QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF STEVEN HIGHTON||(CLAIMANT)|
|(1) THE GOVERNOR OF HMYOI LANCASTER FARMS|
|(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANTS)|
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P PATEL (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
The Criminal Justice Act 2003
"14. The coming into force of sections 244 to 268 of, and paragraph 30 of Schedule 32 to the 2003 Act, and the repeal of sections 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than twelve months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)."
Paragraph 19 is headed "Savings for prisoners convicted of offences committed before 4th April 2005". The relevant passages are as follows. Paragraph 19(a):
"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)...
(c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act...
is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4th April 2005."
Paragraph 25(a) of Schedule 2 relates to consecutive or concurrent terms and reads as follows:
"25. The coming into force of -
(a) sections 263 and 264 of the 2003 Act (consecutive or concurrent terms)...
[then there are paragraphs (b) and (c), which need not concern us]
"does not affect the date on which the Secretary of State is required to release an offender from a sentence of imprisonment passed in respect of an offence committed before 4th April 2005, whether or not that sentence of imprisonment is to run concurrently or consecutively with one passed in respect of an offence committed after that date."
"(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section.
(2) Subsection (1) is subject to section 245.
(3) In this section 'the requisite custodial period' means -
(a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 of the Sentencing Act, one-half of his sentence."
Paragraphs 3(b) and 3(c) are not in force and relate to sentences of less than 12 months' imprisonment and intermittent custody orders. Paragraph 3(d):
"in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2)."
Section 246 relates to power to release on licence before required to do and deals with the computation in relation to Home Detention Curfew.
"(1) This section applies where-
(a) a person ('the offender') has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other, and(b) the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occassions.
(2) Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.
(3) Where any of the terms of imprisonment is a term of twelve months or more, the offender is, on and after his release under this Chapter, to be on licence-
(a) until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and(b) subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment."
(4) and (5) are not in force and relate to the situation where each term of imprisonment is less than 12 months:"(6) In this section -(a) 'custodial period'-(i) in relation to an extended sentence imposed under section 227 or 228, means the appropriate custodial term determined under that section,(ii) in relation to a term of twelve months or more, means one-half of the term, and(iii) in relation to a term of less than twelve months complying with section 181, means the custodial period as defined by subsection (3)(a) of that section;(b) 'licence period', in relation to a term of less than twelve months complying with section 181, has the meaning given by subsection (3)(b) of that section.
(7) This section applies to a determinate sentence of detention under section 91 of the Sentencing Act or under section 228 of this Act as it applies to a term of imprisonment of 12 months or more."
The effect of the first defendant's construction
The claimant's submissions
"The fact that the Order was not made under Section 333(2)(b), with the result that the affirmative resolution procedure was not used, is a powerful indication that paragraphs 19 and 23 are to be understood as dealing only with matters of definition and procedure of a transitional nature, not with matters of substance affecting prisoners' rights about which an opportunity ought to have been given for debate in Parliament."
Whilst it is accepted by the claimant that this claim is concerned with a different paragraph, the same principle is relied on. If paragraph 14 had been designed to change the substantive position, one would expect it to have been placed before Parliament by the affirmative resolution procedure. It was not.
The issue in summary
"It is submitted that read in context, Paragraph 14 does not dis-apply Sections 244, 246, 263 or 264 to the sentence in this case. It dis-applies them to the calculation of the custodial period on the sentences of less than 12 months, but this does not dis-apply the sections generally."
How the claimant is able to reach such an interpretation from the words of paragraph 14 is difficult to understand. There is no reference either to the calculation of custodial periods, or to custodial periods at all. Nothing in the paragraph supports that contention. To the contrary, there are clear references to sentences of imprisonment. Moreover, the essence of what the claimant argues for does not, contrary to his submissions, fall solely within the provisions of the 2003 Act, but represents a mixing of both regimes: the 1991 regime to determine the relevant custodial period and the 2003 regime, in order to aggregate all the sentences. In the highly unlikely event that it was intended to mix the two regimes there would be a need for this to be spelt out clearly, given that the effect of the coming into force of the Act and the 2005 Order is, that two separate regimes are in place.