The King on the application of Norman Rowan v The Governor of HM Prison Berwyn
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Lord Justice Coulson,Lady Justice Elisabeth Laing |
| Judgment Date | 18 January 2023 |
| Neutral Citation | [2023] EWCA Civ 27 |
| Docket Number | Case No: CA/2021/003447 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 27
Lord Justice Holroyde
(Vice-President of the Court of Appeal, Criminal Division)
Lord Justice Coulson
and
Lady Justice Elisabeth Laing
Case No: CA/2021/003447
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Lewis and Mrs Justice McGowan
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald KC and Philip Rule (instructed by Instalaw Solicitors Limited) for the Appellant
Hugh Flanagan (instructed by Government Legal Department) for the Respondents
Hearing dates: 26 October 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Wednesday 18 January 2023.
In October 2007 Mr Norman Rowan (“the appellant”) was released on licence from a custodial sentence. He failed to comply with the conditions of his licence, and the Secretary of State for Justice (“the second respondent”) revoked the appellant's licence and recalled him to prison. The appellant, however, remained unlawfully at large for many years, until he was eventually returned to custody in June 2019. He was released, again on licence, in September 2021, and completed his sentence in June 2022.
In September 2020, whilst serving his sentence at HMP Berwyn, the appellant commenced a claim for judicial review. On 23 November 2021 a Divisional Court (Lewis LJ and McGowan J) granted permission to apply for judicial review but dismissed the claim. With permission granted by Lewison LJ, the appellant now appeals to this court.
The court has been assisted by the written and oral submissions of Mr Fitzgerald KC and Mr Rule for the appellant, and Mr Flanagan for the respondents. I am grateful to them all.
The original sentence:
The appellant pleaded guilty to three offences of violence against his then partner: common assault on a date between 1 May and 30 June 2005; assault occasioning actual bodily harm on 14 October 2005; and unlawful wounding on 15 October 2005. On 9 March 2006, in the Crown Court at Preston, he was sentenced for the offence of wounding to an extended sentence of 4 years, comprising a custodial term of 18 months and an extension period of 30 months. Consecutive sentences of 2 months' imprisonment and 10 months' imprisonment were imposed for the other offences. Thus the total custodial term was 30 months. A direction was made that the 136 days which the appellant had spent on remand in custody should count towards that term.
The appellant's release on licence:
On 8 October 2007 the appellant was issued with a notice informing him that on 18 October he would be released on licence pursuant to the provisions of Chapter 6 of Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”), and that his supervision would expire on 16 October 2009 unless previously revoked. The notice set out the conditions of his licence.
The appellant complied with those conditions only to the extent of keeping his first appointment with his supervising probation officer, on the afternoon of his release. It appears that he thereafter went to the Republic of Ireland. On 25 October 2007 the Secretary of State revoked the appellant's licence and recalled him to prison, pursuant to section 254 of the 2003 Act.
The appellant's return to prison and subsequent release:
The appellant was eventually returned to custody in the United Kingdom on 17 June 2019.
In July 2020 the appellant was informed by the second respondent that his sentence would end on 7 June 2022. He was also informed that the original warrant for his imprisonment had been destroyed.
The Parole Board subsequently directed the appellant's release on licence. He was so released on 13 September 2021.
The grounds of claim:
The appellant challenged the decisions of 14 and 31 July 2020 as to the calculation of his sentence; the application to his case of the provisions of Schedule 20B to the 2003 Act, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”); and his “present unlawful detention without warrant”. He sought declaratory relief and damages for any unlawful imprisonment.
Before the High Court, the appellant raised an initial issue as to the basis on which he had been sentenced by the Crown Court. The record of that court showed that the extended sentence had been imposed pursuant to section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”). However, for offences committed after 4 April 2005 – as all the appellant's offences were – that section had been repealed and replaced by section 227 of the 2003 Act.
The decision of the High Court:
On that initial issue, the High Court found that the sentence had been imposed under section 227 of the 2003 Act. Lewis LJ, with whom McGowan J agreed, concluded at paragraph 9 of his judgment that an error by the clerk in the Crown Court, when completing the record, was more likely than an error by the judge when passing sentence:
“If the judge had erroneously referred to section 85 of the 2000 Act, counsel would have been likely to have drawn attention to the fact that the extended sentence could not be imposed under that Act either at the time of sentencing or within the time permitted under the slip rule. Alternatively, if the claimant had considered the sentence to have been unlawfully imposed he could have sought permission to appeal to the Court of Appeal (Criminal Division). He did not do so.”
Lewis LJ noted at paragraph 10 that it was in any event accepted on behalf of the appellant that the sentence remained in force and valid unless and until set aside by the Court of Appeal, Criminal Division.
The appellant advanced two principal arguments. First, he submitted that in the absence of a warrant of imprisonment there was no lawful authority for his detention from 17 June 2019. He relied in particular on the decision in Demer v Cook (1903) 88 LT 629 (“ Demer”). Secondly, he submitted that his release on licence should have been governed by the provisions of the Criminal Justice Act 1991 (“the 1991 Act”). Under those provisions, and in the circumstances of his case, he would have been entitled to automatic release on 25 October 2021, that being the date by which he had served three-quarters of his total sentence (aggregated custodial terms plus extended licence) of 60 months. Under the provisions of the 2003 Act, in contrast, the entitlement to automatic release at that point was removed, and release before the end of the full sentence became a matter for the second respondent and the Parole Board. From that starting point, he submitted that the effect of the sentence calculation made pursuant to the 2003 Act was to require him to serve a period in custody under a sentence from which he had already been released and to which he was no longer subject, and that the calculation of his sentence in accordance with the provisions of the 2003 Act (as amended by the 2012 Act, in particular by the addition of a new Schedule 20B) was contrary to the common law rule against retrospective penalties and/or to Articles 5, 7 and 14 of the European Convention on Human Rights (“the Convention”).
The High Court rejected both those arguments. As to the first, the court held (at paragraphs 38–43) that the basis for the lawful detention of the appellant was the sentence pronounced by the Crown Court and the provisions governing his recall to prison. The issuing of a warrant for imprisonment may serve a number of purposes, but the existence of a warrant was not a precondition of the lawfulness of the detention. The decision in Demer, which related to different circumstances, did not dictate a different conclusion.
As to the second, the Court held (at paragraphs 49–52) that the effect of the relevant legislation was that the appellant was always subject to the release provisions of the 2003 Act in relation to all three of his sentences, and never subject to those of the 1991 Act. It held that the wording of The Criminal Justice Act 2003 (Commencement No. 8 and Transitional Savings Provisions) Order 2005 (“the relevant commencement order”) made clear that the release provisions under the 2003 Act applied to the appellant's case, but would not apply to any prisoner serving a sentence imposed for offences committed prior to 4 April 2005. That being the position in domestic law, and the appellant having been lawfully detained following the revocation of his licence and his recall to prison, the Court concluded (at paragraphs 53–63) that there was no breach of any of the Articles of the Convention on which the appellant relied.
The grounds of appeal:
The appellant submits that the High Court fell into error in four ways. First, contrary to the principle established in Demer, it wrongly permitted the first respondent to justify the appellant's detention in the absence of any copy of a warrant for imprisonment. Secondly, it wrongly disregarded the only written evidence as to the nature of the sentence imposed by the Crown Court, namely the record of that court. Thirdly, it wrongly failed to find that a sentence passed under section 85 of the 2000 Act was governed by the 1991 Act, even if the sentence was technically unlawful because it was imposed for offences committed after 4 April 2005. Fourthly, it wrongly rejected the claim that the appellant's Convention rights had been violated.
The respondents have applied for permission to adduce fresh evidence in the...
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