When time doesn't count

The question of crediting time spent on remand at the sentencing stage is usually a straightforward one. It is rare that a ground is contemplated for withholding credit, and the usual order of the court is to give full credit for time spent on remand so that each day will count towards the completion of the sentence. However, in one important respect, time may not count, irrespective of the judge's order pursuant to section 240 of the Criminal Justice Act 2003.

In R (Parratt) v Secretary of State for Justice [2009] EWHC 3089 (Admin), P was given a sentence of imprisonment for public protection pursuant to section 225 of the CJA 2003. The minimum period before which the Parole Board could consider him for release was three and a half years' imprisonment, less the 417 days that he had already spent in custody. His earliest release date was, therefore, less than three years from the sentencing date. The secretary of state had originally written to the prisoner offering a pre-tariff review, but later suggested a mistake had been made and wrote again '“ just a few weeks before the pre-tariff review date '“ denying the prisoner such pre-tariff review.

P submitted that: (1) a 'tariff' period as referred to in the policy documents included the period of time spent on remand; (2) the secretary of state's application of his policy, which is founded on 'feasibility' and provides that generally such pre-tariff reviews are not given to those with a tariff of less than three years, should have considered the individual circumstances of P as giving grounds to offer such review in his case; and (3) the undertaking in the first letter sent to P stating that a pre-tariff review would begin in November 2008 gave rise to a legitimate expectation that one would be held and it was unfair to thereafter deny a pre-tariff review.

The court upheld the secretary of state's submissions that the policy does exclude the time spent in custody on remand prior to the date of sentence, and the secretary of state was therefore justified in refusing the pre-tariff review. Neither the circumstances of P's case, or the letter wrongly sent, require an exception to be made.

Arbitrary and unfair policy

This policy is unfortunate as it may lead to arbitrary distinction in the treatment of prisoners. Many factors may delay sentencing. Some may be within the hands of the prisoner such as his contesting the allegations '“ though he may have little input in relation to the date of trial '“ but others are clearly not; for example, where sentencing awaits the trial of a co-accused. It seems arbitrary that two prisoners sentenced to the same punitive minimum term (equivalent to the notional determinate sentence of seven years) may not both be given a pre-tariff review because sentence date varied by only a few days.

It is also plain that while on remand P was monitored by the prison authorities. In his case, not only did he undertake substantive work related to his risk factors prior to sentence (perhaps unusually) he also remained adjudication free and became a model prisoner with enhanced status. The importance to a relatively short-tariff prisoner of a pre-tariff review should not be underestimated. The pre-tariff review is the stepping-stone to open conditions, which is in the majority of cases a pre-requisite to eventual release on licence. In Hill v Secretary of State for Justice [2007] EWHC 2164 (Admin) it was made plain that in the year 2006/07 that only a very small number of lifers were released from closed conditions and such progress through the sentence would be very rare (paragraphs 6 and 7). The Parole Board's statistics for 2008/09 also reveal that only eight per cent of IPP prisoners who had hearings were released on parole (and some or all of those may have followed a period in open conditions).

Under this policy, however, as the pre-tariff review entitlement depends upon the date of sentence, there may be cases where the defendant's representative ought to consider whether to invite a sentencing judge to withhold some small part of the full credit for time on remand which, while extending tariff expiry date by some short period, would enable a pre-tariff review to be held without debate. Conversely, in some cases, a judge withholding credit for some good reason may thereby unwittingly present the benefit of a pre-tariff review to that prisoner when another entitled to full credit would not be given the pre-tariff review.

The last problem that this approach to 'tariff' presents is that there may need to be formal judicial correction of any incorrect number of days to be credited if the sentencer had an inflated figure. Contrary to the usual efforts of sentencers to make the order pronounced in accordance with section 240 CJA 2003 administratively 'flexible', it requires that such cases be listed for correction under the 'slip-rule' or by appeal to the Court of Appeal (Criminal Division) to be made judicially, as the secretary of state would be working not on the expressed tariff, but only on the minimum specified term order the court had specifically set after considering an incorrect number of days to be credited.