R (Buddington) v Secretary of State for the Home Department

The President of the Queen's Bench Division:

On 9 January 2004 Benjamin Buddington (the appellant) was sentenced to two years five months imprisonment for offences of burglary. He was released on licence on 1 December 2004. The precise details of the dates and times he actually spent in custody are unclear, but for present purposes, they are not significant. At the date of his release he was subject to the revocation and recall provisions contained in Part II of the Criminal Justice Act 1991, as amended by insertions made by the Crime and Disorder Act 1998 and repeals resulting from the Crime (Sentences) Act 1997 and the Powers of Criminal Courts (Sentencing) Act 2000. For convenience, I shall refer to the cumulative effect of these statutes as the 1991 Act.

On or about 24 May 2005 the appellant's licence was revoked by the Secretary of State and he was recalled to prison. It is not suggested that this order was unjustified. The contention is that the Secretary of State lacked the power to make it. The correct answer to the question whether the Secretary of State was entitled to do what he did, at the time when he did it, ought to be readily ascertained. Unfortunately, it is not: so much so, that on 29 July 2005, it was thought appropriate, "for the avoidance of doubt", to introduce Supplementary Provisions to clarify the construction of paragraph 23 (1) of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions)Order 2005 (the 2005 Order) , the "unsupplemented" provision in force when the recall order was made. The problem was considered by the Divisional Court (Silber and Leveson JJ) . In a detailed judgment, after careful recitation and analysis of the competing arguments, in effect repeated before us, on 14 October 2005 the court concluded that the order on 24 May was lawfully made.

When complaint was first made on the appellant's behalf, he was still in custody, following his recall. His solicitors were notified that, by reference to the new provisions for release in the Criminal Justice Act 2003 (the 2003 Act) , his release would be postponed until 2 March 2006. Thereafter, on 27 July 2005, the Treasury Solicitor wrote to his solicitors, informing them that as he should have been released on 18 July in consequence of a decision by the Parole Board, the claimant had indeed been unlawfully detained. His release then rapidly followed. We are not concerned with any issues of law arising from these events, but although they do not directly impinge on the decision to be made in this appeal from the decision of the Divisional Court, they do not dispel an uneasy impression of uncertainty and confusion.

My consideration begins with the 1991 Act. I shall endeavour to summarise rather than reproduce the relevant provisions. Dealing with it broadly, the Act produced what Lord Taylor CJ, in the Practice Statement issued on 1 October 1992, the date when the 1991 Act came into force, described as "radical" changes in the arrangements for the release of serving prisoners through remission and parole by creating a scheme for their early release on licence.

Section 32 identified the functions of the Parole Board. The new arrangements were encapsulated in the duty imposed on the Secretary of State by section 33 to release on licence short-term prisoners, sentenced to a term of twelve months imprisonment or more, after they had served one half of the sentence. This provision applied to the appellant who was a "short-term prisoner" for the purposes of the Act, and defined as "a person serving a sentence of imprisonment for a term of less than four years". As such, if he were released on licence, and later recalled under section 39( 1) or (2), it was the duty of the Secretary of State to release him after three quarters of the sentence was served. Provision was also made for the release of what were described as special cases and on compassionate grounds.

Misleadingly headed, "recall of long-term prisoners while on licence", section 39(1) gave the Secretary of State power to revoke the licence of short as well as long-term prisoners, and order their recall to prison on the recommendation of the Parole Board. He was further entitled to make the order without a recommendation if, before it was practicable for such a recommendation to be made, he considered it "expedient in the public interest" to do so. On revocation of the licence, the prisoner was deemed to be unlawfully at large, and he was liable to be detained.

These were the arrangements in force when the appellant was sentenced, and section 39 applied to him. At that time, the appellant remained subject to recall until 17 July 2005. If the recall order was governed by and subject to section 39 the appellant could not legitimately have complained. His complaint arises because his licence was revoked and recall ordered after the repeal of the 1991 Act, and section 39 in particular, when the 2003 Act came into force on 4 April 2005.

It was agreed before us that the 1991 Act provided that at the time when the appellant was released on licence he remained a person serving a sentence of imprisonment. This represented a development of the position adopted before the Divisional Court. More important, it suggests that Mr Edward Fitzgerald QC's repeated invocation of the "liberty of the subject" should be approached with caution. As a person serving a sentence of imprisonment, the appellant's rights were to be respected. Nevertheless that is what he was, and until the completion of his sentence, that is what he remained. He was living in the community, on licence, and he remained subject to an obligation to comply with his licence requirements, and liable to recall to prison for non- compliance or in the public interest. The liberty of the subject is not at stake in this appeal. We are simply considering the arrangements for those who are serving sentences of imprisonment, and who have been released in accordance with the statutory regime.

In essence, therefore, what we are being asked to accept is that the 2003 Act and the 2005 Order, either individually, or together, removed those constraints, and left the Secretary of State bereft of his former statutory authority in relation to the appellant. If Mr Fitzgerald's submission is right, these powers were lost when the provisions of the 1991 Act were repealed, and his submission brushes aside the simple fact that the principle of early release, subject to licence conditions, and allowing for the revocation of the licence and recall of the prisoner was maintained and repeated in Chapter 6 of the 2003 Act, which came into force on the same day that the equivalent provisions in the 1991 Act were repealed.

Again, I shall endeavour to summarise rather than repeat the critical provisions of the 2003 Act. Release on licence is governed by sections 244–253.Section 244 itself distinguishes between the custodial period actually to be served by the prisoner, and the sentence of imprisonment which he is "serving".Sections 254–256 provide the Secretary of State with power to recall prisoners who have been released. The statutory regime is similar, but not identical, to its predecessor. There is a duty to release prisoners after specified proportions of the sentence have been served in custody, with express power to release them on licence before the duty to do so arises. The Parole Board is no longer vested with the direct function originally envisaged in the 1991 Act. The Secretary of State alone is vested with the power to revoke the licence, but, he may seek, and if so, the Parole Board must provide him with appropriate advice on matters relating to the early release or recall of prisoners. Unlike section 256, which applies to prisoners released before the Secretary of State is obliged to release them, section 254, which will arise more frequently in practice, does not identify the specific circumstances in which the prisoner may be recalled. That said, the Secretary of State cannot act on a whim. The prisoner is entitled to be supplied with the reasons for the order, (such as, for example, non compliance, or the public interest) and when he is, he is further entitled to make representations in writing. The Secretary of State refers the case of any such prisoner to the Parole Board, which may recommend the immediate further release of the prisoner on licence. If so, effect must be given to the recommendation.

The powers of the Parole Board are set out in section 239 of the 2003 Act, to be exercised in respect of functions created or imposed under that Act. For present purposes, I note, without suggesting that it is determinative, the obligation of the Parole Board under section 239(6) to "take into account" directions issued by the Secretary of State. Among current directions the Parole Board is required to "take into account the fact that prisoners who have been sentenced under the provisions of the Criminal Justice Act 1991 cannot be disadvantaged by the recall provisions...