QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DAMIEN PAGE||Claimant|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
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Mr V Sachdeva (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"There is nothing in the point which Mr Barlow [who represented the claimant] has made in his written submissions that the judge erred in principle in imposing a longer than commensurate sentence to run consecutively with the sentence previously imposed. The argument in fact has a certain unreality about it given that the previous sentence has been quashed..."
Then it goes on in the next paragraph:
"Mr Barlow's principal submission before us today is that the judge wrongly took into account the recent conviction for robbery which has now been quashed. He submits that the judge therefore arguably was wrong to assess the applicant as a dangerous man and this factor may have wrongly influenced him in deciding on the total sentence of six years which he imposed.
In our judgment, however, considering the background of this applicant he can fairly and properly be described as a dangerous man, even if one removes from the equation the conviction, now quashed, of January 2002."
In fact he had a number of convictions recorded against him apart from those to which I have specifically referred.
"It may well be that the exercise of the prerogative of mercy in that respect would also fit other policy considerations presently before the Secretary of State, but I make no comment about that."
I suspect he may have referred to prison overcrowding in those comments but they are not material.
"If a mistake in calculation which changes a prisoner's release date is found to have been made, immediate action must be taken to rectify it. If there is any doubt, the sentence calculation helplines in headquarters must be consulted before the release dates are changed."
"Where a prisoner has been given to understand for several months that he or she will be released on a date before the correct release date, consideration must be given to whether the sentence imposed should be served up to the correct release date or whether the period in question should be cancelled out by the exercise of the Royal Prerogative of Mercy (sometimes referred to as 'special remission'). The decision whether to seek the exercise of the Royal Prerogative in such cases must take account of the relevant circumstances, balancing the expectations or distress of the prisoner and his or her family against the obligations on the Prison Service to ensure that the sentence of the court is implemented. The Royal Prerogative cannot be exercised lightly: each case must be carefully considered on its individual merits."
Then we have a sentence which I criticised as being meaningless at 13.1.5:
"The issue that must be determined is whether public faith has been pledged to such an extent as to justify the validation of the incorrect release date."
It then goes on:
"Consideration must be given as to whether the relevant sentencing court should be consulted. Depending on the circumstances, the following factors may need to be taken into consideration:
1. The length of time the prisoner has been under a misapprehension
If the error is discovered and rectified soon after it was made, then the prisoner is unlikely to have suffered any substantial disappointment and special remission would not normally be granted. If, however, the mistake is not discovered until shortly before the date on which he or she expects to be released or the prisoner was given the date some time before being released then there may be a case for granting remission. There are no hard and fast rules; individual cases must be considered on their merits and in the light of precedents.
2. The extent to which the prisoner has made plans for release on the incorrect date
If the prisoner has no family or job to go to and the mistake results only in a measure of personal disappointment, without affecting his or her future plans, the case for remission is weakened. If, on the other hand, the prisoner has made domestic plans or has secured an offer of employment which may be lost if he or she is not released to take it up, the grounds for remission are stronger.
3. Whether the prisoner has deliberately withheld knowledge of the error..."
That does not apply here:
"4. The length of time or proportion of the sentence that would not be served
Only in very exceptional circumstances would a liability to serve more than 25% of the term imposed by the court or a period of more than 2 months be cancelled by exercise of the Royal Prerogative. Where, exceptionally, this is considered appropriate, the views of the sentencing court must be obtained."
That is all, I think, I need to quote.
"It is accepted that at the time of his appeal against the 6 year sentence Mr Page was under a misapprehension in regard to his correct release date. Although he was not denied the opportunity to ask the Court of Appeal to take into account the time he had spent in custody as a result of the quashed 4 year sentence (that argument was available to him in any event), he did lose the opportunity to argue that unfairness would result from the aggregation of his consecutive and concurrent sentences such that he would serve 7 months more than 6 years from the imposition of the 6 year sentence on 28 February 2003."
That, of course, is the crucial point. He then refers to the guideline factors to which I have already cited from 6650. The misapprehension had indeed existed for a very substantial time and so the first factor was clearly met and it was accepted that he was within the criterion set out that it should not be more than two months before the release date as a general approach. The point was made that his release plans have been unaffected, although of course he would have been no doubt very disappointed by the result. It would have had a damaging effect upon him. The letter then goes on to make the point that each case has to be considered on its individual merits and must balance the expectations or distress of the prisoner and his family against the obligations to ensure that the sentence of the court was implemented. It is also necessary to consider whether the decision supports the aims of protecting the public and assisting the resettlement and rehabilitation of the prisoner.
"As originally framed, the applicant sought to attack the Home Secretary's application of long standing Home Office policy that a free pardon would not be granted unless he was satisfied that the person concerned was both morally and technically innocent of the crime. That disclosed an error of law, so it was argued, since it misunderstood the nature and effect of a free pardon. If that had remained the basis of the applicant's case we have considerable doubt as to whether the decision could have been reviewed on the basis contended for. We think that Mr Richards was probably right in submitting that the formulation of criteria for the exercise of the prerogative by the grant of a free pardon was entirely a matter of policy which is not justiciable."