AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

When sentences are imposed by UK criminal courts, a mandatory Qualifying Curfew arises pursuant to s.240A of the Criminal Justice Act 2003 and s.325 of the Sentencing Act 2020. By operation of the statute, each day of mandatory Qualifying Curfew counts as half a day of time served. The UK domestic statutory definition of mandatory Qualifying Curfew is an EMC of 9 hours or more per day. In our domestic law there is also a sentencing judge’s discretion to take into account an EMC of less than 9 hours per day when passing sentence: see R v Whitehouse [2019] EWCA Crim 970 [2019] 2 Cr App R (S) 48 at §17.

In French domestic law, a Qualifying Curfew arises under Article 142-11 of the French Code of Criminal Procedure, when read with Article 716-4: see §21 and 29 below. The question under the French Code is whether the restriction of liberty constitutes “electronically monitored house arrest” (EMHA). If it does, each day spent on EMHA counts as a day of time served. Whether it does, is a question of evaluative judgment. The Respondent has reiterated, as did the French Ministry of Justice in Doga (see §16), that this evaluative judgment is a “discretion” which is “unfettered”, belonging to a French trial judge. On 17 March 2021 the French Supreme Court (Cour de Cassation Criminal Division) published a judgment on an appeal from the Court of Appeal, in test cases where UK EMC had been treated as EMHA under the Code. That French Supreme Court judgment was provided to the Divisional Court in A (see §§11 and 32) and addressed by the French Ministry of Justice in Doga (see §16).