112 days: 14 days spent in youth detention accommodation and 98 days for the qualifying electronically monitored curfew.

2. Section 242(2)(b) of the Criminal Justice Act 2003 defines the relevant remand in custody by reference to a remand to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Section 91(4) is distinct from the mandatory remand to local authority accommodation under section 91(3), made in accordance with section 92. Only the former engages section 240ZA, under which remand time counts automatically as time served. The appellant’s 28 weeks in local authority accommodation therefore did not count: [2017] EWCA Crim 2604, paras 30–32.

3. The court rejected the contention that any mistaken assumption by counsel or the sentencing judge about that credit required a reduction in sentence. The sentencing judge’s task is to determine the appropriate overall sentence, rather than the period the offender will actually spend in custody. An inaccurate explanation of release or credit consequences does not, without more, render the sentence wrong in principle or manifestly excessive. The court followed the analogous reasoning in R v Giga [2008] EWCA Crim. 703: paras 36–39.

4. The 14 days in youth detention accommodation did count under the statutory scheme. Further, while the later local-authority remand was not custody for section 242, the appellant had been subject to an electronically monitored curfew. Applying R v D and H [2016] EWCA Crim. 1807, the court held that he should receive the equivalent section 240A credit. The agreed curfew credit was 98 days: para 41.

• Court of Appeal (Criminal Division): Allowed the appeal only to direct sentence credit for 112 days. The three-year detention order remained in force: [2017] EWCA Crim 2604.
• Birmingham Crown Court: On 5 May 2017, imposed three years’ detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 following a guilty plea to conspiracy to rob.