The High Court has quashed a three-month sentence reactivated after a theft conviction, ruling that it had been sequenced contrary to the statutory rules for suspended sentences.
In a judgment delivered on 24 July 2024, Ms Justice Mary Rose Gearty held that sentences reactivated under section 99 of the Criminal Justice Act 2006 had to be consecutive to the sentence for the later “triggering offence”. “Consecutive” meant that one sentence followed immediately after the other, she said, rather than simply being imposed or served at some later point.
The applicant, Simon McCormack, had received a one-month suspended sentence for breach of the peace in October 2021 and a six-month suspended sentence for theft in December 2021. The theft offence had been committed before the first sentence and did not trigger its reactivation.
In September 2022, Mr McCormack was convicted of failing to appear in court for an offence committed that month. The District Court imposed six months’ imprisonment for that offence, then remanded him to the original sentencing judge to consider the suspended sentences. On 26 September, the judge reactivated the one-month sentence and ordered it to run consecutively to the six-month sentence. The judge also reactivated three months of the suspended theft sentence, but directed that it begin after the one-month sentence.
The High Court found that the theft sentence should instead have been consecutive to the six-month sentence for failure to appear. On that sequencing, the two reactivated sentences would have run concurrently with one another, producing a total of nine months rather than the ten months imposed.
The respondent also argued that section 5 of the Criminal Justice Act 1951 gave the District Court discretion over sentence sequencing. The judge held that this argument had not been positively pleaded, which was enough for the applicant to succeed on that issue. She nevertheless considered it obiter, concluding that section 5 did not apply to the reactivated sentences governed specifically by section 99, and that section 99’s discretion for resolving conflicts between provisions did not arise.
The judge noted that a separate, later Circuit Court sentence ran concurrently and meant the extra month would have been served in any event. She said the issue remained live because the record should reflect sentences imposed lawfully. She granted certiorari quashing the three-month reactivated theft sentence. Consequential orders remained for further hearing; her view that the applicant was entitled to costs was provisional.