Tom Farr acts for W in “wholly exceptional and unusual” case relating to “unjust imprisonment”

April 22, 2024

Tom Farr, instructed by Heena Kauser of Middleweeks Solicitors, acted for W in a case described by the sentencing judge – the Honorary Recorder of Coventry His Honour Judge Lockhart KC – as “wholly exceptional and unusual”. W was sentenced to six months’ custody for offences of vehicle engine theft, down from a starting point of three and a half years, after Tom invited the judge to exercise what was referred to in Phillips [2015] EWCA Crim 427, as a “residual discretion” to count time spent remanded after recall as “time served” in respect of other offences.

The case was defined by its highly unusual chronology, specifically in relation to W’s remand status and recall dates. W had committed entirely separate offences of cash machine burglary in 2019, for which he received a custodial sentence of five years and ten months’ imprisonment, imposed in October 2019.

Prior to the sentencing for these offences, but following the commission of them, W committed the offences of vehicle engine theft. However, the vehicle engine thefts did not reach the Court until April 2021, by which point W was serving a custodial sentence for the separate 2019 cash machine offences.

In September 2022, W was released on license for the cash machine offences, but was then recalled in February 2023 after entirely separate allegations arose regarding other theft matters. W was acquitted of these offences in April 2023, but then proceeded to spend 351 days in custody due to what was described as a “significant delay” by the prison authorities in processing his re-release.

W’s recall case was finally dealt with in 2024, by which point he fell to be sentenced for the vehicle engine thefts. As a result of Section 2240ZA(4) and (5) Criminal Justice Act 2003 time spent remanded in respect of an offence for which the prisoner has been recalled does not count as time to be deducted from a custodial sentence imposed for any new offence. As a result, any sentencing judge could, entirely properly, impose a sentence that disregards any time spent recalled on remand.

However, in written and oral submissions to the Court, Tom argued that because the delay in processing W’s release was so inordinate, the Judge could rightly exercise the discretion referred to in Phillips to remedy what was a “clear injustice” in the form of what was submitted to be an effective “unjust imprisonment”. Had the time remanded after recall not been taken into account, W would have served the equivalent of a two-year sentence for no reason other than a delay in processing re-release documentation, only to then serve a three-and-a-half year sentence for the vehicle engine thefts, on top of a five-and-a-half year sentence for other offences committed during the same time period.

In sentencing, His Honour Judge Lockhart KC said that ordinarily, a sentence of three years and six months’ imprisonment would have been the appropriate starting point. However, “in these wholly exceptional and unusual circumstances, in order to avoid an injustice, but serving as no binding precent, a sentence of 6 months” was passed, taking into account totality, guilty plea credit, and – after exercising the discretion outlined in Phillips – W’s time spent recalled on remand between 2023 – 2024.

Tom accepts instructions in all areas of criminal law, but has a particular interest in cases involving novel or complex points of law. To instruct him, please contact his clerks here.