R Stephen Jackley and Kramer Craft v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 27 January 2014 |
| Neutral Citation | [2015] EWHC 342 (Admin) |
| Date | 27 January 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4928/2014 |
[2015] EWHC 342 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Lang
CO/4928/2014
The Claimants appeared in person
Miss V Ailes (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
The Claimants apply for judicial review of the Defendant's refusal to grant them Home Detention Curfew (HDC) on the basis of a blanket policy and on the basis of procedural impropriety.
His Honour Judge Blackett sitting as a Deputy High Court Judge, gave permission on the papers stating that the claim concerned an issue of "significant public importance." However, that decision was made on the basis of the Claimants' application and supporting documents alone, without sight of any grounds of resistance from the Defendant, which would have highlighted the provisions of section 112 of the Legal Aid, Sentencing and Punishing of Offenders Act 2012 ("LASPO 2012") amending section 246 of the Criminal Justice Act 2003.
The claim was issued on 24 October 2014 and served on the Defendant on 31 October. So when permission was granted on 18 November, the 21 day period for filing an acknowledgment of service had not yet expired. The Defendant had until 20 November to file its response.
Following the grant of permission, the Claimants have amended to some extent their grounds in the light of their realisation that the Defendant's refusal to grant HDC was on the basis of a change in primary legislation, not policy.
The facts
The Claimant Stephen Jackley was sentenced to 13 years' imprisonment on 21 August 2009, reduced to 12 years on appeal. The offences for which he received this sentence comprised 21 convictions encompassing 10 separate incidents between September 2007 and March 2008. There were some 8 armed robberies or attempted armed robberies and 2 burglaries. Some violence was used.
Following the commission of these offences, Mr Jackley travelled to America and attempted to purchase a gun using a false identity. He was arrested and prosecuted and served a sentence of 10 months in the USA. He was then deported to the United Kingdom.
He was in custody for two months in the USA awaiting deportation and he complains that that period was not taken into account in calculating the length of sentence of imprisonment he had to serve in the UK. However, in my view, that is not a matter which the Prison Service could address. It was a matter for the sentencing courts.
Mr Jackley was originally sentenced to 13 years' imprisonment, but he appealed against sentence to the Court of Appeal (reported at [2013] 2 Cr.App.R (S) 80). The Court of Appeal heard medical evidence which had not been before the sentencing judge that he had Asperger's syndrome. It held, at paragraph 29, that no real connection had been established between this diagnosis and his offending. However, on the basis that his condition would make life imprisonment more difficult for him than for other prisoners, the Court of Appeal reduced his sentence by 1 year to 12 years.
Mr Jackley has been assessed as posing a medium risk of serious harm to the public in the community, which he disputes. His conditional release date is 13 May 2015 and his sentence expiry date is 12 May 2021. His HDC eligibility date was originally 30 December 2014.
The Claimant Kramer Craft was sentenced to 13 years' imprisonment on 27 April 2009. He received this sentence for four counts of conspiracy to supply a controlled drug of Class A, namely cocaine. He has a previous conviction for using threatening, abusive, insulting words or behaviour with intent to cause fear of provocation of violence.
He is assessed as posing a low risk of serious harm to the public in the community. His conditional release date is 5 March 2015 and his sentence expiry date is 3 September 2021. His HDC eligibility date was originally 22 October 2014.
The statutory and policy framework
HDC is a form of early monitored release from prison for a period prior to the conditional release date.
Under the Criminal Justice Act 1991 section 34A, only short term prisoners were eligible. Short term prisoners were defined in section 33(5) as those serving a sentence of less than 4 years.
For prisoners such as the Claimants, who were sentenced after April 2005, the HDC scheme was governed by section 246 of the Criminal Justice Act 2003. Prisoners serving 4 years or more were not excluded.
Prison Service Instruction ("PSI") 31/2006 set out categories of prisoners who, though not statutorily excluded, were presumed to be unsuitable for HDC unless there were exceptional circumstances.
Paragraph 11 read as follows:
" Sentence Length — CJA03 Prisoners Serving Four Years Or More.
Unlike CJA91 prisoners, CJA03 prisoners are not statutorily ineligible for HDC if they are serving a determinate sentence of 4 years or more. However, such prisoners must, as a matter of policy, be presumed unsuitable for release on HDC unless exceptional circumstances exist but must be provided with their HDC eligibility date. Similarly, where a prisoner receives multiple CJA03 sentences and the aggregate total of the sentences is 4 years or more, the prisoner must be presumed unsuitable. Prisoners who receive multiple CJA03 sentences mixed with CJA91 sentences where the overall term of imprisonment, from date of first sentence to the latest SED/SLED, excluding remand time, is 4 years or more must also be presumed unsuitable for release on HDC.
Prisoners affected by this paragraph must be informed in writing as soon as possible after sentence that, due to the length of their sentence, they have been presumed unsuitable for release and that unless there are exceptional circumstances, they will not be released on HDC. If prisoners consider that their case is exceptional then they should draw this to the Governor's attention, no earlier than 8 months before their conditional release date giving full details. If Governors are minded to accept the exceptional circumstances and the prisoner is risk assessed as suitable for release on HDC the risk assessment paperwork and a note from the Governor giving reasons why they consider the prisoner's case to be exceptional must be forwarded to the Chief Executive of NOMS for final approval.
It is likely that only a very few prisoners serving sentences of 4 years or more will be released on HDC. It is impossible to give guidance on what will constitute exceptional reasons to grant release because such cases will, by definition, be exceptional and will stand out. Governors must consider the merits of each case on its individual circumstances."
Later on in PSI 31/2006, at paragraph 16, there is reference to the presumed unsuitable offences. Those were offences of the most serious kind and an offender convicted of one of those categories of offences was presumed to be unsuitable for HDC. These provisions did not apply to these Claimants.
Then under paragraph 19, heading " Exceptional Circumstances and Presumed Unsuitable Offences", it stated as follows:
"Guidance on the interpretation of exceptional circumstances is contained in paragraph 33 of PSI 31/2003.
The Director of Operations, Michael Spurr, wrote to all Governing Governors on 20 May 2004 setting out a particular set of factors which would amount to one example of exceptional circumstances.
Following consultation with Ministers, the Chief Executive of NOMS advised that the following features would also amount to exceptional circumstances.
• The likelihood of re-offending on HDC is extremely small; and
• The HDC applicant has no previous convictions; and
• The applicant is infirm by nature of disability or age or both.
This interpretation should be used when determining whether an HDC application is exceptional, however, Governors may continue to exercise their discretion as described in the PSI 31/2003 and there may be other cases, which feature different factors from those above, which the Governor considers are exceptional."
It appears from the heading to paragraph 19 that it was intended to apply to those convicted of presumed unsuitable offences, not those sentenced to 4 years or more, but in my view similar considerations would apply to both categories of prisoner when considering whether or not exceptional circumstances had been established.
Similar provisions to paragraph 11 of PSI 31/2006 were contained in PSI 55/2010 in annex B. PSI 55/2010 was said to expire on 20 October 2014.
The statutory scheme was subsequently amended by LASPO 2012 with effect from 3 December 2012. Following amendment, prisoners serving sentences of 4 years or more were expressly excluded by statute from HDC.
Section 246 of the Criminal Justice Act 2003 as amended provides:
"(1) Subject to subsections (2) to (4), the Secretary of State may —
(a) release on licence under this section a fixed-term prisoner at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period…
(4) Subsection (1) does not apply where —
(aa) the sentence is for a term of 4 years or more."
No power currently exists either in section 246 of the 2003 Act or elsewhere for the Defendant to release a prisoner serving a sentence of 4 years or more on HDC.
The relevant PSIs, PSI 55/2010 and PSI 31/2006, were replaced by PSI 43/2012 in...
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