Burgess v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Laws |
| Judgment Date | 06 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1106-8 |
| Date | 06 November 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No:CCRT1 2000/0262/B1 |
[2000] EWCA Civ J1106-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROMHER HONOUR JUDGE ANDREWS MAIDSTONE COUNTY COURT
The Master of the Rolls
Lord Justice May and
Lord Justice Laws
Case No:CCRT1 2000/0262/B1
Mr Sean Wilken(instructed byThe Treasury Solicitor, London SW1H 9JS) for theAppellant
Mr Edward Fitzgerald, QC and Mr Jonathan Hall (instructed by Clarke Kiernan, London TN9 1DV) for theRespondent
LORD PHILLIPS M.R.
On 26 th October 1992 Mr Justice Wright, sitting at Chelmsford Crown Court, sentenced the Respondent, Mr Burgess, to eight years imprisonment for rape. Mr Burgess served his sentence in Maidstone Prison. He was released on licence on 23 rd February 1998. He contended that he should have been released five days earlier. He brought an action against the Home Office claiming aggravated damages for false imprisonment in respect of those last five days. The Home Office contended that the claim was manifestly bad in law and applied for summary judgment pursuant to CPR Part 24.2. On 22 nd February 2000 Her Honour Judge Andrews, sitting in Maidstone County Court, dismissed that application but gave the Home Office permission to appeal to this Court. It falls to us to resolve a short, but important, point of law.
The Right to a Reduction of Sentence
S.67 of the Criminal Justice Act 1967 provides:
(1) The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period…
(1A) In subsection (1) above 'relevant period' means-
(a) any period during which the offender was in police detention in connection with the offence for which the sentence was passed; or
(b) any period during which he was in custody-
(i) by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose;
The issue raised on this appeal is whether a number of periods during which Mr Burgess was detained in custody during the course of his trial constituted 'relevant periods' within S.67.
The Facts
On Tuesday 20 October, which was the second day of the trial, an application for bail during the course of the trial was made to the Judge. His Order was recorded on a standard form, S.102, which is designed to record decisions under the Bail Act 1976. This recorded that bail was granted, subject to conditions, which included:
To surrender to custody at 9.30.a.m. and not to be released until 30 minutes after end of hearing at Court each day.
The reasons recorded for imposing the conditions were:
To ensure attendance at Court and prevent obstruction of course of public justice.
The consequence of the Judge's Order was that the Respondent reported to the cell area at the Court at 9.30.a.m. each day where he was taken into custody by the gaolers. There he remained for an hour until the Court sat. He returned to the cell area for the hour of the luncheon adjournment, and again for one half-hour after the Court rose. He complied with this regime for a total of five days.
Mr Burgess' case
On behalf of Mr Burgess, Mr Edward Fitzgerald, QC, submitted that these relatively short periods during which Mr Burgess was in custody when the Court was not sitting, were periods during which he was in custody 'by reason only of having been committed to custody by an Order of a Court made in connection with' the proceedings relating to the offence for which he was sentenced – see S.6He submitted that the normal position of a Defendant on bail is that he surrenders to the custody of the Court by reporting to a court officer, after which he remains at liberty within the precincts of the Court. When the Court is not in session, whether the Defendant remains at liberty or is taken to the cells depends on whether or not he is granted bail. In order to refuse bail a specific Order of the Court is required. Such an Order is one which commits the Defendant to custody within S.67.
Mr Fitzgerald further submitted that periods of custody in the course of a day, however short, count as a full day for the purposes of the reduction in sentence required by S.67. On this basis Mr Burgess should have been credited with 5 full days.
Ex Parte Burke
Mr Fitzgerald submitted, correctly, that his submissions were supported by the decision of the Divisional Court in ( R v Governor of Kirkham Prison, ex parte Burke. Transcript 18 March 1994) In that case the principle issue raised was whether time spent by the Defendant in the dock over periods totalling 24 days, during committal proceedings and trial, fell to be credited against sentence under S.67. In delivering the leading judgment, Butler-Sloss LJ held that the Defendant was not entitled to credit for these periods. Her reasoning appears in the following passage of her judgment:
….in my view the period spent in the dock is clearly not within section 67(1A). The Bail Act, in my view, was the operative statute. The Applicant was granted bail, and he surrendered to custody during the trial. At the end of each day, he was again under the Bail Act, granted bail until the following day.
I accept that there has been in recent years a more liberal approach to the relevant days for the purpose of reducing sentence, but such a more liberal approach cannot, in my judgment, fly in the face of the clear words that a person is in custody 'by reason only of having been committed to custody'. There has to be, in my judgment, a specific act of the court to commit to custody, such as indeed occurred on 3 rd August, when having been in the dock during the morning the Judge decided that he should not be given his liberty during lunch and, instead of giving him bail, specifically committed him into custody for the period of lunch. But in the usual case, the person granted bail surrenders to custody and remains, under the provisions of that Act, in custody until either he is sentenced, or unless, or until, he is again given bail.
One cannot imply a committal by the court to custody....
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