R (Stellato) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Bake,Lord Justice Hughes,Lord Justice Longmore,LORD JUSTICE LONGMORE,LORD JUSTICE HUGHES |
| Judgment Date | 08 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1733,[2006] EWCA Civ 1790,[2006] EWCA Civ 1639 |
| Docket Number | C1/2006/0867,Case No: C1/2006/0867/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2006 |
Lord Justice Longmore
Lord Justice Scott Bake and
Lord Justice Hughes
Case No: C1/2006/0867/QBACF
Lower Court Case No:C0/8848/2005
Keir Starmer Q.C. and Phillippa Kaufmann (instructed by Messers Bhatt Murphy) for the Appellant
David Pannick Q.C. and Parishil Patel (instructed by The Treasury Solicitor) for the Respondent
Lord Justice Scott Baker:
Paul Stellato appeals with the permission of the Divisional Court (Hallett L.J. and Jack J.) against their decision that as a prisoner recalled to prison after 4 April 2005 he was not entitled to unconditional release at the three quarter point of his sentence but remains, if released, subject to licence until the end of his sentence. The Divisional Court refused his application for judicial review.
Facts.
On 17 December 1998 the appellant was sentenced to a total of 10 years imprisonment for offences including arson with intent to endanger life and perverting the course of justice committed in June 1998. He had been in custody since 27 June 1998, so the period of 10 years expires on 26 June 2008. On 17 February 2005, at the two thirds point of his sentence, he was released, as was his entitlement, on licence. However, the very same day he was recalled to prison for breach of his licence. On 16 June 2005 he was again released on licence but on 1 August 2005 his licence was again revoked and on 11 August 2005 he was returned to custody. On 24 October 2005 the Parole Board issued a decision letter replacing an earlier decision letter dated 4 October 2005. It stated that he should be released on licence on his notional licence expiry date namely 27 December 2005, which was the three quarter point of his sentence. He was in fact released on 23 December because it is the practice, where a prisoner's release date falls on a Bank Holiday or a weekend, to release him on the last working day prior to it.
The decision of the Parole Board was unsurprising because of a direction it had received under section 239(6) of the Criminal Justice Act 2003 ("the 2003 Act") that:
"The Parole Board shall 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 of the Criminal Justice Act 2003."
I shall turn in more detail to the legislation in a moment, but one of the major changes brought about by the 2003 Act was that henceforth a prisoner was entitled to release at the half way point in his sentence rather than two thirds, but he remained on licence for the whole of the remainder of his sentence.
The appellant was returned to custody on 9 January 2006 following breach of his licence. It is his case that he had been released the previous month unconditionally as was his entitlement under the legislation; he was not subject to any licence and could not therefore be in breach. He remains in prison.
The fundamental question on this appeal is whether the appellant's release following recall to prison after 4 April 2005 is governed by the 2003 Act or the Criminal Justice Act 1991 ("the 1991 Act"). If it is the latter, the appellant's release on licence became, as he contends, unconditional at the three quarter point of his sentence on 27 December 2005. If it is the former, he remains, or if free would have remained, on licence until the completion of his 10 year sentence which is not until 26 June 2008. The answer to this question turns on the true construction of Schedule 2 to the Criminal Justice Act 2003 (Commencement No.8 and Transitional and Savings Provisions)Order 2005 ("the 2005 Order"). And in particular paragraphs 19 and 23.
The legislation.
It is necessary to consider three statutory schemes relating to release of prisoners on licence. The first is to be found in part 2 of the 1991 Act, the second in part 4 of the Crime and Disorder Act 1998 ("the 1998 Act") and the third in Chapter 6 of Part 12 of the 2003 Act.
The key features of the 1991 Act are:
•?Definition of long-term prisoner s.33(5).
• Power of release at half way stage s.35(1).
• Duty to release at two thirds stage s.33(2).
• Unconditional release at three quarter stage s.33(3).
• Compassionate release s.36.
• Licence expiry at three quarter stage s.37(1).
• Revocation provisions s.39(1).
• Power of Court to order offender to serve rest of term s.40.
• Special provision for sex offenders. s.44.
Accordingly, save where the sentencing court exercised its powers under section 44 at the time of sentence or where the offender committed a further imprisonable offence and the sentencing court exercised its powers under s.40 to return him to prison in respect of the original offence, the three quarter point marked the end of the period when the offender was subject to the coercive effects of the sentence. If an offender was detained at that point, he should have been released unconditionally. If he was not so detained, he ceased to be liable to recall or to any of the terms of the licence. A 10 year sentence was, for practical purposes, a 7-12; year sentence.
But the position changed with the 1998 Act which amended the 1991 Act in a number of respects. The key features are:
•Amendment to s.33(3) preserving entitlement to release at three quarter stage but making re-release subject to licence rather than unconditional, s.104
•New provisions extending the scope of s. 44. s.59
S.116 of the Powers of Criminal Courts (Sentencing) Act 2000 replaced s.40 of the 1991 Act giving the court power on a subsequent conviction to order an offender to serve the rest of the term.
None of these amendments affected the appellant because they only applied to offenders whose offence was committed after 30 September 1998.
The key features of the 2003 Act are:
•Duty to release fixed term prisoners on licence at half way stage in cases other than extended sentences, sentences of less than 12 months and intermittent custody orders s.244.
•Licence continues to end of sentence unless revoked s.249.
•Conditions of licence provided for s.250.
•Duty to comply s.252.
•Power of revocation and recall in Secretary of State s.254.
•Provisions for further release after recall s.256.
•S.116 of Powers of Criminal Courts (Sentencing) Act 2000 repealed.
The 2003 Act received Royal Assent on 20 November 2003. Some provisions came into force on that date (s.336(1)), others four weeks later (s.336(2)). The rest come into force by orders under the enabling powers under ss.336(3) and 330(4)(b). This appeal is concerned with the 2005 Order which was made on 24 March 2005. Subject to paragraph 2(2) and Schedule 2, it brings into force Chapter 6 of Part 12 of the 2003 Act and repeals Part 2 of the 1991 Act, both as from 4 April 2005.
Schedule 2 contains two paragraphs that are of importance to the present appeal. They are paragraphs 19 and 23.Paragraph 19 is the first in a group of paragraphs headed:
" Savings for prisoners convicted of offences committed before 4 April 2005."
It reads:
"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);
(b) paragraph 8(2)(b) of Schedule 32 (Criminal Appeal Act 1968);
(c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act; and
(d) the repeal of sections 59 and 60, 99 and 100, 101, 103 to 105 and 121 of the Crime and Disorder Act 1998,
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.
Paragraph 23 is headed:
" Transitional Arrangements for recall after release."
It reads:
"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 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.
(2) paragraph 12(1) and (2) of Schedule 9 of 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 1991 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."
It is common ground that the clear intention behind these provisions is that the initial release and licence provisions for prisoners serving a sentence for offences committed before 4 April 2005 should not be affected by the 2003 Act. The benefit for prisoners sentenced under the 2003 Act of release having served half their sentence was not extended to this category of prisoner, but neither was the disadvantage of remaining subject to a licence (and hence recall) for the whole of the remainder of their sentence. This is consistent with the longstanding principle that existing prisoners should not be adversely affected by changes to the...
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