England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SIMON BROWN: No one could have failed to notice the recent political storm created by the various changes of approach adopted by the prison authorities to the calculation of certain prisoners' release dates. That storm, however, is merely the context in which this application came to be listed so urgently, with the substantive hearing following immediately upon the leave application itself. Political considerations have not the least part to play in the case. Rather we are concerned here solely to determine which approach is the correct one. Is it the Home Office's original approach, now reinstated by order of the Respondent Home Secretary? Or is it, as the applicant contends, the approach introduced in guidelines issued by the Director General of the Prison Service on 15th August and then operated briefly until its cancellation on 23rd August?

2. The Court is faced in short with a stark point of statutory construction. What is the true legal effect of the relevant legislative provisions? The specific point here at issue, let it be made plain at once, concerns prisoners serving consecutive sentences of imprisonment. Those serving concurrent sentences are not directly affected although, as will appear, their position is clearly of relevance.

3. First the facts, although it will readily be appreciated that the point for decision is one of general application and not, therefore, dependent upon the precise details of any particular applicant's case. The facts of this case, however, provide a convenient illustration of the problem arising.

4. The applicant is a prisoner at H.M. P. Lindholme, Doncaster. He contends that he should have been released on 24th December l995. On the Home Secretary's calculation, however, he still has time to serve.

5. He was first arrested on 26th September l994 for possession of cannabis. He was remanded in custody and not admitted to bail until 9th January l995, 106 days later. During this period he was sentenced to a short period of imprisonment for other offences pursuant to which he served 25 days in custody, namely between 18th November and 12th December l994. Thus he was in custody only (the relevance of that emphasis will appear later) in connection with the proceedings for the cannabis offence for a total of 81 days of that initial period of 106 days.

6. On 23rd March l995, having by then been on bail for some two months, the applicant was arrested for burglary. He was again remanded in custody, henceforth in connection with proceedings both for the cannabis offence and for the burglary.

7. Since being sentenced, the appellant, by reason of indiscipline, was awarded four additional days in custody.

8. No one disputes that in the computation of his overall sentence and release date the applicant is entitled to credit in respect of 81 days plus 239 days less 4 days. It is the applicant's contention, however, that he is entitled to be credited with the second period of time spent on remand, the 239 days when he was on remand in respect of both offences, not just once, but twice. The Respondent contests that, arguing that no period of remand can be credited against more than one element of a total term produced by consecutive sentences.

9. The issue of principle raised by the application has helpfully been crystallised by the parties in the following form:

10. It is time to set out the relevant statutory provisions. Section 67(1) and (1A) of the Criminal Justice Act l967, as amended by section 49 of the Police and Criminal Evidence Act l984, so far as relevant provide:

11. The essential effect of the l984 Amendment was to introduce credit for police detention, in other words to introduce the provision which is now section 67(1A)(a).

12. Those are the central statutory provisions in play. Section 104(2) of the l967 Act, however, is also of importance:

13. These statutory provisions (together on occasion with sections 41 and 51(2) of the Criminal Justice Act l991) have been considered by the Divisional Court in a series of four cases over the last 15 years: R. v Governor of Blundeston Prison, Ex Parte Gaffney [l982] 1 WLR 696, R. v Secretary of State for Home Office, Ex Parte Read [l987] 9 CAR(s) 206, R. v. Governor of H.M. Prison, Styal, Ex Parte Mooney [l996] 1 CAR(s) 74 and R. v Secretary of State for the Home Department, Ex Parte Woodward and Wilson (unreported, 24th June l996). All four, however, were concerned with prisoners sentenced to concurrent terms of imprisonment, that is to say with the calculation of credit for periods of time spent on remand in custody (or in police detention) when a defendant is sentenced to two or more terms of imprisonment to be served concurrently. The present dispute, as stated, raises a distinct issue: how to deal with periods of remand in custody in respect of those sentenced to consecutive terms of imprisonment.

14. Put at its briefest, Mr. Weatherby's argument for the applicant is essentially this. True, the Gaffney line of authority is concerned with concurrent sentences. Nevertheless it adopts and depends upon an approach to the construction of Section 67 which necessarily carries with it the consequence for which he contends with regard to consecutive sentence cases. Surprising that result may be. It is, however, the only result consistent with the correctness of the Gaffney approach. If anomalous, then the law can be changed, the respondent being

15. Mr Pannick QC's opposing arguments are essentially two-fold. First he submits that the applicant's contention that time served on remand should be deducted from each consecutive sentence produces results so absurd that the Court should arrive at such a conclusion only if compelled to do so by the plainest of statutory language. Secondly, he submits that far from compelling such a perverse result, nothing in the legislation or in the Gaffney line of cases requires such a conclusion.

16. Mr Pannick's first submission is clearly a powerful one; indeed it scarcely requires elaboration. One has only to give an example of the consequences of the applicant's argument to recognise its absurdity. Two defendants are arrested and charged jointly with five burglaries. One is remanded in custody, the other granted bail. At trial a year later both are convicted and sentenced to consecutive terms of one years imprisonment on each of the five counts, a total sentence of five years. Remission aside, on the applicant's case the remand prisoner walks free having spent but a single year in custody. His co-accused, however, has to serve the full five year term. There can be no possible justification or logic for remand prisoners being thus advantaged. Really such a situation is almost too absurd to contemplate. Nor is it any answer to suggest that the Courts could adjust their sentences to take account of this phenomenon. Not only would it throw over all established principles as to the imposition of consecutive sentences and the guideline decisions upon the appropriate level of sentencing for various offences, but on occasion it would also run up against problems of maximum sentences.

17. It is, however,when one comes to Mr Pannick's second submission that the difficulty in the case arises. This submission it is which collides head-on with the central point in Mr Weatherby's argument, the argument that fidelity to the Gaffney approach requires the applicant's construction to prevail.

18. It is necessary now, therefore, to turn to the Gaffney line of cases to see just what it is that they establish and the route by which they do so. The critical issue arising in these cases was, as stated, how periods of remand in custody should be treated in concurrent sentence cases. As I said in Mooney:

19. Again it is perhaps helpful to illustrate the basic problem by a factual example. Assume a defendant is arrested for burglary A and remanded in custody for 6 months. He is then released on bail and whilst on bail commits and is arrested for burglary B. He is then remanded in custody for a further 6 months after which he is tried for both. At trial he is convicted of both burglaries and sentenced to one years imprisonment concurrently on each. Is he entitled to credit for the total period of one year spent on remand so that he immediately goes free, or only for 6 months so that he still (again, all questions of remission aside) has 6 months to serve? All four decisions in the Gaffney line of authority state that he still has 6 months to serve. They hold that the first 6 month period on remand is served only in relation to burglary A, burglary B not even having been committed by then. True, the defendant is entitled to the full credit of 12 months spent on remand in respect of burglary A, but that still leaves him with 6 months to serve in respect of burglary B.

20. It would certainly be burdensome and I think ultimately unhelpful to embark here upon a minute analysis of each of the four cases. For present purposes I shall instead confine myself to the following comments. Although in the four cases the point arose in various different circumstances - for example in Read and Woodward (although not Wilson), the concurrent sentences were passed by different Courts on different occasions - neither party before us suggests that these differences are of any materiality. The Courts reached their conclusion on the point essentially by reference to the language of section 67 alone (described in Gaffney as 'a very difficult section'). Indeed, in Gaffney and Read no other section was even referred to.

21. It seems clear from that passage that we regarded the crucial words in section 67 to be the words 'sentence of imprisonment' in the first line, and that we understood those to refer to each individual sentence imposed rather than the total produced by the various different concurrent sentences. It might also appear that had we thought 'sentence of imprisonment' there referred to the total sentence imposed, a different result would have followed.

22. The decision in Mooney attracted adverse criticism from various academic commentators. One such was Professor Birch's commentary in the Criminal Law Review report of the case - l995 CLR 753:

23. A similar point was made by Mr David Thomas Q.C. in Archbold's Current Sentencing News. (No one, be it noted, at that stage sought to suggest that the logical consequence of these decisions was what the applicant now contends for, with regard to consecutive sentence cases. Indeed Professor Birch's commentary plainly assumed the contrary).

24. Those, then, were the circumstances in which the point concerning concurrent sentences came to be litigated for the fourth and final time just two months ago in Ex Parte Woodward and Wilson (before Russell L.J. and Scott Baker J.). This time, of course, the academic criticism was well in mind and section 104(2) (then recognised still to be in force) was at the very forefront of the argument. The main judgment was given by Scott Baker J. and a very full and careful judgment it is. The determinative passage reads thus:

25. The Learned Judge then explained why in his judgment no injustice or unfairness is produced by such a construction: there would, he said, "be no injustice provided the Judge bears in mind the effect of any time spent on remand or in police custody on the constituent elements of the sentence he is minded to pass. Counsel should ensure that the Judge is informed of any periods that the defendant has spent in custody and the offences to which they relate". We had said much the same in Mooney.

26. In the result, the Learned Judge saw "no grounds for re-opening a matter which seems to me on the authorities now to be well settled" and, since Russell L.J. agreed, the Court refused the applications for leave to move for Judicial Review.

27. In the light of those authorities and that reasoning Mr Weatherby's argument is simple: if the words 'any sentence of imprisonment' in section 67(1) are to be construed in the context of concurrent sentences as referring to the term imposed for each individual offence - "the particular approach" - then so must they be in consecutive sentence cases. And if they are, each consecutive sentence then falls to be treated as reduced by any 'relevant period'. And that 'relevant period' includes, by virtue of section 67(1A)(b)(i), the period spent on remand in custody even though the remand related to more than one offence.

28. Mr Pannick seeks to meet this argument in one of two alternative ways. First he submits that if it is necessary, consistently with the Gaffney line of cases, to look at each individual sentence when computing the relevant period of deduction, then nevertheless the prisoner can only benefit once from any given period spent on remand. If that is deducted from the first consecutive sentence, it cannot be claimed also in reduction of any other consecutive sentence.

29. At one stage of his submissions - and certainly in the Respondent's skeleton argument - reliance was placed on the use of the word 'only' in section 67(1A)(i)(b) and it was contended that "where a person has been remanded in custody in relation to two charges, he cannot say, in relation to each of them, that he had been remanded in custody 'only' in relation to proceedings relating to that sentence or that offence". But that, in my judgment, cannot be right. No one disputes that such a period can be brought into account at any rate once even though it relates to more than one offence. 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. That is why no equivalent words were necessary with regard to police detention provided for under section 67(1A)(a).

30. Shorn of support from the word 'only', Mr Pannick's first argument appears then to owe rather more to common sense than to statutory construction. As a matter of language it is difficult to see how the section allows the 'relevant period' to be computed differently for one consecutive sentence rather than another.

31. His second argument is that regard should indeed be had to section 104(2) in this context so that one looks at the total sentence rather than its individual elements when computing the appropriate reduction for time spent in custody on remand. Obviously this approach solves the problem of the present challenge entirely - at the cost, however, of apparent inconsistency with the Gaffney approach: it appears to involve using "the global or aggregate" approach to section 67(1) rather than "the particular approach" now established as appropriate in concurrent sentence cases.

32. Mr Pannick disputes any such inconsistency, contending rather that section 104(2) can properly be invoked to assist in the construction and application of section 67 in regard to the present issue, that being a quite different issue from the one arising in the concurrent sentence cases. He points out that there is certainly no question of double counting under the Gaffney principle - indeed, quite the reverse. Real inconsistency between the treatment of the two types of sentence, he submits, would arise only if the applicant's present argument were to prevail.

33. It is time to state my conclusions upon these arguments, which I can do relatively briefly.

34. The one result of section 67 which in my judgment Parliament could not possibly have intended was that contended for by the applicant here. It would produce a complete nonsense. Whatever may be said about the language of the section it certainly does not lead clearly to that result. In truth, the only argument for the section to be construed in that way derives from the Gaffney line of cases. Powerful and logical though at first blush that argument may appear - and no doubt it was that power and logic which caused the prison service, so soon after the decision in Woodward and Wilson, to introduce the new release guidelines - in my judgment it cannot prevail. If, indeed, consistency with the Gaffney approach would require consecutive sentences to be dealt with as the applicant submits, then I should unhesitatingly conclude that the Gaffney approach was wrong. The principle of

35. It is therefore unnecessary and, as it seems to me, inappropriate in the present case to reach any final conclusion as to whether it is indeed possible to construe section 67 sensibly so far as consecutive sentences are concerned consistently with the correctness of the present approach in concurrent sentence cases. Suffice to say that my preferred path of construction to Mr Pannick's undoubtedly sensible (indeed compelling)conclusion as to how consecutive sentence cases must be treated is by way of section 104(2). If that route is indeed thought difficult to reconcile with the Gaffney approach, so be

36. Whether in these circumstances the Gaffney approach could usefully be looked at yet again, despite its very decisive

37. All that, however, is for the future and not for this court. So far as the present challenge goes, although in all the circumstances we thought it right to give leave to move, we had no hesitation in dismissing it at the conclusion of the hearing. This judgment states my reasons for doing so.

38. MR JUSTICE POPPLEWELL: I agree. It is unnecessary for me to repeat the facts or the Statutory provisions to which my Lord has just referred.

39. This application arises out of "Instruction to Governors" 1G50/1996 issued by a working party of the Home Office to Governors of Prisons under the signature of the The Director General of the Prison Service on 15th August 1996. Paragraph 8(5) of that Instruction indicated that where consecutive sentences arise out of the same proceedings (i.e. where the cases are prosecuted together and one trial is held), then remand time which is applicable to any of the consecutive sentences will be added together to reduce the total sentence.

40. That instruction was issued without the knowledge or agreement of the Secretary of State. It is no part of the Court's function to express any view about that. On the 23rd August 1996 the Secretary of State countermanded that instruction and it is against that decision of the Secretary of State that this application is made.

41. It is clear that that Instruction substantially altered the method of calculation of the remand time which could be appropriately deducted from a prisoners sentence when he received consecutive sentences.

42. The effect of the Instruction can be best illustrated by an example raised during the course of argument. A prisoner commits ten burglaries, is arrested and is remanded in custody for one year before he is tried. When he comes to be sentenced he receives a sentence of one year on each count consecutive i.e. his total sentence is ten years. It is the applicants argument that as he has been remanded in custody for a year on each separate count he is entitled to deduct that year from each year of his sentence so that his ten years sentence is thereby reduced by reason of a notional ten years of remand and he is entitled to be released immediately. For the purpose of these calculations all questions of parole are ignored.

43. Mr. Weatherby accepts that that is an absurd situation. When the position of a co-defendant charged with the same offences who is on bail is considered the position becomes even more absurd. He will serve ten years while his co-defendant would have served simply the one year on remand.

44. Mr. Weatherby's reply to that situation is two-fold. Firstly, that if it is absurd it is for Parliament and not for the Courts to correct it. Secondly, that by analogy with a number of decided cases of the Divisional Court relating to concurrent sentences, the Instruction is in accordance with present law.

45. I turn therefore to these four cases They are Queen v Blundeston Prison ex parte Gaffney 1982 1WLR 696 , Queen v Secretary of State for the Home Department ex parte Read 1987 CAR(S) Reports 206, The Queen v Secretary of State for the Home Department ex parte Mooney 1986 1 CAR(S) Reports 74 and the Queen v Secretary of State for the Home Department ex parte Woodward and Wilson unreported 24th June 1996.

46. It is not necessary to set out the individual facts of those cases but the principle can be summarised in a simple example. A prisoner is arrested for offence A and remanded in custody for a period of six months. Thereafter he is on bail. He commits offence B, is arrested for that offence and is in custody for offence B for three months immediately preceding trial. When he comes to be sentenced he receives a concurrent sentence of one year on each offence. He will have served a total of nine months in prison on remand and received a term of imprisonment of twelve months. It might be thought therefore that the length of time that he had to serve was some three months.

47. However, that is not what the decisions say. The Courts have decided that the first six months is to be ignored because while it may be set against the one year for offence A, there is only three months to be set against the one year for offence B. Therefore the prisoner is to serve a period of nine months. The first calculation, namely the deduction of nine months is based on what is called the "aggregate" argument; the second, namely the deduction of three months is described as the "particular" argument.

48. Based on those authorities Mr. Weatherby submits by analogy that a remand period of one year in respect of each of the ten offences in the example has to be deducted even though it has not actually been served. Therefore a prisoner is entitled to release because there is to be ascribed to him a period of one year remand in respect of each of the ten offences.

49. It seems to me that there are three answers to that argument. Firstly that those decisions are incorrect. At first sight this may seem a somewhat bold criticism of decisions made by Lord Lane Lord Chief Justice, Lloyd J. now Lord Lloyd, Eastham J., Woolf L.J., now Lord Woolf M.R., McCullough J., Simon Brown L.J., Curtis J., Russell L.J. and Scott-Baker J., all of whom have experience in this field.

50. These decisions have not however, found favour with the academics. Mr. David Thomas Q.C., the well known criminologist in an article in the 1995 edition of Archbolds Current Sentencing News disagrees with them. Professor Birch in the Criminal Law Review 1995 page 753 suggests that they are wrong. The Courts themselves have taken the view in some cases that the results may appear to be unjust and clearly they impose a very considerable burden on judges to ensure that there is not disparity between various prisoners.

51. I incline to agree with Professor Birch that the effect of Section 104 (2) has not been fully appreciated by the Courts. It is difficult to see what the purpose of Section 104 (2) is if it not to treat the sentence passed as a single term and therefore provided the periods on remand relate to those offences, to treat all the periods of remand also as a single term. If it is not related to Section 67 (1) is difficult to understand its purpose. None of the decisions have addressed this problem accept to say boldly that they are unrelated.

52. Mr. Pannick has submitted that the decision in relation to concurrent sentences are correct and more particularly that the consistent approach which has obtained for nearly twenty years should be followed in order to give certainty. I entirely accept that this an area where certainty is desirable. Nothing is more likely to cause distress and disquiet to prisoners than disputes in the Court about the interpretation of Section 67. But while certainty is a good thing justice is even better.

53. Above all it has to be remembered that the purpose of Section 67 is to ensure that when the length of sentence which the prisoner actually has to serve is determined, the amount of time he has spent on remand is thereby to be deducted so that for instance compared with a co-defendant who is on bail the total amount of time spent in prison is the same. Disparity is one of the commonest grounds of appeal in criminal cases. It equally follows that the period to be taken into account by way of deduction should be not less but certainly not more than the actual period served.

54. It is not necessary for the purpose of this judgment however, to do anything more that express some reservations as to the correctness of the decisions upon which Mr. Weatherby relies as an analogy.

55. The second answer to Mr. Weatherby's argument is that there is not an analogy. In the cases of concurrent sentences to which I have referred the prisoner has actually served a period on remand. It is not notional. It is a fact. The prisoner who serves a year and gets ten years consecutive has in fact only served one year. However unfair it may appear that the prisoner with a concurrent sentence is not entitled to credit for some period of the time he spent in custody on remand, it cannot give a prisoner who has not served time in custody on remand, a corresponding advantage so as to receive credit for a period which he has never served.

56. Mr. Weatherly points out that Section 67 (1A) (a) which relates to the time spent by an offender in Police detention is uncomplicated by any proviso, whereas (b) (1) has a wider connotation. It is Mr. Pannicks contention, in relation to the phrase "by reason only" in (b) that where a person has been remanded in custody in relation to two charges he cannot say in relation to each of them that he has been remanded in custody only in relation to proceedings relating to that sentence or that offence. A prisoner cannot deduct from each sentence, remand time which has not been served specifically (i.e. only) in relation to that offence. Thus there is only one period of remand in custody which constitutes a relevant period where there are concurrent remands even in cases of consecutive sentences.

57. There is nothing in my judgment in the cases relating to concurrent sentences which requires the Court to treat a concurrent remand as if it is a consecutive remand or to treat a concurrent remand as if it were a series of separate remands attached to the individual offences subsequently treated as requiring a consecutive sentence. If any support for that view were needed apart from the wording of section 67 I believe it is to be found in section 104 (2).

58. The third reason for rejecting Mr. Weatherby's argument is that it results in absurdity. The illustration in relation to a co-defendant who is on bail amply demonstrates this. Further if the Court were seeking to ensure that both accused in the example given serve the same period of time it would have to pass a sentence of nineteen years on the prisoner who had spent one year in custody to equate with the ten years on the prisoner who had been on bail. That is because the prisoner who has spent one year in custody would get a deduction of ten years from the nineteen years by reason of the present argument but would already have spent one year in custody thus making a total of ten years in prison.

59. Mr. Weatherby submitted that it is a cannon of construction that any ambiguity in a Statute affecting the liberty of the subject should be construed in favour of an accused. That is a valid submission but another equally important cannon of construction is to interpret legislation so far as possible to equate with common sense. Happily common sense is still I believe a part of the English common law. As Lord Goddard said in Barnes v Jarvis 1953 1 WLR 649 at 652 , "A certain amount of common sense must be applied in construing a Statue". Equally there is always a presumption against construing an Act of Parliament so as to produce an absurd result.

60. It may be said that a Court should not be deterred from enunciating the correct principle of law because it may have startling or calamitous results. But I confess that I have approached the investigation of a legal proposition of this character with a strong prejudice in favour of the idea that there may be a considerable flaw in the argument somewhere. I am quite satisfied that there is. I regard this application as wholly unarguable. I agree that it must be dismissed.

61. MR PANNICK: I make no application for costs.

62. MR WEATHERBY: My Lords, I make two applications in respect of judgment in respect of asking this Court to certify a point of law of general importance.

63. LORD JUSTICE SIMON BROWN: You were helpful enough to set out your draft point of law in advance of the sitting. You obviously had an opportunity of considering the matter, yes?

64. MR WEATHERBY: My Lord, yes. I simply say that the proper construction of s.67 has been considered by a number of constitutions of this Court and I might respectfully say it has created some difficulty in its construction. It is clearly a matter that affects thousands of serving prisoners and perhaps tens of thousands of ex-prisoners and it is a matter that has created grave disquiet in the community. I respectfully ask that you certify that there is a point of law of public importance.

65. Would it be helpful if I read the draft that I have submitted to the Court?

66. LORD JUSTICE SIMON BROWN: I doubt it. The draft raises the trite point with which we have just dealt. It is in the context, be it emphasised and well understood, of consecutive sentences. It is not an application which has been made on the concurrent terms. That is all we really need to note, is it not, that the point of law that you ask to be certified is the very point we have just been discussing over the past 40 minutes?

67. LORD JUSTICE SIMON BROWN: Is there anything else you want to say?

68. LORD JUSTICE SIMON BROWN: We shall not certify a point of law. We have described the applicant's contention in this case variously as nonsensical and dismissed the challenge as wholly unarguable and we have no hesitation, in those circumstances, in concluding that it would be entirely inappropriate to certify a point of law of general importance. It cannot be sufficiently emphasised that this application arises in a consecutive sentence case, the case with which we have just dealt at length.

69. MR WEATHERBY: I ask for Legal Aid Taxation?

70. LORD JUSTICE SIMON BROWN: That you are clearly entitled. We are grateful for your help.

71. MR WEATHERBY: Can I make a further application in respect of the second applicant? My Lord, I appeared as a junior to Mr McDonald in respect of the second applicant, Smith.

72. LORD JUSTICE SIMON BROWN: We never undertook to entertain it. It was clearly inappropriate that we should have done so. It was clearly of no possible value to consider that case unless and until you had succeeded rather than failed on the present case. We should not, in fact, have been asked to consider it.

73. MR PANNICK: Could I thank the Court for ensuring that this matter was heard so speedily?

74. LORD JUSTICE SIMON BROWN: Thank you, Mr Pannick. Obviously it was a matter of some urgency.