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
		23/10/2014

Lord Justice Elias :

1. This case raises an important question concerning the way in which a defendant imprisoned for a criminal offence should be given credit for time served on remand. The argument originally advanced depended upon the proper construction of domestic legislation. Permission to apply for judicial review was granted by Mr Justice Green after an oral hearing. Of his own motion he amplified the grant of permission to allow Convention arguments to be run. The claimant has as a consequence raised an alternative argument based on Article 5.
2. The relevant facts can be summarised very briefly. The claimant was sentenced to a period of 12 months' imprisonment by Cox J in the Crown Court at Warwick on the 10 April 2013. He had pleaded guilty to a charge of handling stolen goods. He had already been in custody on remand for 411 days, a period which thus exceeded the sentence. The understanding of the defendant (and apparently of the judge too) was that the effect of having served that period on remand was wholly to extinguish the sentence: there was no more of his sentence to serve. The Secretary of State disagreed. He considered that the effect of the relevant statutory provisions was that whilst the period on remand was, by virtue of section 240ZA of the Criminal Justice Act 2003, to be set off against any time actually served in prison, it could not be set off against time spent on licence. Accordingly the claimant was put on licence. He refused to co-operate on the grounds that this was unjust and he was recalled to prison for breach of his licence on the 28 May. This was what is termed "fixed term recall" pursuant to section 255B of the Criminal Justice Act 2003. He was then recalled again under that section for 28 days on the 8 October. The issue is whether he was lawfully detained when on recall or whether he ought never to have been on licence in which case he could not lawfully be recalled at all.

The relevant legislation

3. The relevant provisions are found in chapter 6, part 12 of the Criminal Justice Act 2003. They have been subsequently amended in various ways and at various times, most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
4. Section 237 defines a fixed term prisoner as one serving a sentence of imprisonment for a determinate term. The claimant falls into that category.
5. Section 244 sets out the principles for determining when a fixed term prisoner must be released on licence. So far as is material, it is as follows:

"(1) As soon as a fixed-term prisoner … has served the requisite custodial period … it is the duty of the Secretary of State to release him on licence under this section.

…

(3) For the purposes of 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 … one-half of his sentence"

6. Section 241 sets out the principle that time spent on remand shall count when assessing what proportion of the custodial term has been served:

"In determining for the purposes of this Chapter….whether a person to whom section 240ZA applies …"

(a) has served, or would (but for his release) have served, a particular proportion of his sentence, or

(b) has served a particular period,

the number of days specified in section 240ZA or in the direction under section 240A are to be treated as having been served by him as part of that sentence or period."

Section 240A concerns time spent by those on bail but subject to the qualifying curfew and electronic monitoring provisions. Part of that time can count towards the custodial term in the same way as time on remand does.

7. Section 240ZA overlaps with section 241. It requires days spent on remand to be taken into account not merely in determining a relevant period under section 241, but more generally:

"This section applies where –

(a) an offender is serving a term of imprisonment in respect of an offence, and

(b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence….

(3) The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence."

It is to be noted that the obligation to give credit for the time served on remand is mandatory, save where one of the express statutory exceptions applies.

8. Section 240ZA(6) provides one such exception to the principle that days spent on remand will count, and is pertinent to this case:

"(6) A day is not to count as time served as part of any period of 28 days served by the offender before automatic release (see section 255B(1))."

9. There are in fact two different kinds of recall. "Fixed term recall" is where a defendant is recalled but will be automatically released after detention for 28 days, unless released earlier by the Secretary of State or on the direction of the Parole Board: section 255B. "Standard recall" is where the Secretary of State (and the Parole Board if there is a review) considers that automatic release is not appropriate because it is in the public interest to keep the offender in prison: section 255C. Section 240ZA(6) does not allow credit to be given in respect of time on remand (if any is left) when there is an automatic recall but it does for a standard recall. This distinction provides the basis of the Article 5 challenge in this case, to which I will return.
10. Subsection 7 deals with the application of the principles to a suspended sentence:

"(7) For the purposes of this section a suspended sentence –

(a) is to be treated as a sentence of imprisonment when it takes effect under paragraph 8(2)(a) or (b) of Schedule 12, and

(b) is to be treated as being imposed by the order under which it takes effect."

11. The effect of the reference to schedule 12 is that a suspended sentence only counts as a sentence of imprisonment once the sentence is activated by the commission of a further offence during the period of suspension. It is only at that point that credit is given for time spent on remand; there is no set-off against the period of suspension itself.

The critical phrase

12. The critical phrase in issue in this case is found in section 240AZ(3). What does it mean to say that the period on remand "is to count as time served by the offender as part of the sentence"? The claimant says that whatever its meaning in other contexts, in the case of an offender who has been on remand for longer than the total sentence, he must be treated as having served the whole sentence. Anything less than that would be absurd and unfair.
13. However, the proper construction of the relevant statutory provisions cannot vary depending upon the period of time served on remand. So the logic of the claimant's case, as ultimately accepted by his counsel, Ms. Farbey QC, is that the period on remand (and the same would apply to section 240A bail) should be set off against the whole period of the sentence promulgated by the judge at the time of sentence. Where the remand time is shorter than the custody period, it will reduce pro tanto the time a defendant has to spend in prison before release on licence. Where it is longer than the custodial period but shorter than the whole sentence, it will reduce the licence period by the excess unused credit. The defendant will be on licence in the usual way for the remainder of the sentence and if recalled for breach of the licence condition, he could not thereafter be given further credit for time on remand because it is well established that credit can only be given once and there should be no double counting: see R v Home Secretary ex parte Naughton [1997] 1 WLR 118; R v Gordon [2007] EWCA Crim 165; [2007] 1 WLR 2117 para. 31 per Lord Judge CJ. Where time on remand exceeds the sentence promulgated by the judge, as here, it extinguishes the sentence altogether and requires the immediate unconditional release of the offender.
14. The contrary view espoused by the Secretary of State is that section 240ZA(3) allows time on remand to be counted only against time spent in custody. It cannot be credited to reduce time spent on licence. However, subject to section 240ZA(6), it will count towards time in custody spent (or due to be spent) on recall.
15. To illustrate by an example. Suppose a defendant receives a twelve month prison sentence and had been remanded in custody for 9 months. As he has served half the sentence in prison he will not be subject to any further custodial period and must be released on licence. On the claimant's case he would be subject to a three month licence period. The 9 months is simply deducted from the period of the sentence fixed by the judge. By contrast, the Secretary of State's case is that the 6 month licence period remains because the period on remand can be credited only against time spent in custody. However, if the defendant is recalled for any reason, credit will be given for the unused period of time spent on remand unless the exception in section 240ZA(6) applies.
16. Neither construction is necessarily more or less favourable to an offender in all circumstances. No doubt many offenders on licence would prefer to be given credit for time actually spent in prison if and when subject to recall than to have a reduction in the licence period. But where, as in this case, the time spent on remand exceeds the sentence imposed by the judge, the claimant's construction will necessarily be more favourable because it brings the sentence to an end.
17. I have considerable sympathy for the claimant's submission particularly in the context of this case. I can well understand why the claimant feels aggrieved at having to remain liable to the risk of recall after having served time in prison which exceeds the sentence imposed. But I have come to the clear conclusion that the proper construction of section 240ZA(3) is that advanced by the Secretary of State.
18. I say this for four reasons in particular. First, I think that the more natural meaning of the phrase "time served … as part of the sentence" is that it is concerned with time actually spent in custody. One might naturally talk about the sentence being served at every point; but I do not think that one would talk about time being served at every point of the sentence including during the period when the defendant is on licence.
19. Second, if the claimant is right I can see no circumstance in which section 240ZA(6) would bite. The premise of that subsection is that but for the exclusion, time spent would count with respect to automatic recall under section 255B. This in turn presupposes that there may in some cases be unused remand time still available as credit. But if it is all used up by shortening the licence period immediately after sentence is given, as the claimant contends, there never will be any period left to credit on recall. In my judgment this is a very powerful indication that the claimant's submission is wrong.
20. Third, the way in which credit is given with respect to suspended sentences in subsection (7) is consistent with the Secretary of State's view. The effect of that provision is that credit is given only if and when a later conviction leads to imprisonment. No credit is given with respect to the length of the period of suspension itself even though during that period the offender may be subject to requirements imposed which could be more onerous than those applying to prisoners out on licence.
21. Fourth, section 241, when dealing with the question whether a person has served a particular proportion of the sentence such as the custodial term, refers to time which "he has served or would (but for his release) have served". The reference to someone who has been released is to the situation where the release on licence occurs before the end of the custodial period pursuant to section 246. The language envisages that the time spent on licence after release would not naturally count as time served; section 241 in effect deems it to be time served for the purpose of the calculation. "Time served" refers only to time actually served in prison.
22. Although there is no case directly in point on the proper construction of section 240ZA, there is an authority of this court relating to a similarly worded predecessor. In R v The Governor of HM Prison, Haverigg ex parte McMahon (The Times, September 24, 1997) the facts were that McMahon was charged with two acts of assault on a woman in June and a further two assaults in October the same year. He was remanded in custody after the final assault in relation to all of the charges. Unfortunately he was not tried for these offences together. The first two were tried before the St Helen's Justices and he was sentenced to 4 months' imprisonment. Because of the time spent on remand, he was entitled to be released immediately and he still had 45 unused days spent on remand. He was not in fact released following the sentence by the Justices, but was kept in prison on remand pending the second trial. He was sentenced to 15 months on that occasion by a judge at the Liverpool Crown Court. Full credit was given for the time spent on remand solely in respect of those latter offences. However, he submitted that he should in addition be given credit for the 45 days which he alleged had not been credited and should have been.
23. The unusual feature of the case was the split sentencing: he was initially remanded in relation to the four offences but they were tried separately. Had there been a single sentencing exercise, full credit would have been given to all days spent on remand. In the circumstances the Divisional Court (Sedley and Astill JJ) held that credit should be given.
24. The relevance of McMahon to this case is that in the course of argument in that case the Secretary of State contended that credit for the 45 days had been given. It should be set off against the full sentence, thereby reducing the notional time for which the offender was on licence in relation to the first set of offences. The effect was simply to shorten the licence period. (The fact that he was remanded in custody because of the pending second trial was irrelevant). Thereafter no additional unused credit remained to be set off against the 15 month sentence.
25. There were two statutory provisions in issue in that case. Section 67(1) of the Criminal Justice Act 1967 provided:

"The length of any sentence for imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period".

"Relevant Period" included time spent on remand.

26. Section 67(4) added this:

"Any reference in this Act or any other enactment (whether passed before or after the commencement of this Act) to the length of any sentence of imprisonment shall, unless the context otherwise requires, be construed as a reference to the sentence pronounced by the court and not the sentence as reduced by this section."

27. The second provision was section 41 of the Criminal Justice Act 1991 which dealt with the setting-off of time spent on remand in these terms:

(1). This section applies to any person whose sentence falls to be reduced under section 67 of the Criminal Justice Act 1967 … by any relevant period within the meaning of that section ("the relevant period").

(2). For the purpose of determining for the purposes of this Part

(a) Whether a person to whom this section applies has served one half or two thirds of his sentence … the relevant period shall … be treated as having been served by him as part of that sentence. "

28. The current provision equivalent to section 67 is section 240ZA(3). However, whereas section 67 unambiguously made it plain that the effect of remand time was to reduce the sentence actually imposed by the court, section 240ZA(3) is drafted in a different and more obscure manner. The claimant's argument, in effect, submits that the two provisions are in fact saying the same thing.
29. The court in McMahon accepted that reading section 67 alone would undoubtedly require time in custody to be subtracted from the sentence as pronounced by the judge, as the Secretary of State was claiming (and as the claimant submits is the position here with respect to section 240ZA(3)). The court rejected that analysis only because it did not accept that section 67 was the material provision in play. Section 41 was contained in the later statute and in the court's view that section governed the situation. With respect to that provision, Mr Justice Sedley said this:

"[Section 41], it seems to us, focuses the exercise upon time actually served. It does not seek to take into account time which, though included in the length of the sentence pronounced, will not be served except as a consequence of re-offending during its currency."

Mr Justice Astill agreed.

30. Section 41(2) is cast in almost identical terms to section 240ZA(3) and therefore this authority supports the construction I have favoured.

Article 5

31. The alternative submission was that the procedures adopted in this case involved a breach of Article 5 which, so far as is relevant, is as follows:

"(1) Everyone has the right to liberty and security of 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.

…

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

32. In the course of argument my understanding was that there were two distinct threads in this submission. First, I understood the claimant to allege that there was a breach of Article 5(4) with respect to the decision to recall. There are practical consequences, depending on whether there is an automatic recall or a standard recall. As I have said, the effect of section 240ZA(6) is that the time spent on remand counts against the latter but not the former. It was said that since the decision as to the nature of the recall was taken by the Secretary of State and it affected the time actually spent in custody, the claimant had been deprived of his liberty without a proper determination by a competent court.
33. This argument is misconceived. The procedure under section 255B, which is concerned with automatic recall, allows the defendant to make representations in writing with respect to the revocation of the licence and in those circumstances the Secretary of State must refer the case to the Parole Board, who may order the defendant's immediate release. It is well established that the Parole Board is a judicial body and that review by the Board in principle constitutes compliance with Article 5(4): see R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350
34. In any event, in R (Whiston) v Secretary of State for Justice [2014] UKSC 39' [2014] 3 WLR 436 para. 25 Lord Neuberger (with whose speech Lords Kerr, Carnwath and Hughes all agreed) expressed the view, albeit obiter, that Article 5(4) was not engaged at all "in circumstances when the recall to prison occurred during the period of a determinate sentence imposed for the purpose of punishment". That was a case of recall following release prior to the custodial period being completed under section 246 of the 2003 Act, and in those circumstances there is no review by the Parole Board. But the observation of Lord Neuberger was not limited to such cases. It suggests that any recall for any reason which occurs during the period of the sentence will be outside Article 5.
35. The claimant places emphasis on the judgment of Baroness Hale in that case. She expressed reservations with Lord Neuberger's speech on that particular point (although not on the result in the case). She considered that where a prisoner is entitled to be released as a matter of right after a particular period, as fixed term prisoners are under UK law once they have served the custodial term, then Article 5(4) would bite on any decision thereafter to recall the defendant to prison.
36. The claimant suggests that the decision of the Strasbourg Court in Del Rio Prada v Spain (2014) 58 EHRR 37, a case decided before the Whiston case but not apparently drawn to the attention of the Supreme Court, supports the provisional view of Baroness Hale. That was a case where the applicant was initially sentenced to 3,000 years' imprisonment which was later reduced to 30 years. She was told in February 2001 that she would fully discharge her sentence in June 2017 in accordance with the rules then in place which gave credit for work done in prison. Subsequently, following a decision in the Spanish Supreme Court, the rules were changed and this led to her being required to remain in prison for an additional period amounting to almost 9 years. The Strasbourg Court held, amongst other matters, that this was a breach of Article 5(1) on the grounds that the application of rules which were not in place at the time of her original sentence and could not have been foreseen meant that her detention was not "lawful" within the meaning of that provision.
37. In my judgment, this case has no bearing on the issues discussed in Whiston. Furthermore, Baroness Hale at paragraph 59 confirmed the principle that where the Parole Board has the power to decide on continued detention that provides the necessary judicial element consistent with Article 5(4).
38. The second strand in this argument was that the distinction drawn in the law between automatic and standard recalls, with time on remand counting as credit in relation only to the latter, rendered the claimant's recall arbitrary. It means that the offender who can safely be returned to the community is treated less favourably than the offender who cannot, precisely the reverse of what one would expect. Reliance is placed on the speech of Lord Hope of Craighead in R (Giles) v Parole Board [2004] 1 A.C.1, para. 40, where he said that, in the light of the Strasbourg jurisprudence, in order for a detention to be lawful within the meaning of Article 5(1), it must be "in accordance with domestic law and not arbitrary". He said that detention would be arbitrary if it was resorted to in bad faith or if it was disproportionate (para. 25). The submission is that even although the initial sentence was not arbitrary, the recall was precisely because of the different rules relating to credit given for time spent on remand. They operate in a disproportionate way.
39. Even assuming that Article 5(1) can in principle apply to the subsequent recall (which is inconsistent with the majority view in Whiston) I do not accept that applying a different principle as regards credit to the two forms of recall is arbitrary. There are a number of differences and a comparison cannot simply focus on that one difference without regard to the others. In practice a defendant on automatic recall is far more likely to be released earlier than those on standard recall. He is automatically released after 28 days, whereas someone on standard recall will remain in prison until the release date unless the Secretary of State (or the Parole Board, if the case is referred to the Board) is satisfied that it is not necessary for the protection of the public that he should remain in prison.
40. I accept that it is not entirely clear why section 240ZA(6) does distinguish between automatic recall and standard recall so far as credit for time on remand is concerned (and the diligence of counsel has not unearthed any explanation given in the debates in Parliament). It may be a concern that without some period of imprisonment which could not be reduced by time spent on remand there would be too many cases where the remand time would swallow up the short period of recall with the consequence that there would be no effective sanction for breach of licence. But whether that is the rationale or not, I am satisfied that the distinction is not arbitrary so as to justify the conclusion that implementing an automatic recall would mean that it was not a lawful recall within the meaning of Article 5(1).
41. There is possibly a further reason why this ground fails. It relates to the way in which the recall provisions are applied in practice. We were helpfully given a full explanation of this following the hearing.
42. Where an offender is recalled under the automatic recall provisions, he must serve 28 days (unless released earlier). In fact, however, notwithstanding section 240ZA(6), he is in practice given credit for time spent on remand, although not directly against time spent in prison. This is because the period he serves on recall, or the unused time spent on remand, whichever is the less, is used to bring forward the sentence end date, at which point he is entitled to be released. The effect, therefore, is in fact to give credit for days spent on remand (up to the number of days actually spent in prison) against what would otherwise be days spent on licence. I am told that there is no specific statutory provision permitting this, and I confess to some doubts as to what its legal basis may be, although we heard no argument about that. But it does have the merit of giving effect to section 240ZA whilst at the same time recognising that it might be thought unjust and disproportionate to give an offender subject to fixed term recall no allowance at all for days spent on remand.
43. For those offenders recalled pursuant to section 255C, the giving of credit must perforce operate in a different way to its application to the custodial period. The recall is for an indeterminate length of time, although the end date for someone not released earlier is known since it is the date when the sentence fixed by the judge is completed. So the offender is liable to be recalled until that date although he may be released earlier. It would not be possible to give credit at the time of recall for days spent on remand since it is not known for how long the recall will be. So what is done is to bring forward the date of release by the number of unused days spent on remand. For those offenders who would in fact have remained in prison for the duration of their sentence, there is a direct correlation between the time actually served in custody and the time which the offender is liable to serve in custody on recall.
44. It follows that in both cases there is credit given by bringing forward the sentence end date and hence the date of release. The practical application of the principles brings them very close together. There is nothing arbitrary so as to attract the operation of Article 5.

Disposal

45. For these reasons I would reject this application for judicial review.

Mr Justice Hickinbottom:

46. I agree - and would only say that, for my own part, I would not rely upon the alternative ground upon which my Lord Elias LJ considers that the Article 5 basis of challenge might fail (paragraphs 41-44 above).  In my view, there is nothing arbitrary in the statutory scheme for the reasons put forward cogently by Elias LJ earlier in his judgment, and, in the absence of argument as to the legal basis upon which the Secretary of State brings forward the sentence end date of a prisoner on automatic recall, I would prefer to reserve my position on the alternative he postulates.