Court of Appeal: No duty on a defendant to bring issues relating to electronic tagging equipment to the attention of the court

01 June 2023

On 5 April 2023, the Court of Appeal in R v Sothilingam [2023] EWCA Crim 479 held that there is no duty on a defendant to bring issues relating to electronic tagging equipment to the attention of the court in order to maintain an entitlement to credit for time spent on a qualifying curfew.

The appellant, who had been tried and convicted of offences committed during a pre-planned attack resulting in a serious incident of violent public disorder, had been released on bail subject to a qualifying curfew condition with electronic monitoring. The electronic monitor was never fitted, and he did not draw that fact to the attention of the Crown Court prior to sentencing.

In sentencing, the trial judge held that, to be entitled to benefit from credit for time spent on an electronically monitored curfew pursuant to the regime prescribed by the Sentencing Act 2020, the monitoring had to be "effective." As it was not - because the tag was never fitted, which he found the appellant knew and "kept quiet about" - he was not entitled to credit pursuant to the 2020 Act.

The appellant brought an appeal on the basis that the trial judge erred in law by failing properly to interpret an “electronic monitoring condition” under section 326 of the Sentencing Act as “any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976.”

Joshua Kern, for the appellant, submitted that as the requirements were imposed as a condition of the appellant's bail, and the prosecution did not allege that the appellant had “broken” them, the judge was required to follow the steps contained in section 325 of the Sentencing Act 2020 and find that the appellant was entitled to full credit for the time he spent subject to the conditions imposed (in the sense of prescribed and adjudicated) by the court, even if their physical enforcement (or “implementation”) had ultimately not occurred.

The Court of Appeal agreed. In the Court's judgment, Cockerill J stated that the "starting point" was the wording of the relevant provisions. By the terms of the Crown Court’s order, the appellant's bail was subject to a qualifying curfew condition and an electronic monitoring condition. By the wording of section 325 and 326 of the Sentencing Act 2020, he was entitled to credit for half of the days he was subject to those conditions. There was no provision made in the statute for deduction of days on which the monitoring provision is not "effective," and there was "nothing in section 325 or section 326 which imports a requirement for the device utilised for monitoring to be functioning." The statutory language is "directed to the requirements imposed, and not to operation of the equipment." There is no wording which places any onus or duty on the defendant; if there is a "failure to put in place a robust process" for deploying electronic monitoring equipment, "it would be illogical that the results should lie at the door of the subject, rather than at the door of the authorities."

Josh Kern of 9BR Chambers acted for Mr Sothilingam. Josh was instructed by Goldan Lambert of Raj Law solicitors. The Judgment is available on Crimeline here.

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