In Petition John Stewart For Judicial Review Of His Continued Detention In Prison V.
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Docket Number | P3/14C |
| Date | 18 January 2000 |
| Court | Court of Session |
| Published date | 19 January 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| P3/14C/99
| OPINION OF LORD EASSIE in the Petition of JOHN STEWART Petitioner; for Judicial Review of his continued detention in prison Respondent; ________________ |
Petitioner: P Davies; Burnett Christie
Respondent: McCreadie; Richard Henderson, Scottish Executive
18 January 2000
On 1 October 1993 the provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993 - "the 1993 Act" - dealing with, among other things, the early release of prisoners came into force.
Under the arrangements which applied before that date a prisoner (or young offender sentenced to detention) might be released on licence after serving one third of the sentence ordered by the Court. If not the subject of early release on licence, he would generally be entitled to remission of one third of his sentence and thus to release after serving two thirds of the sentence imposed by the Court. The statutory basis for the remission of sentence which applied under what might be described as the old régime was contained in Section 24 of the Prisons (Scotland) Act 1989 - a consolidating statute - which authorised Rule 37(1) of the Prisons (Scotland) Rules 1952. As substituted by the Prisons (Scotland) (Amendment) Rules 1981, Rule 37(1) provided that -
"A prisoner serving a sentence of imprisonment for a term of more than five days may, subject to the provisions of Rules 43 and 45, be granted remission of part of his term of imprisonment not exceeding one third of that term on the ground of his industry and good conduct:
...".
Rules 43 and 45 made provision whereby forfeiture of remission might be awarded by the prison governor as a punishment for breaches of prison discipline, a forfeiture exceeding 14 days requiring the approval of the Secretary of State.
The arrangements introduced by the 1993 Act replaced that system of remission of sentence except in the case of existing prisoners. Instead, the Secretary of State is directed by the 1993 Act to release unconditionally short-term prisoners (that is, those sentenced to a period of imprisonment of less than 4 years) on the expiry of one half of the sentence. After a long-term prisoner has served two thirds of his sentence the Secretary of State is directed to release him on licence, the long-term prisoner being also eligible for earlier release on licence after the expiry of one half of his sentence if the early release is recommended by the Parole Board. So far as concerns the maintenance of prison discipline, in place of forfeiture of remission as a punishment for breaches of discipline, Section 24 of the 1993 Act amended Section 39 of the Prison (Scotland) Act 1989 so as to enable the prison rules to provide for punishment by way of an award of "additional days". That rule-making power has been exercised in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 [S.I. 1994/1931]. Thus Rule 100(1) of those Rules provides that if "he finds a prisoner guilty of a breach of discipline, the Governor may impose one or more of the following punishments:
...
(e) in the case of a short-term or long-term prisoner whose sentence or period of detention was imposed on or after 1 October 1993, but subject to paragraphs (3) to (5), an award of additional days not exceeding 14 days;
(f) in the case of a prisoner who is an existing prisoner within the meaning of paragraph 1 of Schedule 6 to the 1993 Act who is serving a sentence of imprisonment for a term of more than 5 days, forfeiture of remission of sentence for a period not exceeding 14 days;
......."
Accordingly, forfeiture of remission of sentence continued to apply only to those who were existing prisoners within the particular statutory definition. In relation to prisoners who were subject to the new arrangements under the 1993 Act the broad equivalent was the award of "additional days".
In March 1993 Mr John Stewart, the petitioner, appeared along with four co-accused in the High Court of Justiciary in Edinburgh on an indictment containing various charges. After trial he was convicted of charge 2 (assault to injury), charge 3 (attempted murder), charge 4 (assault to severe injury) and charge 6 (breach of the peace). On 24 March 1993 he was sentenced by the trial judge to 6 months imprisonment on charge 2, to 9 years imprisonment in cumulo in respect of charges 3 and 6 and to 2 years 6 months in respect of the charge of assault to severe injury (charge 4). The sentences were ordered to run consecutively thus amounting to a total period of incarceration of 12 years, backdated to 9 November 1992. The petitioner appealed against both conviction and sentence and his appeal was decided by the High Court of Justiciary ("the Appeal Court") on 16 December 1993 when the appeal against conviction was refused but the appeal against sentence was allowed. The sentence imposed by the trial judge was quashed and in substitution the Appeal Court imposed sentences consisting of the same periods of imprisonment as respects the same charges as had been imposed by the trial judge but ordered those sentences to run concurrently from 9 November 1992. The result of the appeal was accordingly that the total period of imprisonment became one of 9 years, backdated to 9 November 1992.
It will be noted that a feature of the petitioner's penal history is that whereas he was sentenced at first instance prior to the coming into force of the new régime of the 1993 Act on 1 October 1993, his appeal against that sentence was determined after that date. That particular circumstance is central to the issues raised in this petition for judicial review.
Given that the petitioner is plainly a long-term prisoner so far as the 1993 Act is concerned, and thus entitled to release on licence after serving two thirds of his sentence, it might be thought that the circumstance just referred to has restricted practical significance, leaving aside the conditional or unconditional nature of the release and any matter of earlier release on recommendation from the Parole Board, provided that the petitioner had been of good behaviour during his time in prison.
However, the petitioner has not been of good behaviour during his incarceration. He has been adjudged guilty of various breaches of prison discipline, some of which ante-date the determination of his appeal by the Appeal...
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