R (Noone) v HMP Drake Hall [2010] UKSC 30
In calculating release dates, the provisions of the Criminal Justice Act 1991 apply to sentences of under 12 months provided that these are not imposed concurrently or consecutively with sentences of 12 months or over, and the CJA 2003 apply to sentences of under 12 months that are imposed concurrently or consecutively with sentences of 12 months or over.
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Catchwords
PRISONS — Prisoner’s rights — Release on licence — Computation of release dates where prisoner serving consecutive sentences of less than and more than 12 months — New statutory sentencing regime with transitional provisions — Proper calculation of earliest release date on home detention curfew and licence — Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005 (SI 2005/950), Sch 2, para 14
Headnote
The release provisions of the Criminal Justice Act 1991 applied to sentences of under 12 months’ imprisonment, unless they were imposed concurrently or consecutively with sentences of 12 months or over, in which case the provisions of the Criminal Justice Act 2003 applied.
The Supreme Court so held in allowing the appeal of the claimant, Rebecca Noone, against the decision of the Court of Appeal (Sir Anthony Clarke MR, Scott Baker and Wall LJJ) on 17 October 2008 [2009] 1 WLR 1321B allowing the appeal of the Governor of HM Prison Drake Hall and the Secretary of State for Justice against the decision of Mitting J on 31 January 2008 allowing the claimant’s claim for judicial review of the governor’s calculation of her earliest date of eligibility for home detention curfew and the date of her conditional release on licence.
LORD PHILLIPS OF WORTH MATRAVERS PSC said that the road to hell was paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short term prisoners by coupling time spent in custody with a release period under licence (“custody plus”). Hell was a fair description of the problem of statutory interpretation caused by transitional provisions introduced when custody plus had to be put on hold because the resources needed to implement the scheme did not exist. The problem arose when sentences of less than 12 months and more than 12 months were imposed consecutively. The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 brought into force as from 4 April 2005 provisions of the Criminal Justice Act 2003 that related to over 12-month sentences, as set out in Sch 1. At the same time ss 32 to 51 of the Criminal Justice Act 1991 were repealed. Sch 2 set out transitional and saving provisions. Para 14 provided: “The coming into force of ss 244 to 268 of, and para 30 of Sch 32 to the 2003 Act, and the repeal of ss 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than 12 months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence).” Para 14 served one obvious purpose. Because s 181 and s 244(3)(b) of the 2003 Act had not been brought into force and ss 32 to 51 of the 1991 Act were repealed there was no provision for early release, or eligibility for home detention curfew release, for prisoners serving under 12-month sentences. Para 14 was clearly intended to make provision for such sentences, at least when not imposed concurrently or consecutively with over 12-month sentences, to continue to be dealt with exclusively under the 1991 Act. If imposed consecutively to other under 12-month sentences, these would be aggregated pursuant to the provisions of s 51(2) of the 1991 Act and the provisions of ss 33 and 34A, as inserted by section 99 of the Crime and Disorder Act 1998, applied to the aggregate. That would produce a similar result to that produced by ss 244 and 246 of the 2003 Act in relation to over 12-month sentences. The terms of para 14 raised two questions: (1) What was the object and effect of the words in brackets—“(whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)”? (2) Where sentences of under and over 12 months were ordered to be served consecutively, how were they to be linked together and how were provisions as to early release, release on home detention curfew and licence to operate in relation to each sentence? The words in brackets in para 14 drew an implicit but clear distinction between under 12-month sentences imposed concurrently or consecutively with other similar (“such”) sentences and under 12-month sentences imposed concurrently or consecutively with sentences of over 12 months. The clear indication was that they were to receive different treatment. The draftsman had been too economical with his language to make his intention readily apparent. To give true effect to the wording of para 14, and in particular the words in brackets, it should be read as follows: “The coming into force of ss 244 to 268 of, and para 30 of Sch 32 to, the 2003 Act, and the repeal of ss 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than 12 months (other than a sentence which is imposed to run concurrently or consecutively with a sentence of 12 months or more).” The effect of that was that the provisions of the 1991 Act applied to sentences of under 12 months provided that these were not imposed concurrently or consecutively with sentences of 12 months or over, and the 2003 Act would apply to sentences of under 12 months that were imposed concurrently or consecutively with sentences of 12 months or over. The effect of that interpretation of para 14, coupled with the relevant provisions of the 2003 Act, provided uniformity of approach, regardless of the order in which the individual sentences were imposed, qualified the prisoner for the maximum grant of home detention curfew release, but at the same time subjected the prisoner to the latest sentence and licence expiry date.
LORD SAVILLE OF NEWDIGATE, LORD BROWN OF EATON-UNDER-HEYWOOD, LORD MANCE JJSC and LORD JUDGE CJ gave concurring judgments.
Other
Regina (Noone) v Governor of HMP Drake Hall and another
[2010] UKSC 30B; [2010] WLR (D) 164
SC(E): Lord Phillips of Worth Matravers PSC, Lord Saville of Newdigate, Lord Brown of Eaton-under-Heywood, Lord Mance JJSC, Lord Judge CJ: 30 June 2010
Appearances: Pete Weatherby and Andrew Fitzpatrick (instructed by Prisoners’ Advice Service) for the claimant; Nigel Giffin QC and Steven Kovats QC (instructed by Treasury Solicitor) for the governor and the Secretary of State.
Reported by: Jill Sutherland, barrister