The Queen (on the Application of Elam) v The Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Justice Laws,Lord Justice Aikens,Lord Justice Tomlinson
Judgment Date27 January 2012
Neutral Citation[2012] EWCA Civ 29
Docket NumberC1/2011/1494,Case No: C1/2011/1494
CourtCourt of Appeal (Civil Division)
Date27 January 2012

[2012] EWCA Civ 29

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

HHJ BEHRENS (CO/1794 & 2427/2011)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Aikens

and

Lord Justice Tomlinson

Case No: C1/2011/1494

Between:
The Queen (on the Application of Elam)
Appellant
and
The Secretary of State for Justice
Respondent

Mr Pete Weatherby and Mr Matthew Stanbury (instructed by Chivers, Solicitors) for the Appellant

Mr Tom Weisselberg (instructed by the Treasury Solicitor) for the Respondent

Hearing dates: 23 November 2011

Lord Justice Laws

INTRODUCTION

1

On 4 April 2005 the statutory regime relating to the period to be served on licence by a criminal after his release from custody was altered by the Criminal Justice Act 2003 (the 2003 Act), whose relevant provisions came into force on that day. Previously it had been governed by the Criminal Justice Act 1991 (the 1991 Act). This case concerns the calculation of the licence period relating to a criminal who was sentenced after 4 April 2005 to consecutive prison terms for offences committed both before and after that date. In addition to the statutes, the appeal requires consideration of the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (the 2005 Order), a measure which has, as Lord Judge CJ observed in Noone [2010] 1 WLR 1743 (paragraph 85), "already achieved a disturbing notoriety for inaccuracy".

2

On 19 May 2011 HHJ Behrens, sitting as a Deputy High Court Judge in the Administrative Court, dismissed the appellant's claim for judicial review and upheld the construction of the relevant statutory provisions advanced by the Secretary of State. On the interpretation of the material provision put forward on the appellant's behalf, his licence period would end some 4 1/2 months earlier than on the Secretary of State's construction. The judge below gave permission to appeal to this court.

FACTS AND ISSUES

3

Judge Behrens provided a crisp outline of the facts and issues in paragraphs 3–6 of his judgment:

"3. The facts can be very shortly stated. Mr Elam was born in 1959. On 4 April 2005 the 2003 Act came into force. On 19 March 2009 Mr Elam was sentenced to a total of five years imprisonment in respect of a number of counts. For present purposes it is important to note that he was sentenced to eighteen months for perverting the course of justice between 30 June 2004 and 31 January 2005. (Both of those dates are, of course, before 4 April 2005). In addition he was sentenced to 42 months consecutively for conspiracies to defraud between 26 March 2003 and 8 September 2006. Those dates of course span the coming into force of the 2003 Criminal Justice Act. He had spent some 340 days on remand at the time of the sentence. On 16 July 2010 he was sentenced to a further two years imprisonment, consecutive to the five-year term for offences of conspiracy to defraud.

4. The Secretary of State has calculated that the sentence and licence expiry date will occur on 13 April 2015. His calculation is along the following lines. The three sentences total seven years. They fall to be aggregated as such under section 264(3) of the 2003 Act. After taking into account the 340 days spent on remand, the overall sentence ends on 13 April 2015.

5. Mr Elam disputes this. He makes the point that the eighteen-month sentence was in respect of an offence which was committed before 4 April 2005. Under the 1991 Act he would have been entitled to be released after nine months with a licence period expiring after only a further four-and-a-half months – the three quarter point mark. Accordingly there was four-and-a-half months of his sentence when he would have been released and not subject to recall. He submits that this is an accrued right and was not lost by virtue of the provisions of the 2003 Act or the 2005 Commencement Order.

6. He accordingly submits that the appropriate method is to aggregate the sentences to arrive at a figure of seven years but then to deduct the four and a half months, so as to arrive at a date at four and a half months earlier than that suggested by the Secretary of State. He submits that this can be achieved by what he describes or submits is a purposive construction of paragraph 19 (not it be noted paragraph 25) of the 2005 Order."

THE LEGISLATION

4

The 1991 Act contains these material provisions in Part II:

"33(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."

By s.33(5) a long-term prisoner was defined as a person serving a sentence of imprisonment for a term of four years or more, and a short-term prisoner less than four years. S.35(1) empowered the Secretary of State to release a long-term prisoner, after he had served one-half of his sentence, on the recommendation of the Parole Board. The provisions dealing with the duration and conditions of a prisoner's licence after release are contained in s.37. I need only set out s.37(1):

"37(1)… [W]here a short-term or long-term prisoner is released on licence, the licence shall… remain in force until the date on which he would (but for his release) have served three-quarters of his sentence."

In light of the arguments addressed to us I should also set out s.51(2):

"51(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."

5

I turn to the 2003 Act. S.244 replaces s.33 of the 1991 Act. S.244(1) provides that (save for an irrelevant exception) a fixed-term prisoner is to be released as soon as he has served "the requisite custodial period", which (s.244(3)(a)) is one-half of the sentence in the case of a term of twelve months or more, or in the case of a person serving two or more concurrent or consecutive sentences, is (again save for an irrelevant exception) "the period determined under ss.263(2) and 264(2)" (s.244(3)(d)). I need not trouble with s.263(2), which deals with concurrent terms. S.264 is the critical provision for the purpose of this appeal. By ss.(1) the section applies where an offender has been sentenced to two or more terms of imprisonment to be served consecutively and

"(b) the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions…"

S.264(2) and (3) then provide:

"(2) Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.

(3) Where any of the terms of imprisonment is a term of twelve months or more, the offender is, on and after his release under this Chapter, to be on licence –

(a) until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and

(b) subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment."

S.264(4) and (5) are not in force. S.264(6) defines "custodial period" as that term appears in the section. By s.264(6)(a)(ii) "in relation to a term of twelve months or more, [it] means one-half of the term".

6

S.37 of 1991 Act was repealed by s.332 and Part 7 of Schedule 37 to the 2003 Act. However by s.330(1), (2) and (4)(b) the Secretary of State was given power to make transitory, transitional or saving provisions by statutory instrument as he might think necessary or expedient. Hence the 2005 Order. Paragraph 19 of Schedule 2 to the 2005 Order provides so far as relevant:

"The coming into force of –

(c) the repeal of sections 33, [37]… and 51 of the 1991 Act

is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 th April 2005."

Paragraph 25 of Schedule 2 to the 2005 Order provides:

"The coming into force of –

(a) sections 263 and 264 of the 2003 Act (consecutive or concurrent terms)

does not affect the date on which the Secretary of State is required to release an offender from a sentence of imprisonment passed in respect of an offence committed before 4 th April 2005, whether or not that sentence of imprisonment is to run concurrently or consecutively with one passed in respect of an offence committed after that date."

THE APPELLANT'S CASE

7

If s.264(3) of the 2003 Act applies simpliciter to the appellant's case for the purpose of calculating the expiry date of his sentence and licence period, there can be no doubt but that the date asserted by the Secretary of State – 13 April 2015 – is correct. So much is undisputed. But Mr Weatherby for the appellant submits that as regards the eighteen month sentence for perverting the course of justice, because it related to a crime committed before 4 April 2005 (in fact, as HHJ Behrens stated, between 30 June 2004 and 31 January 2005), s.37(1) of the 1991 Act has to be deployed; and by force of that provision the terminal date for the...

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