QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MICHAEL LINDO||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS N GREANEY (instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
Crown Copyright ©
The Legal Framework:
"As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State...
(b) to release him on licence if that sentence is for a term of twelve months or more."
"... subsection (3) below applies where a short-term prisoner aged 18 or over is serving a sentence of imprisonment for a term of three months or more."
"After the prisoner has served the requisite period for the term of his sentence, the Secretary of State may, subject to section 37A below, release him on licence."
"In this section "the requisite period" means...
(c) for a term of eight months or more, a period that is 60 days less than one-half of the term."
That period of 60 days was subsequently increased to 90 days, as from 16th December 2002. That is the material provision for this case.
"A person shall not be released under section 34A(3) above unless the licence includes a condition ("the curfew condition") which -
(a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified... and
(b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified.
(3) The curfew condition shall remain in force until the date when the released person would (but for his release) have served one-half of his sentence."
"If it appears to the Secretary of State, as regards a person released on licence under section 34A(3) above -
(a) that he has failed to comply with the curfew condition;
The Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison."
"On the revocation... of a person's licence under section 34A(3) above, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
"Where any person sentenced to imprisonment... is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence... then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the [place in which he is required in accordance with law to be detained]".
"When a sentenced prisoner... has been unlawfully at large (UAL) from prison and is then returned to custody, the period of absence will not be treated as part of the sentence served unless the Home Secretary directs that it should. In exceptional circumstances, it may be appropriate to allow a period spent UAL to count towards completion of the sentence."
"The period unlawfully at large will extend all release dates (including the SED [Sentence Expiry Date]), when the prisoner is returned to custody. At the point at which the UAL [Unlawfully At Large] period begins, the sentence is in effect frozen."
"Prisoners recalled for breach of HDC [Home Detention Curfew], who do not successfully appeal against that decision, or apply for re-release will be released at their conditional or automatic release date at the halfway point of sentence. This date will be put back by any time spent unlawfully at large."
"If a prisoner is being re-released on ACR [Automatic Conditional Release] licence at the halfway point of sentence following recall from Home Detention Curfew, the licence expiry date will be at the three quarter point of sentence less the time spent on supervision whilst curfewed. Time spent unlawfully at large following recall by the Parole Unit will not count towards the calculation of the LED [Licence Expiry Date]."
A summary of the facts:
The contentions on each side:
"It is clear that the HDC [Home Detention Curfew] scheme envisaged that days spent UAL [Unlawfully At Large] following a breach of a HDC [Home Detention Curfew] licence would be added to the ACR [Automatic Conditional Release] date (para 9.9.1). Paragraph 9.9.2 does state that days UAL [Unlawfully At Large] do not count towards calculation of the LED [Licence Expiry Date] but this is in the context of prisoners who, following HDC [Home Detention Curfew] licence revocation, are then re-released at the halfway point of the sentence. Thus a prisoner recalled from his HDC [Home Detention Curfew] licence because his electronic equipment has failed, for example, could be re-released at the halfway point of his sentence but spend longer on standard licence if he had spent any time UAL [Unlawfully At Large].
It will be noted that para 9.9.1 refers to "recalled for breach," ie a s38A(1)(a), or possibly (c) scenario... as opposed to a s38A(1)(b) [scenario] which deals with recall for technical reasons. In any event para 9.9.1 is clear.
Furthermore, with respect to the Defendant, it is common-sense that days spent UAL [Unlawfully At Large] cannot be added to a sentence twice".
"Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court..."