England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/10/2006

Mr Justice Stanley Burnton :

Introduction

1. This case was heard by me as a matter of urgency on 3 and 4 October 2006. The Claimant was detained at HMYOI Huntercombe. He claimed, for reasons which appear below, to be entitled to his immediate release. The Defendants refused to release him, on the basis that the date for his release from the sentence imposed by the Criminal Division of the Court of Appeal was 19 October 2006.
2. These proceedings were commenced on the 29 September 2006. On the same date, Burton J. made an order that required the Defendants to discharge the Claimant from custody unless they gave notice by 12 noon on 2 October 2006 of their application to vary or to discharge his Order. The Second Defendant duly gave such notice, and in consequence there was a hearing before me on 3 October of the Claimant's application for an order discharging him from custody. Commendably, the Defendants agreed that in view of the urgency and short period of detention in issue the Claimant's application for interim relief should be treated as the substantive hearing of his claim for judicial review or of the Defendants' refusal to release him from custody. Equally commendably, the Defendants agreed that my decision on the claim brought by this Claimant would be equally applicable to his two co-defendants whose appeals had been heard by the Criminal Division of the Court of Appeal on 21 and 22 September 2006. Accordingly, the cases of the co-defendants (who were also co-appellants) did not fall to be separately considered. The urgency of the hearing, and the abbreviation of procedure, inevitably led to last-minute production of, and imperfections in, the parties' written evidence. Further evidence and additional submissions were put before the Court on 4 October 2006. At the conclusion of the hearing, I made an order requiring the immediate release of the Claimant. I stated I would give the reasons for my decision in writing at a later date. These are the reasons for my decision.
3. Over the last 9 years, there has been a profusion of Acts of Parliament relating to penal sentencing. Much of it has had the objective of limiting or removing the discretion of the sentencing court to impose the sentence it considers appropriate. Since the affairs of man are of enormous, if not infinite, variety, such measures risk compelling a court to pass a sentence which it considers inappropriate to the individual offender for the particular crime he has committed. Moreover, the plethora of mandatory provisions cannot be kept in mind at all times by those advising or representing a defendant, or indeed by a sentencing judge. Indeed, even the Home Office seems in some instances to be unaware that there are conflicting provisions of its own creation: see CPS v South East Surrey Youth Court [2005] EWHC 2929 (Admin). Inevitably, mistakes and misunderstandings happen, and judges find themselves faced with a situation in which they consider injustice may be done. This case arose out of just such a misunderstanding and just such a situation.

The relevant legislation

4. In order to understand the difficulties which arose in this case, it is necessary to have in mind the provisions of sections 100 to 102 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the PCCSA"):

100.—(1) Subject to sections 90, 91 and 93 above and subsection (2) below, where—

(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

the sentence that the court is to pass is a detention and training order.

…..

101.—(1) Subject to subsection (2) below, the term of a detention and training order made in respect of an offence (whether by a magistrates' court or otherwise) shall be 4, 6, 8, 10, 12, 18 or 24 months.

…

(8) In determining the term of a detention and training order for an offence, the court shall take account of any period for which the offender has been remanded in custody in connection with the offence, or any other offence the charge for which was founded on the same facts or evidence.

102.—(1) An offender shall serve the period of detention and training under a detention and training order in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purpose.

(2) Subject to subsections (3) to (5) below, the period of detention and training under a detention and training order shall be one-half of the term of the order.

(3) The Secretary of State may at any time release the offender if he is satisfied that exceptional circumstances exist which justify the offender's release on compassionate grounds.

(4) The Secretary of State may release the offender—

(a) in the case of an order for a term of 8 months or more but less than 18 months, one month before the half-way point of the term of the order; and

(b) in the case of an order for a term of 18 months or more, one month or two months before that point.

4. For convenience, I shall refer to be the expiration of one-half of the term of a detention and training order as "the release date". It was common ground that the Home Secretary has no power to release an offender detained under a detention and training order other than those contained in section 102(3) and (4).

The facts

5. The Claimant was born on 5 October 1988. On 14 February 2005, he and three co-defendants appeared at Wood Green Crown Court on a charge under section 18 of the Offences Against the Person Act 1861 of causing grievous bodily harm with intent. The charges arose out of an incident in which all of the defendants had been involved. The Claimant and two of his co-defendants pleaded to an offence under section 20 of the 1861 Act. Those pleas were not accepted. In the ensuing trial, the jury disagreed as to the Claimant's and two of his co-defendants' guilt or innocence of the section 18 offence. The third co-defendant, B, was acquitted of the section 18 offence. Later that year, the four defendants were retried, in the case of B on a charge under section 20 only. On 8 December 2005, the Claimant and his co-defendants other than B were convicted of the section 18 offence and remanded in custody for later sentence. B was convicted of the section 20 offence but not remanded in custody.
6. On 20 January 2006, 43 days after their conviction, the Claimant and his co-defendants other than B were sentenced to 3 years' detention under section 91 of the PCCSA. The sentence imposed on B was an 18 months' detention and training order.
7. The Claimant and his co-defendants convicted of the section 18 offence appealed their conviction and sentence.
8. B was released from custody on Friday 18 August 2006, having served one month less than half the period of his sentence less 2 days.
9. The Claimant's and his co-defendants' appeals were initially expected to be heard on 18 or 19 September 2006. Due to the pressure on the court list, they were heard not on those dates but on 21 and 22 September 2006. On Thursday 22 September 2006, the Criminal Division of the Court of Appeal quashed their convictions of the offence under section 18, and substituted convictions for the offence under section 20. Their sentences were reduced to detention and training orders of 18 months.
10. Precisely what was said and what happened when the sentences were reduced are not entirely clear. The question whether the 43 days during which the Claimant had been remanded in custody should be deducted from his sentence was raised. According to the Claimant's Grounds for applying for Judicial Review, the presiding Judge, Hooper LJ, said that the 43 days (between 8 December 2005 and 20 January 2006) of the Claimant's remand in custody should be taken into account in calculating his release date. The Court inquired of counsel whether that meant that he would be immediately released, and counsel for the Claimant said that it was believed so. Counsel for the prosecution was present, and did not express any dissent. As a result, the Claimant's parents set off to Huntercombe to collect their son.
11. Two formal orders were issued by the Court of Appeal. The first, dated 22 September 2006, stated that the Court of Appeal had "sentenced the appellant to 18 months detention and training order". The second, headed "Amended Order on the Appeal" stated that the Court had "sentenced the appellant to 18 months detention and training order less 43 days spent on remand to count towards sentence".
12. Neither the indication given by the Court in relation to the 43 days of remand in custody nor the terms of the Amended Order were consistent with the above provisions of the PCCSA. It is not open to a criminal court to impose a detention and training order of a duration other than one of those specified in section 101(1). Subsection (8) requires the period of any remand in custody to be taken into account in determining the term of the order; that period cannot be taken into account in determining the effect of the order. I reject Mr Field's submission to the contrary as being inconsistent with the statutory wording and the authority of decisions of the Court of Appeal: see R v Ganley [2001] 1 Cr App R(S) 17 (at 60); R v B [2001] 1 Cr App R(S) 89; R v Fieldhouse and Watts [2001] 1 Cr App R(S) 104. Given that the question of the effect of the period in custody on the effective duration of the detention and training order imposed by the Court of Appeal arose at the end of a long and hotly contested appeal against conviction, it is perhaps not surprising that the applicable statutory provisions were overlooked by both counsel and the Court. Nor is it surprising that the Court considered that time spent on remand in custody should be considered as part of the sentence served by the Claimant: subject to statutory constraints, in the absence of a reason not to do so, fairness will normally so require.
13. It would appear that both of the orders of the Court of Appeal were sent to Huntercombe by fax; certainly the amended order was. The Prison Service appreciated that the amended order was unlawful. The Claimant's parents were told that he would not be released until 19 October, on the basis that the 43 days of his remand in custody could not be deducted from the period of his detention. There was a conversation between the Claimant's father and the case worker, Jennifer Payne, the terms of which are to some extent controversial. According to the Claimant's father, he spoke with Jenny Payne, a case worker, in the presence of the parents of the other two appellants. The Claimant's father said that he was told by Ms Payne that "what was needed by the Prison was a recommendation from the judge to release the boys". He then telephoned counsel for the Claimant and told him that there was a problem about the release of the appellants, and that they would not be released without a recommendation from the judge; but that as soon as that recommendation was forthcoming the appellants would be released. This evidence is supported by witness statements of the father of another of the appellants, who heard what was said by Ms Payne to the Claimant's father. According to him, she said that "the Prison required a recommendation from the Judge to release the boys". He specifically states that what he heard went beyond a request for a recommendation which could be taken into consideration: he says that the effect of what was said was that a recommendation was required and that the boys would be released if it was made and received. Ms Payne does not dispute that there was a conversation between her and the Claimant's father. Perhaps not surprisingly, she says that she cannot remember the conversation in detail, but does not think that she said that the YOI needed a recommendation.
14. The Prison Service sent a fax to be Court of Appeal on 22 September 2006 as follows:

"Further to your amended Order of Appeal we cannot deduct 43 days spent on remand from a DTO Warrant, it is against the law. This should have been taken into account before sentencing.

If however, the Judge recommends immediate release, could this please be put in writing so we act upon this."

15. Despite the unfortunate lack of grammar in the last sentence, the impression given by this fax was consistent with what is stated by the Claimant's father to have been said to him by Ms Payne, namely that if the judges recommended immediate release, the YOI would release his son. Moreover, Mr Field confirmed to me that what he had been told by the Claimant's father on the telephone on 22 September following his conversation with Ms Payne was consistent with that account of his conversation with Ms Payne. In these circumstances, I accept that the Claimant's father was told that a recommendation by the judges would lead to his son's immediate release.
16. The difficulty that had arisen in relation to the release of the appellants was brought to the attention of the judges who had sat with Hooper LJ on the hearing of the appeal, namely Davis and Tugendhat JJ., who returned to court. Hooper LJ was no longer available. Davis and Tugendhat JJ indorsed the following on the fax that had been received by the Court of Appeal:

"The court makes a recommendation that the three persons above named immediately be released under all powers available to the Prison Service. The decision, however, is a matter for the Prison Service."

17. The fax with that endorsement was then faxed to the Prison Service. The appellants' parents were told, presumably by the appellants' counsel, that the necessary recommendation had been made. The appellants themselves were expecting to go home, and had been sitting on their beds with their belongings awaiting their release. They had given away to other boys on their wing the things they thought they no longer needed, such as their toiletries.
18. However, after further consideration, the Prison Service decided that it would not release the Claimant and his co-appellants on that day, but would consider its powers under the early release provisions contained in section 102(4)(b) PCCSA the following Monday (25September 2006). Following its consideration of those provisions on 25 September 2006, the Prison Service decided it would not release the Claimant and his co-appellants until their release date, i.e. 19 October 2006. These proceedings were commenced to obtain the reversal of each of those decisions.

The reasons for the Defendants' decision and the parties' contentions

19. Because of the speed with which these proceedings were begun and came before the Court, there was not initially a document giving the Defendants' reasons for the decision which was the subject of review. In his first skeleton argument, Mr Collins, on behalf of the Defendants, informed me that the Defendants considered that they had no power to release the Claimant under section 102(4)(b) of the PCCSA. That power could be exercised either one month or two months before his release date, but not at any other time, and by 22 September less than one month remained until that date. It followed that the last date for the exercise of the power conferred by section 102(4)(b) had passed. If, however, that power had been available to the Defendants, it would have been exercised. With regard to the power conferred by section 102(3) was concerned, the Head of Residence of Huntercombe YOI had concluded that the circumstances of this case were not exceptional circumstances justifying release on compassionate grounds; that conclusion could not be said to be irrational, and in any event even if there were such circumstances section 102(3) conferred a discretion and there was nothing to indicate that that discretion had been unlawfully exercised.
20. For the Claimant, Mr Field submitted:

(i) Section 101(8) does not expressly exclude the power of the sentencing court to direct that time on remand in custody should be taken into account in determining the duration of a custodial sentence. On the true construction of section 101, a sentencing court may give such a direction, and in this case the Court of Appeal did so.

(ii) Time is not of the essence in the calculation of the periods of one month and two months prescribed by 102(4)(b). The Prison Service regularly releases prisoners on dates other than their release dates, for example on a Friday when their release date falls on a Sunday. The Defendants' construction of 102(4)(b) is inconsistent with their own practice, and should be rejected.

(iii) It was irrational of the Defendants to refuse to exercise their admitted power under section 102(3) given the following circumstances:

(a) The unusual circumstances of the case, in which the Court of Appeal had intended that the Claimant should be released immediately, and had given a recommendation to that effect.

(b) The Claimant had a legitimate expectation that he would be released, brought about by the statement by Ms Payne to his father and the Prison Service fax of 22 September.

(c) The inconvenience to which his family had been put, with fruitless journeys to Huntercombe in the expectation that the Claimant would be released to them.

(d) The fact that the Claimant's 18^th birthday is on 5 October 2006, and unless released he would "celebrate" it in custody instead of with his family.

(e) The fact that he would be in custody on the birthday of his twin sister, with whom he has a close emotional relationship.

(f) The unfairness of B, who had not been remanded in custody, and having been given the same sentence as the Claimant, being released before the Claimant.

21. Prompted by me, the Deputy Governor of Huntercombe YOI set out in writing the reasons for the decision not to exercise the power conferred by section 102(3). He stated:

"(1) Given that the young people had been informed that their sentence had been reduced from 3 years to 18 months we felt that the news it had not been reduced further to enable immediate release would constitute a traumatic incident to justify compassionate release.

(2) This was caused by misunderstanding of the courts interpretation of their situation. Whilst this may have been convenient for the family this does not constitute grounds for compassionate release. Special visits on Friday 22/9/06 and weekend of 30/9/06 and 1/10/06 were permitted if requested.

(3) A number of young people turn 18 or have birthdays whilst in custody & we have never released someone on compassionate release for this reason.

(4) A number of young people also have close relationships with other family members with whom they share birthdays & we have never release[d] someone on compassionate grounds for this reason.

(5) We would only consider compassionate grounds where the young person or a close family member is seriously or terminally ill or something of equal severity."

22. In consequence of this statement of reasons, Mr Field supplemented his submissions. He pointed to the inconsistency between the first paragraph of the Deputy Governor's statement and the refusal to exercise the power to release under section 102(3). He submitted that the last paragraph of the statement showed that too narrow a view had been taken as to the scope of the statutory power, so that the decision had been made under a mistake of law. And he relied on the fact that the events described above gave rise to a legitimate expectation of immediate release if the judges of the Court of Appeal recommended it, as they did.
23. The suggestion that the Deputy Governor had been guilty of irrationality by reason of the inconsistency between the first paragraph of his statement and the refusal of immediate release led to the service of a supplementary statement, in which he apologised for having omitted the word "not" before "constitute a traumatic incident …"
24. Mr Collins submitted:

(i) Section 102(4) did not confer power to release otherwise than one month or two months before a release date.

(ii) The release of offenders whose release date falls on a weekend or a Bank Holiday on the immediately preceding weekday that is not a Bank Holiday is authorised by paragraph 5.1.6 of Prison Service Order 6650. There is no similar provision authorising release under section 102(4) less than one month before a release date.

(iii) It followed that there was no power to release under section 102(4).

(iv) The circumstances of the present case were not such that there was no rational and lawful decision that could be made under section 102(3) other than to release the Claimant.

Discussion

25. It was implicit in counsels' submissions that the only powers to release a young person serving a detention and training order before his release date are the express statutory powers in section 102(3) and (4).

(a) Section 101

26. For the reasons give above I rejected Mr Field's submission that the Court has power to direct that time on remand in custody be taken into account in determining the release date of a sentence imposed under the above provisions.

Section 102(4)

27. I see no basis on which section 102(4) may be construed as authorising release other than one month or 2 months before the release date. If Parliament had intended to authorise release at any date within the one or 2 month period, it would have been unnecessary to mention the period of 2 months. To introduce approximation would introduce uncertainty. Mr Collins was unable to suggest a rationale for the provisions of section 102(4). I do not draw any inference from this, since time did not permit him to take full instructions. It may be that the restrictions contained in that provision were designed to avoid the Prison Service being under a continuing duty to consider release throughout the period of one month in paragraph (a) and the period of two months in paragraph (b). I derive no assistance from the provisions of the Prison Services Order. It has no statutory force (see Raymond v Honey [1983] AC 1 and R (P) v Home Secretary [2001] EWCA Civ 1151, [2001] 1 WLR 2006) and purports only to give guidance to the members of the Prison Service. It could not modify a statutory provision; and in any event it has no provision applicable to the present case. Whether paragraph 5.1.6 of the Order renders lawful the release of an offender whose release date falls on a weekend on the preceding Friday is not a matter I have to determine.
28. In my judgment the Defendants were correct in deciding that there was no power under section 102(4) to release the Claimant on 22 September.
29. This conclusion has unfortunate practical consequences, as seen in this case. If the Claimant's appeal had been concluded one month or more before the release date that followed from the reduction of his sentence, the power conferred by section 102(4) would have been available; the postponement by 3 days of the hearing of the appeal had the practical effect of excluding the application of section 102(4)(b).

(c) Section 102(3)

30. The statutory pre-conditions for the exercise of the power conferred by section 102(3) are (a) that exceptional circumstances must exist; (b) they must give rise to compassionate grounds for release; and (c) those grounds must justify release. Even if those grounds are established, the Home Secretary is not required to release an offender. There may be good reasons for him not to do so, such as the risk he poses if at liberty, or his conduct as a detainee. But if those pre-conditions are satisfied, one would expect the Home Secretary to have a good reason not to exercise the statutory power.
31. The imminent birthday of the Claimant, even if it is his 18^th birthday, and the fact that he has a twin sister, who necessarily shares that birthday, in no way amount to an exceptional circumstance. Nor does the fact that the Claimant's family were put to the inconvenience of travelling to Huntercombe for his release which did not take place.
32. In my judgment, the fact that a mistake is made by those representing an offender, or by prosecution counsel as to the effect of his sentence, or as to the powers of the Court, will not normally of itself amount to an exceptional circumstance. Regrettably, for reasons indicated above, such mistakes are made and it is all too likely that such mistakes will be made. Whether a mistake on the part of the Court amounts to an exceptional circumstance will depend on the precise facts. In my view, in general such a mistake will not normally amount to an exceptional circumstance, because of the increasing risk of their occurring. For an example of a case in which the circumstances were "quite exceptional" see R v Birch [2006] EWCA Crim 2240.
33. The matters which, taken together, in my judgment did render the circumstances of this case exceptional were:

(i) The fact that but for the deferral of the listing of the Claimant's appeal, it would have been heard on 18 and 19 September 2006. If his sentence had been reduced to one of 18 months DTO on 19 September, which was one month before his release date, the Home Secretary would have had power to release him immediately under section 102(4)(b), and he would have exercised that power. It follows that the consequence of the deferral of the appeal was to increase the period of the Claimant's detention by almost a month. That was unintended and unfortunate.

(ii) The events when the Court announced the reduction in the Claimant's sentence to an 18 month DTO, and the desire that the time on remand should count against the duration of his sentence.

(iii) The conversation between the Claimant's father and Ms Payne, which, particularly combined with the contents of the Prison Service's fax of 22 September, gave an apparent assurance that if the Court of Appeal recommended immediate release, the Claimant would be immediately released. A legitimate expectation was created which should have been met if it was lawful to do so and there was no good reason not to do so.

(iv) The endorsement of that fax by Davis and Tugendhat JJ, which satisfied the apparent requirement of the Prison Service for the Claimant's release.

34. So far as the disparity between the time served by B and that which would be served by the Claimant if he were not immediately released is concerned, I accept Mr Collins's submission it is difficult to take disparity into account in circumstances where one does not know whether there were differences in the criminality of B and that of the Claimant which justified the difference in their effective sentences. Perhaps more importantly, it is not possible to take a period of 43 days of remand in custody into account in any rational way in deciding whether the duration of a DTO should be 12 or 18 or 24 months. Either that period must be effectively ignored, or the offender given a reduction in what would otherwise be his sentence which greatly exceeds the period of remand in custody, even allowing for the fact that by reason of section 102(2) time on remand is the equivalent of twice the nominal term of a sentence. Disparities such as that complained of by the Claimant are inherent in the statutory scheme, and can be no more than a factor to be taken into account in deciding whether to exercise the power conferred by section 102(3), if the preconditions for its exercise have been satisfied. It is difficult to see that such a disparity can itself amount to an exceptional circumstance satisfying the precondition for the exercise of the power.
35. The next question is whether these circumstances give rise to compassionate grounds. The Governor thought that compassionate grounds would only exist if there was serious or terminal illness of something of equal severity. I do not think that compassion arises only in cases of death or illness. There are compassionate grounds whenever there is pain or suffering or distress or misfortune. The narrow scope of the power under section 102(3) results more from the requirement of exceptional circumstances than the element of compassion. In the present case, the repeated indications of immediate release, or that it would be forthcoming if the judges so recommended, must have given rise to real feelings of upset and disappointment on the part of the Claimant, and indeed of his family. It would be an act of compassion to release him in such circumstances.
36. In my judgment, the Governor's decision fell to be quashed for two reasons. First, he adopted too narrow an interpretation of section 102(3). Secondly, he did not take into account the assurance given by Ms Payne (of which he was probably unaware) or the effect of the Prison Service's fax of 22 September and the judges' endorsement on it.
37. Did these exceptional circumstances justify immediate release? In my judgment, the matters I have referred to above did justify immediate release, absent a good reason to retain the Claimant in custody.
38. In my judgment, where the Prison Service has given an apparently reliable assurance of immediate release, and the circumstances are exceptional, and an exercise of compassion is involved, the power under section 102(3) should be exercised unless there are good grounds for not doing so. In the present case, it was accepted that there were no grounds for not exercising the power if it was available. It followed that the Defendants should have exercised that power. In consequence, I made the order referred to above.