Galiazia v Governor of HMP Hewell and Others [DC]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Mr Justice Hickinbottom |
| Judgment Date | 23 October 2014 |
| Neutral Citation | [2014] EWHC 3427 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 October 2014 |
| Docket Number | Case No: CO/1622/2013 |
[2014] EWHC 3427 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
and
Mr Justice Hickinbottom
Case No: CO/1622/2013
and
Ms Judith Farbey QC and Mr Ian Brownhill (instructed by GQS Solicitors) for the Claimant
Mr Stephen Whale (instructed by The Treasury Solicitor) for the Defendants
Hearing date: 8 October 2014
This case raises an important question concerning the way in which a defendant imprisoned for a criminal offence should be given credit for time served on remand. The argument originally advanced depended upon the proper construction of domestic legislation. Permission to apply for judicial review was granted by Mr Justice Green after an oral hearing. Of his own motion he amplified the grant of permission to allow Convention arguments to be run. The claimant has as a consequence raised an alternative argument based on Article 5.
The relevant facts can be summarised very briefly. The claimant was sentenced to a period of 12 months' imprisonment by Cox J in the Crown Court at Warwick on the 10 April 2013. He had pleaded guilty to a charge of handling stolen goods. He had already been in custody on remand for 411 days, a period which thus exceeded the sentence. The understanding of the defendant (and apparently of the judge too) was that the effect of having served that period on remand was wholly to extinguish the sentence: there was no more of his sentence to serve. The Secretary of State disagreed. He considered that the effect of the relevant statutory provisions was that whilst the period on remand was, by virtue of section 240ZA of the Criminal Justice Act 2003, to be set off against any time actually served in prison, it could not be set off against time spent on licence. Accordingly the claimant was put on licence. He refused to co-operate on the grounds that this was unjust and he was recalled to prison for breach of his licence on the 28 May. This was what is termed "fixed term recall" pursuant to section 255B of the Criminal Justice Act 2003. He was then recalled again under that section for 28 days on the 8 October. The issue is whether he was lawfully detained when on recall or whether he ought never to have been on licence in which case he could not lawfully be recalled at all.
The relevant legislation
The relevant provisions are found in chapter 6, part 12 of the Criminal Justice Act 2003. They have been subsequently amended in various ways and at various times, most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Section 237 defines a fixed term prisoner as one serving a sentence of imprisonment for a determinate term. The claimant falls into that category.
Section 244 sets out the principles for determining when a fixed term prisoner must be released on licence. So far as is material, it is as follows:
"(1) As soon as a fixed-term prisoner … has served the requisite custodial period … it is the duty of the Secretary of State to release him on licence under this section.
…
(3) For the purposes of this section "the requisite custodial period" means —
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more … one-half of his sentence"
Section 241 sets out the principle that time spent on remand shall count when assessing what proportion of the custodial term has been served:
"In determining for the purposes of this Chapter….whether a person to whom section 240ZA applies …"
(a) has served, or would (but for his release) have served, a particular proportion of his sentence, or
(b) has served a particular period,
the number of days specified in section 240ZA or in the direction under section 240A are to be treated as having been served by him as part of that sentence or period."
Section 240A concerns time spent by those on bail but subject to the qualifying curfew and electronic monitoring provisions. Part of that time can count towards the custodial term in the same way as time on remand does.
Section 240ZA overlaps with section 241. It requires days spent on remand to be taken into account not merely in determining a relevant period under section 241, but more generally:
"This section applies where –
(a) an offender is serving a term of imprisonment in respect of an offence, and
(b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence….
(3) The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence."
It is to be noted that the obligation to give credit for the time served on remand is mandatory, save where one of the express statutory exceptions applies.
Section 240ZA(6) provides one such exception to the principle that days spent on remand will count, and is pertinent to this case:
"(6) A day is not to count as time served as part of any period of 28 days served by the offender before automatic release (see section 255B(1))."
There are in fact two different kinds of recall. "Fixed term recall" is where a defendant is recalled but will be automatically released after detention for 28 days, unless released earlier by the Secretary of State or on the direction of the Parole Board: section 255B. "Standard recall" is where the Secretary of State (and the Parole Board if there is a review) considers that automatic release is not appropriate because it is in the public interest to keep the offender in prison: section 255C. Section 240ZA(6) does not allow credit to be given in respect of time on remand (if any is left) when there is an automatic recall but it does for a standard recall. This distinction provides the basis of the Article 5 challenge in this case, to which I will return.
Subsection 7 deals with the application of the principles to a suspended sentence:
"(7) For the purposes of this section a suspended sentence –
(a) is to be treated as a sentence of imprisonment when it takes effect under paragraph 8(2)(a) or (b) of Schedule 12, and
(b) is to be treated as being imposed by the order under which it takes effect."
The effect of the reference to schedule 12 is that a suspended sentence only counts as a sentence of imprisonment once the sentence is activated by the commission of a further offence during the period of suspension. It is only at that point that credit is given for time spent on remand; there is no set-off against the period of suspension itself.
The critical phrase
The critical phrase in issue in this case is found in section 240AZ(3). What does it mean to say that the period on remand "is to count as time served by the offender as part of the sentence"? The claimant says that whatever its meaning in other contexts, in the case of an offender who has been on remand for longer than the total sentence, he must be treated as having served the whole sentence. Anything less than that would be absurd and unfair.
However, the proper construction of the relevant statutory provisions cannot vary depending upon the period of time served on remand. So the logic of the claimant's case, as ultimately accepted by his counsel, Ms. Farbey QC, is that the period on remand (and the same would apply to section 240A bail) should be set off against the whole period of the sentence promulgated by the judge at the time of sentence. Where the remand time is shorter than the custody period, it will reduce pro tanto the time a defendant has to spend in prison before release on licence. Where it is longer than the custodial period but shorter than the whole sentence, it will reduce the licence period by the excess unused credit. The defendant will be on licence in the usual way for the remainder of the sentence and if recalled for breach of the licence condition, he could not thereafter be given further credit for time on remand because it is well established that credit can only be given once and there should be no double counting: see R v Home Secretary ex parte Naughton [1997] 1 W.L.R. 118; R v Gordon [2007] EWCA Crim 165; [2007] 1 W.L.R. 2117 para. 31 per Lord Judge CJ. Where time on remand exceeds the sentence promulgated by the judge, as here, it extinguishes the sentence altogether and requires the immediate unconditional release of the offender.
The contrary view espoused by the Secretary of State is that section 240ZA(3) allows time on remand to be counted only against time spent in custody. It cannot be credited to reduce time spent on licence. However, subject to section 240ZA(6), it will count towards time in custody spent (or due to be spent) on recall.
To illustrate by an example. Suppose a defendant receives a twelve month prison sentence and had been remanded in custody for 9 months. As he has served half the sentence in prison he will not be subject to any further custodial period and must be released on licence. On the claimant's case he would be subject to a three month licence period. The 9 months is simply deducted from the period of the sentence fixed by the judge. By contrast, the Secretary of State's case is that the 6 month licence period remains because the period on remand can be credited only against time spent in custody. However, if the defendant is recalled for any reason, credit will...
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