An interesting problem…

April 8, 2020

By Ian Harris

  1. A not uncommon occurrence is for a client to be recalled to prison when arrested for another offence. By CJA 2003 (repealing part of the 1998 PCC(S) Act), a Judge has no power to make a ‘new’ sentence consecutive to the recalled sentence. In low end sentence cases this can often lead to no extra time being served. The Court of Appeal have held[1] It seems unlikely that it was Parliament’s objective that re-offending prisoners must have passed on them sentences which may add nothing to their time in custody. It is no doubt much more likely that this is an unintended consequence of the repeal. But it is not open to courts to disobey a Parliamentary enactment (or, here, repeal) on the grounds that it has unwittingly led to unfortunate consequences.
  2. In a recent case a client, D, had been recalled after his arrest for serious drugs. Other defendants hadn’t been recalled and of course had the usual allowance for time spent in custody on remand. The sentences were significant and because of aggravating factors the sentences started in the high twenties, before credit for plea. The Judge quite properly held that D’s recall offence (also significant drugs) was an aggravating factor as well as the commission of the ‘new’ offence when on licence. If, eg, D had been extradited – having served time on remand abroad – the convention is for that time to be deducted as for those remanded in custody. However, there is no such principle for recalled prisoners and the Judge declined to allow any time against the new sentence.
  3. It seems that there is an inherent unfairness in this, as well as double counting aggravating features…application for leave to appeal the sentence has been made to the CA, watch this space….

[1] Costello 2010 EWCA Crim 317

Ian Harris is a highly experienced criminal practitioner used to handling heavy and complex cases across the entire criminal spectrum, often leading second juniors in both prosecution and defence trials.