England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st March 2006

The Hon. Mr. Justice Jack :

Introduction

1. In R (Buddington) v Secretary of State for the Home Department [2005] EWHC 2198 (Admin) and [2006] EWCA Civ 280 the court had to consider whether the Secretary of State had power after 4 April 2005 to recall to prison for cause prisoners who had been released before 4 April 2005. After considering the relevant provisions of the Criminal Justice Act 2003 and the relevant commencement order, in particular the transitional and saving provisions of that order, the Divisional Court and later the Court of Appeal held that he had. We have now to determine whether a prisoner who was sentenced in 1998 and has been recalled to prison since 4 April 2005 is entitled to unconditional release at the three-quarter point of his sentence, that is, release not on licence, which was the position when he was sentenced, or whether the effect of the 2003 Act and the relevant commencement order is that his release will be on licence lasting, subject to further recall, to the end of his sentence. It is a matter of regret that the provisions to be examined are complex, and their meaning and effect are difficult to discern. That is especially the case because the issue may affect the liberty of prisoners.
2. On 17 December 1998 the applicant, Paul Stellato, was sentenced to terms of imprisonment totalling 10 years for offences including arson with intent to endanger life, and perverting the course of justice. He had been in custody since 27 June 1998 and so the 10 years would expire on 26 June 2008. On 17 February 2005, the two thirds point of his sentence, he was released on licence. On the same day he was recalled to prison for breach of his licence. On 16 June 2005 he was again released on licence. On 1 August 2005 his licence was revoked and on 11 August he returned to custody. On 24 October the Parole Board issued a decision letter replacing an earlier decision dated 4 October. It stated that the applicant should be released in licence on his notional licence expiry date, namely 27 December 2005, which was the three quarter point of his sentence. He was released on 23 December 2005 because it is the practice where a prisoner's release date falls on a bank holiday or a weekend to release him on the last working day prior to it. The release on the notional licence expiry date was no doubt because by a direction issued by the Secretary of State under section 239(6) of the 2003 Act the Parole Board is required "to take into account the fact that prisoners who have been sentenced under the provisions of the Criminal Justice Act 1991 cannot be disadvantaged by the recall provisions of the Criminal Justice Act 2003". However the applicant was returned to custody on 9 January 2006 following breach of his licence. That occurred because it was his view that he was not in law subject to a licence but was entitled to be released unconditionally. He remains in prison.

The three statutory schemes relating to release on licence

3. Release on licence was introduced by Part II of the Criminal Justice Act 1991, titled 'Early Release of Prisoners'. Its provisions were amended by Part IV of the Crime and Disorder Act 1998. I will refer to the 1991 Act as originally enacted as the 1991 Act and to the 1991 Act as amended by the 1998 Act as the amended 1991 Act. I will refer to prisoners to whom the original 1991 Act provisions applied as 1991 Act prisoners, and to prisoners to whom the 1991 Act provisions applied as amended by the 1998 Act as 1998 Act prisoners. A new scheme for release on licence was made by Chapter 6 of Part 12 of the Criminal Justice Act 2003 – the 2003 Act. It is necessary to consider the scheme provided by each Act.
4. Under the 1991 Act long term prisoners were those serving a sentence of four years or more: section 33(5). The appellant was a long term prisoner. The provisions setting out the scheme in relation to long term prisoners were as follows:

(a) Section 35(1) provided that after a long term prisoner had served half of his sentence the Secretary of State might release him on licence if the Parole Board so recommended.

(b) Section 36 provided for release on licence on compassionate grounds.

(c) Section 33(2) provided that as soon as a long term prisoner had served two-thirds of his sentence it was the duty of the Secretary of State to release him on licence.

(d) Section 37(1) provided that, subject to revocation under section 39(1), a licence should remain in force until three quarters of the sentence had been served.

(e) Section 39(1) provided for the revocation of a licence and the recall of a prisoner by the Secretary of State on the recommendation of the Parole Board. Section 39(2) provided for revocation and recall without that recommendation where it appeared to the Secretary of State expedient in the public interest to recall the person before a recommendation by the Board was practicable.

(f) Section 33(3) provided that as soon as a prisoner who had been released on licence under section 35 or 36 and who had been recalled to prison under section 39(1) had served three-quarters of his sentence he should be released unconditionally.

(g) Section 40 provided that, where a prisoner who had been released under Part II committed an offence punishable with imprisonment before the date of the expiry of his sentence, the court by or before which he was convicted of the new offence might order him to be returned to prison for a period up to the period between the date of the new offence and the expiry of his sentence.

(h) Section 44 provided that where the whole or part of a sentence was imposed for a sexual offence the court might order the section should apply, and then the licence period provided by section 37(1) would extend to the end of the sentence. A recalled prisoner would then only be released under section 33(3) when he had served the whole of his sentence. The section did not apply to the appellant.

5. Under these provisions the third quarter of the sentence might be spent on licence or in custody depending on the manner in which the powers under the sections were exercised. The last quarter would always be spent on unconditional release. This was subject to any order being made under section 40 following the commission of a new offence while on licence, and to the application of section 44. There was no provision, at least no express provision, providing for a second release on licence following a re-call.
6. The 1998 Act altered the provisions of the 1991 Act in the following respects which are relevant to the present issue:

(a) Section 33(3) of the 1991 Act was amended by section 104 of the 1998 Act to provide that a recalled prisoner should be released on licence at the three-quarter point of his sentence and not unconditionally. This did not apply to prisoners whose sentence had been imposed for an offence or offences prior to the commencement of section 104 (30 September 1998): Schedule 9, paragraph 13 of the 1998 Act. So the regime for 1991 Act prisoners remained unchanged by this.

(b) Section 44 of the 1991 Act was amended by section 59 of the 1998 Act to accommodate the provision by section 58 of the 1998 Act for extended sentences for sexual or violent offences.

7. Section 40 of the 1991 Act was replaced by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 116 was expressed to apply to persons released under Part II of the 1991 Act – which would cover those released under the original 1991 Act and the amended 1991 Act.
8. The Chapter 6 of Part 12 of the Criminal Justice Act 2003 introduced a new scheme for the release of prisoners on licence. The provisions which are relevant to the present issue are as follows:

(a) Section 244 provides that as soon as a fixed-term prisoner (other than one serving an extended sentence under section 247, or serving a sentence of less than 12 months, or in respect of whom an intermittent custody order had been made) has served one half of his sentence it is the duty of the Secretary of State to release him on licence.

(b) Section 249 provides that where a fixed term prisoner is released on licence, the licence shall remain in force for the remainder of his sentence, subject to its revocation under section 254 (or section 255, which deals with early release under section 246 and is not here relevant).

(c) Section 254(1) provides that the Secretary of State may revoke the licence of any prisoner released on licence under the Chapter and recall him to prison. Subsection (3) requires the Secretary of State to refer the case of such a person to the Parole Board. By subsection (4), where the Board then recommends immediate release under the Chapter, the Secretary of State must give effect to that.

(d) Section 256(1) applies where on a reference under section 254(3) the Board does not recommend immediate release under the Chapter. The Board must then either fix a date for the person's release on licence or fix a date for the Board's next review of his case. By subsection (3), if the person would fall to be released unconditionally within the next 12 months, the Board need not fix a date for release or review. By subsection (5), on a review the Board may recommend immediate release on licence or fix a date for future release or fix a date for further review. Subsection (4) obliges the Secretary of State to release the person on any date fixed by the Board for his release.

9. In broad terms the new scheme is, therefore, that prisoners shall be released on licence at the half way point of their sentences, shall be subject to recall by the Secretary of State, and, if recalled, shall be subject to further release by the Secretary of State on the recommendation of the Parole Board. Subject to recall the licence lasts to the end of the sentence. The role of the Parole Board in relation to recall, formerly provided by section 39(1) of the 1991 Act and the amended 1991 Act, has gone. The power of a court formerly provided by section 116 of the Powers of Criminal Courts (Sentencing) Act 2003 to order a person to serve part of his licence period where he commits a new offence during it has also gone: the section is repealed and it is not replaced.
10. Section 303 of the 2003 Act provides for the repeal of Part II of the 1991 Act. Prior to repeal the Act was in force in its unamended form as regards persons sentenced for offences committed prior to the commencement date for the relevant provisions of the 1998 Act (30 September 1998). It was otherwise in force in its amended form.

The Commencement Orders, Savings and Transitional Provisions

11. The main order is the Criminal Justice Act (Commencement No.8 and Transitional and Saving Provisions) Order 2005, S.I.2005 No. 950, made on 24 March 2005. By article 2 and Schedule 1 of the order Part II of the 1991 Act was repealed on 4 April 2005, and among other sections of the 2003 Act section 244 (relevant parts) and sections 249, 254 and 256 were brought into force. 4 April 2005 was thus the change-over date between the schemes for release on licence and recall. This was subject to the provisions of Schedule 2 headed Transitional and Saving Provisions.
12. Paragraph 19 of Schedule 2 is headed 'Savings for prisoners convicted of offences committed before 4^th April 2005'. It provides:

19. 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);

(b) ……

(c) the repeal of sections 33, 33A to 38A, 40A to 44A, and 46 to 47 and 51 of the 1991 Act; and

(d) the repeal of sections 59 and 60, 99 and 100, 101, 103 to 105 and 121 of the Crime and Disorder Act 1998, 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.

Prima facie, the effect of this is as follows. The new provisions relating to release on licence do not apply to 1991 Act prisoners or to 1998 Act prisoners with the omission of the provisions for release following recall contained in section 254 and section 256 – which sections are not included in paragraph 19(a) and so do apply to them. Further the previous provision for recall – section 39, is not exempted from repeal in relation to those prisoners. Section 249 – duration of licence, does not apply to them.

13. Paragraph 23 is headed 'Transitional arrangements for recall after release'. It provides as follows:

23(1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4 April 2005 –

(a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and

(b) the reference in sections 37(1) and 44(3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act.

(2) Paragraph 12(1) and (2) of Schedule 9 to the Crime and Disorder Act 1998 [which is headed 'Recall to prison of short-term prisoners'] shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act.

(3) The repeal of section 39 of the 1991 Act is of no effect in a case where the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4^th April 2005.

14. The following points may be made as to the effect of paragraph 23:

(a) The words 'after 4^th April 2005' in paragraph 23(1) are not to be read in the sense that in relation to prisoners who fall to be released after 4 April 2005 under the 1991 Act provisions the position shall be as set out. The words are to be read in the sense that in respect of persons released under those provisions the position after 4 April 2005 shall be as set out in the subsequent sub-paragraphs. It was so held in Buddington and a clarification to that effect was made by the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (Supplementary Provisions) Order 2005, S.I. 2005 No. 2122, made on 29 July 2005.

(b) Prisoners will be released under the provisions of Part 2 of the 1991 Act after 4 April 2005 by reason of the saving provisions of paragraph 19(c) of Schedule 2 of the Order. So they may be released under section 35(1) on licence at or following the half way point, and would be entitled to release under section 33(2) on licence at the two thirds point. By section 37(1) the licence would last to the three quarter point. Those sections are all saved for this purpose by paragraph 19. I omit for the moment the issue which we have to decide, namely the position of 1991 Act prisoners who are recalled after 4 April 2005 under section 254.

(c) Paragraph 23(1)(a) enlarges the power of recall provided by section 254 to include prisoners released under the provisions of Part 2 of the 1991 Act. This is required because section 254(1) of the 2003 Act provides for the recall of prisoners released on licence 'under this Chapter', and, apart from the saving provided by paragraph 23(3), the repeal of section 39 (which provided the power to recall long-term prisoners) is absolute.

(d) As to paragraph 23(1)(b), the sections to which it relates, that is sections 37(1) and 44(3) and (4) of the 1991 Act, remain in force with regard to 1991 and 1998 Act prisoners: paragraph 19 (c). Section 37(1) is the provision which provides for the licence to remain in force until three quarters of the sentence has been served 'subject to any revocation under section 39(1)'. Apart from the case covered by paragraph 23(3) section 39 has been repealed without saving and the only recall provision is section 254, and so section 37(1) is now to be read as 'subject to any revocation under section 254'. Section 44(3) is part of section 44 as substituted by the 1998 Act. It related to extended sentences for sexual or violent offenders. Section 44(3) provided that a prisoner released on licence should remain on licence until the end of the extension period 'subject to any revocation under section 39(1)'. This now again is to read as subject to any revocation under section 254. A similar point arises on section 44(4).

(e) It is important that paragraph 23(1)(b) does not refer to section 33. Section 33 is included among those saved in relation to 1991 and 1998 Act prisoners by paragraph 19. It is section 33(3) that provided that as soon as a long term prisoner who been released on licence and had been recalled under section 39 had served three-quarters of his sentence he was to be released unconditionally. So the opportunity was not taken to state that the reference to recall under section 39 was to be treated as a reference to recall under section 254. This means that, on a literal wording of the section, where there is a recall under section 254, the conditions for release under the section at the three quarter stage are not satisfied - because there has been no recall under section 39.

(f) Paragraph 23 (3) covers the case where a recall has been initiated before 4 April 2005. Then the provisions of section 39 still apply.

15. Paragraph 29 of Schedule 2 to the Commencement Order provides that the repeal of section 116 of the Powers of Criminal Courts (Sentencing) Act 2003 is of no effect in relation to cases where the offence in respect of which the appellant was originally sentenced was committed before 4 April 2005.

Submissions, argument and conclusion.

16. The argument advanced by Mr Kris Gledhill of behalf of the appellant was to this effect. It was founded on paragraph 19 of Schedule 2 to the Commencement Order. He submitted that this showed that the position of 1991 Act prisoners was unchanged and therefore the appellant was entitled to be released unconditionally after he had served three quarters of his sentence. He submitted that the substitution of section 254 for section 39 did not affect that position: section 254 was simply the enforcement provision for breach of licence by way of recall and, for 1991 Act prisoners, section 37 remained intact. He suggested that the reason for the decision that all recalls should be by the Secretary of State under section 254 was to avoid having two regimes relating to recall in operation at the same time. He argued that it was consistent with the substitution of section 254 for section 39 that recall was to be treated as under the 1991 Act, namely section 39. He relied on the fact that section 249, the new provision as to the duration of licence, was disapplied to the appellant by paragraph 19(a). So, he submitted, when the appellant reached the three quarter point of his sentence he was entitled to be released unconditionally.
17. Mr Parishil Patel submitted on behalf of the Secretary of State that the intention to be discerned from the legislation was to impose a new regime in relation to prisoners recalled on or after 4 April 2005, which applied to all prisoners regardless of the date of their offence. He said that the court should construe the legislation to give effect to that intention. That would be to apply a well-established principle of construction. The problem here, however, is to discern the intention. Is it as Mr Patel submits or is Mr Gledhill right? The approach which I consider is to be adopted is to examine the provisions to see what can be established from them.
18. The starting point of Mr Patel's submissions was the repeal of section 39 and the substitution for it in relation to 1991 Act prisoners and 1998 Act prisoners of section 254. That was the effect of paragraph 19(c) of the Order - where section 39 is not among the sections saved, and of paragraph 23(1)(a) - where 1991 Act and 1998 Act prisoners are brought within section 254. Once a 1991 Act prisoner had been recalled under section 254, any subsequent release, Mr Patel submitted, was a release under the provisions of the 2003 Act, which was a release on licence, which in the absence of any provision for earlier termination lasted until the sentence expired. Mr Patel submitted that the saved section 37 applied to provide that 1991 Act prisoners who had not been recalled were released at the three quarter point: but, he said, if the prisoner had been recalled, it did not apply, and the substitution in it of section 254 for section 39 was appropriate as the new recall provision. It was crucial to Mr Patel's argument that the reference in section 33(3) of the 1991 Act to recall under section 39 was not included in paragraph 23(1)(b) among those to be treated as a reference to recall under section 254. Thus, he said, a prisoner recalled under section 254 could not meet the conditions of section 33(3) and could not be entitled to release at the three quarter point.
19. The section on which the appellant, a recalled prisoner, must rely for his release at the three quarter point is section 33(3) of the 1991 Act. If it had been provided in paragraph 23(1)(b) that the reference in section 33(3) to recall under section 39 was to be read as a reference to recall under section 254, it would be clear that a 1991 Act prisoner who was recalled under section 254 was entitled to his release at the three quarter point. That omission is crucial. The substitution of references to section 39 was considered by the draftsman and that consideration has borne its fruit in paragraph 23(1)(b) of Schedule 2 to the Order and section 33(3) is not referred to. On the other hand, if it was the intention that section 33(3) was to be deprived of effect, it can be asked why the whole section was saved by paragraph 19(c). The omission of the subsection from the saving would have made the position clear. It would have been a direct indication of the intention. But clarity is not the hallmark of this drafting.
20. There is, however, another aspect. It was not one on which we were addressed by counsel, at least in any depth, but it should be explored. If a 1991 Act prisoner is released on licence following recall under section 254, under what provision are the conditions of his licence to be specified? Section 250 is the relevant section under the 2003 Act. It is one of the sections which by paragraph 19(a) do not apply to 1991 Act prisoners. The section under the 1991 Act is section 37, in particular sub-sections (4) to (6). The section is preserved for 1991 Act prisoners by paragraph 19(c). It is clear that a 1991 Act prisoner who is released under section 33(1) or section 35(1) – that is at the two thirds point or earlier, must have his conditions specified under that section.
21. The provisions of the 1991 and 1998 Acts do not refer to the possibility of a second release following recall, at least expressly. Mr Patel did not accept that they did permit for it. Mr Gledhill did not address us on it. We do not know what the previous Home Office practice was, that is whether a prisoner who was recalled was always held in prison until the three quarter point of his sentence. The regime provided by section 254 does provide for further releases following recall. If it occurs, under what provision are the conditions to be specified? Section 250 has been disapplied by paragraph 19(a). Is it to be read as subject to the implied exception of recalled 1991 Act prisoners who had been recalled? Mr Patel submitted as part of his general submissions that by implication recalled prisoners were to be read as excepted from paragraph 19. I do not think that in the end the examination of these provisions throws light on the issue we have to determine, but it further illustrates the problems which the Commencement Order creates.
22. Mr. Gledhill submitted that the liberty of the subject was involved because if release following recall was on licence lasting to the end of the sentence, there could now be a recall to prison in the last quarter. He submitted that an express provision removing the right to release at the three quarter point was required. Parliament has here provided that the Secretary of State may provide how the repeal of the old regime and the introduction of the new are to be effected. The new scheme may have its advantages for a prisoner in the appellant's position as well as its disadvantages. For the provisions contained in section 254 and 256 providing for reviews by the Parole Board and the potential for re-release were absent from the previous provisions.
23. The conclusion I have reached is that the Commencement Order is to be construed to provide that once a prisoner has been recalled under section 254, if he is subsequently released prior to the expiry of his sentence either under section 254 or section 256, it is on a licence in accordance with Chapter 6. I consider that the intention of the transitional provisions contained in the Commencement Order is to impose the new regime once a recall takes place, which is in substitution for the regime provided by the previous legislation. The repeal of section 39 without saving points to that, though I accept that it is explicable as part of an intention not to have two parallel recall procedures. The intention is most clearly to be deduced from the omission to include section 33(3) in paragraph 23(1)(b) of Schedule 2. Section 249 (duration of licence) does not apply, but in the absence of a provision for the determination of the licence it continues until the sentence itself expires.
24. This conclusion accords with that expressed by the Divisional Court in Buddington in paragraph 50 of the judgment, and with the statement of the position in paragraph 23 of the judgment of the President in the Court of Appeal.
25. Mr Gledhill submitted that, even if he was wrong on the general issue, the applicant was in a special position because his licence had been revoked under section 39 on 17 February 2005 and so section 33(3) was satisfied. I do not consider that this event can affect the consequence of the applicant's subsequent recall under section 254. If, as I would hold, the consequence of that re-call is that he is brought under the new regime provided by sections 254 and 256 of the 2003 Act, then the fact that on an earlier occasion he had been recalled under section 39 is of no effect on the consequences of that later re-call
26. Mr Gledhill advanced but did not press an argument based on 'legitimate expectation'. The Parole Manual, Prison Service Order 6000, stated in Chapter 7 at paragraph 7.1.2:

'The new recall provisions will apply to all prisoners, sentenced to a determinate sentence of 12 months or over, and released from prison on licence, other than those prisoners whose earliest offence was committed prior to 1 January 1999.'

That was plainly wrong because section 39 was repealed without saving.

27. For the reasons I have set out, in my judgment when a prisoner originally sentenced under the provisions of the 1991 Act is recalled to prison under section 254 of the 2003 Act for breach of licence, any subsequent release will be on a licence which will not terminate at the three quarter point of his sentence but will last until his sentence expires.

Lady Justice Hallett:

28. I am indebted to Jack J for his review and analysis of the legislation and the issues before us. I am also indebted to counsel (particularly Mr Gledhill upon whom the burden substantially fell) for their assistance in putting the case as clearly as it could put before us. Sadly, as Jack J has observed, clarity is not a word that any court would associate with these provisions.
29. Having struggled with the provisions of the Commencement Order and the various Acts amended and unamended, I, too, am driven to the conclusion for the reasons given by Jack J that any future release on licence of this particular recalled prisoner will be on licence in accordance with Chapter 6, that is to say until the sentence expiry date.