Calculation of days to be served
Section 108: Crediting of periods of remand in custody
535.Section 108 replaces section 240 of the 1991 Act with a new section 240ZA, dealing with the crediting of time spent on remand in custody against any subsequent sentence of imprisonment or detention. Under section 240 the court directs the amount of remand time to be counted towards a prisoner’s sentence. The insertion of section 240ZA provides for such time, instead, to be calculated and applied administratively. All time that meets the criteria of the provision will be counted to reduce a subsequent sentence. There is no longer discretion to disapply any such time.
536.Subsection (4) of new section 240ZA prevents time spent on remand from counting if the prisoner is also serving another sentence or is otherwise detained in connection with another matter (subsection (10) lists the types of detention which count for this purpose).
537.Subsection (5) of new section 240ZA prevents the same remand time counting several times against two or more sentences (whether or not they are served consecutively or concurrently).
538.Subsection (6) of new section 240ZA prevents remand time shortening any recall under section 255B where the maximum length of the recall is 28 days. (The possibility of a 28 day fixed recall period was introduced by the 2008 Act which provides that lower risk prisoners who are suitable for such a recall must be released automatically at the end of that period.)
539.Subsection (9) of new section 240ZA makes it clear that consecutive and concurrent sentences, where a prisoner has not been released between serving such sentences, are counted as one sentence for the purposes of deducting remand time. Together with subsection (5) of new section 240ZA, this prevents the same remand time counting several times against the overall sentence envelope created by the consecutive or concurrent sentences.
Section 109: Crediting of periods of remand on bail
540.Section 109 amends section 240A of the 1991 Act which gives the court power to direct that time spent remanded on bail subject to electronic monitoring (“tagged bail”) counts towards any subsequent sentence imposed, provided that that sentence is imposed for the same offence for which the defendant was remanded or a related offence. Two days successfully completed on tagged bail count as one day of the sentence. The new provisions set out how the time to be credited has to be calculated.
541.Subsection (3) inserts new subsections (3) to (3B) into section 240A. These set out the stages of the calculation. Under Step 1 the first day is counted even if the electronic monitor is not put in place until late that day. However, the last day is not counted if the offender spends the last part of that day in custody: that day will count towards the sentence served.
542.Step 2 prevents credit for tagged bail counting towards a subsequent sentence where during such time on bail the offender was also subject to an electronically monitored curfew requirement in connection with any other sentence (which includes being released on HDC) or temporarily released from prison in relation to another sentence.
543.Under Step 3 days where the offender breached the conditions of the release on bail are not to be counted.
544.Step 4 provides that each day spent on tagged bail effectively counts as half a day against the sentence. If such a calculation results in a number of days that include a half day, that half day can be counted as a whole day under Step 5.
545.New subsection (3A) prevents the same remand time counting several times against two or more sentences (whether or not they are to be served consecutively or concurrently).
546.New subsection (3B) prevents remand time shortening any recall under section 255B where the maximum length of the recall is 28 days (that is, where a prisoner receives the type of ‘fixed term recall’ introduced by the 2008 Act which provides for automatic release at the end of that 28 day period).
Section 110 and Schedule 13: Amendments consequential on sections 108 and 109
547.Section 110 makes amendments consequential on sections 108 and 109, mainly amending the references to the repealed section 240 of the 1991 Act so as refer to section 240ZA instead.
548.Subsection (8) amends section 243 of the 1991 Act in relation to persons extradited to the United Kingdom. For those persons who qualify under section 243 of the 1991 Act, the changes provide for all days remanded in custody in another jurisdiction while awaiting extradition to the United Kingdom to be counted against a subsequent sentence imposed.
549.Subsection (13) gives effect to Schedule 13, Part 1 of which replicates in the Armed Forces Act 2006 the effect of the provisions in section 108 for the crediting of remand time towards a subsequent sentence. This ensures the same provisions are applied in respect of sentences imposed under Armed Forces legislation. Part 2 of Schedule 13 makes consequential amendments to other Acts.
