Marc Williams v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 10 August 2000 |
| Date | 10 August 2000 |
| Docket Number | No 6 |
| Court | Court of Session (Outer House) |
Court:Outer House, Court of Session
Lord MacKay of Drumadoon
Appearances:Mr Davies (instructed by Burnett Christie) for W; Ms Crawford (instructed by the Solicitor to the Scottish Executive) for the Ministers
The calculation of the release date of a prisoner sentenced to a short-term sentence after being recalled to prisoner after release on licence from a long-term sentence; whether the two terms were to be aggregated for the purposes of the early-release provisions.
In May 1994, W was sentenced to 4 years' detention, the sentence being backdated to January 1994; he served two-thirds of the sentence plus 52 additional days for disciplinary offences and was released on licence on 8 November 1996. In April 1997, the Secretary of State revoked W's licence and directed that he be recalled to prison to serve his sentence. W was arrested in August 1997, having been unlawfully at large for 124 days. In March 1998, W was convicted of an offence of dishonesty and sentenced to 6 months' imprisonment, backdated to February 1998. In June 1998, he commenced action claiming that he was entitled to release from prison as of May 1998; he was granted bail.
The relevant statute provided that short-term prisoners (serving less than 4 years) were released after half of their sentence and long-term prisoners (serving 4 years or more) after two-thirds of their sentence, though with the possibility of parole after half; and that concurrent and consecutive sentences should be aggregated and treated as a single term of imprisonment. Additional days added for disciplinary offences push back the release date.
W argued that the sentence imposed in March 1998 should not be aggregated with that imposed in May 1994, because he had already been released on licence from the earlier sentence, so that he was entitled to release after serving half of that short-term sentence; and that in any event he had served two-thirds of the the necessary period and so was entitled to release. The Ministers argued that the two sentences should be aggregated and treated as a single term commencing in January 1994; and that when the 52 additional days and the 124 days unlawfully at large were added, the single term expired in August 1998; and that he was not entitled to release at the two-thirds period because that right only applied to those actually in custody at the time, which W was not. The Ministers noted that they would consider the release of recalled prisoners at 12-monthly intervals and that W had a right to challenge the revocation of his licence.
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 4 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 s. 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 s. 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 6 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...
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