R (Noone) v Governor of HMP Drake Hall
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Wall,Sir Anthony Clarke M.R. |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1097 |
| Date | 17 October 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2008/0396/QBACF |
[2008] EWCA Civ 1097
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Mitting
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
IR Anthony Clarke M.R.
Lord Justice Scott Baker and
Lord Justice Wall
Case No: C1/2008/0396/QBACF
Nigel Giffin Q.C and Parishil Patel (instructed by The Treasury Solicitor) for the Appellants
Pete Weatherby (instructed by Prisoners Advice Service) for the Respondent
Hearing date: 29 July 2008
The problem with which this case is concerned is the correct calculation of a prisoner's earliest release date i.e. eligibility for Home Detention Curfew (HDC) and her licence period where she is sentenced to consecutive sentences in part governed by the Criminal Justice Act 1991 (“the 1991 Act”) and in part by the Criminal Justice Act 2003 (“the 2003 Act”).
The answer turns on the true construction of paragraph 14 of schedule 2 to the Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Savings Provisions) Order 2005 (“the 2005 Order”). This paragraph provides:
“Savings for prisoners serving sentences of imprisonment of less than 12 months.
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 12 months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence).”
The problem arises in this way. The 2003 Act was intended to bring into effect a new sentencing regime; the old regime under the 1991 Act was to be swept away. The changeover date was for offences committed on or after 4 April 2005. A number of problems has arisen over the transitional arrangements. For convenience I shall refer to an offence committed before 4 April 2005 as “an old offence” and an offence committed on or after 4 April 2005 as “a new offence” provided it attracted a sentence of 12 months or more. For it is my view that only sentences of 12 months or more presently fall to be dealt with under the 2003 Act regime. The particular problem in this case relates to the computation of consecutive sentences.
The respondent, Rebecca Noone, was a serving prisoner at HMP Drake Hall. On 23 May 2007 she was sentenced at the Crown Court at Stafford for a number of offences, all of which were committed after 3 April 2005. The sentences were as follows:
* for theft, 22 months imprisonment;
* for three further offences of theft, 4 months imprisonment concurrent with each other but consecutive to the sentence of 22 months;
* for contempt of court, 1 month imprisonment consecutive.”
The total sentence was therefore 27 months imprisonment.
On 24 May 2007 the respondent was given a release date notification slip with the following information on it:
* eligibility for HDC: 15 January 2008;
* conditional release date: 28 May 2008;
* sentence and licence expiry date: 13 July 2009.
On 18 July 2007 she was given a further release date notification slip with the following revised information:
* eligibility for HDC: 20 April 2008;
* conditional release date: 28 May 2008;
* sentence and licence expiry date: 10 February 2009.
On 21 August 2007 the respondent's solicitor wrote to the governor of Drake Hall prison querying the amended release dates and in particular the delayed eligibility for HDC. This was followed on 19 December 2007 by an application for judicial review. The basis of the claim for judicial review was that the appellants had erred in calculating her eligibility for HDC on the basis:
i) That on the proper construction of para 14 of schedule 2 to the 2005 Order it only applied where all the sentences imposed were of less than 12 months. Where some of the sentences imposed were for 12 months or longer para 14 did not apply and the relevant provisions of the 2003 Act applied.
ii) In any event, the policy adopted by the Secretary of State for determining the order of consecutive sentences (where one or more of the sentences fell to be treated under the 1991 Act and one or more of the sentences fell to be treated under the 2003 Act, was unlawful.
On 31 January 2008 the application for permission to apply for judicial review came before Mitting J. Because of the urgency of the situation he granted permission and proceeded to hear the substantive claim. He rejected the first basis of the claim, following the reasoning and decision of Dobbs J. in Highton v Secretary of State for the Home Department [2007] EWHC 1085, but accepted the second basis of claim, holding that the Secretary of State's policy was irrational and unlawful. Mindful of the consequences for other prisoners, he declared the policy unlawful but stayed a declaration to that effect pending an appeal to this court for which he granted permission. He made a mandatory order that the prison governor consider the respondent's eligibility for HDC forthwith and recalculate her dates for (i) entitlement to release on licence and (ii) expiry of the sentences imposed on her in accordance with the terms of his judgment. The respondent was released on 8 February 2008 on HDC.
It is not in issue that the court has power to impose consecutive sentences. S.154(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a sentence imposed by the Crown Court shall take effect from the beginning of the day on which it is imposed unless the court otherwise determines.
It is necessary to have in mind some key features of the 1991 Act. By s.51(2) a sentence of imprisonment imposed consecutively to another sentence of imprisonment is to be treated as a single term.
By s.33(5) a long term prisoner is defined as one serving a sentence of imprisonment for a term of 4 years or more and a short term prisoner is one serving less then 4 years.
By s.33(1) it is the duty of the Secretary of State to release a short term prisoner when he has served one half of his sentence, unconditionally if the sentence is for a term of less than 12 months, and on licence if it is for 12 months or more.
By s.34A (inserted by the Crime and Disorder Act 1998) the Secretary of State was given power to release certain short term prisoners on licence after the prisoner had served “the requisite period.” For a term of 3 months or more the requisite period is 30 days; for 4 months or more but less then 18 months it is a period equal to one quarter of the term and for a term of 18 months or more it is a period that is 135 days less then one half of the term (s.35A(4)).
The widely understood description of these early release provisions is HDC. It is to be noted that these provisions give a power of early release to the Secretary of State rather than impose a duty. Not all prisoners who qualify for HDC are given it.
Someone such as the respondent who was sentenced to consecutive terms totalling 27 months would be required to be released on licence after serving one half of that period (13 1/2 months) but would be eligible for HDC 135 days before that time.
Moving on to the 2003 Act, it contains very similar provisions, although somewhat differently expressed. I shall recite s.264 in full because it will be necessary to refer to it later in some detail.
“S.264 Consecutive terms.
(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 occasions.
(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 12 months or more, the offender is, on or 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) Where each of the terms of imprisonment is a term of less than 12 months, the offender is, on and after his release under this Chapter, to be on licence until the relevant time, and subject to such conditions as are required by this Chapter in respect of any of the terms of imprisonment, and none of the terms is to be regarded for any purpose as continuing after the relevant time.
(5) In subsection (4) “the relevant time” means the time when the offender would, but for his release, have served a term equal in length to the aggregate of –
(a) all the custodial periods in relation to the terms of imprisonment, and
(b) the longest of the licence periods in relation to those terms.
(6) In this section –
(a) “custodial period”
i) in relation to an extended sentence imposed under section 227 or 228, means the appropriate custodial term determined under that section,
ii) in relation to a term of 12 months or more, means one half of the term, and
iii) in relation to a term less than 12 months complying...
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