Qualifying curfew – Tag never fitted – Time still counts

The case of R v Sothilingham [2023] EWCA Crim 4815 concerned qualifying curfews and ‘Tags’

Briefly, the appellant was convicted at trial of violent disorder.

Prior to sentence, the appellant had spent 845 days subject to an electronically monitored qualifying curfew. Through no fault of the appellant, the electronic tag was never fitted. The appellant did report such to his solicitors.

The appellant was sentenced to 57 months’ immediate custody. The sentencing judge gave the appellant limited credit, namely 3 months.

Despite the appellant’s electronic tag never being fitted, it was submitted on appeal (with leave of the Single Judge) that the appellant should have still been afforded appropriate credit pursuant to section 240(A) of the Criminal Justice Act 2003 / section 325 of the Sentencing Code 2020.

It was submitted that the trial judge had erred in law.

The Court of Appeal agreed acknowledging that the legislation does not place a duty on defendants to ensure that their electronically monitored tag is ever fitted and found as follows:

“We conclude that on a true construction of the relevant sections, the appellant was entitled to the appropriate credit under section 325.

Accordingly, the appeal should be allowed and the appellant given credit for 423 days on tagged curfew. This will require an adjustment of the sentence imposed, as Mr Kern accepted, in the light of the fact that the three months’ credit allowed by the judge was in the form of a reduction of sentence that he would otherwise have given by three months.

We, therefore, quash the sentence imposed and substitute a sentence of five years’ imprisonment. We certify that the appellant has spent 845 days on remand, subject to a qualifying curfew, and we direct that 423 days will, therefore, count towards sentence”