Bail – Credit for time served – Electric monitoring – Sentencing

R v Rudie Aaron Monaghan: R v Robert Douglas Tyler: R v Chay Gilbert: R v Asim Naser: R v Aquib Khan: R v Ben Chapman: CA (Crim Div) (Lord Justice Hooper, Mr Justice Swift DBE, Judge Morris QC): 21 December 2009

In conjoined appeals, the court was required to determine issues concerning crediting periods of remand on bail as time served by a prisoner as part of his sentence.

Section 240A of the Criminal Justice Act 2003, as inserted by section 21 of the Criminal Justice and Immigration Act 2008, came into force on 3 November 2008 and applied to an offender who was sentenced to imprisonment or detention, or in respect of whom a minimum term was set as part of a sentence of life imprisonment or imprisonment for public protection. If the offender had spent time on bail subject to a curfew of nine hours or more in any given day, coupled with an electronic monitoring condition (the relevant conditions), he was generally entitled to an order to the effect that half the number of days spent on bail subject to those conditions should count as time served by the prisoner as part of his sentence. In the instant appeals, it fell to be determined: (i) whether section 240A applied to a period on bail before 3 November 2008, subject to what were to become relevant conditions on that date; (ii) if a defendant was remanded on bail before 3 November 2008, subject to what were to become relevant conditions on 3 November 2008 and continued to be on bail for a period on or after that date, subject to those conditions without a further court order, whether section 240A applied to the period on or after that date; (iii) what account, if any, should be taken by a trial judge of a person on bail subject to an electronically monitored curfew prior to 3 November 2008 or subject to an electronically monitored curfew of less than nine hours after that date. In respect of the third issue, the appellants submitted that some credit should be given for any period on bail before that date subject to what were to become relevant conditions and for any period on bail before or after that date on conditions which fell just short of the requirements of a qualifying curfew, such as electronically monitored curfew for seven or eight hours. They submitted that if credit was given, it should lead to a modest reduction in the sentence.

Held: (1) By virtue of section 240A(1)(b) of the 2003 act, section 240A only applied if the offender was remanded on bail by a court after the coming into force of section 21 of the 2008 act, and by virtue of the Criminal Justice and Immigration Act 2008 (Commencement No 3 and Transitional Provisions) Order 2008, section 240A came into force on 3 November 2008. Accordingly, section 240A did not apply to a period on bail before 3 November 2008, subject to what were to become relevant conditions on that date.

(2) If a defendant was remanded on bail before that date, subject to what were to become relevant conditions on that date, and continued to be on bail for a period on or after that date, section 240A would apply to those conditions and the period on or after that date without a further court order. It was not parliament’s intention that a person in that situation would have to return to court, and section 240A therefore had to be given a purposive interpretation to achieve the sensible outcome that he did not have to do so to enjoy the benefit of section 240A, being a benefit given to make available more prison spaces.

(3) No reduction in sentence should normally be given for a period spent on nighttime curfew, R v Sherif (Abdul) [2008] EWCA Crim 2653, [2009] 2 Cr App R (S) 33 followed, R v Glover (Peter) [2008] EWCA Crim 1782, R v Barrett (David) [2009] EWCA Crim 2213, Times, 5 October 2009 and R v Cahill (Daniel) [2009] EWCA Crim 1918 considered. Section 240A was introduced for pragmatic reasons, to free up prison spaces, which did not justify a departure from the position taken by the court in Sherif. Accordingly, a trial judge should take no account of an electronically monitored curfew that fell short of the qualifying conditions.

(4) The individual appeals were duly determined in accordance with those principles.Judgment accordingly.

A Amer for the appellant Monaghan; S Gittins for the appellant Tyler; D Higgins for the appellant Gilbert; N Mian for the appellant Naser; A Hook for the appellant Khan; T Chaize for the Crown in Tyler and Gilbert; K Barry for the Crown in Naser.