R (Kelly and another) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,The Master of the Rolls,Lord Justice Wilson |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2008] EWCA Civ 177 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2008 |
| Docket Number | Case No: C1/2007/2633, C1/2007/2672 & C1/2007/2707 |
[2008] EWCA Civ 177
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, DIVISIONAL COURT
(Keene LJ and Gibbs J)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of The Rolls
Lord Justice Laws
And Lord Justice Wilson
Case No: C1/2007/2633, C1/2007/2672 & C1/2007/2707
Mr Edward Fitzgerald QC and Mr Hugh Southey (for the 1st & 2nd appellants and Mr Stephen Simblett (for the 3rd appellant) (instructed by The Prisoners Advice Service (for Kelly), Langleys (for Bailey) and Kristina Harrison Solicitors (for Gibson))
Mr Parishil Patel (instructed by Treasury Solicitor) for the Secretary of State for Justice
Hearing dates : 13 February 2008
INTRODUCTORY
These three appellants were all sentenced to five year terms of imprisonment for serious offences. Each was at length released when three-quarters of his sentence had elapsed. They were so released on licence, and not unconditionally. The issue in these appeals is whether that extension of the licence period until sentence expiry was lawful. The issue depends upon the proper construction of provisions contained in subordinate legislation, namely the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Savings Provisions) Order 2005 (“the 2005 Order”), in the context of the Criminal Justice Act 2003 Act and the predecessor legislation which I will describe. Two of the appellants, Mr Gibson and Mr Bailey, have been returned to custody since being released at the three-quarter point. In their case, if the extension of the licence period beyond that point was unlawful and they were in fact entitled to be released unconditionally, their detention since recall is also unlawful. Mr Kelly has remained on licence since his release, but of course is liable to be recalled.
The Divisional Court (Keene LJ and Gibbs J), in their judgment delivered on 2 November 2007, accepted submissions advanced by the Secretary of State and held that the licence extensions were lawful. These appeals are brought with permission granted by the court below (though Mr Gibson's case was a habeas corpus application, and Mr Simblet on his behalf says that permission to appeal was not required: the claims of the other two were brought by way of applications for judicial review).
The offence or offences of which each appellant was found guilty, and which led to the imposition of the five year prison sentences, were all committed after 29 September 1998 and before 4 April 2005. During that period the statutory regime relating to the release on licence and recall of convicted prisoners was that contained in the Criminal Justice Act 1991 as amended by the Crime and Disorder Act 1998 (“the amended 1991 Act”). On 4 April 2005, by virtue of the 2005 Order, material provisions of the Criminal Justice Act 2003 came into force. Though their offences were as I have said all committed before 4 April 2005, each appellant was released, recalled and then re-released at the three-quarter stage in his sentence after 4 April 2005. It is this sequence of events that opens the door upon the appellants' arguments as to the legality of their licences being extended to expiry of sentence.
THE POSITION UNDER THE AMENDED 1991 ACT
It is first convenient to see what the position would have been if the amended 1991 Act alone contained the provisions regulating these appellants' release on licence, as it would have done if the three-quarter point in their sentences had arrived before the 2005 Order took effect on 4 April 2005.
As to that, first, these appellants (being sentenced to prison terms over four years) were under the amended 1991 Act classified as long term prisoners (s.33(5)). They would therefore have been eligible, but not entitled, to release at the half-way point in the sentence: s.35(1). They would have been entitled to release on licence at the two-thirds point: s.33(2). Subject to certain exceptions, their licence would then have endured to the three-quarter point in the sentence and at that stage the prisoner's liberty would become unconditional: see s.37(1), which provides:
“Subject to subsections (1A), (1B) and (2) below, where a short-term or long-term prisoner is released on licence, the licence shall, subject to any revocation under section 39( 1) or (2) below, remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.”
However, s.39(1) and (2) empowered the Secretary of State (while the licence was current) in certain circumstances to revoke the licence of a prisoner so released at the two-thirds stage and recall him to prison. In that case s.33(3) applied. It provided:
“(3) As soon as a short-term or long-term prisoner who -
(a) has been released on licence under this Part; and
(b) has been recalled to prison under 39( 1) or (2) below,
would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him on licence.”
In such a case the licence period would not expire at the three-quarters mark but would extend to the end of the sentence. S.37(1A) provided:
“Where a prisoner is released on licence under section 33( 3) or (3A) above, subsection (1) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.”
S.37(1A) was introduced into the Criminal Justice Act 1991 by s.104 of the Crime and Disorder Act 1998.
Each of these appellants were in fact released at the two-thirds point in his sentence, thereafter recalled, and then as I have said re-released at the three-quarters point. Had those events all happened before 4 April 2005 the release of each appellant at the three-quarters point would have been on licence, and not unconditional: ss.33(3) and 37(1A) would have applied.
RELEVANT PROVISIONS OF THE 2003 ACT AND THE 2005 ORDER
It is the appellants' case, however, that the position was transformed by the circumstance that their release, recall and re-release all happened after 4 April 2005. On that date, by force of the 2005 Order, s.39 of the amended 1991 Act was repealed. New provisions governing the recall and re-release of all prisoners came into force. Certain transitional and savings provisions had effect by virtue of paragraphs 19 and 23 of Schedule 2 to the 2005 Order.
The new provisions relating to release, recall and re-release are contained in ss.254 and 256 of the Criminal Justice Act 2003, as follows:
“254(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1) -
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
(3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1).
256(1) Where on a reference under section 254(3) in relation to any person, the Board does not recommend his immediate release on licence under this Chapter, the Board must either -
(a) fix a date for the person's release on licence, or
(b) fix a date as the date for the next review of the person's case by the Board…
(5) On a review required by the subsection (1)(b) in relation to any person, the Board may -
(a) recommend his immediate release on licence, or
(b) fix a date under subsection (1)(a) or (b).”
Paragraphs 19 and 23 of Schedule 2 to the 2005 Order provide in part as follows:
“19 The coming into force of
…
(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 4 th April 2005.
…
23(1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4th April 2005 -
(a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and
(b) the reference in sections 37(1) and 44(3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act…”
THE APPELLANTS' ARGUMENT ON CONSTRUCTION
The appellants say that the effect of these provisions in their case is as follows.
( 1) S.33(3) of the amended 1991 Act had no application in their cases. That is because their recall after release at the two-thirds stage was not under s.39( 1) or (2), since s.39 had been repealed by the time they were so recalled. Accordingly the closing words of s.33(3), that is the requirement that at the three-quarter stage the Secretary of State should release the prisoner on licence, did not apply to them. Nor are they caught by the terms of s.37(1A), since that only applies where s.33(3) applies.
(2) Accordingly Mr Fitzgerald QC on behalf of Mr Kelly and Mr Bailey, supported by Mr Simblet for Mr Gibson, submits that s.37(1) of the amended 1991 Act continued to apply to the appellants. S.37(1) was saved in their cases by paragraph 19(c) of Schedule 2 to the 2005 Order.
(3) The recall and re-release of the appellants at the three-quarter point was in fact effected pursuant to ss.254 and 256 of the Criminal Justice...
To continue reading
Request your trial
-
Young v Ministry of Justice
...33(3) of the CJA 1991 should therefore be read into that paragraph, see R (Kelly, Bailey and Gibson) v. Secretary of State for Justice [2008] EWCA Civ 177 (per Laws LJ at paras. 23, 38). 18 Section 254 of the CJA 2003 provides: “(1) The Secretary of State may, in the case of any prisoner wh......
-
Bojan Bogdanic v The Secretary of State for the Home Department
...penal legislation. That is in accordance with basic principles of statutory interpretation, as referred to above; see also R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177; [2009] QB 204 at [27]–[28] per Laws LJ. It is also of note that the Court of Appeal in R v D [2011] EWC......
-
Crown Prosecution Service v Roderick Fraser Beaumont
...FC 286, DCR (Haynes) v Stafford Borough Council [2006] EWHC 1366 (Admin); [2007] 1 WLR 1365R (Kelly) v Secretary of State for Justice [2008] EWCA Civ 177; [2009] QB 204; [2008] 3 WLR 1044; [2008] 3 All ER 844, CAR (Shields-McKinley) v Secretary of State for Justice and Lord Chancellor [2019......
-
Otc International Ag v Perfect Recovery Ltd And Another
...in the House of Lords at [2007] 2 AC 70; R (on the application of Kelly and another) v Secretary of State for Justice, Re Gibson [2008] 3 All ER 844, at paras 12-25 (CA); and Lord Chancellor v Haggan [2007] EWHC 1212, at para 43 48. Accordingly, this is the approach which I intend to apply ......