R v The Governor of HM Prison Wandsworth and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE SIMON BROWN,MR JUSTICE ASTILL
Judgment Date14 December 1998
Judgment citation (vLex)[1998] EWHC J1214-10
Docket NumberCO/4038/98
CourtQueen's Bench Division (Administrative Court)
Date14 December 1998

[1998] EWHC J1214-10

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Before

Lord Justice Simon Brown and

Mr Justice Astill

CO/4038/98

Regina
and
The Governor of Her Majesty's Prison Wandsworth
Ex Parte Christopher Sorhaindo

MR P DUFFY QC and MR R de MELLO (instructed by Goodall Barnett Jones, Brighton, East Sussex BN2 2QA) appeared on behalf of the Applicant.

MISS E GREY (instructed by the Treasury Solicitors, London SW1H 9JS) appeared on behalf of the First Respondents.

1

LORD JUSTICE SIMON BROWN
2

This is yet another in the long line of cases concerned with the problems of calculating prisoners' release dates. The issue here is short, novel and of some importance. As formulated by the Applicant, it is:

"… whether or not time spent in custody on remand for Offences B, whilst also detained pursuant to a Magistrates' Court sentence for Offences A, is to be counted towards the serving of the sentence of imprisonment for Offences B, when the said Magistrates's sentence for Offences A had been reversed on appeal by the Crown Court before the Applicant was sentenced to imprisonment for Offences B."

3

The circumstances in which that issue arises in the present case need only brief description. On 4th July 1996 this Applicant was arrested for two offences (Offences A), respectively assault on a police officer and threatening behaviour, and released on police bail. Over a year later, on 12th September 1997, he was arrested for four firearms offences (Offences B) on which he was remanded in custody.

4

On 31st October 1997 he was convicted by the Stratford Justices of Offences A, for which he was sentenced to consecutive terms of two months' imprisonment, i.e. a total sentence of four months' imprisonment. That four months sentence automatically ended on 30th December 1997 (see section 33(1) of the Criminal Justice Act 1991) when the Applicant would have been released but for his continuing custody on remand for Offences B. Meantime, the Applicant had given notice of appeal against his conviction on Offences A. That appeal succeeded at the Snaresbrook Crown Court on 20th February 1998.

5

A month later, on 20th March 1998, the Applicant was convicted at Middlesex Crown Court of three of the four firearms offences (Offences B) for which he was sentenced to 30 months' imprisonment concurrent on each, namely a total 30-month sentence. Seven days were added to the Applicant's sentence in February 1998 for a prison discipline offence.

6

In the result the Applicant contends that he is due for release on 19th December 1990, that being 15 months plus seven days after he was first remanded in custody (namely, at the end of this week) whereas the Respondents say that his release date is not until 19th February 1999.

7

The issue turns on the true construction and application of section 67(1A)(b)(i) of the Criminal Justice Act 1967 (as amended). I need set out only the most directly relevant words:

"67 (1) The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period …

"(1A) In subsection (1) above 'relevant period' means-

(a) …

(b) any period during which he was in custody-

(i) by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose

…"

8

The critical question, therefore, is whether the period of two months' imprisonment spent by the Applicant in custody following the sentence passed upon him by the Magistrates for Offences A was custody "… by reason only of having been committed to custody …" in respect of Offences B.

9

Section 67(1A)(b)(i) and, more particularly, the meaning in that context of the word "only", has been touched upon twice in the earlier cases concerning prisoners' release dates although at neither time was it central to the argument.

10

In R v Home Secretary, ex parte Naughton [1997] 1 WLR 118 at 126, I remarked that:

"It seems to me that Mr Weatherby is clearly correct in submitting that the word 'only' is introduced simply so as to exclude periods spent in custody whilst serving another sentence, precisely as this very applicant did for 25 days of his initial 106-day period in custody."

11

That was followed by R v Governor HM Prison Brockhill, ex parte Evans [1997] 2 WLR 236, where, at page 250, Lord Bingham of Cornhill CJ, giving the judgment of the court, said:

"It seems clear, as was held by the court in Ex parte Naughton, that the expression 'only' in paragraph (b)(i) is intended to preclude any account being taken of periods in custody unrelated to the offence or offences for which the relevant sentence or sentences were passed."

12

The competing arguments on the present challenge can be relatively shortly summarised. Mr Duffy QC for the Applicant submits that the period sought to be taken into account by the Applicant was one in which he was detained on remand in relation to Offences B and for which, prior to conviction and sentence for Offences B, it was established, by virtue of the Crown Court's decision on Offences A, that such remand was the only proper ground for his detention. By his construction he argues that it is possible to undo the effect of the sentence which was reversed by counting the time served on remand for Offences B towards the sentence imposed for Offences B subsequent to the reversal of the sentence for Offences A.

13

As to what is meant by "reversal" (the language of section 48(2)(a) of the Supreme Court Act 1981 which describes what may happen on a successful appeal to the Crown Court) Mr Duffy refers us to Stroud's Judicial Dictionary (5th Ed) at page 2287, where, under the heading "REVERSE", it is said:

"The reversal of a judgment 'is the making it void for error' (Jacob). See further R v Tyrone Justices [1906] 2 IR 164, cited CONFIRM, which case gives a wider meaning for 'reverse' than that of merely making a judgment void."

14

Mr Duffy stopped short, however, of arguing that a successful appeal renders the conviction and sentence void ab initio. Plainly it does no such thing.

15

Miss Grey for the Respondents submits that the meaning of section 67(1A)(b)(i) is plain, and that it necessarily requires examination of the status of a period in custody at the time when it was served. She points out that there is no question of Sentences A having been rendered void ab initio, merely because the convictions were subsequently "reversed" on appeal to the Crown Court. There is no question of nullity here; rather the sentence remained and remains of legal effect, providing continuing lawful justification for the Applicant's detention during that period and operating as a defence to any action for false imprisonment: see the Court of Appeal's decision in R v Governor of Brockhill Prison, ex parte Evans (No 2) [1998] 4 All ER 993.

16

True, as Mr Duffy says, the Court of Appeal there was dealing with false imprisonment rather than construing section 67(1A) in the context of "reversal" pursuant to section 48(2)(a). But that, Miss Grey submits, does not undermine the basic point that the reversed sentence cannot simply be treated as if it had never been imposed.

17

Plainly meritorious though at first blush the Applicant's argument appeared to be, and tempting though it seemed to accede to it, I have concluded that on analysis it cannot succeed and, moreover, that it does not need to succeed for justice to be accomplished. On Mr Duffy's formulation of the issue, and as a constant theme of his argument, the sentence for Offences A will have been quashed by the time the prisoner falls to be sentenced for Offences B. It is this quashing, he argues, which...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT