Once punished, but twice served?

In Hemmings [2007] EWCA Crim 2413 the Court of Appeal considered the appropriate sentence to be imposed upon a defendant who has served time on remand that is equivalent to the maximum custodial sentence he would or could receive for the summary offence of which he was convicted.

Double jeopardy

In that case the appellant had served on remand a period of 99 days, which was said to be the equivalent to a custodial term of six months. It was argued on behalf of the appellant that a community penalty if imposed would present a risk of double jeopardy to the appellant, since if he were to breach the requirements of the community order he would be liable to a further custodial term.

The sentencing judge had had regard to the real risks that the appellant would re-offend in the context of domestic violence, and that the protection of the public required that he impose a community penalty with the domestic abuse programme requirement recommended by the Probation Service.

The Court of Appeal, while sharing the view as to the benefits that the course and supervision would provide to the appellant and the wider community, regarded the sentence as wrong in principle.

The community order's requirements would have a real impact on the offender's liberty and was a form of punishment, and no such further punishment should be imposed on an offender who has already served what is, in practice, the maximum punishment by way of imprisonment that the law could have imposed.

The court felt obliged to allow the appeal, and went on to impose a conditional discharge, though its effect was to be concluded, in fact, by the date of its imposition. The court was not sure however that it was any valid objection to a conditional discharge that the defendant could be resentenced for the original offence should he re-offend (without, it seems, ruling on the point, and without explaining its view as to how this differed from the breach of a community sentence).

What the court missed

It is unfortunate that the two-member court did not have the assistance of an advocate for the prosecution on the appeal. Strictly speaking, the period of remand in the Hemmings was equivalent only to the custodial element of a six-month term of imprisonment: there remained the three-month period 'at risk', which would be served in the event of any further offending had the imprisonment simply been imposed prior to any remand period.

In addition, no reference was made to the statutory provision of s.142 of the Criminal Justice Act 2003, which states that the court must have regard to not only the punishment of offenders, but also the reduction of crime, the reform and rehabilitation of offenders, and the protection of the public, inter alia.

There may be some argument that the balance of considerations justified the imposition of suitably minimal and proportionate community order requirements to achieve the objectives other than punishment, though the appellant would complain the effect remained that he would undertake more punishment than the law would have allowed were he simply sentenced to custody in the first instance.

In addition it appears that the court, being assisted by only one party, has apparently failed to have regard to the Sentencing Guidelines Council's New Sentences: Criminal Justice Act 2003 definitive guideline, which at para.1.1.38 suggests that where an offender would be released immediately from a custodial sentence of a length justified by the seriousness of the offence, it may be more appropriate to pass a community sentence to ensure supervision on release. It may be that the court has disapplied this, or would have done so, on the basis that it does not specifically cater for the low maximum sentence problem encountered with summary-only matters. Annex A of the guidelines further suggests that the court should seek to give credit for remand time in adjusting the terms of a community sentence in all cases, unless it can give reasons why this is not justified, would not be practical, or would not be in the best interests of the offender.

Bound by the judgment

However if courts are to embrace the principle set out in Hemmings and the prosecution wishes to appeal (as opposed to a defendant), by the nature of the summary offences involved any prosecution appeal would be destined for the Administrative Court. This would perhaps consider itself to be bound by the Court of Appeal's judgment, even though it was not a decision reached with the benefit of argument on both sides.

This presupposes that no bold counsel will seek to argue that the same principle is engaged if the remand time is already equivalent to the 'going tariff' of a more serious offence so that no community order should be imposed. Short of the House of Lords now considering the point, the law in this regard can perhaps be considered to be relatively settled by the judgment.

However it may be that the concern over the double jeopardy risk of a further custodial sentence in the event of a breach of the order relied upon by the appellant in Hemmings overlooks both the judge's discretion in imposing any sentence for breach (where a number of different penalties can be chosen) and the requirement to credit the original remand time to the defendant in the event of any re-sentencing for breach of the community order, which was authoritatively established in a subsequent Court of Appeal decision one month later (Stickley [2007] EWCA Crim 3184).

Credit not given

In Stickley the appellant had breached a community order and was resentenced to a three-year prison term. The sentencing judge had refused to credit any period of the time spent on remand prior to the imposition of the community order, as he had taken that period into account when he had decided to give her the opportunity of the community order in the first place. The Court of Appeal held that the judge had erred. The full period of the time spent on remand prior to the imposition of the community order should have been credited, in accordance with s.240 Criminal Justice Act 2003. The fact that the remand period had been taken into account in giving the appellant the chance of the community order was not a sufficient reason to decline to apply s.240.

It also remains the case, where a defendant receives a suspended sentence and completes some of the requirements of the order before breaching it and causing the activation of the custodial term, that while account will often be taken of the extent to which the offender has already complied with the requirements (in accordance with the above SGC guideline at para.2.2.16), there is no absolute requirement to give proportionate reductions to the term of imprisonment (such as is done with the imprisonment in default of the unsatisfied portion of a confiscation order for example).

Reverse approach?

In the case of Sheppard [2008] EWCA Crim 799, where the offender had completed 87 hours of the 150 hours of the unpaid work requirement, he was not entitled to a reduction in the term of the 12 months' imprisonment, which was activated in full. It may be suggested that this is arguably the reverse situation to that in Hemmings, there being double jeopardy for an offender having undertaken the hours prior to receiving the custodial sentence in full, which if imposed initially as immediate custody would not have involved the unpaid work in addition. However the answer to this may be that the terms of the suspended sentence order at the time it was originally made should have taken into account at that stage the totality of the requirements being imposed in relation to the gravity of the offence, and the requirements should generally have been less onerous than those that would have been imposed under a community order (see SGC guideline at para. 2.2.14).

Credit for time on bail

The provisions of the Criminal Justice and Immigration Act 2008 brought into force on 14 July 2008 do not include the quite revolutionary provisions of ss.21 to 23. When, or if, brought into force, s.21 inserts a new s.240A into the Criminal Justice Act 2003. This provides that where a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4 April 2005, and the offender had been remanded on bail with a condition of curfew in connection with proceedings for the offence, or any related offence, after s.21 CJIA 2008 has come into force, the court must direct that half of the period of days subjected to curfew is to count as time served by the offender as part of the sentence. The court must make the order unless it is just not to make it in the circumstances (or to the extent rules made by the secretary of state may provide). The provisions will apply only when the offender's bail has been subject to a nine-hour or greater curfew condition in any given day and subject to an electronic monitoring condition.

The decision as to whether it is just not to make the order must take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them (s.240A(7)). If this provision is to be brought into force it will, of course, require the attention of defendants' representatives at both the point of having bail conditions of curfew imposed (to ensure they qualify for the potential credit) and require calculation and crediting at the point of any sentencing should the defendant in due course have changed his plea or been convicted and be sentenced to imprisonment.

A questionable approach

The effect of the Hemmings decision would seem therefore to be that an offender who served on remand the equivalent of the custodial element of his custodial sentence may receive a conditional discharge even though he otherwise merits a community order, for fear of double punishment. Whether, in the case of remand time of almost exactly three months (or two months where a guilty plea is given full credit), this approach takes sufficient account of the potential for return to prison during the period in which the prisoner is 'at risk' after release if in fact the deserved custodial sentence is pronounced, is questionable. Equally, whether the breach of a court order (in this case a proposed community order) is an act itself that would justify a further proportionate penalty in the event of that failure to comply is a matter open to question.

In the context of the breach of an ASBO or restraining order it is said the gravamen of an offence is the fact that it is a breach of a court order designed to prevent re-offending. It might be thought on that basis there would be nothing unfair about imposing a penalty for non-compliance, provided regard was had to the background to the community order and proportionality kept firmly in mind.

After all, in cases such as Hemmings, the community order proposed involved supervision. The aim of such orders is to prevent re-offending and not to exact punishment (even though it will operate to restrict the defendant's movements to an extent). Such orders may be thought to meet the needs of sentencing to the long-term benefit of the offender and the community.