The defendant was charged with offences committed during an attack on two complainants in a serious incident of violent public disorder. He was released on bail in 2019 and made the subject of a qualifying curfew condition with electronic monitoring but the electronic monitor was never fitted. He was convicted and at a sentencing hearing as to the implications of this the defendant’s partner gave unsworn evidence that she was with him in the evenings and he had complied with his bail conditions. The defendant gave evidence that he had told his solicitor more than once the tag had not been fitted but that his uncle who was at home with him could confirm he had abided by the curfew hours. When sentencing the defendant the judge said that when he attended court at his first trial the defendant did not draw to its attention nor to that of anyone official apart from his solicitor the fact the electronic monitor had not been fitted. He found that the “electronic monitoring” under section 326 of the Sentencing Act 2020 had to be effective for the necessary purpose and sentenced the defendant to 57 months’ imprisonment on the basis that at some time the defendant probably kept to the curfew and gave limited credit by deducting three months from the sentence he would otherwise have received. The defendant appealed against sentence on the ground that the judge had erred in law by failing properly to interpret an “electronic monitoring condition” under section 326 of the 2020 Act as “any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976”, to follow the steps in section 325 or to find that the defendant was entitled to full credit for the time spent subject to the conditions imposed even if the physical enforcement of the condition had not occurred.
On the appeal—
Held, appeal allowed. The starting point was the wording of the relevant provisions. By the terms of the order made, the defendant’s bail was subject to a qualifying curfew condition and an electronic monitoring condition. By the wording of the calculation provisions of section 325 of the Sentencing Act 2020, he was entitled to credit for half the days he was subject to those conditions. No provision was made for deduction of days on which the monitoring provision was ineffective. On the face of it, the defendant was subject to the relevant conditions and there was no evidence that he had broken either of the conditions. The judge placed repeated emphasis on the fact that the defendant could have told the court the tag had never been fitted. The evidence adduced at trial and sought to be adduced on appeal supported rather than impeded the defendant’s argument. Nothing in sections 325 or 326 imported a requirement for the device utilised for monitoring to be functioning. The wording was directed to the requirements imposed and not to the operation of the equipment. There was no wording which placed any onus or duty on the defendant to ensure he was tagged and that his tag was functional. Parliament had put in place a system whereby monitoring and effectiveness of a curfew was deputed to a device which acted as an agent or proxy for keeping a suspect in custody on remand using prison resources or put in place a different system involving direct law enforcement officer checks. If there was a failure to put in place a robust process for deploying that electronic agent it would be illogical for the results to lie at the door of the subject rather than that of the authorities. On a true construction of section 325 of the 2020 Act the defendant was entitled to half the credit for the time he was subject to the qualifying curfew, condition and an electronic monitoring condition even though the monitoring provision was ineffective. The defendant would be given credit for 423 days on tagged curfew (paras 15–16, 18–19, 21, 24, 26–27).
Joshua Kern (assigned by the Registrar of Criminal Appeals) for the defendant.
Diana Wilson (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.