R v Janarthan Sothilingham

For statutory credit under the Sentencing Act 2020, the relevant question is whether bail was subject to qualifying curfew and electronic monitoring conditions. The statutory calculation requires credit for days subject to those conditions, subject only to deduction for days on which either condition was broken. It contains no further deduction for ineffective monitoring and imposes no duty on the defendant to ensure that equipment is fitted or functioning. An administrative failure by the authorities therefore does not deprive the defendant of credit. Applying R v Marshall [2015] EWCA Crim 1999, the same principle applies whether equipment was removed or never fitted.

The appellant was convicted after a pre-planned attack causing serious public disorder and sentenced by the Crown Court at Inner London to 57 months’ imprisonment. He had been released on bail subject to a qualifying curfew and electronic monitoring condition, but no tag was fitted. The sentencing judge granted only a three-month reduction because compliance was uncertain. With leave, the appellant appealed on the construction of sections 325 and 326 of the Sentencing Act 2020 and sought to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. The central issue was whether statutory credit depended on effective operation of the monitoring equipment.

The appeal was allowed. The application to adduce fresh evidence was refused, but the appellant was entitled to the statutory credit notwithstanding that no electronic tag had been fitted.

1. Statutory calculation. Sections 325 and 326 of the Sentencing Act 2020 require the court to calculate credit by reference to the days on which bail was subject to a qualifying curfew condition and an electronic monitoring condition. The statutory deduction is for days on which either condition was broken. There is no additional provision for deducting days because monitoring was ineffective.
2. Meaning of electronic monitoring condition. Section 326(3) defines the condition by reference to electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing monitoring of compliance with the curfew. The wording concerns the requirements imposed, not the operation of the equipment. A functioning device is therefore not a precondition to entitlement.
3. Allocation of risk. The legislation imposes no duty or onus on the defendant to ensure that a tag is fitted or remains functional. Reading such a requirement into the statute would create an unjustified collateral inquiry into the defendant’s reasonableness and would be inconsistent with the principle against doubtful penalisation. The risk of an administrative failure lies with the authorities.
4. Authority and evidence. The court applied the principle in R v Marshall [2015] EWCA Crim 1999, holding that removal of a tag through administrative error was not materially different from failure to fit one. The proposed fresh evidence could not affect that statutory issue and was not admitted.

The sentence was quashed and a sentence of five years’ imprisonment substituted. The court certified 845 days on remand subject to the qualifying curfew and directed that 423 days count towards sentence.

1. Court of Appeal (Criminal Division) — In [2023] EWCA Crim 485, the appeal was allowed. The sentence was quashed, a sentence of five years’ imprisonment was substituted, and 423 days were directed to count towards sentence.
2. Crown Court at Inner London — The appellant was convicted and sentenced to 57 months’ imprisonment. The judge declined to award the full statutory credit and allowed only a three-month reduction.