R (Salami) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Collins J |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] EWHC 2251 (Admin) |
| Docket Number | CO/2613/2009, CO/263/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 July 2009 |
[2009] EWHC 2251 (Admin)
Administrative Court
Judge: Collins J
CO/2613/2009, CO/263/2009
Appearances: T Baldwin (instructed by Wainwright & Cummins) for S; H Southey (instructed by Kaim Todner) for R; J Strachan (instructed by the Treasury Solicitor) for the Defendants.
Issue: Whether the extension of the licence period under a sentence of imprisonment or the period of time a prisoner could serve if recalled breached Art 6 ECHR
Facts: MS was sentenced to 10 years' imprisonment in 2002 for offences committed in 2001; he was released in November 2007 on a licence that was due to expire in January 2009, namely the three-quarter point of the sentence. In October 2005, DR was sentenced to 5 years' imprisonment for offences committed in December 2004; he was released in July 2008, on a licence due to expire at the three-quarter point, November 2008. Both were recalled from licence, MS in March 2008 and DR in July 2008. As a result of changes to the early release and licence regime made by the Criminal Justice and Immigration Act 2008, when MS was released on licence again in May 2008, this was to the end of the sentence rather than to the three-quarter point. The 2008 also meant that release after recall did not have to occur, as previously had been the case, and DR remained in custody as a result. The Secretary of State did not use power given by the 2008 Act to make transitional provisions, which could have provided that those sentenced before it came into effect were to be subject to the regime applicable at the time of sentence. The failure to make transitional provisions was challenged as breaching Art 6 ECHR as a more severe penalty resulted than had been imposed by the sentencing court.
1. As Lord Bingham has observed in R (West) v Parole BoardWLR[2005] 1 WLR 350, [2005] 2 Prison Law Reports 14, para 24, a custodial sentence passed by a judge has not within living memory been a simple statement of the period the defendant must spend in prison. There have over the years in recent times been a number of statutory changes to the length of time that had to be served before release on parole or on licence or unconditionally could occur. Similarly there have been changes to the period during which release would be on licence rather than unconditional.
2. These claims concern prisoners who have been adversely affected by such changes so that in Robinson's case it is said he remains in custody when he should have been released, and in Salami's case that he is on licence subject to conditions so that he is at risk of recall when he ought to have been released unconditionally. Each claims that the relevant change which adversely affects him, brought into effect on 14 July 2008, breaches Art 6 of the European Convention on Human Rights.
3. Marcel Salami was involved in an incident in which a machine gun was used to fire at rivals and at the police in Croydon on 29 May 2001. On 18 March 2002 he was convicted of a number of firearms offences and sentenced to a total of 10 years' imprisonment. He was released on licence on the recommendation of the Parole Board on 22 November 2007. As the law then stood, that licence would have remained in force until he had served three-quarters of his sentence, namely 14 January 2009. On 19 March 2008 he was recalled to prison, but again released on licence on 13 May 2008. As a result of the relevant change in the law, any subsequent release, even if after he had served three-quarters of his sentence, would be on licence extending to the end of his sentence, namely 10 July 2011. He has since been released on licence.
4. Darren Robinson committed an offence of robbery on 7 December 2004. He was convicted, and on 19 October 2005 he was sentenced to 5 years' imprisonment. On 8 July 2008, having served two-thirds of that sentence, he was released on licence. That licence was due to expire on 23 November 2008 when he had served three-quarters of his sentence. On 25 July 2008 he was recalled for a breach of his licence conditions. He remained unlawfully at large until 4 September 2008 so that the three-quarters date of his sentence became 2 January 2009. The change to the law meant that he no longer had to be released when he had served three-quarters of his sentence so he has remained in custody. That is said to be unlawful.
5. Since each claimant was sentenced to imprisonment for more than 4 years, each was a long-term prisoner under the legislation then in force which was contained in Part II of the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998. In Robinson's case, there had been further amendments made by the Criminal Justice Act 2003. Since these claims are concerned with prisoners who have been recalled for breaches of their licences, I shall refer to the legislation which is relevant to them.
6. The history of the position under the 1991 Act and the amendments made by the 1998 Act is conveniently set out in the speech of Lord Brown in R (Stellato) v Home SecretaryELR[2007] 1 AC 70, [2007] Prison LR 29 at paras 19 to 21. It reads as follows:
‘19. Under the 1991 Act long-term prisoners became eligible for release on licence (parole as I shall call it) at the Home Secretary's discretion on the Parole Board's recommendation at the halfway point of their sentence (s35(1)). At the two-thirds point, if not already released, the prisoner became entitled to parole (s33(2)). At the three-quarter point, the prisoner was entitled to his freedom; if he had before then been recalled to prison and was still in custody he was entitled to be released unconditionally (s33(3)); if he was then on parole his licence at that point expired (s37(1)). The prisoner could not, in short, be required to serve more than three-quarters of his sentence. Section 39 (under the heading ‘Recall of … prisoners while on licence”) provided for recall in either of 2 ways –
(1) If recommended to do so by the Board in the case of a … prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
20. The 1991 Act, as amended by the 1998 Act, provided that where a prisoner was released on licence and then recalled, his further release at the three-quarter point was to be on licence for the rest of his sentence. This was effected by s104 of the 1998 Act which amended s33(3) so as to preserve the prisoner's absolute right to release at the three-quarter point but to make that release subject to licence rather than unconditional. Section 37 (under the heading ‘Duration … of licences”) was correspondingly amended to provide that in such a case the licence was to remain in force for the whole of the sentence.
21. That new regime, however, was not to operate retrospectively. It was to apply only to those whose offending post-dated its coming into effect. It accordingly did not apply to this respondent whose offences were committed before 30 September 1998.”
7. The 2003 Act introduced a new regime which came into effect on 4 April 2005. Broadly it provided that most prisoners serving determinate sentences had to be released on licence having served a part of their sentence, but the licence and so the possibility of recall for breach was to continue until the end of the sentence.
8. Part II of the 1991 Act (which included the relevant provisions) was repealed, but this was subject to transitional provisions. These were contained in the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005. This disapplied many of the new provisions, including the repeal of s33 of the 1991 Act, for those convicted of offences committed prior to 4 April 2005.
9. Paragraph 19 of Sched 2 to the Order provided as follows:
‘The coming into force of –
(a) [various sections of the 2003 Act and the repeal of various sections of the 1991 Act, including s33]
is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005.”
10. Paragraph 23 deals with transitional arrangements for recall after release. It provides as follows:
‘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 4 April 2005 –
(a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners 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.
(2) Paragraph 12(1) and (2) of Schedule 9 to the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act.
(3) The repeal of section 39 of the Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4 April 2005.”
Paragraph 23 is one of the most carelessly drafted statutory instruments that one has come across. There are obvious errors in para 23(2). There was a further error in s23(3) in that there was a failure to include s33(3) in that sub-paragraph. So much was made clear by the decision of the Court of Appeal in R (Kelly) v Secretary of StateELR[2009] QB 2004, [2008] Prison LR 241.
11. Section 254 of the 2003 Act reads:
‘(1) The Secretary of State may, in the case of any...
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