Marc Williams (assisted Person) V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon |
| Date | 10 August 2000 |
| Court | Court of Session |
| Published date | 10 August 2000 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD MACKAY OF DRUMADOON in the cause MARC WILLIAMS (ASSISTED PERSON) Pursuer; against THE SCOTTISH MINISTERS Defenders: ________________ |
Pursuer: Davies; Burnett Christie
Defenders: Crawford; Solicitor to the Scottish Executive
10 August 2000
Factual Background
[1]The pursuer was born on 29 March 1974. On 30 May 1994, the pursuer appeared on indictment in the High Court of Justiciary at Edinburgh. Following conviction, he was sentenced to four years detention in a Young Offenders Institution. That sentence was backdated to 17 January 1994. On 8 November 1996 the pursuer was released on licence by the Secretary of State for Scotland, in accordance with the provisions of section 1(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). As at 8 November 1996 the pursuer had served two thirds of the sentence dated 30 May 1994, together with 52 additional days, imposed after 30 May 1994 by Prison Governors exercising their powers under the Prison (Scotland) Rules.
[2]On 22 April 1997 the Secretary of State for Scotland revoked the pursuer's licence. He did so in exercise of his powers under section 17 of the 1993 Act. On the same date, the Secretary of State also directed that the pursuer be recalled to prison to serve his sentence. On 24 August 1997 the pursuer was apprehended and returned to prison. By that date, the pursuer had been unlawfully at large for 124 days. On 30 March 1998, the pursuer appeared in Edinburgh Sheriff Court. He was convicted on a charge of making false representations. In respect of that conviction, a sentence of six months imprisonment was imposed. That further sentence was backdated to 16 February 1998.
[3]On 9 June 1998, the present action was raised. The pursuer seeks declarator that he is entitled to be released from prison unconditionally and that he has been so entitled, since 20 May 1998. The pursuer also seeks an order ordaining the defenders to liberate him from prison, forthwith and unconditionally. The action was originally directed against the Secretary of State for Scotland. The defenders are now the Scottish Ministers, who, with effect from 1 July 1999, have assumed responsibility for the administration of prisons in Scotland.
[4]On 9 June 1998 Lord Dawson granted warrant for the interim liberation of the pursuer. The pursuer has been at liberty ever since, subject to certain conditions, including one that requires him to report regularly to a police station.
[5]The action came before me on the Procedure Roll. At the outset of the hearing, the pursuer's counsel sought leave to amend the pursuer's pleadings. He sought to introduce an additional and alternative conclusion for declarator, to the effect that the pursuer is entitled to be released from prison on licence and that he has been so entitled since 30 March 1998. That amendment was not opposed.
[6]Both parties were agreed that the action could be resolved at Procedure Roll. No issues of fact require to be remitted to proof. The submissions I heard proceeded on the basis of the pleadings as amended. The submissions made related to the first, second, third and fifth pleas-in-law for the pursuer and the first plea-in-law for the defenders.
Outline of dispute between the Parties.
[7]Before identifying the provisions of the 1993 Act, which are of relevance, I should summarise the parties' respective contentions as to how this action should be decided. The pursuer's primary position is that he was entitled to be released from prison unconditionally on 20 May 1998. He maintains that for the purposes of determining when he was entitled to be released from prison, the sentences imposed on 30 May 1994 and 30 March 1998 should not be aggregated and treated as one single term of imprisonment. On that premise the pursuer argues that he had served both of the sentences by 20 May 1998 and that on that date he was entitled to be released from prison unconditionally.
[8]In the alternative, the pursuer argues that if the two sentences fall to be treated as a single term of imprisonment, (as the defenders maintain should happen), he was entitled to be released from prison on licence on 30 March 1998. He argues that, prior to that date, he had served in custody a period equivalent to two-thirds of the single term of imprisonment, derived from aggregating the two sentences imposed on 30 May 1994 and 30 March 1998.
[9]The defenders' position can be summarised in equally straightforward terms. They contend that for the purposes of determining when the pursuer was entitled to be released from prison, the two sentences fall to be aggregated and treated as a single term of imprisonment, commencing on 17 January 1994. The defenders argue that, when account is taken of the 52 additional days, imposed by the Prison Governors, and the 124 days, during which the pursuer was unlawfully at large (following the revocation of his licence on 22 April 1997), as at the date the action was raised, the single term of imprisonment was due to expire on 15 August 1998.
[10]As far as the pursuer's alternative position is concerned, the defenders maintain that the pursuer has not been entitled to release on licence, at any time since his return to prison on 24 August 1997. That is because the date, by which two-thirds of the single term of imprisonment would be deemed to have been served, pre-dated the pursuer's return to prison, on 24 August 1997, following the revocation of his licence.
[11]The sections of the 1993 Act of primary relevance to the determination of this action are as follows:
"1(1). As soon as a short-term prisoner has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.
(2)As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence.
(3)After a long-term prisoner has served one-half of his sentence the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence."
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27(1). In this part of this Act, except when the context otherwise requires -
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" "Long-term prisoner" means a person serving a sentence of imprisonment for a term of four years or more;
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"Short-term Prisoner" means a person serving a sentence of imprisonment for a term of less than four years;
.........."
"(5) For the purposes of any reference, however expressed in this Part of this Act to the term of imprisonment or other detention to which a person has been sentenced or which, having been sentenced, he has served (in whole or in part), consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term."
It is important to bear in mind that in this action, it is the provisions of the 1993 Act, as originally enacted, that are of relevance. Subsequent amendments to sections 1 and 27 of the 1993 Act, which are now in force, fall to be ignored.
The Pursuer's primary position in the action
[12]The pursuer's primary position is that, as at the date the action was raised, he was entitled to be released from prison unconditionally and had been so entitled since 20 May 1998. Those contentions are founded on the premise that for the purposes of determining when the pursuer was entitled to release from prison, the two sentences imposed on 30 May 1994 and 30 March 1998 do not fall to be aggregated and treated as a single term of imprisonment. On the contrary, so the pursuer argues, the two sentences fall to be considered separately. The sentence imposed on 30 May 1998 is a long-term sentence and that imposed on 30 March 1998 a short-term sentence. According to the pursuer's counsel that long-term sentence expired on 20 May 1998, after full account is given for the 52 additional days, imposed by the Prison Governors, and the period of 124 days, when the pursuer was unlawfully at large. Having regard to the provisions of section 1(1) of the 1993 Act, it is also argued that the later short-term sentence expired on 16 May 1998, after the pursuer had served one-half of the six months imposed.
[13]In support of these arguments, counsel for the pursuer urged upon me a construction of section 27(5) to the effect that the provisions of the section only require sentences to be aggregated and treated as a single term of imprisonment, if the second (or any subsequent sentence) is imposed before a short-term prisoner is released unconditionally or before a long-term prisoner is released on licence. In particular, counsel argued that once a long-term prisoner has been released on licence, by virtue of the provisions of sections 1(2) or 1(3) of the 1993 Act, the term of that prisoner's long-term sentence is fixed for all purposes. According to the pursuer's counsel, the statutory scheme for early release on licence envisages a long-term sentence, whose duration is determined and fixed, for all purposes, at the time when the prisoner is released on licence, in respect of that sentence. It was suggested that such an approach to the scheme is confirmed by the terms of the document, entitled "Release Licence", which is given to a long-term prisoner, upon his release on licence. The document indicates the date the licence will expire, unless it has been previously revoked. It was argued that, by doing so, the document necessarily determines the date of expiry of the single term of imprisonment being served, when release on licence takes place. Counsel for the pursuer submitted that even if a prisoner's licence is revoked and the prisoner is recalled to prison, the provisions of section 27(5) have no further application to the long-term sentence, in respect of which the prisoner has been released on licence. The serving of any new sentence(s), subsequently imposed, falls to be looked at in isolation and...
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