No. 2009/03585/A4
Neutral Citation Number: [2009] EWCA Crim 2213

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  4  September  2009

B e f o r e:

LORD  JUSTICE  RIX

MR  JUSTICE  COLLINS

and

HIS  HONOUR  JUDGE  PERT  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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DAVID  BARRETT
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Mr F P Nance appeared on behalf of the Appellant

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J U D G M E N T
Friday  4  September  2009

LORD JUSTICE RIX:  
1.  On 11 May 2009, in the Crown Court at Preston, the appellant, David Barrett, pleaded guilty to burglary with intent to cause unlawful damage.  On 12 June 2009 he was sentenced by Mr Recorder Altham to 44 weeks' imprisonment with a direction that six days spent on remand should count towards sentence.  

2.  The appellant's co-accused, Ricky Kneale, pleaded guilty to the same offence and was similarly sentenced to 44 weeks' imprisonment.  He had been in custody on remand for 132 days prior to his sentence and the judge made a direction that those days should count towards his sentence.

3.  The appellant now appeals against sentence by leave of the single judge, who gave leave principally so that the argument may be advanced that credit should be given to reflect the time that the appellant had spent on curfew.  That was because the appellant had spent 126 days on a 12 hour curfew between the hours of 7pm and 7am.

4.  The background facts can be briefly stated because the ground of appeal does not arise out of any aspect of the facts.  The appellant and his co-defendant had gone to the home of people who had been involved in the supply of drugs which had led to the death of a friend of the appellant and the co-defendant.  They had gone to that home with the intention of causing unlawful damage and hence were guilty of the offence charged of burglary with intent to cause unlawful damage.  In fact, £1700 worth of damage had been caused to the house in question.  However, ultimately the Crown accepted that that damage had, as the defendants had said, been caused by others before their arrival.  In effect, therefore, their offence had not caused the damage to the home which they had targeted.

5.  The appellant was born on 8 August 1983.  He had thirteen previous convictions for 18 offences, which included four offences of damaging property.  However, there had been no previous convictions for burglary.  The great majority of his offending had taken place between the ages of 17 and 18, with a very marked reduction in his offending in the last seven years, as a favourable pre-sentence report pointed out.  It cited the appellant's co-operation with previous community orders and licence supervision.

6.  The sentencing judge took the view that only immediate custody could be justified.  Taking full account of the guilty pleas and the record of each defendant, he sentenced them both to 44 weeks' imprisonment and ordered that time spent in custody on remand should count towards sentence.  

7.  There is today a single ground of appeal advanced by Mr Nance on the appellant's behalf.  It relates to the question of whether the judge ought to have made some allowance for the fact that during 126 days before sentence the appellant had been subject to a twelve hour curfew.  It is accepted that he complied with that curfew.  He was visited on almost every day by the police who found him where he ought to have been.  That is all recorded in a schedule of those visits which is before the court.

8.  The starting point of this submission is the new provision brought into effect on 3 November 2008 contained in section 240A of the Criminal Justice Act 2003.  We will not cite the detailed provisions of that section.  Their effect is that where an offender has been remanded on bail by a court in connection with proceedings for his offence and the bail is subject to a qualifying curfew condition, defined as a condition which requires the person granted bail to remain at a specified place for a total of not less than nine hours in any given day, then credit should be given for half the number of days during which the bail was subject to that condition.  For example, if an offender had been subject to such a bail condition for ten days, he should be given credit for five days against his sentence.

9.  The appellant, as is accepted, does not come within the provisions of that section which was in effect at the time of sentence because he was not electronically tagged.  That is a further condition for the application for the allowance made by section 240A.  Mr Nance makes the appealing submission that a defendant who is trusted sufficiently to be given bail on a curfew condition, but without the necessity of electronic tagging, should not be in a worse position than a person who is only trusted with that curfew condition on the basis that he is also electronically tagged.  Although that is an appealing submission, the fact remains that Parliament has chosen to make the two conditions of a curfew of at least nine hours and electronic tagging as conditions upon which the allowance of half a day for each day spent subject to such a curfew is to be granted.  It is therefore not, in our judgment, for the courts to re-write that statute and to say that it is to apply generally in cases which do not meet its conditions, including that of electronic tagging.

10.  In those circumstances, in a fall-back submission, Mr Nance has drawn to our attention the fact that in recent years, particularly in the context of very lengthy house arrests imposed upon terrorist suspects, the question has arisen whether some account should be allowed under general common law principles of sentencing, rather than any particular statutory provision, to take account of that deprivation of liberty which is represented by such a severe limitation of freedom.  That matter was considered in R v Glover [2008] EWCA Crim 1782, which is referred to in R v Abdul Sherif [2008] EWCA Crim 2653; [2009] 2 Cr App R(S) 33.  At paragraph 35(c)(ii) and (iii), the Vice President (Latham LJ) referred to Glover and the consequences of the new provisions of section 240A of the 2003 Act.  Latham LJ referred to Glover as a case in which the appellant had been effectively subject to a 24 hour curfew electronically monitored.  We are not sure what is meant by "an effective 24 hour curfew" because we are doubtful that such a curfew can in fact be imposed.  Nevertheless, it was in some such context that Hughes LJ, while pointing out that it was wrong to equate time spent under a home curfew with imprisonment because life at home was clearly preferable to life in prison, went on to say:

		"It is possible that in some circumstances a judge might be persuaded by the facts of a particular case to make some modest adjustment in the final sentence in circumstances of this kind, but it seems to us that that is a question of assessment by the judge in each case."

11.  We emphasise that the circumstances of that case appear to have been much more serious than those which we are considering in this case.  That was also a case in which there had been a lengthy curfew electronically monitored.  Latham LJ went on to say this:

		"It does not appear as though the court was there addressed on the effect that should be given to the passing of the 2008 Act.  In our view, until section 240A comes into force, a court should deal with the matter in the way suggested by Hughes LJ at least in relation to house arrest.  This may justify a modest period of credit in cases such as the present one.  The periods spent under house arrest were substantial, in the region of sixteen months.  The figure we consider appropriate is three months.  But the same considerations do not apply where the curfew is in the night.  A curfew period of this sort has been commonplace for many years and whilst the court may of course have had regard to the restriction of liberty, it has not in the past made any formal reduction for such a curfew."

Mr Nance rightly addressed us on the basis that those remarks of Latham LJ did not assist him.  In particular, we have in mind Latham LJ's comment that a night time curfew is not by any means the same thing as a longer daily period spent under house arrest.

12.  In our judgment, despite the limitations of the provisions of section 240A, it appears to be the position at common law that in an appropriate case and on its particular circumstances a judge could give some allowance for a lengthy curfew, even outside the statute, and particularly in the case of electronic tagging.  In this case Mr Nance seeks to draw support from the fact that there were two defendants before the judge, one of whom, because he spent all of his time on remand in prison, was given a full allowance for that time on remand, whereas the appellant, because he was bailed on curfew (albeit not electronic curfew), was not entitled to a partial allowance for that period.  Mr Nance submitted that there was an element of unfairness in that comparison.

13.  We do not consider that that is so.  The fact is that whereas one defendant spent the whole of the 132 days in custody, the other defendant spent only six days in custody and was at liberty for the rest of the 126 days, albeit that his liberty was restricted to the extent of a night time curfew without tagging.  The judge did not consider it necessary to make an allowance in such a case of a night time curfew.  In our judgment he was right not to do so.  

14.  We are very far from saying, however, that every example of a curfew without electronic tagging should not be reflected in some allowance.  There may be particular circumstances in which a judge might think it right to do so.  One example might be where both defendants are bailed on curfew, but for some reason one defendant only is bailed on curfew with electronic tagging and the other defendant is not.  In such a case the judge may seek to adjust the effect of his sentence between the two defendants by taking account outside section 240A of the curfew suffered by that defendant who did not have imposed upon him in addition an electronic curfew.  

15.  Although it is an appealing submission that a defendant who may be entrusted to be without electronic tagging should not be worse off for that reason, nevertheless, we consider that on the facts of this case we have the typical case of a night time curfew, two defendants, one who spent all of his time in custody on remand and the other who did not.  In those circumstances we dismiss this appeal.