Young v Ministry of Justice

: The claimant, Mr Darren Young, is a serving prisoner at HMP Hewell. Solicitors on his behalf issued a claim form under CPR Part 8 on 28 July 2009. The claim form explained that he was sentenced on 24 January 2005 to a total term of six years and three months' imprisonment. That sentence related to offences of attempted robbery, burglary and taking a vehicle without consent. The claim form did not mention, but it is common ground, that in relation to those offences the total term of imprisonment was five years. In addition, the court ordered Mr Young to return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. That return was for a period of 459 days and it arose because Mr Young had committed the offences in question during the “at risk” period of a previous sentence. Again, although it is not mentioned in the claim form, it is common ground that, taking account of the time that Mr Young spent on remand, his sentence expiry date is 30 December 2009.

After making reference to Mr Young's status under the Criminal Justice Act 1991, the claim form noted that Mr Young was released from custody on 28 November 2008. It is common ground that this release was on licence and it arose because under section 33(2) of the Criminal Justice Act 1991 he was entitled to such release when he had served two thirds of his sentence. The two thirds point would have been reached on 29 November 2008 but this date fell on a Saturday so he was released a day earlier.

The claim form then records that Mr Young was recalled to prison under section 254 of the Criminal Justice Act 2003 on 10 December 2008. No objection is made to that recall. It was accepted that, after his release on 28 November 2008, within a very short period, he had broken the terms of his licence.

The remainder of the details of claim in the claim form explain Mr Young's contention in these proceedings. It is that he is entitled to rely upon section 33(3) of the Criminal Justice Act 1991. As originally enacted, that section provided:

“33.Duty to release short-term and long-term prisoners

(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.

(4) Where a prisoner whose sentence is for a term of less than twelve months has been released on licence under section 36(1) below and recalled to prison under section 38(2) below, subsection (3) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to one-half of that sentence.

(5) In this 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.”

There is one relevant amendment to mention immediately. Whereas the original version of subsection (3) imposed a duty to release unconditionally a recalled prisoner at the point where that prisoner would (but for release) have served three quarters of the sentence, subsequent legislation coming into force in relation to convictions after 30 September 1998 modified this duty. Instead of a duty to release unconditionally, there was a duty to release on licence until the sentence expiry date.

It is common ground that the three quarter period was reached on 7 June 2009. Mr Young contends that he ought to have been released on that date, albeit subject to licence, until 30 December 2009. In a document prepared by Mr Molloy, who has appeared on behalf of Mr Young today, entitled “Grounds for an application for judicial review”, the contrary argument is identified. The assertion of the Ministry of Justice, the defendant named in the claim form, is that amendments to earlier legislation made by the Criminal Justice and Immigration Act 2008 deprive Mr Young of the benefit of section 33(3).

I turn to consider the arguments advanced by each side in that regard but before I do so I must set out the legislative framework. In that regard, I have the benefit of a skeleton argument prepared by Ms Hannett, who has appeared today on behalf of the Ministry of Justice. Her account of the framework is not in dispute and I adopt it for the purposes of this judgment.

The Legislative Framework

The relevant legislation is the Criminal Justice Act 1991 (as amended by the Crime and Disorder Act 1998) (“the CJA 1991”). This has been amended on two subsequent occasions: by the Criminal Justice Act 2003 (“the CJA 2003”), and by the Criminal Justice and Immigration Act 2008 (“the CJIA 2008”).

Re-Release Provisions under the CJA 1991 (as amended by the Crime and Disorder Act 1998)

Part II of the CJA 1991 (as amended by the Crime and Disorder Act 1998) made provision for the early release of prisoners. Generally, long term prisoners:

(i) could be released on licence by the Secretary of State after serving one half of their sentence, if such release was recommended by the Parole Board: section 35(1) of the CJA 1991

(ii) were entitled to release on licence after serving two thirds of their sentence: section 33(2) and (5) of the CJA 1991.

A long-term prisoner was defined in section 32(5) as one serving a sentence of imprisonment for a term of four years or more. Where a long-term prisoner was released on licence under these provisions, but was subsequently recalled to prison under section 39 of the CJA 1991, he would previously have been entitled to re-release after having served (but for his earlier release) three-quarters of his sentence of imprisonment. This is derived from section 33(3) of the CJA 1991 which provides:

“As soon as a … long-term prisoner who-

(a) has been released on licence under subsection (1)(b) or (2) above or under section 35 or 36(1) [the power to release prisoners on compassionate grounds] below; and

(b) has been recalled to prison under section … 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 on licence.”

Section 37 of the CJA 1991 made provision for the duration and conditions of licence in respect of such releases and re-release. For a long-term prisoner, any release on licence would, subject to any revocation, remain in force until the date on which the prisoner would, but for his release, have served three-quarters of his sentence: section 37(1). However, where a prisoner was re-released on licence under section 33(3), the licence would remain in force for the whole of the prisoner's sentence: section 37(1A) of the CJA 1991 inserted by section 104 of the Crime and Disorder Act 1998.

Section 39 of the CJA 1991 made provision for the recall of long-term and life prisoners released on licence. The Secretary of State was entitled to recall a prisoner released on licence under Part II of the CJA 1991 on the recommendation of the Parole Board, or where it appeared expedient in the public interest to do so before such a recommendation was practicable: section 39(2). In the event of recall, section 39(6) provided that a person would be liable to be detained in pursuance of his sentence.

The Amendments made by the Criminal Justice Act 2003

Part II of the CJA 1991 (including those provisions above dealing with release and re-release of long-term prisoners) was repealed by sections 303(a), 332 and Schedule 37, Part 7 of the CJA 2003 subject to certain transitional savings. The CJA 2003 introduced new provisions governing release and re-release of prisoners.

The repeal came into force as from 4 April 2005 pursuant to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions)Order 2005 (“the 2005 Order”) subject to, among other things, Schedule 2 of the 2005 Order. The 2005 Order, among other things, disapplied many of the new release and re-release provisions, and the repeal of section 33 of the CJA 1991, for prisoners serving prison sentences for offences committed before 4 April 2005.

Paragraph 19 of Schedule 2 to the 2005 Order provided for certain savings for prisoners convicted of offences committed before 4 April 2005 as follows:

“The coming into force of-

(a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds, 249 (duration of licence) and 250 licence conditions;

…

(c) the repeal of sections...