Terence Round Vincent David Dunn v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 16 December 2009 |
| Neutral Citation | [2009] EWCA Crim 2667 |
| Docket Number | Case No: 200905220 A2 200906118 A2,200905220 A2 and 200906118 A2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 December 2009 |
[2009] EWCA Crim 2667
Lord Justice Hughes Vice President of the Court of Appeal Criminal Division
Mrs Justice Rafferty DBE
and
Mr Justice Hedley
Case No: 200905220 A2 200906118 A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE GEDDES
HIS HONOUR JUDGE JOSEPH
T20080035 T20090205
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J Dixon (instructed by Purcell Parker) for the Appellant Terence Round
Mr M Aspinal (instructed by Crown Prosecution Service) for the Crown
Mr P weatherby (instructed by Prisoner Advice Service) for the Appellant
Vincent David Dunn
Mr S Kovats (instructed by Treasury Solicitor) for The Secretary of State for Justice)
Hearing date : Tuesday 1 st December 2009
These two applicants seek leave to appeal against sentence. Neither suggests that his sentence was other than perfectly proper in length. The only contention of each in his grounds of appeal is that owing to the manner in which sentencing legislation has been commenced, or not commenced, there is an anomaly as a result of which he is not regarded as eligible for release under home detention curfew ("HDC") as early as he might have been if his sentence, whilst still of identical length, had been differently constructed.
The cause of the problem is the piecemeal manner in which sentencing legislation has been enacted and commenced over the past several years. The Criminal Justice Act 2003 (" CJA 2003") was passed with the evident intent to make a sea change in the way shorter custodial sentences were to be imposed and served. Sections 181–182 created a new concept known as 'custody plus'. Under this new scheme, sentences of less than 12 months were to be constructed in a new way. The power to determine the balance between the time to be served in prison and the time to be served on licence was committed to the court, as was the power to determine the conditions of licence. That differed radically from the normal position which has obtained for generations and still obtains for sentences of 12 months or more. That normal position is that the time (and conditions) of early release upon licence are either provided for in statute or are a matter of executive policy for the Secretary of State (in some but not all instances on the advice or direction of the Parole Board); they are not matters determined by the court. The limited power of the court to recommend licence conditions in some cases under s 238 CJA 2003 does not affect that proposition; the decision remains one for the Secretary of State.
In consequence of the new power of the court to specify when release on licence should take place, the early release provisions in the CJA 2003 were structured in the expectation that sentences of less than 12 months would henceforth be 'custody plus' sentences. That gave rise to a number of changes from previous statutes, in particular the Criminal Justice Act 1991 (" CJA 1991").
Although these provisions were enacted into law by Parliament in November 2003, and although most of the other provisions of the CJA 2003 were commenced in a planned manner by April 2005, some of the sentencing provisions have never been brought into force. Those which have not been include sections 181–182, together with sections 183–186 which created a further novel sentencing regime known as intermittent custody. It is now nearly five years since the bulk of the CJA 2003 was brought into force. We are told by Mr Kovats, appearing for the Secretary of State, that there are no current plans to bring the custody plus provisions into force; the grounds were stated by the Secretary of State in a parliamentary answer on 10 November 2009 to be want of resources. That decision is a matter of executive policy for the Government. The consequence of the change of mind is that:
i) sections 181–182 remain on the statute book, albeit dead in the water at least for the foreseeable future; and more importantly
ii) some of the early release provisions of the CJA 2003 are, as a result, inapt to deal with sentences of under 12 months.
In turn, the result of this has been that highly complex adjustments have had to be made in the Commencement Order under which other provisions of the CJA 2003 were brought into force. The Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Saving Provisions) Order 2005, 2005 No 950 ("the 2005 Order"), Schedule 2, paragraph 14 provides as follows:
" 14. The coming into force of sections 244 to 264 and 266 to 268 of, and paragraph 30 of Schedule 32 to the 2003 Act, and the repeal of sections 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than twelve months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)."
It is perhaps unnecessary to say that the effect of that provision is not immediately apparent to the reader.
The meaning of this paragraph has been the subject of at least two applications for judicial review, one of which was brought on appeal to the Court of Appeal in R (Noone) v Governor of HMP Drake Hall and the Secretary of State for Justice [2008] EWCA Civ 1097; [2009] 1 WLR 1321. The substantial principal judgment of Scott Baker LJ in that case, running to 60 paragraphs, indicates just how complex is the question. So far as this court is concerned, however, its meaning is as determined by that court, and we are grateful that we need not rehearse the considerable detail into which it was necessary to go. We understand that leave to appeal the decision to the Supreme Court has very recently been given, but unless and until it is reversed it binds us.
In short summary, the solution which the 2005 Order has adopted to the problem created by the decision not to bring custody plus into force is as follows. Sentences of 12 months or more are now governed, as to early release on licence, by the provisions of the CJA 2003. But sentences of less than 12 months remain governed by the somewhat different regime of the CJA 1991. As will be seen, this can create differences of treatment which are significant in relation to (at least) (i) HDC and (ii) time spent on licence.
That would be difficult enough to operate in adjacent cases which resulted, respectively, in sentences either side of 12 months, as may very easily happen to co-defendants who have committed the same offence together but whose culpability differs, or where one has pleaded guilty and the other has not. Difficulties may arise also when a single defendant is sentenced on different occasions to sentences which are consecutive to one another, one under 12 months and another of that term or longer. The potential for unnecessary confusion is much greater when the same defendant is sentenced on the same occasion to consecutive terms, some of under 12 months and some which are 12 months or longer. That is of course extremely common. Defendants habitually commit more than a single offence. It is axiomatic sentencing practice to make sentences consecutive if the circumstances of the offences call for it. A series of offences of the same or similar character may well be met by concurrent sentences, pitched according to overall criminality, and this is permitted by section 153(2) CJA 2003. But consecutive sentence may properly be passed in order to make clear to individual victims that the offence concerning them has been met by an individual sentence. Offences of different character are likely to call for consecutive sentences. Many offences are such that a sentence other than a consecutive one would normally be wrong in principle; simple examples include offences of failing to answer bail or assaults on policemen in the course of arrest, but there are many more. For these reasons and for many others, it is to be expected that up and down the country consecutive sentences, mixing terms either side of 12 months, will be passed in the Crown Court on countless occasions each day.
The particular implication of the solution adopted by the 2005 Order which concerned the court in Noone, and principally concerns us, arises from the existence of provisions permitting the Secretary of State in his discretion to release prisoners not on their statutory early release/licence date but sooner, under the conditions usually known as HDC.
As is by now well known, the CJA 2003 made it the ordinary statutory rule that a fixed term prisoner is required to be released at the half way mark in the term imposed by the court and to be on licence for the second half of that term: see sections 244(1) and 249(1). Entitlement to release at the half way mark was already the rule under the CJA 1991 for sentences under four years (see s 33(1)), and thus it remains the rule for the less than 12 month sentences which remain governed by that Act. So far, so reasonably good, although note that for sentences under 12 months there was, and thus still is, no licence period (s 33(1)(a)), but only an 'at risk' period for the purposes of s 116 Powers of Criminal Courts Act 2000. Section 246 CJA 2003, however, provides, so far as material, as follows:
"246 (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 required custodial period,
…..
(2) Subsection (1)(a) does not apply in...
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