R (Noone) v Governor of HMP Drake Hall
| Jurisdiction | England & Wales |
| Judge | LORD BROWN,LORD JUDGE,LORD PHILLIPS,LORD MANCE,LORD SAVILLE |
| Judgment Date | 30 June 2010 |
| Neutral Citation | [2010] UKSC 30 |
| Date | 30 June 2010 |
| Court | Supreme Court |
[2010] UKSC 30
Lord Phillips, President
Lord Saville
Lord Brown
Lord Mance
Lord Judge
and another
Appellant
Pete Weatherby
Andrew Fitzpatrick
(Instructed by Prisoners Advice Service)
Respondent
Nigel Giffin QC
Steven Kovats
(Instructed by Treasury Solicitor)
The road to hell is paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short term prisoners by coupling time spent in custody with a release period under licence. This was known as "custody plus". Hell is a fair description of the problem of statutory interpretation caused by transitional provisions introduced when custody plus had to be put on hold because the resources needed to implement the scheme did not exist. The problem arises when sentences of less than 12 months and more than 12 months are imposed consecutively.
The 1991 Act - Early Release
In explaining this problem I shall refer only to the most relevant of statutory provisions thereby simplifying the picture. The Criminal Justice Act 1991 ("the 1991 Act") introduced for the first time a scheme in which it was mandatory for the Secretary of State to release prisoners part way through the period of their sentence. A prisoner sentenced to less than 12 months imprisonment had to be released unconditionally after serving half his sentence (section 33(1)(a)). A prisoner sentenced to between 12 months and 4 years imprisonment had to be released on licence after serving half his sentence (section 33(1)(b)). A prisoner sentenced to a determinate term of 4 years or more imprisonment had to be released on licence after serving two-thirds of his sentence (section 33(2)).
This early release scheme might have raised problems in relation to the practice of imposing sentences to be served consecutively. These problems were solved by section 51(2) of the 1991 Act, as amended by section 101 of the Crime and Disorder Act 1998, which provided:
"For the purposes of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term if—
(a) the sentences were passed on the same occasion; or
(b) where they were passed on different occasions, the person has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions."
Section 33(5) of the 1991 Act defined prisoners sentenced to less than 4 years imprisonment as "short term prisoners" and prisoners sentenced to 4 years imprisonment or more as "long term prisoners". For the purpose of this appeal the more significant distinction is between prisoners serving sentences of less than 12 months, whom I shall describe as "under 12 month prisoners" and prisoners serving sentences of 12 months or more, whom I shall describe as "over 12 month prisoners".
Home Detention Curfew
In 1998 under the Crime and Disorder Act additional provisions were inserted by amendment into the 1991 Act, which added a degree of complication to the release provisions for short term prisoners serving a sentence of imprisonment of three months or more. Under section 34A after such a prisoner had served "the requisite period" the Secretary of State was given power to release the prisoners on licence under conditions that required them to live at home, subject to a curfew. I shall describe this as "HDC release". The "requisite period" was so defined as to produce a sliding scale under which the prisoner might be released before what would otherwise have been his mandatory release date. The longer the sentence the longer the potential period of HDC release until this peaked at its maximum of 135 days in respect of a sentence of 18 months or more. A charitable interpretation of the purpose of the introduction of HDC would be that it was intended to facilitate rehabilitation in the community. A more cynical view would be that it was intended to provide the Home Secretary with a safety valve to deal with the pressure on prison accommodation. At all events the Home Secretary made such generous use of this power that short term prisoners were able to look forward with some confidence to being granted HDC release.
Licence expiry
Section 37 of the 1991 Act provided that, for both short and long term prisoners released on licence, the licence would remain in force until three quarters of the sentence period had elapsed. When an under 12 month prisoner was released under HDC his licence period ended once half the sentence period had elapsed.
The appellant's sentence
I now turn to the position of the appellant Miss Rebecca Noone. On 23 May 2007 she was sentenced at Stafford Crown Court for a number of offences as follows:
(a) Theft – 22 months imprisonment.
(b) Three further offences of theft – 4 months imprisonment on each count concurrent to one another but consecutive to the 22 month sentence.
(c) Contempt of Court – 1 month imprisonment consecutive to all the other sentences.
Had the provisions of the 1991 Act been applied to this sentence, its implications would have been easy to appreciate. The sentences would have been aggregated pursuant to section 51(2) to produce a total of 27 months. The appellant would have been entitled to be released after serving half this sentence, that is on her "conditional release date". But she could have looked forward with confidence to HDC release 135 days before that date.
On 24 May 2007 the appellant was given a release date notification which advised her that this was precisely what she could expect – that is:
This notification also informed the appellant that her licence would expire on the same day that her sentence would expire – that is 13 July 2009. This conflicted with the provision of section 37 of the 1991 Act under which the licence would have been due to expire after three quarters of the sentence period.
| Eligibility for HDC: | 15.1.2008 |
| Conditional release date: | 28.5.2008 |
On 18 July 2007 the appellant was given a fresh notification which put back the date of her eligibility to HDC to 20. 4.2008 but advanced both her licence and her sentence expiry date to 10. 2.2009. The appellant brought these proceedings in order to challenge this notification.
The reason for the confusion as to the date when the appellant would become eligible to HDC and the date on which her licence and her sentence would expire was that those in Drake Hall Prison responsible for the appellant's release were grappling with the implications of the Criminal Justice Act 2003, to which I now turn.
One particular objective of the Criminal Justice Act 2003 ("the 2003 Act") was the rehabilitation of offenders. With this objective in mind, those who drafted the Act set out to achieve, among other things, the following:
Rather than attempt to summarise the relevant provisions of the 2003 Act, I shall set them out verbatim.
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1) the introduction of custody plus for under 12 month prisoners, and
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2) the increase of the licence period to make this co-extensive with the period of the sentence.
Section 181 was the section which made provision for custody plus. It began as follows:
"Prison sentences of less than 12 months
(1) Any power of a court to impose a sentence of imprisonment for a term of less than 12 months on an offender may be exercised only in accordance with the following provisions of this section unless the court makes an intermittent custody order (as defined by section 183).
(2) The term of the sentence –
(a) must be expressed in weeks,
(b) must be at least 28 weeks,
(c) must not be more than 51 weeks in respect of any one offence, and
(d) must not exceed the maximum term permitted for the offence.
(3) The court, when passing sentence, must –
(a) specify the period (in this Chapter referred to as 'the custodial period') at the end of which the offender is to be released on a licence, and
(b) by order require the licence to be granted subject to conditions requiring the offender's compliance during the remainder of the term (in this Chapter referred to as 'the licence period') or any part of it with one or more requirements falling within section 182(1) and specified in the order.
(4) In this Part 'custody plus order' means an order under subsection (3)(b).
(5) The custodial period –
(a) Must be at least 2 weeks, and
(b) In respect of any one offence, must not be more than 13 weeks.
(6) In determining the term of the sentence and the length of the custodial period, the court must ensure that the licence period is at least 26 weeks in length.
(7) Where a court imposes two or more terms of imprisonment in accordance with this section to be served consecutively –
(a) the aggregate length of the terms of imprisonment must not be more than 65 weeks, and
(b) the aggregate length of the custodial periods must not be more than 26 weeks."
Section 182 set out the various requirements that could be imposed by way of licence conditions.
Custody plus has never been introduced and it is very unlikely that it ever will be. For this reason sections 181 and 182 have not been brought into force. The provisions of section 181 impacted on subsequent provisions of the Act, including the following provisions for release on licence.
"244 Duty to release prisoners
(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.
(2) Subsection (1) is subject to section 245.
(3) In this section 'the...
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