Non-qualifying curfews and credit against sentences of imprisonment

In the recent case of R -v- Rice [2025] EWCA Crim 352 the Court of Appeal took a fresh look at when a “non-qualifying curfew” could attract a reduction in a custodial sentence.

Qualifying Curfews are detailed in sections 325 and 326 of the Sentencing Act 2020.  Essentially, a defendant who has been bailed to remain at one or more specified places for a total of not less than 9 hours per day, and by which compliance is monitored through an electronic curfew, is entitled to a credit against a sentence of imprisonment imposed in the same proceedings of half a day.

In Rice, the defendant who was initially facing an allegation of Grievous Bodily Harm (GBH) with intent contrary to section 18 of the Offences against the Person Act 1861 dating from an incident on 10 December 2022, pleaded not guilty.  The matter was set down for trial.  The Prosecution subsequently added an alternative offence of inflicting GBH contrary to section 20 of the Act and, on 16 September 2024, the defendant pleaded guilty to the lesser offence thereby negating the need for a trial. The defendant had been bailed for 496 days with conditions to live and sleep at his home address, to abide by a curfew between 7.00pm and 7.00am and to present himself when requested to a police officer between these times.

Had the curfew been electronically monitored and hence a qualifying curfew, the defendant would have been entitled to a discount against a custodial sentence of 248 days.

At sentence on 15 November 2024 counsel advanced mitigation as regards the curfew but as the curfew was not electronically monitored the Recorder imposed a sentence of 30 months imprisonment without any discount for the curfew.

Mr Rice appealed indicating that the Recorder had failed to exercise his discretion to allow the 496 days spent on a non-qualifying curfew against the sentence of 30 months.

The appeal Court looked at earlier decided cases where the discretion to apply discount was exercised. It was deemed exceptional or rare.

The Court of Appeal considered that there was an anomaly between the discount provided by statute for a qualifying curfew and the discretion of a sentencing tribunal to give credit for a non-qualifying curfew.  The Court referred to Section 3AB of the Bail Act 1976 which states that a court granting bail with an electronic monitoring requirement can only do so if they are satisfied that without electronic monitoring requirements the person would not be granted bail.

The Court of Appeal noted that those who represent the gravest of bail risks are entitled to credit for a curfew under Section 325 of the Sentencing Act 2020, while those who would have been granted bail (without the need for an electronically monitored curfew) are not.

The Court of Appeal concluded that the fact that the statutory scheme supports a conclusion that Parliament considers that qualifying curfews constitute a significant constraint on liberty can be carried across into the case of a non-qualifying curfew.

Consequently, the Court of Appeal confirmed that there was a discretion to reflect the constraints of a non-qualifying curfew, thereby clarifying that judicial discretion to adjust custodial sentences for periods spent under restrictive bail conditions should not be limited solely to cases deemed “rare” or “exceptional.”

In the case of Rice, the appeal court concluded that it was unclear as to whether the Recorder had exercised his discretion, and if he did so, what factors he had taken into account in so doing.

The Court of Appeal considered the question afresh and decided that there should have been an allowance to reflect the constraint attached to Mr Rice’s bail and reduced the sentence of imprisonment from 30 months to 27 months.

Comment

It is apparent that the Court of Appeal expect that a defendant subject to a non-qualifying curfew should gain credit for complying with the constraints of it when being sentenced to a term of imprisonment albeit not necessarily on a par with the statutory scheme of the Sentencing Act 2020.

The credit should be applied not by following a rigid formula but by considering all relevant circumstances.  Nevertheless, there was an oblique warning in the judgment. The Court of Appeal considered that the defendant had played an important part in causing the delay (to the case being concluded) by withholding his true pleas, even though the matter to which he pleaded was not on the indictment preferred by the Prosecution. The Court intimated that such a plea should have been offered at an earlier phase of the proceedings so that Mr Rice would not have spent so much time on bail with a non-qualifying curfew, and accordingly his reduction should be relatively modest.

This is further reminder of the overriding object in the Criminal Procedure Rules that the court expects each party to communicate until the conclusion of the case, and by such communication establish whether the defendant is likely to plead guilty or not guilty. Although the reference in the rules is each party, in the Rice case, the Court by suggesting that Mr Rice was an important part of the delay, appear to be holding the defence responsible for a failure to communicate a willingness to plead guilty to a lesser charge that was not even on the indictment. It is a clear indicator that not being accused of a crime does not prevent a discussion about pleading guilty to it.