Custody calculations

In the case of R (Hicks) v Snaresbrook Crown Court [2012] EWHC 3348 (Admin); [2012] EWCA Crim 2515 a prisoner challenged the warrant of the Crown Court amending the days that he would be required to spend in custody.

The prisoner had been sentenced in 2007 to a sentence of imprisonment for a drugs offence and released at the half-way point subject to licence. He was subsequently arrested and remanded into custody for a new offence (a grievous bodily harm offence) on 1 April 2010. Six days later the Secretary of State revoked his licence pursuant to section 254 of the Criminal Justice Act 2003 and recalled him (technically) to custody to serve the remainder of that sentence, which he completed on 11 August 2010. There was then a further period of remand in custody in respect of the grievous bodily harm offence for 96 days between 12 August 2010 and 15 November 2010, and then a fresh sentence of five years' imprisonment was imposed and began on 16 November 2010.

At the date of sentence prior to 3 December 2012 (as will be the case with most currently detained prisoners) the court had a duty to specify the precise number of days spent on remand to be credited against the completion of the sentence pursuant to section 240 of the Criminal Justice Act 2003. The sentencing court no longer has this duty (in relation to remand into custody, though it remains under a duty to specify the credit due for a qualifying curfew period: section 240A CJA 2003, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012). However, most prisoners will have been sentenced under the old provisions, which will continue to impact upon release date calculations in the future.

The sentencing judge ordered that 162 days should be credited towards the sentence. Although the judge was told the offender was "in for something else" there was no detail and the order made simply gave credit for the period on remand, in the usual manner. In fact the judge misheard the dock officer and thought the period was 182 days, but the warrant drawn up at that time by the court staff corrected that slip and specified the figure of 162 days. That accorded with the usual direction that had been given for administrative correction of mathematical error (see R v Gordon and Others [2007] 1 WLR 2117). Relying on that calculation for the sentence the prisoner would be due release in early December 2012. This indeed was the calculation conducted at the first prison to which he was sent.

However when the prisoner moved to a new prison a re-calculation reduced the number of days to be credited, relying on the fact that during the period from 1 April 2010 to 11 August 2010 the prisoner had been detained also on recall to serve his first sentence. The prison procured from the office of the Crown Court a warrant that purported to alter the credit period of remand days to a figure of 102 days. That fresh warrant was dated 28 February 2011. It was issued by the court without any further hearing before the judge, and plainly it was outside the 56 day time period for use of the 'slip-rule' (section 155 Powers of Criminal Courts (Sentencing) Act 2000). There was no pronouncement in open court, let alone any hearing. The consequence of that warrant would be that release would not be due until 3 February 2013.

The court accepted the prisoner's argument that it was not lawful for the Order for Imprisonment to be amended without a public and oral hearing and without any judicial decision being taken. Alteration of the judicial exercise of discretion will only be possible if an error is brought to the attention of the sentencing court within the 56 day time limit for corrections, otherwise the principle of finality will prevail. The Court of Appeal accepted the law requires that any change be done in accordance with the statutory provisions. This meant even if the prisoner would not have been granted the days to credit if the court sentencing him had known he was also serving a period of recall on licence to a previous sentence, and the prison later recognised this and asked the court to change the order, the release date could not lawfully be delayed outside the 56 day limit.

Prisoners whose cases have not been returned to court shortly after sentence but whose release dates have been put back after a prison recalculation of sentence, with or without an order drawn up by the court office, will be wrongly detained during the extended period.

As a practical note the claim was brought by way of judicial review, and the claimant sought to rely on authorities including R v Crown Court at Maidstone, ex-parte London Borough of Harrow [2000] QB 719. In doing so the order of the court was regarded as being in fact the sentence (the order) pronounced by the judge; and the document drawn up that did not reflect that sentence as being an act of an administrative nature that was not lawful. However perhaps for practical reasons, perhaps on principle, the Divisional Court preferred to reconstitute itself as the Court of Appeal (Criminal Division) and gave guidance that in future such issues should be brought by way of appeal against sentence, and not judicial review.