Scottish Court of Session Decisions

[1] The pursuer was born on 29 March 1974. On 30 May 1994, the pursuer appeared on indictment in the High Court of Justiciary at Edinburgh. Following conviction, he was sentenced to four years detention in a Young Offenders Institution. That sentence was backdated to 17 January 1994. On 8 November 1996 the pursuer was released on licence by the Secretary of State for Scotland, in accordance with the provisions of section 1(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). As at 8 November 1996 the pursuer had served two thirds of the sentence dated 30 May 1994, together with 52 additional days, imposed after 30 May 1994 by Prison Governors exercising their powers under the Prison (Scotland) Rules.

[2] On 22 April 1997 the Secretary of State for Scotland revoked the pursuer's licence. He did so in exercise of his powers under section 17 of the 1993 Act. On the same date, the Secretary of State also directed that the pursuer be recalled to prison to serve his sentence. On 24 August 1997 the pursuer was apprehended and returned to prison. By that date, the pursuer had been unlawfully at large for 124 days. On 30 March 1998, the pursuer appeared in Edinburgh Sheriff Court. He was convicted on a charge of making false representations. In respect of that conviction, a sentence of six months imprisonment was imposed. That further sentence was backdated to 16 February 1998.

[3] On 9 June 1998, the present action was raised. The pursuer seeks declarator that he is entitled to be released from prison unconditionally and that he has been so entitled, since 20 May 1998. The pursuer also seeks an order ordaining the defenders to liberate him from prison, forthwith and unconditionally. The action was originally directed against the Secretary of State for Scotland. The defenders are now the Scottish Ministers, who, with effect from 1 July 1999, have assumed responsibility for the administration of prisons in Scotland.

[4] On 9 June 1998 Lord Dawson granted warrant for the interim liberation of the pursuer. The pursuer has been at liberty ever since, subject to certain conditions, including one that requires him to report regularly to a police station.

[5] The action came before me on the Procedure Roll. At the outset of the hearing, the pursuer's counsel sought leave to amend the pursuer's pleadings. He sought to introduce an additional and alternative conclusion for declarator, to the effect that the pursuer is entitled to be released from prison on licence and that he has been so entitled since 30 March 1998. That amendment was not opposed.

[6] Both parties were agreed that the action could be resolved at Procedure Roll. No issues of fact require to be remitted to proof. The submissions I heard proceeded on the basis of the pleadings as amended. The submissions made related to the first, second, third and fifth pleas-in-law for the pursuer and the first plea-in-law for the defenders.

[7] Before identifying the provisions of the 1993 Act, which are of relevance, I should summarise the parties' respective contentions as to how this action should be decided. The pursuer's primary position is that he was entitled to be released from prison unconditionally on 20 May 1998. He maintains that for the purposes of determining when he was entitled to be released from prison, the sentences imposed on 30 May 1994 and 30 March 1998 should not be aggregated and treated as one single term of imprisonment. On that premise the pursuer argues that he had served both of the sentences by 20 May 1998 and that on that date he was entitled to be released from prison unconditionally.

[8] In the alternative, the pursuer argues that if the two sentences fall to be treated as a single term of imprisonment, (as the defenders maintain should happen), he was entitled to be released from prison on licence on 30 March 1998. He argues that, prior to that date, he had served in custody a period equivalent to two-thirds of the single term of imprisonment, derived from aggregating the two sentences imposed on 30 May 1994 and 30 March 1998.

[9] The defenders' position can be summarised in equally straightforward terms. They contend that for the purposes of determining when the pursuer was entitled to be released from prison, the two sentences fall to be aggregated and treated as a single term of imprisonment, commencing on 17 January 1994. The defenders argue that, when account is taken of the 52 additional days, imposed by the Prison Governors, and the 124 days, during which the pursuer was unlawfully at large (following the revocation of his licence on 22 April 1997), as at the date the action was raised, the single term of imprisonment was due to expire on 15 August 1998.

[10] As far as the pursuer's alternative position is concerned, the defenders maintain that the pursuer has not been entitled to release on licence, at any time since his return to prison on 24 August 1997. That is because the date, by which two-thirds of the single term of imprisonment would be deemed to have been served, pre-dated the pursuer's return to prison, on 24 August 1997, following the revocation of his licence.

[11] The sections of the 1993 Act of primary relevance to the determination of this action are as follows:

It is important to bear in mind that in this action, it is the provisions of the 1993 Act, as originally enacted, that are of relevance. Subsequent amendments to sections 1 and 27 of the 1993 Act, which are now in force, fall to be ignored.

[12] The pursuer's primary position is that, as at the date the action was raised, he was entitled to be released from prison unconditionally and had been so entitled since 20 May 1998. Those contentions are founded on the premise that for the purposes of determining when the pursuer was entitled to release from prison, the two sentences imposed on 30 May 1994 and 30 March 1998 do not fall to be aggregated and treated as a single term of imprisonment. On the contrary, so the pursuer argues, the two sentences fall to be considered separately. The sentence imposed on 30 May 1998 is a long-term sentence and that imposed on 30 March 1998 a short-term sentence. According to the pursuer's counsel that long-term sentence expired on 20 May 1998, after full account is given for the 52 additional days, imposed by the Prison Governors, and the period of 124 days, when the pursuer was unlawfully at large. Having regard to the provisions of section 1(1) of the 1993 Act, it is also argued that the later short-term sentence expired on 16 May 1998, after the pursuer had served one-half of the six months imposed.

[13] In support of these arguments, counsel for the pursuer urged upon me a construction of section 27(5) to the effect that the provisions of the section only require sentences to be aggregated and treated as a single term of imprisonment, if the second (or any subsequent sentence) is imposed before a short-term prisoner is released unconditionally or before a long-term prisoner is released on licence. In particular, counsel argued that once a long-term prisoner has been released on licence, by virtue of the provisions of sections 1(2) or 1(3) of the 1993 Act, the term of that prisoner's long-term sentence is fixed for all purposes. According to the pursuer's counsel, the statutory scheme for early release on licence envisages a long-term sentence, whose duration is determined and fixed, for all purposes, at the time when the prisoner is released on licence, in respect of that sentence. It was suggested that such an approach to the scheme is confirmed by the terms of the document, entitled "Release Licence", which is given to a long-term prisoner, upon his release on licence. The document indicates the date the licence will expire, unless it has been previously revoked. It was argued that, by doing so, the document necessarily determines the date of expiry of the single term of imprisonment being served, when release on licence takes place. Counsel for the pursuer submitted that even if a prisoner's licence is revoked and the prisoner is recalled to prison, the provisions of section 27(5) have no further application to the long-term sentence, in respect of which the prisoner has been released on licence. The serving of any new sentence(s), subsequently imposed, falls to be looked at in isolation and the prisoner dealt with as a short-term prisoner or a long-term prisoner, depending upon the length of the new sentence(s) that has been imposed.

[14] Counsel for the pursuer sought to find support for his construction of section 27(5) from the provisions of sections 16 and 17 of the 1993 Act. Those sections respectively deal with the commission of offences by released prisoners and the revocation of licence. Counsel for the pursuer acknowledged that his construction of section 27(5) was to some extent non-literal. In that regard, he sought to neutralise such criticism by submitting that the competing construction of section 27(5), favoured by the defenders, could be described in similar terms.

[15] Counsel for the defenders rejected the pursuer's approach to the construction of section 27(5). She submitted that on every occasion when a prisoner's early release from prison is under consideration, the provisions of section 27(5) require to be applied to determine the length of the term of imprisonment the prisoner is currently serving in prison. Application of the provisions of section 27(5) was an essential step in the procedure for applying the provisions in Part I of the 1993 Act, relating to the early release of prisoners. As I have indicated, the contrary argument, on behalf of the pursuer, is to the effect that the date of the initial release on licence fixes the date at which section 27(5) falls to be applied and thus determines the term of imprisonment for all future purposes. The defenders' counsel described that argument as applying the provisions of the section "the wrong way round". In her submission, the construction of section 27(5) she argued for was clear and well vouched by authorities, with which I will deal. She submitted that applying that construction of section 27(5) resulted in the pursuer being treated as a long-term prisoner, who, when the action was raised, was serving a single term of imprisonment. That single term of imprisonment had begun on 17 January 1994, had been increased by the 52 additional days, imposed by the Prison Governors, had been interrupted for 124 days, whilst the pursuer was unlawfully at large, and, as at the date the action was raised, was due to expire on 15 August 1998. The length of that single term also took account of the fact that the sentences imposed on 30 May 1994 and 30 March 1998 had been partly concurrent.

[16] The issue as to the correct construction of section 27(5) is clearly central to the primary position of the pursuer in this action. Possible constructions of that section (and of its English equivalent, as originally enacted, section 51(2) of the Criminal Justice Act 1991) have been discussed in a number of previous cases, several of which were cited to me. I deal with these cases in chronological order, as there has been some cross-border citation of authority.

[17] In Reg. v Secretary of State for the Home Department and Another, ex parte Francois [1997] 2 Cr. App. R. (S) 359 and [1999] 1 A.C. 43 the provisions of section 51(2) came under detailed scrutiny. In that case the prisoner had been sentenced in August 1993 to three consecutive terms of imprisonment, totalling 19 months. In January 1994 he was sentenced to four years' imprisonment, consecutive to the 19 months he was serving. Counsel for the prisoner argued that section 51(2) should be read as applying once and for all, on each occasion when a prisoner is sentenced and not so as retrospectively to affect the character of a previous sentence. The judgment of Simon Brown, L.J., in the Divisional Court, when referring to section 33 of the 1991 Act (the English equivalent of section 1 of the 1993 Act), contains the following passage, at page 363:-

When the case was before the House of Lords the leading speech was delivered by Lord Slynn of Hadley. He stated at page 50B-D:-

[18] In McCall v Vannet 1997 SCCR 778 the High Court of Justiciary required to consider the provisions of sections 16(1) and (2) of the 1993 Act. The appellant had been sentenced to 5 months imprisonment in October 1996 and to a consecutive sentence of 9 months in November 1996. He was released on 30 May 1997 and committed "new offences" in August 1997. When the appellant appeared for sentence on the "new offences", the Sheriff, applying section 27(5), took the view that the expiry date of the earlier sentences was December 1997 and had imposed a section 16 Order and a 6 months prison sentence on the basis. On appeal to the High Court, the appellant argued inter alia that as the "new offences" had been committed after the expiry of the October 1996 sentence (which would have been March 1997), the section 16 Order should have been calculated by reference only to the November sentence, which expired in October 1997. In delivering the Opinion of the Court Lord Sutherland stated at page 781D-E:-

The High Court accordingly construed section 27(5) to the same effect as section 51(2) was construed in Francois.

[19] Regina v Governor of HMP Elmley and the Secretary of State for the Home Department, ex parte Moorton [1992] 2 Cr. App. R. (S) 165 was cited by both parties. It was another case before the Divisional Court in England. One aspect of the construction of section 51(2) which arose in that case was whether the section only required to be applied if the initial long-term sentence was currently being served in custody, when the second or subsequent prison sentences were imposed. The Court expressed the view that was so, in passages in the judgment of Simon Brown L.J., at pages 167-168 and 169, and in the judgment of Astill J, at page 170. In the present case the pursuer had been released on licence. That licence had been revoked. The pursuer had been recalled to prison and was serving the outstanding portion of the four years sentence, when the six months sentence was imposed on 30 March 1998.

[20] In Duffy v Secretary of State for Scotland 1999 SLT 1372 Lord Bonomy proceeded on the basis that section 27(5) of the 1993 Act should be construed as it and its English equivalent had been interpreted in Francois and McCall v Vannet. Counsel for the pursuer recognised that if the pursuer was to succeed in the present action, he required to put forward a basis upon which Duffy can be distinguished. He acknowledged that the facts of the two cases have strong similarities. He suggested, however, that the decision in Duffy could be distinguished, on the basis that no concession is made in the present case that the sentences fall to be aggregated. It is correct that such a concession was made in Duffy and is not made in the present action. I do not consider, however, that provides any justification for adopting a different approach to the construction of section 27(5) of the 1993 Act to that Lord Bonomy favoured. Moreover, like him, I can identify no logical basis for according section 27(5) a different interpretation to that the section (and its English equivalent) have been given in the authorities both he and I were referred to. I do not consider that Parliament could have contemplated that this important section should be given variable interpretations, dependent of the particular circumstances of different prisoners.

[21] In the whole circumstances, accordingly, I am quite satisfied that section 27(5) of the 1993 Act falls to be construed as the defenders contend. Accordingly I hold that at the date the action was raised, the pursuer was serving a single term of imprisonment, which had begun with effect from 17 January 1994 and was not due to expire until 15 August 1998. On that basis, the pursuer is not entitled to declarator in terms of the first conclusion of the summons. The pursuer's first and third pleas-in-law and his fifth plea-in-law, insofar as it relates to the defenders' defence to the first and third conclusions of the summons, fall to be repelled.

[22] The alternative position adopted by the pursuer is encapsulated in the second declaratory conclusion, added by amendment at the outset of the Procedure Roll discussion. The contention is that if the two sentences fall to be aggregated, the pursuer required to be treated as a long-term prisoner, who was serving a single term of imprisonment, beginning with effect from 17 January 1994 and ending on 15 August 1998. As such the pursuer was entitled to be released on licence on 16 February 1998, by which date the pursuer had served a period in custody equivalent to two-thirds of a single term of imprisonment, constituted by the two sentences imposed on 17 January 1994 and 30 March 1998. The fact that the suggested date of release on licence pre-dated the imposition of the six months sentence should not go unnoticed. It was one of a number of anomalies founded upon by the pursuer's counsel, in support of his arguments against aggregating the two sentences.

[23] The Moorton case was referred to by the pursuer's counsel in support of this alternative and subsidiary argument. However in Moorton, the two-thirds date, 10 December 1998, post-dated the imposition of the last sentence that fell to be aggregated, in terms of section 51(2), as part of the single term of imprisonment, which the prisoner was serving. The situation is different in the present case, where the six months sentence was imposed on a date, some considerable time after two-thirds of the original sentence of imprisonment had been served and, more significantly, after 13 November 1996, the date at which two-thirds of a single term of imprisonment, derived by aggregating the two sentences, would have to be deemed to have been served.

[24] The defenders' response to the pursuer's alternative submissions can be shortly put. They argue that if a long-term prisoner is serving his sentence in prison, when the two-thirds date is reached, he is entitled to be released in terms of section 1(2) of the 1993 Act. That is so even if he has previously been released on licence, his licence has been revoked and he is back in prison, continuing to serve his long-term sentence. If, on the other hand, the prisoner is not serving his long-term sentence in prison, when the two-thirds date is reached, he is not entitled to the benefit of automatic release on licence, in accordance with the provisions of section 1(2) of the 1993 Act. In the vast majority of cases that will be of no concern to the prisoner, because he will have already been released on licence and will remain on licence throughout the remainder of his sentence. The defenders argue, however, that if, after the two-thirds date has passed, a prisoner is returned to prison, upon his licence having been revoked, (whether by virtue of the Court granting an Order in terms of section 16 of the 1993 Act or by decision of the Scottish Ministers in terms of section 17), the prisoner's right under section 1(2) is not resuscitated. The right is only exercisable if the prisoner is in prison on the date when two-thirds of his single term of imprisonment has been served. In the present case that was not the position. The defenders' counsel also founded upon the provisions of section 17(5) of the 1993 Act as supporting that analysis of the applicability of section 1(2), which she advanced.

[25] Once again I am persuaded by the arguments advanced on behalf of the defenders. In my opinion, the right to release on licence, contained within section 1(2), is only available to a prisoner currently in prison, when the two-thirds date is reached in respect of the single term of imprisonment he is serving. A prisoner returned to prison after that date is not entitled to the benefit of release under that section. That does not mean that a prisoner, whose licence has been revoked, cannot be re-released on licence. He has the right to challenge the revocation, in accordance with the procedure laid down in section 17, and seek his immediate release on licence. If the prisoner is in prison, when the two-thirds date arrives, he is entitled to be released on licence under the provisions of section 1(2). Although a prisoner in prison after service of two-thirds of his sentence has no formal right to released on licence, the Scottish Ministers' policy is to consider the release of such prisoners on licence, at twelve monthly intervals. The provisions of section 3 of the 1993 Act also permit the Scottish Ministers to release prisoners on licence if there are compassionate grounds justifying such a release. In the circumstances of the present case, accordingly, the pursuer is not entitled to rely on the provisions of section 1(2) as requiring his release on licence, on 30 March 1998, the date upon which the six months sentence was imposed. His original release on licence was in accordance with the provisions of section 1(2) of the 1993 Act. That release having taken place, he is not entitled to rely on the provisions of that section again, in the factual circumstances that have applied since his return to prison on 24 August 1997.

[26] For these reasons, accordingly, I reject the subsidiary arguments advanced on behalf of the pursuer. I repel the second plea-in-law for the pursuer and also his fifth plea-in-law, insofar as it relates to the second conclusion of the summons.

[27] In the whole matter I sustain the first plea-in-law for the defenders, recall the order for interim liberation for the pursuer, that was granted on 9 June 1998, and dismiss the action. As agreed at the conclusion of the Procedure Roll discussion, I shall reserve all questions of expenses.