R v Secretary of State for the Home Department, ex parte Francois (sub nom R v Governor of Swaledale Prison, ex parte Francois)

JurisdictionEngland & Wales
Judgment Date12 March 1998
Judgment citation (vLex)[1998] UKHL J0312-2
Date12 March 1998
CourtHouse of Lords

[1998] UKHL J0312-2


Lord Browne-Wilkinson

Lord Slynn of Hadley

Lord Nolan

Lord Hope of Craighead

Lord Hutton

Secretary of State for the Home Department

And Another

Ex Parte FrançOis (A.P.)

(On Appeal from a Divisional Court of the Queen's Bench Division)


My Lords,


I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives I would answer the certified question in the affirmative and dismiss the appeal.


My Lords,


Part II of the Criminal Justice Act 1991 deals with the early release of prisoners. Section 33 thereof provides:

"(1)As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State - (a)to release him unconditionally if that sentence is for a term of less than twelve months; and (b)to release him on licence if that sentence is for a term of twelve months or more.

"(2)As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.

"(3)As soon as a short-term or long-term prisoner who - (a)has been released on licence under subsection (1)(b) or (2) above or section 35 or 36(1) below; and (b)has been recalled to prison under section 38( 2) or 39(1) below, would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him unconditionally.


"his Part - 'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more; 'short-term prisoner' means a person serving a sentence of imprisonment for a term of less than four years."


That section is to be read with section 51 of the Act which provides that in Part II of the Act:


'sentence of imprisonment' does not include a committal in default of payment of any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.

"(2)For the purposes of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term."


The appellant was sentenced on 5 August 1993 as follows:


(a) burglary 9 months concurrent with (b) and (c); (b) burglary 9 months concurrent with (a) and (c); (c) handling stolen goods 9 months consecutive to (e); (d) theft 2 months concurrent; (e) handling stolen goods 6 months; (f) theft 4 months.


That made a total of nineteen months' imprisonment. For the purposes of section 3 of the Act he was, therefore, at that stage a short-term prisoner.


On 7 January 1994 the appellant was sentenced to:


(g) for possession of LSD with intent to supply 4 years consecutive to (a) to (f) above;


(h) for possession of ecstasy with intent to supply 4 years concurrent with (g).


In respect of those offences the sentence of 4 years in total makes him a long-term prisoner.


Subsequently on 18 April 1994 he was sentenced to 6 months' imprisonment:


(i) for possession of a controlled drug consecutive to (a) to (f) but concurrent with (g) to (h);


(j) for possession of a controlled drug £75. 00 or 7 days concurrent to (i).


It is agreed between the appellant and the respondents that on the basis of these sentences if the four years for (g) to (h) above and the nineteen months for (a) to (f) above are to be treated as a single term, as the Divisional Court held, then the appellant's early release date (leaving parole out of account but allowing for time spent on remand and for additional days awarded in Governor's adjudications) was 19 April 1997. If on the other hand the two groups of sentences are to be treated separately, as the appellant contends, then the appellant's calculated release date for sentences (a) to (f) was 19 May 1994 and for (g) to (h) 13 January 1997 respectively.


It is agreed that the sentences in (i) and (j) above do not affect the position.


The appellant thus says that it was because the two groups of sentences were treated as a single term (contrary, it is agreed, to what the judge sentencing him for items (g) to (h) above appears to have thought) that he was not released on 13 January 1997. If, as should have been done, they were treated as separate offences he would have been released on that date.


Although the appellant was still in prison when his application for judicial review was first made and at the date of the Divisional Court's judgment, he has long been out of prison. It seems to me that despite this it was right that the House, in the exercise of its discretion, should hear this appeal. The result would be relevant to any civil claim which may fall to be considered but, no less, it is of relevance to a number of other cases where a similar point arises. The point is also important for the administration of the prison service and is of ongoing relevance for the respondents. It ought to be resolved by your Lordships since the appeal has got so far. I do not consider that anything said in Ainsbury v. Millington (Note) [1987] 1 W.L.R. 379 or in Reg. v. Secretary of State for the Home Department, Ex parte Wynne [1993] 1 W.L.R. 115 precludes such a course.


Mr. Fulford Q.C. for the appellant contends that section 51(2) as a matter of ordinary language can only be taken as referring to sentences passed on the same occasion; if it had been intended otherwise Parliament would have said specifically "whether passed on the same or different dates or whether by the same or by different courts." If there is ambiguity the language must be resolved in favour of an accused. The interpretation contended for by the respondents is contrary to principle in that it results in a sentence once passed being increased as a result of the prisoner's status being changed on a subsequent sentence. Mr. Fulford illustrates this by the example of an offender being sentenced to twelve months' imprisonment on 1 January when he is told that he will spend six months in prison. During that period of six months he is sentenced to four years' imprisonment consecutive to the earlier sentence. If the appellant's approach is correct he will still serve half the sentence first passed, i.e. six months. He will then serve two-thirds of the long-term sentence, i.e. thirty two months. That makes a total of thirty eight months. If the two sentences are treated as one term that makes a total of sixty months of which he will serve forty months of which eight rather than six relate to his first sentence of imprisonment. This is a retrospective increase in his sentence; it is contrary to the clear principle that a prisoner should know when sentenced what his sentence is, and what is its practical effect. The latter, it is said, has been emphasised by the Practice Direction of 22 January 1998 in which Lord Bingham of Cornhill C.J. said: "In future, whenever a custodial sentence is imposed on an offender, the court should explain the practical effect of the sentence in addition to complying with existing statutory requirements." The statement in the Annex recommended to be used for a prisoner sentenced to a term of twelve months and less than four years will not give any indication that on aggregation of sentences the requirement to spend half the sentence in prison will be changed.


Moreover, counsel submits, such a change in sentence cannot be justified by section 2(2)(a) of the Criminal Justice Act 1991 (as amended by section 66(2) of the Criminal Justice Act 1993) which provides that a custodial sentence not fixed by law shall be "for such term … as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it." Such a sentence on a different occasion is not for an associated offence within the meaning of section 31(2) of the Act of 1991. The position is quite different from the provisions in section 40 of the Act of 1991. By that section, if a prisoner released under Part II commits another offence during the period between his release and the date on which he would have completed the sentence actually passed on him in full, he may be returned to prison for a period not longer than the period equal in length to the period between the date when the new offence was committed and the date on which he would have...

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