England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2005

The Honourable Mr Justice Silber:

This is the judgment of the court to which both members of the court have made a contribution

I. Introduction

1. The important issue raised in this case is whether the Secretary of State for the Home Department ("the Secretary of State") had the power after 4 April 2005 to recall to prison for cause prisoners, who had been released on licence before 4 April 2005. Mr Hugh Southey for Benjamin Buddington ("the claimant") contends that the Secretary of State did not have the power to do this while Miss Kristina Stern for the Secretary of State contends that he did have the power. As will be explained the answer depends on the construction of a Statutory Instrument.

II. The Chronology

2. Prior to 4 April 2005, section 33 of the Criminal Justice Act 1991 ("the 1991 Act") obliged the Secretary of State to release on licence any prisoner such as the claimant, who was serving a sentence of imprisonment for a term of less than 4 years. Under certain circumstances (set out in section 39(1) of the 1991 Act), the Secretary of State could then revoke the licence of such a prisoner and recall him to prison.
3. On 4 April 2005, some relevant provisions in the Criminal Justice Act 2003 ("the 2003 Act") came into effect, which substantially replaced the existing regime enacted in the 1991 Act. The issue raised on this application is whether the claimant, who was released on licence on 1 December 2004, could be validly recalled for breach of his licence on 24 May 2005.
4. The problem arises in this case because the claimant was sentenced to two years and five months imprisonment for offences of burglary on 9 January 2004. After his release on licence on 1 December 2004, he was then recalled for breach of his licence on or about the 24 May 2005. The claimant's licence would have expired on 17 July 2005 under the relevant provisions in force at the time when he was sentenced in 2004. Unfortunately, the Claimant was not released until 27 July 2005. It is now accepted by the Secretary of State that the Claimant had been wrongly detained as he should have been released on 18 July 2005 but that is not a matter with which this court is concerned in these proceedings. For the purpose of completeness, it is appropriate to add that it is not suggested that if the Secretary of State had the power to recall the claimant in May 2005, he did not have good cause to do so. The only issue on this application is whether the Secretary of State had the power to recall the claimant in the circumstances, which are explained later in this judgment. Collins J granted the claimant permission to pursue this application.
5. In order to understand the submissions on this application, it is necessary now to explain the different statutory regimes in force at different times during the duration of the claimant's sentence.

III The Statutory Provisions.

(i) The position of the claimant when sentenced in January 2004

6. At the time when the claimant was sentenced in January 2004, the relevant provision was section 33 of the 1991 Act, which provided that:-

"(1) As soon as a short-term prisoner [which is what the claimant was] has served one-half of his sentence it shall be the duty of the Secretary of State…

(b) To release him on licence if that that sentence is for a term of twelve months or more"

7. At the time of the claimant's release on licence on 1 December 2004, section 39 of the 1991 Act provided that:

"(1) If recommended to do so by the [Parole] Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without recommendation by [Parole] Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable"

8. The consequences of a recall prior to 4 April 2005 were set out in section 33 of the 1991 Act, which provided that: -

"(3) as soon as a short-term or long-term prisoner who...

(a) has been released on licence under this Part; and

(b) has been recalled to prison under Section 39 (1) or (2) below, would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him on licence"

(ii) The position of the claimant after 4 April 2005

9. The provisions in Section 39 of the 1991 Act were repealed with effect from 4 April 2005 by Paragraph 44(4)(k) to Schedule 1 of the Criminal Justice Act 2003(Commencement No 8 and Transitional Savings Provisions) Order 2005(SI 2005-950) ("the Order"). It is common ground between the parties that Section 39 of the 1991 Act could not provide statutory authority for the claimant's recall by the Secretary of State on 24 May 2005. So it becomes necessary now to consider the relevant provisions of the 2003 Act, which came into force on 4 April 2005.
10. Section 254 (1) of the 2003 Act, which came into force on 4 April 2005, provides with emphasis added that:-

"The Secretary of State may, in a case of any prisoner who has been released on licence under this Chapter revoke his licence and recall him to prison".

11. The parties agree correctly in our view that this provision did not entitle the Secretary of State to recall the claimant as he had been released under section 33 of the 1991 Act rather than either under the relevant Chapter of the 2003 Act or under any part of it. It is nevertheless noteworthy that in the 2003 Act there is no provision equivalent to Section 33(3) of the 1991 Act, which requires the prisoner who has been recalled to be released automatically when three-quarters of his sentence has expired. That means that a prisoner recalled under section 254(1) of the 2003 Act can in theory be detained for a longer period than he or she could have been detained under the 1991 Act but it will be necessary to return to consider if in practice a prisoner recalled after 4 April 2005 would be detained for a longer period than he could have been under section 33(3) of the 1991 Act.
12. As the provisions in the 2003 Act only deal with prisoners released after 4 April 2005, it is now necessary to consider the transitional provisions in respect of prisoners, such as the claimant, who were released on licence before 4 April 2005 but who were recalled after that date. There are two possible relevant provisions in Schedule 2 to the Order.
13. The first is Paragraph 19 of Schedule 2 to the Order, the heading of which is "Savings for Prisoners convicted of offences before 4 April 2005". In so far as is relevant to the present application, it provides that:

"The coming into force of …

(c) the repeal of Sections 33… 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 4 April 2005.

14. Counsel are agreed that Paragraph 19 of Schedule 2 does not effect the repeal of section 39 of the 1991 Act. Thus, it is common ground that Paragraph 19 of Schedule 2 did not give the Secretary of State the power to recall the claimant.
15. The second relevant transitional provision is Paragraph 23 of Schedule 2, which will hereinafter be referred to just as "Paragraph 23" and which Mr Southey and Miss Stern agree, is the critical provision in this case. It is headed "Transitional arrangements for recall after release" and the material parts of it provide with emphasis added on the crucial words that:

"(1) Subject to [certain provisions which are irrelevant], 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 to Sections 37(1) and 44 (3) and (4) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and

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

16. There is a fundamental dispute between the parties as how this court should interpret the opening and emphasised words in paragraph 23 "falls to be released under the provisions of Part 2 of the 1991 Act". The claimant contends that these words qualify the release date while the Secretary of State contends that they qualify the operation of sub-paragraphs (a) to (c). It is only if the Secretary of State is correct that he could be entitled to have recalled the claimant after 4 April 2005. Both counsel have looked at Hansard to discover if Ministerial statements can throw any light on the meaning of Paragraph 23 or the statutory purpose of this provision but neither of them have discovered anything of any relevance.

IV The Claimant's Submissions

17. Mr Southey contends that Paragraph 23 did not confer on the Secretary of State the power to recall the claimant because in order for Paragraph 23 to apply, the prisoner had to have been released after 4 April 2005. In other words, he says that the words "falls to be released" are qualified by 4 April 2005. Mr Southey contends that the interpretation sought by the Secretary of State entails rewriting Paragraph 23 so that a comma is placed after a word "Act" so that paragraph 23 then related 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…"
18. In support of his submission, he points out that if the draftsman of the Order had wanted to state that the transitional provisions would relate to an event that occurred both before and after 4 April 2005, he or she would have made no reference to 4 April 2005 in paragraph 23 as was the case in paragraph 16 (a) of that Schedule of the Order.
19. Mr Southey contends that if the Secretary of State's contention is correct, paragraph 23 does not merely maintain the status quo but it means that a prisoner may be detained for a longer period. Under the 1991 Act, as has been explained in paragraph 8 above, a prisoner who had been recalled has to be released when he has served three-quarters of his sentence on account of section 33(3) of the 1991 Act. As there are no identical or comparable provisions in the 2003 Act, he submits that this means that a prisoner who has been recalled after 4 April 2005 might have to serve a longer period than somebody, who was recalled prior to 4 April 2005.
20. Mr Southey points out that the date of recall might depend on administrative efficiency, which would potentially raise issues under the European Convention on Human Rights ("the Convention"). In further support of his submission that the Secretary of State's approach is unfair, Mr Southey points out first that the offender will not necessarily have been given any notice that the period for which he might be recalled to prison had changed since the time when he was sentenced or released and that second this appears to be the case for this claimant according to his witness statement. In essence, Mr Southey considers the unfairness in this case has occurred because the statutory provision does not link the right to recall under the new provision to the date of the offence but that instead it links liability to the date of an administrative act.
21. According to Mr Southey, the relevant consequences of this feature of the transitional provision are threefold. First, he points out that Parliament will rarely have intended to legislate in a manner that operates unfairly as was explained in L' Office Cherifien Des Phosphates v Yamashita-Shinnihon Steam-Ship Company Ltd [1994] 1 AC 486 at 525.
22. Second, he says first that the principle of legal certainty is an aspect of the rights protected by Article 6 of the Convention; and second that the Secretary of State's interpretation of Paragraph 23 is contrary to that principle as it amounts to a retrospective change to the sentence imposed by the sentencing Judge. Thus, he says that paragraph 23 must be read pursuant to section 3 of the Human Rights Act 1998 ("HRA") in a way, which is consistent with the claimant's rights under the Convention and that means that his interpretation should be accepted because the alternative approach advocated by the Secretary of State would interfere with the principle of certainty.
23. Third, to support his construction of paragraph 23, Mr Southey also relies on section 16 of the Interpretation Act 1978 which provides among other things that:-

"where an Act repeals an enactment, the repeal does not, unless the contrary intention appears………………..

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that enactment..."

V. The Secretary of State's Submissions

24. Miss Stern submits that the task of the court is to ascertain the intention of Parliament when it conferred on the Secretary of State the authority to make the Order. She submits that it is beyond doubt that when Parliament first approved section 254 of the 2003 Act and second gave the Secretary of State power to make transitional provision in relation to it, it intended that there should be a continuing power given to the Secretary of State to recall thereafter determinate and fixed term prisoners, who had previously been released on licence.
25. In consequence, Miss Stern contends that it must have been intended that a power of recall would be conferred on the Secretary of State in the transitional provisions. To fortify her point, she says that the consequences of the meaning contended for by the claimant, namely that the Secretary of State would have no power of recall, are so disturbing and revolutionary that it must be presumed that Parliament would not have intended them. Miss Stern also seeks to derive assistance from the subsequent statements for the Home Office in the form of PSO 6000-Parole Release Recall Promotion circular (Reference No 16/2005)("the Circular"), which states that the recall provision in the 2003 Act applies after 4 April 2005 to prisoners released early under the 1991 Act.

VI. The Approach to the Construction of Paragraph 23

26. It is common ground between counsel that in order to construe Paragraph 23, it is necessary to determine the intention of the legislature when the relevant provisions were enacted
27. Miss Stern submitted that the parliamentary intention behind Paragraph 23 and the empowering provisions in the 2003 Act has to be discovered by considering those provisions in the light of the background against which they were enacted. Indeed, in a speech with which Lords Steyn, Hoffman and Scott of Foscote concurred, Lord Bingham of Cornhill explained in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at 694 [9] that:

"The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possible arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment".

28. It follows that in some cases such as in Quintavalle, a particular statutory construction might have an initial obvious attraction but that approach might well be shown to be wrong when the Parliamentary intention is analysed further in the way explained by Lord Bingham.
29. This approach of Lord Bingham was to some extent foreshadowed by Lord Blackburn who said that the golden rule of construction was

"that we are to take whole statute together, and construe it all together giving the words their ordinary signification, unless when so applied, they produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification" (per Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Case 743, 764).

30. Lord Reid has also explained that

"it is also always proper to construe ambiguous words in the light of the reasonableness of the consequences" ( Garside v IRC [1968] AC 533, 612).

31. It is appropriate now to set out some of the basic and undisputed principles for construing the provisions in paragraph 23 and they are that:-

(1) Delegated legislation is to be construed in the same way as Acts of Parliament. (Statutory Interpretation- Bennion (4th edition- 2002 page 216)

(2) "The Courts task within the permissible bounds of interpretation is to give effect to Parliament's purpose" (per Lord Bingham in Quintavalle (supra)". Discerning the parliamentary intention has been described as "the sole object in statutory interpretation" (Bennion (supra) ibid, page 405)

(3) "So the controversial provisions should be read in the context of the statute as a whole and the statute as a whole should be read in the historical context of the situation which led to its enactment" (per Lord Bingham in Quintavelle (supra )

(4) Where there is uncertainty as to the meaning of a particular word in a statutory provision, a court can take account of "the reasonableness of the consequences" of the particular construction (per Lord Reid in Garside (supra) because if the words in question when construed with their ordinary meaning " produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification" (per Lord Blackburn in River Wear Commissioners v Adamson (supra)).

VII. How should Paragraph 23 be construed?

32. On any view, it is not entirely clear whether the words in paragraph 23 "after 4 April 2005" qualify the operation of sub paragraphs (a) to (c) (as Miss Stern contends) rather than the release date as Mr Southey submits is the case. The draftsman does not deserve any prizes for the wording of paragraph 23. It is noteworthy that the New Shorter Oxford Dictionary states that one of the meanings of the word "falls" is "happened"(see Volume I page 90) and that would mean that paragraph 23 would relate to prisoners, who happened to be released under the provisions of the 1991 Act.
33. At this stage, we are prepared to assume (but not to decide) that there is some unfairness to a prisoner who is recalled after 4 April 2005 from a pre-4 April 2005 release as he is deprived of the right to be released three-quarters of the way through his term. Nevertheless for reasons which we shall seek to explain, we have concluded that Miss Stern is right and that the words "after 4 April 2005" in paragraph 23 qualified the operation of sub paragraphs (a) to (c) of that paragraph with the result that the Secretary of State was entitled to recall the claimant on or about 24 May 2005.

(i) The interpretation of Paragraph 23 in the light of the context of the 2003 Act as a whole and the circumstances leading to its enactment

34. First, in ascertaining the Parliamentary intention it is necessary to give effect to the purpose of Parliament in implementing all the relevant provisions, which in Lord Bingham's words, which I quoted in paragraph 27 above, "should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment". This approach indicates clearly that Miss Stern's construction should be preferred.
35. Mr Southey's construction means that after 4 April 2005, the Secretary of State was deprived of the power to recall to prison for any cause whatsoever any prisoner, who had been released on licence before 4 April 2005. If Mr Southey's construction is correct, it follows that :

(a) Any prisoner who had been released on licence before 4 April 2005 could not be recalled after 4 April 2005 because of the operation of Paragraph 23 even though he might have acted in breach of the terms of his licence or he might have become a serious danger to the public;

(b) as any prisoner who had been released on licence before 4 April 2005 could not be recalled after 4 April 2005 , this would have the far-reaching result that his release on licence meant that he would in fact on his release supposedly on licence have been in practice unconditionally released and not released on licence so there would be no sanction if he had failed to comply with the terms of his licence or become a serious danger to the public.

(c) There is thus a very striking contrast between the susceptibility to recall of different classes of prisoners depending on when they were released and recalled starting with the liability to recall (i) after 4 April 2005 of a prisoner, who had been released on licence before 4 April 2005, (ii) after 4 April 2005 of a prisoner who had been released on licence after 4 April 2005 and (iii) before 4 April 2005 of a prisoner, who had been released on licence before 4 April 2005. (I will refer to these as category (i), (ii) or (iii) prisoners) Those in category (i) are not according to Mr Southey subject to recall because of the operation of paragraph 23 and so can and should be regarded as discharged prisoners on release while those in categories (ii) and (iii) still have or had the very important sanction of recall hanging over them;

(d) a prisoner, who had been released on licence before 4 April 2005, would have remained liable to recall until 4 April 2005 because of the provisions of section 39 of the 1991 Act (which are set out in paragraph 7 above). But after that date at a stroke he would have automatically ceased to be liable to recall because of Paragraph 23 fails to permit recall of prisoners who are released on license. So at a stroke, he would have become a free man in the sense that he could not be recalled to prison however badly he behaved unless he committed a separate and new offence.

36. Thus, if Mr Southey's construction of Paragraph 23 is correct it would have had a radical effect on the position of one group of prisoners namely those who had been released before 4 April 2005 and who were still on licence after that date as they would then not be subject to recall however badly they had behaved or even if they became a danger to the public. So they would be in a totally different position from those referred to in categories (ii) and (iiii) in sub-paragraph (c) of the last paragraph. Thus, it has to be seen if it was-or could have been-the intention of the legislature to bring about such a revolutionary change to preclude the right of the Secretary of State to order the recall of just category (i) prisoners, namely those who had been released before 4 April 2005 and who were still on licence after that date.
37. We have unhesitatingly come to the conclusion for three reasons that it could not have been the intention of the legislature to intend the result propounded by Mr Southey in respect of category (i). First, there is nothing in the terms of the 2003 Act or in the parliamentary debates leading up to either its enactment or the making of the Order, which indicate that such a revolutionary change was envisaged or intended for category (i) prisoners while at the same time, no similar change was intended for those in categories (ii) and (iii).
38. Second the overall policy of the 2003 Act was not to reduce the circumstances in which a released prisoner could be recalled to prison for breach of licence and so provide greater protection for the public in relation to those released from custody. Section 255 of the 2003 Act makes it clear that the Secretary of State has power to recall prisoners. If Mr Southey is correct in his submissions, for a group of prisoners identified only by accident of the dates of their release and recall, there is not only no greater protection for the public but rather a completely unexpected (and utterly undeserved) amnesty in relation to any breach of licence. That would have the consequence of a reduction of protection available for the public below that which represented the law at the time such prisoners were sentenced.
39. Third, there is no logical basis for distinguishing category (i) prisoners from those categories (ii) and (iii) especially as the precise time when a prisoner was recalled from licence might depend on administrative efficiency. Take the case of two prisoners, who were sentenced on the same day to the same very lengthy periods of imprisonment for the same offences and who were released on licence on the same day before 4 April 2005. Subsequently, these two prisoners have together committed identical serious breaches of licence on the same day but one is recalled on 3 April 2005 while the other, whose recall has been delayed for some internal administrative reason until 5 April 2005 cannot be recalled. If Mr Southey is correct, it is not possible to discern that it was the intention of the legislature or that it could have been the intention of the legislation that the prisoner whose recall was delayed until after 4 April 2005 cannot be recalled while the prisoner recalled before 4 April 2005 was properly recalled. If Parliament had intended to make such a radical change as is the consequence of Mr Southey's submissions, we would have expected this to have been explained or justified by the legislature or ministers but it has not been done.
40. Fourth , as Mr Southey pointed out during his argument in a different context, Parliament will rarely have intended to legislate in a manner that operates unfairly as was explained in L' Office Cherifien Des Phosphates v Yamashita-Shinnihon Steam-Ship Company Ltd [1994] 1 AC 486 at 525. This approach when considered in the context of the anomalies to which we referred in paragraphs 35,36 and 38 above, support my conclusion that Parliament must have intended that there would be no radical change in the right to recall licensed prisoners and that the Secretary of State would have the right to recall after 4 April 2005 those prisoners who had been released on licence before that date.

(ii) The Alleged Absurdity of the Consequences of the Claimant's Construction

41. A second reason for supporting the Secretary of State's contention is, to adopt the approach of Lord Blackburn to which we referred in paragraphs 29 above, because if Mr Southey is right on the literal meaning of Paragraph 23, this would "produce an inconsistency or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification". As we have explained in paragraphs 35, 36 and 39 above, the contrast between the position after 4 April 2005 of the prisoner released on licence before 4 April 2005 with his counterpart released on 6 April 2005 would produce an absurd position which means that the intention of the legislation could not have been that Paragraph 23 could or should have the meaning which Mr Southey seeks to give to it. In reaching that conclusion, we have not overlooked Mr Southey's submission that the Secretary of State's interpretation would potentially enable prisoners to be recalled for a longer period. We cannot accept that submission not only for the reasons set out in paragraphs 43 to 50 below but also because of the factors set out in paragraphs 35, 36 and 39 above.

(iiii) Reasonableness of the consequences of the claimant's submission

42. Third, even if there was a doubt about the meaning of the controversial words in Paragraph 23, then as Lord Reid has explained "it is also always proper to construe ambiguous words in the light of the reasonableness of the consequences" (Garside v IRC [1968] AC 533, 612). As we have endeavoured to explain, the interpretation propounded by Mr Southey would produce an unreasonable result but in contrast the Secretary of State's approach would lead to those released on licence conditional on complying with conditions being recalled if they failed to comply with the conditions. On any view this must be a reasonable and foreseeable result.

(iv) The alleged unfairness of the claimant's position

43. Mr. Southey's complaint is that because of the failure to re-enact section 33 (3) of the 1991 Act, the claimant would not have been entitled to automatic release after his recall when he had served three-quarters of his sentence as he would have been entitled under the 1991 Act before the repeal of section 33 (3) of the 1991 Act by the 2003 Act. We are not, however, persuaded that this argument based on unfairness is well - founded and we reach that conclusion for four different reasons.
44. First the Secretary of State was entitled to give instructions to the Parole Board under 239(6) of the 2003 Act and one of those instructions was, with our emphasis added, that:

"The Parole Board shall take into account the fact that the prisoners who have been sentenced under the provisions of the [1991 Act] cannot be disadvantaged by the recall provisions of the [2003 Act]"

45. However, counsel drew our attention briefly to the recent decision of Walker J in Girling v Parole Board [2005] EWHC 546 (Admin) in which it was held that the Parole Board was not obliged to follow directions under section 32 of the 1991 Act. That decision is the subject of an appeal and we did not hear argument on the correctness of that decision; so in fairness to the claimant, it will be assumed, but of course not decided, for the purposes of this case that the Parole Board is not obliged to follow the terms of the directions. Nevertheless the Board is very likely to apply the recall provisions in the 2003 Act to prisoners released early under the 1991 Act for precisely the reasons put forward by Mr. Southey in his submissions, namely to ensure that there is no disparity in treatment between those recalled before and those recalled after 4 April 2005.
46. Second as we have already explained, the Circular has been issued by the Home Office, which states that recall provisions in the 2003 Act applied to prisoners released early under the 1991 Act and this would include the claimant.
47. Third, it is quite likely that the new regime for involving the Parole Board in release decision contained in the 2003 Act might mean that prisoners released early under the 1991 Act might well find that they will be released earlier after their recall after 4 April 2005 under the 2003 Act regime than would have been the position under the 1991 Act. We must now explain the changes in the procedure both before and after 4 April 2005.
48. The power to recall a prisoner such as the claimant prior to 4 April 2005 arose by virtue of section 39 of the 1991 Act. It was a power for the Secretary of State to recall the prisoner, if practicable pursuant to a prior recommendation by the Parole Board. If the Parole Board had not recommended recall, the Secretary of State was obliged to refer the case to the Parole Board for consideration. Alternatively, if a recalled prisoner made representations against recall, the Secretary of State was obliged to refer his case to the Parole Board. The Parole Board could then require the Secretary of State to release the prisoner immediately and if the Parole Board made no such recommendation then:

(a) the practice was for there to be annual reviews by the Parole Board thereafter; and

(b) the Secretary of State was required by section 33(3) to release the prisoner in any event at the three-quarter point of his sentence, in which case his licence would last for the whole of his sentence (section 37 (1A)).

49. After 4 April 2005, recall of fixed term prisoners is governed by sections 239, 254 and 256 of the 2003 Act, which provides that:

(a) recall is by the Secretary of State (section 254(1));

(b) the Secretary of State must then refer the case to the Parole Board (section 254(3)) irrespective of whether the prisoner chooses to make representations;

(c) the Parole Board's powers on such reference are to direct immediate release (section 254(4)), to fix a future date for the prisoner's release within 12 months (section 256(1(a)), to fix a date within 12 months for the next review of the prisoners case by the Parole Board (section(1(b)), or do nothing in relation to a prisoner who falls to be released unconditionally in any event within 12 months (section 256(3)).

(d) although the directions are worded in discretionary terms ("take into account"), Miss Stern explains that the Secretary of State does not consider that the Parole Board would be able to detain the prisoners in beyond their license expiry date without departing from these directions, which it must take into account. So it is unlikely that the Parole Board would make any order which would disadvantage such a prisoner.

(e) PSO 6000 sets out detailed guidance for the operation of the system of recall and consideration of such cases by the Parole Board. This makes it clear that there is a very tight timetable to be followed, leading to prisoners receiving representations against recall dossier within 1 day of recall (para 7.1.3). It further provides at paragraph 7.10.05 that determinate sentence prisoners who are recalled to prison are entitled to request the Parole Board to convene an oral hearing to consider their representations.

50. Finally, even if we are wrong and that the present position is, as Mr. Southey submitted was the case, that the Secretary of State would or could continue to detain a prisoner who had been released under the 1991 Act but who was recalled after 4 April 2005 after he had served three-quarters of his sentence, then it is of very great significance that the reason for that state of affairs is not because of what is or what is not specified in Paragraph 23, which is the critical provision in this case. The consequence of which Mr. Southey complains is instead the inevitable result of the repeal of section 33 (3) of the 1991 Act and the failure to state in Paragraph 19 of the Schedule 2 of the Order that "the repeal of section 39 is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005". It is significant that the obligation to release at the three-quarter point is section 33(3) of the 1991 Act only applies in respect of prisoners recalled under section 39 of the Act.
51. As we explained in paragraph 13 above, Paragraph 19 of Schedule 2 states in respect of the repeal of many sections (but not significantly of section 39(3) of the 1991 Act) that the repeal of those specified provisions "is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005". So the insuperable problem for Mr. Southey is that there is no logical connection between, on the one hand the wording of the crucial words of Paragraph 23 and on the other hand the fact that a prisoner might have to serve longer when recalled after 4 April 2005 than if he had been recalled before that date.
52. In those circumstances, it is difficult to understand why paragraph 23 has to be read pursuant to section 3 of the HRA or given any meaning other than the meaning, which is ascertained by applying the principles proposed by Lord Bingham, Lord Blackburn and Lord Reid set out in paragraphs 27, 29, and 30 above. Similarly, we do not accept Mr. Southey's contention which was spelt out in paragraph 22 above that section 16 of the Interpretation Act 1978 is of assistance to his submission because it is the repeal of section 33 and not the terms of Paragraph 23 which affects the right of a recalled prisoner to be released three-quarters of the way through his term. The stark fact is that the wording of paragraph 23 is not the reason why those sentenced and released under the 1991 Act are on Mr Southey's case not entitled to be released after their recall when they have served three-quarters of their sentence with the consequence that Mr. Southey is unable to show any unfairness caused by paragraph 23 and his submission fails. In any event as we have explained in paragraphs 33 to 42 above we would have dismissed this application even if we had found that Mr Southeys unfairness argument had merit.

V1II Conclusion

53. This application must be dismissed. The Secretary of State did have the power after 4 April 2005 to recall to prison those released on license before that date and the Claimant has not been treated unlawfully in that regard (although, as explained in paragraph 4) he was detained longer than he should have been in any event.