R (Stellato) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,LADY JUSTICE HALLETT |
| Judgment Date | 31 March 2006 |
| Neutral Citation | [2006] EWHC 608 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 March 2006 |
| Docket Number | Case No: CO/8848/05 |
[2006] EWHC 608 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lady Justice Hallett Dbe
The Hon Mr Justice Jack
Case No: CO/8848/05
Mr Kris Gledhill (instructed by Bhatt Murphy ) for the Claimant
Mr Parishil Patel (instructed by Treasury Solicitor) for the Defendant
The Hon. Mr. Justice Jack :
Introduction
In R (Buddington) v Secretary of State for the Home Department [2005] EWHC 2198 (Admin) and [2006] EWCA Civ 280 the court had to consider whether the Secretary of State had power after 4 April 2005 to recall to prison for cause prisoners who had been released before 4 April 2005. After considering the relevant provisions of the Criminal Justice Act 2003 and the relevant commencement order, in particular the transitional and saving provisions of that order, the Divisional Court and later the Court of Appeal held that he had. We have now to determine whether a prisoner who was sentenced in 1998 and has been recalled to prison since 4 April 2005 is entitled to unconditional release at the three-quarter point of his sentence, that is, release not on licence, which was the position when he was sentenced, or whether the effect of the 2003 Act and the relevant commencement order is that his release will be on licence lasting, subject to further recall, to the end of his sentence. It is a matter of regret that the provisions to be examined are complex, and their meaning and effect are difficult to discern. That is especially the case because the issue may affect the liberty of prisoners.
On 17 December 1998 the applicant, Paul Stellato, was sentenced to terms of imprisonment totalling 10 years for offences including arson with intent to endanger life, and perverting the course of justice. He had been in custody since 27 June 1998 and so the 10 years would expire on 26 June 2008. On 17 February 2005, the two thirds point of his sentence, he was released on licence. On the same day he was recalled to prison for breach of his licence. On 16 June 2005 he was again released on licence. On 1 August 2005 his licence was revoked and on 11 August he returned to custody. On 24 October the Parole Board issued a decision letter replacing an earlier decision dated 4 October. It stated that the applicant should be released in licence on his notional licence expiry date, namely 27 December 2005, which was the three quarter point of his sentence. He was released on 23 December 2005 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 release on the notional licence expiry date was no doubt because by a direction issued by the Secretary of State under section 239(6) of the 2003 Act the Parole Board is required "to 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". However the applicant was returned to custody on 9 January 2006 following breach of his licence. That occurred because it was his view that he was not in law subject to a licence but was entitled to be released unconditionally. He remains in prison.
The three statutory schemes relating to release on licence
Release on licence was introduced by Part II of the Criminal Justice Act 1991, titled 'Early Release of Prisoners'. Its provisions were amended by Part IV of the Crime and Disorder Act 1998. I will refer to the 1991 Act as originally enacted as the 1991 Act and to the 1991 Act as amended by the 1998 Act as the amended 1991 Act. I will refer to prisoners to whom the original 1991 Act provisions applied as 1991 Act prisoners, and to prisoners to whom the 1991 Act provisions applied as amended by the 1998 Act as 1998 Act prisoners. A new scheme for release on licence was made by Chapter 6 of Part 12 of the Criminal Justice Act 2003 � the 2003 Act. It is necessary to consider the scheme provided by each Act.
Under the 1991 Act long term prisoners were those serving a sentence of four years or more: section 33(5). The appellant was a long term prisoner. The provisions setting out the scheme in relation to long term prisoners were as follows:
(a) Section 35(1) provided that after a long term prisoner had served half of his sentence the Secretary of State might release him on licence if the Parole Board so recommended.
(b) Section 36 provided for release on licence on compassionate grounds.
(c) Section 33(2) provided that as soon as a long term prisoner had served two-thirds of his sentence it was the duty of the Secretary of State to release him on licence.
(d) Section 37(1) provided that, subject to revocation under section 39(1), a licence should remain in force until three quarters of the sentence had been served.
(e) Section 39(1) provided for the revocation of a licence and the recall of a prisoner by the Secretary of State on the recommendation of the Parole Board. Section 39(2) provided for revocation and recall without that recommendation where it appeared to the Secretary of State expedient in the public interest to recall the person before a recommendation by the Board was practicable.
(f) Section 33(3) provided that as soon as a prisoner who had been released on licence under section 35 or 36 and who had been recalled to prison under section 39(1) had served three-quarters of his sentence he should be released unconditionally.
(g) Section 40 provided that, where a prisoner who had been released under Part II committed an offence punishable with imprisonment before the date of the expiry of his sentence, the court by or before which he was convicted of the new offence might order him to be returned to prison for a period up to the period between the date of the new offence and the expiry of his sentence.
(h) Section 44 provided that where the whole or part of a sentence was imposed for a sexual offence the court might order the section should apply, and then the licence period provided by section 37(1) would extend to the end of the sentence. A recalled prisoner would then only be released under section 33(3) when he had served the whole of his sentence. The section did not apply to the appellant.
Under these provisions the third quarter of the sentence might be spent on licence or in custody depending on the manner in which the powers under the sections were exercised. The last quarter would always be spent on unconditional release. This was subject to any order being made under section 40 following the commission of a new offence while on licence, and to the application of section 44. There was no provision, at least no express provision, providing for a second release on licence following a re-call.
The 1998 Act altered the provisions of the 1991 Act in the following respects which are relevant to the present issue:
(a) Section 33(3) of the 1991 Act was amended by section 104 of the 1998 Act to provide that a recalled prisoner should be released on licence at the three-quarter point of his sentence and not unconditionally. This did not apply to prisoners whose sentence had been imposed for an offence or offences prior to the commencement of section 104 (30 September 1998): Schedule 9, paragraph 13 of the 1998 Act. So the regime for 1991 Act prisoners remained unchanged by this.
(b) Section 44 of the 1991 Act was amended by section 59 of the 1998 Act to accommodate the provision by section 58 of the 1998 Act for extended sentences for sexual or violent offences.
Section 40 of the 1991 Act was replaced by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 116 was expressed to apply to persons released under Part II of the 1991 Act � which would cover those released under the original 1991 Act and the amended 1991 Act.
The Chapter 6 of Part 12 of the Criminal Justice Act 2003 introduced a new scheme for the release of prisoners on licence. The provisions which are relevant to the present issue are as follows:
(a) Section 244 provides that as soon as a fixed-term prisoner (other than one serving an extended sentence under section 247, or serving a sentence of less than 12 months, or in respect of whom an intermittent custody order had been made) has served one half of his sentence it is the duty of the Secretary of State to release him on licence.
(b) Section 249 provides that where a fixed term prisoner is released on licence, the licence shall remain in force for the remainder of his sentence, subject to its revocation under section 254 (or section 255, which deals with early release under section 246 and is not here relevant).
(c) Section 254(1) provides that the Secretary of State may revoke the licence of any prisoner released on licence under the Chapter and recall him to prison. Subsection (3) requires the Secretary of State to refer the case of such a person to the Parole Board. By subsection (4), where the Board then recommends immediate release under the Chapter, the Secretary of State must give effect to that.
(d) Section 256(1) applies where on a reference under section 254(3) the Board does not recommend immediate release under the Chapter. The Board must then either fix a date for the person's release on licence or fix a date for the Board's next review of his case. By subsection (3), if the person would fall to be released unconditionally within the next 12 months, the Board need not fix a date for release or review. By subsection (5), on a review the Board may recommend...
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