RICE v. R. [2025] EWCA CRIM 352, APRIL 1, 2025.
FACTS: The accused was charged with three assault offences. He was released on bail, with a curfew condition. Four hundred and ninety-six days later, he pleaded guilty and was sentenced to a period of thirty months of imprisonment. He appealed from sentence, arguing that the judge “failed to exercise his discretion to allow for the 496 days spent by the appellant on a non-qualifying curfew as against the sentence of 30 months passed for the offences on the indictment” (at paragraph 16).
HELD: The appeal was allowed, and the sentence imposed was reduced to twenty-seven months of imprisonment. The Court of Appeal concluded that “an allowance to reflect the constraint attached to the appellant’s bail was required because of the long duration and significance of the restriction. That allowance should be substantially less than it would have been if it had been a qualifying curfew because that would be too generous to the appellant. Further, the appellant had played an important part in causing that delay by withholding his true pleas, and the way in which his case was dealt with was dilatory. Finally, it is necessary that he should be punished by a significant period of imprisonment for his offending” (at paragraph 46).
In considering the credit that should be granted in sentencing to reflect a curfew condition, the Court of Appeal set out a number of principles that should be considered (at paragraphs 40 to 42):
There were other adverse consequences of the passage of time before this case was resolved. First, this case featured as a trial in the court backlog when it was ultimately resolved without a trial. The existence of such cases causes longer waiting times for those cases which actually do require resolution by a jury. Cases which resolve late in the day, which could have resolved much earlier, are a serious cause of delays to other cases and of the distress and grief which that involves. Secondly, the victims of this serious offending had to wait much longer than necessary for the resolution of the case in which they were involved. Thirdly, the appellant was subject to a restrictive curfew for a very long time. It is, however, reasonable to infer that the prime cause of this was his failure to enter a plea to the lesser alternative to count 1 and the two assaults in counts 2 and 3 at PTPH or to offer to do so at any reasonable time thereafter. If a straight arithmetical reduction in sentence were allowed so that he was treated as if he had served 8 months or so actually in custody, this would mean that he would serve only 4 months imprisonment for the December 2022 offences and, in effect, nothing at all for the July 2021 offences. If the curfew had been a qualifying curfew, the 2020 Act would have required an order that 248 days should count against the sentence of 30 months. Under the current release provisions at the 40% point of the sentence, the appellant is entitled to release after 12 months, and this would mean he would actually be in prison for less than 4 months, having served the rest at home in his own bed. That would not achieve the purpose of imposing the sentence in the first place, which was to punish the appellant for a very serious and prolonged episode of drunken violence in a public place. It would also create an incentive for people in that position to prolong proceedings in order to mitigate the punishment they have deserved. Where section 325 of the 2020 Act requires this outcome, then it cannot be avoided. Where it does not, it can and should be.
There will be many factors which may be relevant in deciding whether or not to exercise the discretion to reduce the final sentence to reflect time spent on a non-qualifying curfew. It may be helpful to identify some of those which feature in this case. This is not an exhaustive list of all possible relevant factors. The level of restriction actually imposed on the accused by the non-qualifying curfew is of great importance. It is unlikely that most bail conditions will justify any adjustment at all. Where there is a 12 hour curfew with a “doorstep” condition this is likely to be enough to start the process of deciding whether and, if so, how to make an adjustment to sentence. The length of time that the accused had spent on the non-qualifying curfew will also be important. It is likely that only long periods of time will lead to an adjustment. If the reason for the onerous bail conditions is some further misconduct by the accused, this may negative or reduce any adjustment. Any evidence of non-compliance with those conditions is likely to have the same effect. Evidence of particular difficulty caused to the accused, over and above the simple fact of the restriction caused by the non-qualifying curfew, may lead to a more generous adjustment.
Where the court concludes that there was a lack of engagement with the proceedings by or on behalf of the accused and the case was not progressed efficiently as a result, this may lead to an adjustment to sentence being refused or reduced. The CrimPR impose a duty to engage, and a breach of this duty is important. The court will also seek to ensure that the final sentence is not deprived of its intended effect, because it has already been served while the offender is not in custody, but rather at home. These are, in our judgment, the critical factors in the present case.
