R (Highton) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS |
| Judgment Date | 17 April 2007 |
| Neutral Citation | [2007] EWHC 1085 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1848/2007 |
| Date | 17 April 2007 |
[2007] EWHC 1085 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mrs Justice Dobbs
CO/1848/2007
MR KARNIK (instructed by Messrs Stephensons) appeared on behalf of the CLAIMANT
MR P PATEL (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
This is an application for judicial review of the first defendant's decision of 10th January 2007 regarding a sentence calculation which the claimant submits is not in accordance with the relevant statutory provisions of the Criminal Justice Acts 1991 and 2003 and the enabling and saving provisions of the Criminal Justice Act (Commencement No 8 and Transitional and Saving Provisions) Order 2005 SI 2005/950, hereinafter to be called the 2005 Order. The issue, it is said, concerns the proper interpretation of paragraph 14 of Schedule 2 of the 2005 Order. There is an alternative submission in relation to the first defendant's decision not to allow special remission pursuant to part 13 of PSO 6650 in relation to the period when the claimant was unlawfully at large due to an error by the first defendant. It is submitted that this decision was irrational in the Wednesbury sense, taking into account the extraordinary circumstances of this case.
The chronology and background is as follows. On 2nd December 2005, at the Liverpool Crown Court, the claimant was sentenced to a total of two years and eight months' imprisonment for a variety of offences. The sentence was made up as follows: 14 months for an offence of assault occasioning actual bodily harm; 12 months consecutive for another offence of assault occasioning actual bodily harm; three months for assault on the police, consecutive; three months for assault occasioning actual bodily harm to run consecutively; and three months on other offences, all to run concurrently, meaning 32 months in total. All the offences were committed after 4th April 2005. On 26th October 2006, the claimant was released from Her Majesty's Youth Offender Institute Thorn Cross on Home Detention Curfew which required him to comply with the curfew until 9th March 2007. Licence was to expire on 8th January 2008. On 24th December 2006, the claimant breached the curfew and the licence was revoked pursuant to section 255(1)(a) of the Criminal Justice Act 2003. On 25th December he was returned to custody.
On 10th January 2007 the claimant was informed by letter and a Release Dates Notification Slip that the release on Home Detention Curfew had been in error and that he was therefore to be treated as unlawfully at large for the period of 26th October until recall. On 18th January 2007 this sentence calculation was confirmed by letter, following representations made by the claimant's solicitor. On 6th February 2007, a detailed explanation of the new sentence calculation was given. The result was that the claimant would be eligible for Home Detention Curfew on 25th March 2007 and release on 8th May 2007, taking into account the 60 days unlawfully at large. The sentence and licence expiry date is 8th March 2008. A claim for permission for judicial review was made and permission was granted on 15th March.
In order to put the submissions of counsel into context, the legislative framework has to be considered in some detail. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a sentence imposed by a Crown Court shall take effect from the beginning of the day on which it was imposed unless the court otherwise directs. Section 33 of the Criminal Justice Act 1991 deals with the Home Secretary's duty to release short-term and long-term prisoners. Once a short term prisoner has served half his sentence he will be released unconditionally if the sentence is less than 12 months, or on licence if the sentence is 12 months or more. A long term prisoner, namely one serving four years or more, will be released after serving two thirds of the sentence. Section 51(2) of the Criminal Justice Act 1991 provides that for the purposes of Part 2 of the 1991 Act, a reference to term of imprisonment, consecutive term shall be treated as a single term. So, for example, if a person receives consecutive sentences of two and three years under the 1991 Act, that would be treated for the purposes of release under Part 2 as a single term of five years.
On 4th April 2005 the relevant provisions of the Act came into force and the relevant provisions of the Criminal Justice Act 1991 were repealed. This, however, was subject to transitional and saving provisions contained in Schedule 2 to the 2005 Order.
The relevant provisions of the 2005 Order are as follows. Schedule 1 sets out the provisions of the Criminal Justice Act which came into force with minor exceptions on 4th April 2005. These are subject to the provisions of Schedule 2. Paragraph 19 of Schedule 1 sets out the relevant provisions which have come into force. These are sections 237 to 244(1),(2) and (3)(a) and (d), sections 246 to 250(1), and (4) to (7), sections 252 to sections 257 (except section 257 (2)(c)), sections 258 to 261, 263, 264(1) to (3), (6) and (7) and sections 265 and 268 (release on licence), in so far as they are not already in force. Paragraph 44(4)(k) deals with the repeals of sections 32 to 51 of the Criminal Justice Act 1991.
Schedule 2 is headed "Transitional and Saving Provisions". Paragraph 14 is entitled "Saving for prisoners serving sentences of imprisonment of less than 12 months". It reads as follows:
"14. The coming into force of sections 244 to 268 of, and paragraph 30 of Schedule 32 to the 2003 Act, and the repeal of sections 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than twelve months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)."
Paragraph 19 is headed "Savings for prisoners convicted of offences committed before 4th April 2005". The relevant passages are as follows. Paragraph 19(a):
"19. The coming into force of —
(a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds), 249 (duration of licence) and 250 (licence conditions)…
(c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act…
is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4th April 2005."
Paragraph 25(a) of Schedule 2 relates to consecutive or concurrent terms and reads as follows:
"25. The coming into force of —
(a) sections 263 and 264 of the 2003 Act (consecutive or concurrent terms)…
[then there are paragraphs (b) and (c), which need not concern us]
"does not affect the date on which the Secretary of State is required to release an offender from a sentence of imprisonment passed in respect of an offence committed before 4th April 2005, whether or not that sentence of imprisonment is to run concurrently or consecutively with one passed in respect of an offence committed after that date."
I now turn to the relevant sections of the 2003 Act. Section 244 is headed "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 requisite custodial period' means —
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 of the Sentencing Act, one-half of his sentence."
Paragraphs 3(b) and 3(c) are not in force and relate to sentences of less than 12 months' imprisonment and intermittent custody orders. Paragraph 3(d):
"in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2)."
Section 246 relates to power to release on licence before required to do and deals with the computation in relation to Home Detention Curfew.
Section 264 relates to consecutive terms. It reads as follows:
"(1) This section applies where—
(a) a person ('the offender') has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other, and
(b) the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occassions.
(2) Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.
(3) Where any of the terms of imprisonment is a term of twelve months or more, the offender is, on and after his release under this Chapter, to be on licence—
(a) until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and
(b) subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment."
(4) and (5) are not in force and relate to the situation where each term of...
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