Scottish Court of Session Decisions

The pursuer, Anthony Duffy, seeks damages from the Secretary of State for his wrongful imprisonment beyond the date when he claims he ought to have been released. He was initially sentenced to four years imprisonment with effect from 7 February 1994. He was released on licence in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, section 1(2) on 10 February 1997. I was not advised how exactly that date was calculated. Thereafter his licence was revoked in terms of section 17 of the 1993 Act on 20 August 1997. On 3 September 1997 he was sentenced to sixty days imprisonment "to take effect on the expiry of all sentences previously imposed". The only relevant sentence was the four year sentence which was due to expire on 6 February 1998.

Mr Shead, for the pursuer, acknowledged that the effect of section 27(5) of the 1993 Act and its English equivalent, as interpreted by the House of Lords in R. v Secretary of State for the Home Department and another, ex parte Francois [1998] 1 All. E.R. 429 and by the Court of Criminal Appeal in McCall v Vannet 1997 S.C.C.R. 778,was that the four years and the sixty days fell to be aggregated, and that the pursuer was from 3 September 1997 a long-term prisoner serving a single term of four years and sixty days for the purposes of section 1, and not a short-term prisoner in so far as the sentence of sixty days was concerned. The Prisoners and Criminal Proceedings (Scotland) Act 1993, section 1(2) and (3) are in the following terms:

The pursuer had served more than two thirds of the aggregate term before the sixty day sentence was imposed.

Mr McCreadie for the Secretary of State submitted that in these circumstances the pursuer was not entitled to be released under section 1(2). That sub-section only applied at the time the two thirds period of any sentence expired and had no application to this situation. That meant that, whenever a person received a second or subsequent sentence at a time when two thirds of the aggregate term of that and any other relevant sentence had already expired, that person had no right to release under section 1(2). Mr Shead submitted that it was manifestly unjust that a prisoner sentenced to a second or subsequent term of imprisonment imposed one day before the expiry of two thirds of the aggregate term of his sentences should have the right to release, whereas a prisoner in the position of the pursuer did not have such a right and must serve the whole of the later sentence. He was not, however, in a position to submit that, if the subsequent sentence was imposed after the expiry of two thirds of the aggregate term, the prisoner should serve no part of the second sentence, since that would be inconsistent with the right of the Secretary of State under section 17 to revoke a licence and recall a prisoner at any time until expiry of the full term of his sentence. He invited me to regard the sixty day sentence as falling to be disaggregated for the purposes of calculating a date from which the pursuer was entitled to release when the particular circumstances where two thirds of the total sentence had expired before the second sentence was imposed arose, so that the sentence in this case would run from the expiry of the four year term on 6 February. The calculation should be on the long term prisoner basis and two thirds of the sixty days thus expired on 19 March 1998, when the pursuer should have been released and indeed was liberated ad interim by this court.

I can think of no logical basis, and none was suggested to me, for interpreting section 27(5) differently in the particular circumstances arising here from the interpretation already given to it in the cases above referred to.

Mr Shead pointed to the anomaly that, where a person was returned to prison in terms of section 16 of the 1993 Act to serve part or all of the balance of a sentence for re-offending while on licence, he was entitled to release in terms of section 1. Counsel did not, however, challenge the right of the Secretary of State to recall the pursuer to prison in exercise of his powers under section 17. While the precise relationship between sections 16 and 17 of the Act may be the subject of debate on some other occasion, it is clear the Secretary of State was entitled to recall the pursuer as he did. There was no recourse to section 16. The sixty day sentence was imposed for an offence committed while the pursuer was on licence. The fact that, if the pursuer had not been recalled under section 17, he might have been returned to prison to serve the balance of his original sentence under section 16 does not assist the pursuer when it cannot be said that there was anything illegal or improper about the course followed by the Secretary of State under section 17. I accept Mr McCreadie's submission that once it is acknowledged that the pursuer was a long-term prisoner in respect of an aggregate term of four years and sixty days it follows that in the circumstances of this case he had no right to release in terms of section 1(2) of the Act. There are accordingly no relevant averments that the pursuer has been imprisoned unlawfully. I shall accordingly sustain the defender's first plea-in-law and dismiss the action.

One result of section 27(5), referred to above, is that there is a distinction between the position of the pursuer sentenced after two thirds of the aggregate term has expired and a prisoner recalled in similar circumstances but given an aggregable sentence before two thirds of the aggregate has expired. That is probably why the position was altered with effect from shortly after the pursuer received his sixty day sentence. In terms of section 111 of the Crime and Disorder Act 1998, where after 30 September 1998 a prisoner who has at any time been released from a sentence under section 1 of the 1993 Act is given another custodial sentence by the court, the two sentences are not to be aggregated. However, I doubt if that distinction gives rise to any injustice. It would not apply in any case where the later sentence was more than one third of the length of the earlier sentence. Section 1(3) of the 1993 Act would still apply, and it is open to a person in a position of the pursuer to apply to the Parole Board under section 17. In addition the Secretary of State has power to release a prisoner on compassionate grounds in terms of section 3 of the 1993 Act. It follows, therefore, that the pursuer was, and indeed may yet be, in a position to apply for release under these provisions.

Mr McCreadie also invited me to recall the order for interim liberation pronounced on 19 March 1998. There was no opposition to that motion and I shall accordingly recall that order.