Lindo, R (on the application of) v Secretary of State for the Home Department

Tuesday, 23 March 2004

1. LORD JUSTICE POTTER: Lord Justice Scott Baker will give the first judgment.

2. LORD JUSTICE SCOTT BAKER: The issue in this appeal concerns computation of a prisoner's release date after he had been unlawfully at large following unsuccessful Home Detention Curfew ("HDC"). There is a difference of view amounting to 17 days between the appellant on the one hand and the Secretary of State for the Home Department on the other. Although on either view the appellant's release date has now passed he has a possible claim for breach of Article 5(1) of the European Convention on Human Rights and Fundamental Freedoms. The outcome of the appeal is also of importance for other prisoners. Goldring J refused the appellant's application for judicial review on 25 November 2003. First, the chronology.

3. On 29 August 2002 the appellant was sentenced to two years' imprisonment. He had already spent 92 days in custody for which he had to be given credit in computing his sentence. On 3 March 2003 he was released on Home Detention Curfew. This was 87 days before he would have been granted automatic conditional release, ie release on licence. On 7 April 2003 his HDC was revoked and he was thereafter unlawfully at large. On 25 April 2003 he was arrested and returned to prison. On 29 May 2003 he reached his original automatic conditional release date, ie the halfway point of his sentence as originally calculated. On 16 June 2003 he reached his automatic conditional release date after taking into account the period he had spent unlawfully at large, ie 17 days. He was released on licence. On 8 July 2003 his licence was revoked and he was returned to prison on the same day. On 29 August 2003 the Secretary of State sent the decision-letter to the appellant, saying that the licence expiry date had been recalculated to take into account the period unlawfully at large and it was now 16 December 2003. This was later revised to 15 December after the Secretary of State accepted the appropriate number of days was 17, rather than the 18 originally computed. The licence expiry date had been calculated at the beginning of his sentence, ie before he was unlawfully at large, as 15 December 2003. The sentence expiry date is either 28 May 2004 or 14 June 2004 depending on the effect of the 17 days unlawfully at large.

4. I turn next to the material legislation. Section 33(5) of the Criminal Justice Act 1991 defines a short-term prisoner as one serving a sentence of less than four years. Section 33(1)(b) of the Criminal Justice Act provides that as soon as a short-term prisoner serving a sentence of 12 months or more has served half of his sentence it is the duty of the Secretary of State to release him on licence. However, the combined affect of sections 34A and 37A of the Act is to give the Secretary of State power to release a short-term prisoner on HDC prior to the halfway point of his sentence. Thus, section 34A(3) provides that after the prisoner has served the requisite period for the term of his sentence the Secretary of State may, subject to section 34A(4) release him on licence. Section 34A(4), as amended by subsequent statutory instrument, defines the requisite period for a sentence of the appellant's length (which was two years) as 90 days less than one half of the term of the sentence. The 90-day period has subsequently been increased but not so as to affect the present case. Section 37A provides that the licence must contain curfew conditions which are to remain in force until the date when the released person would, but for his release, have served half of his sentence. Section 38A(1) gives the Secretary of State power for, among other things, breach of the curfew condition to revoke the licence and recall the person to prison.

5. Section 38A(5) provides:

"On the revocation under this section of a person's licence under section 34A(3) above, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."

Section 33A(2) provides that as soon as a prisoner (a) whose sentence is for a term of 12 months or more, and (b) who has been released on licence under section 34A(3) and recalled to prison under section 38A(1) would, but for his release, have served one half of his sentence, it shall be the duty of the Secretary of State to release him on licence. Section 33A(1) provides similarly for prisoners serving terms of less than 12 months.

6. Section 34A(2) precisely fitted the appellant. His sentence was for over 12 months (two years). He was released under section 34A(3) and recalled under section 38A(1). The Secretary of State complied with his duty and released the appellant not on 29 May but on 16 June 2003 because section 49(2) of the Prison Act 1952 says that the period for which the appellant was unlawfully at large is not to be taken into account in calculating the period for which he is liable to be detained. I shall return to this section shortly.

7. Section 39 of the Criminal Justice Act empowers the Secretary of State to revoke a licence and recall a prisoner, whether short or long-term, to prison.

8. Finally, there is section 33(3) of the Criminal Justice Act which provides that 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. The licence then remains in force for the whole of the remainder of the sentence (section 37(1)(a)). It will be noted that the wording of section 33(3) and 33A(2) very largely mirror each other.

9. Section 49(2) of the Prison Act 1952 provides that when a person sentenced to imprisonment is unlawfully at large when he is liable to be detained then unless the Secretary of State otherwise directs no account shall be taken in calculating the period for which he is liable to be so detained of any time during which he is absent from the place in which he is required in accordance with the law to be detained. In The Queen (S) v Secretary of State for the Home Department [2003] EWCA Civ 426, another division of this court (presided over by Simon Brown LJ) held that it is not necessary for the licensee to know his licence has been revoked for him to be unlawfully at large. This was for two reasons: (1) there is nothing in section 39 to suggest the necessity of knowledge, and (2) reason and policy suggested the contrary. Simon Brown LJ pointed out that, following the revocation of his licence, the prisoner is in fact enjoying a period of liberty when he should have been in custody and he cannot reasonably complain if the additional time is required to be served at the end of his licence period. So the effect of section 49(2) is that unless the Secretary of State otherwise directs a period unlawfully at large does not count towards the prisoner's sentence. This, so it seems to me, is really no more than common sense.

10. The appellant's argument, as I understand it, is this. It is accepted that the effect of section 49(2) of the 1952 Act and 38A(5) of the 1991 Act means that those who have their HDC licences revoked will be unlawfully at large until they are arrested, and that unless the Secretary of State otherwise directs no account can be taken in calculating his release date of the 17 days that he has spent unlawfully at large. However, that is the end of the effect of the 17 days unlawfully at large. Thereafter, the sentence proceeds in precisely the same manner as if he had not been unlawfully at large at all. Thus, the licence expiry date remains precisely the same as at the commencement of the sentence and likewise the sentence expiry date.

11. Mr Lennon submits that if this is not so, the appellant loses 17 days' freedom twice over - once, when the halfway point of his sentence is pushed back by 17 days, and again when the three-quarter point of his sentence is pushed back also by 17 days.

12. It is to be observed that section 49(2) of the 1952 Act is expressed in wide terms. It does not discriminate between being unlawfully at large having been on HDC and being unlawfully at large having been on what I would call ordinary licence. Where a person has been unlawfully at large in whatever circumstances (subject to the Secretary of State directing otherwise) no account shall be taken of that time in calculating the period for which he is liable to be detained. The subsection refers to liability to being detained in pursuance of the sentence. The sentence in this case was one of two years' imprisonment.

13. Mr Kovats submits that the fallacy in Mr Lennon's argument is that he confuses "postponement" - ie the shifting forwards by 17 days of the sentence - with "extension of time in custody". He ignores the fact that the appellant's time in custody started 17 days later than if he had not been unlawfully at large because he was unlawfully at large. The period in custody ends later because it started later. There is no question of the sentence being increased by 17 days. He is released 17 days later than would otherwise have been the case because the halfway point of the sentence is reached 17 days later.

14. We were referred to Prison Service Orders 6700 and 6650. These are in the form of guidance to prison governors. They cannot, in my view, inform the true construction of the legislation. Prison Service Order 6700 is headed HDC. Mr Lennon relies on paragraph 9.9.1 which says:

"Prisoners recalled for breach of HDC, who do not successfully appeal against that decision, or apply for re-release will be released at their conditional or automatic release date at the halfway point of sentence. This date will be put back by any time spent unlawfully at large."

He says it is silent as to the effect on the point at which the prisoner must be released on licence and on the end date of the sentence. Therefore, the effect of being unlawfully at large during HDC cannot go beyond what is expressly referred to in paragraph 9.9.1. He also refers to Prison Service Order 6650, which is headed "Sentence Calculation", at paragraph 7.2.1. This paragraph says:

"The period unlawfully at large will extend all release dates (including the SED), when the prisoner is returned to custody. At the point at which the UAL period begins, the sentence is in effect frozen."

However, Mr Lennon says, this is concerned with the effect of being unlawfully at large during the ordinary period of licence rather than during the HDC.

15. He accepts what paragraph 7.2.1 says about the effect of a period unlawfully at large during an ordinary licence period, ie that it will extend all release dates including the sentence expiry date, but submits that the position is different where the prisoner has been unlawfully at large during Home Detention Curfew.

16. I cannot accept that paragraph 7.2.1 is intended not to apply to cases arising out of HDC such as the present. Release on licence in the classical sense and release on licence on HDC are parallel regimes, HDC having been relatively recently introduced in an effort to reduce the prison population, whilst at the same time restraining to some extent an offender's freedom. HDC has been grafted on to the previously existing licence regime. It would be surprising to find that being unlawfully at large under one regime resulted in different consequences from under the other. This would be especially so where the statutory provisions mirror each other. Compare, for example, section 38A(5) and 39(6) on the one hand with each other, and 33(3) and 33A(2). Another reason why I cannot accept Mr Lennon's submissions is that on his analysis absurd consequences would be reached. I give an example from the respondent's skeleton argument. Take a prisoner who was sentenced to a term of two years' imprisonment starting on 1 January 2003. Assuming for the purposes of the example no time was spent on remand, his automatic conditional release date would be 1 January 2004, ie at the halfway point of the sentence. His licence expiry date would be 2 July 2004, ie at the three-quarter point of the sentence and the sentence will expire on 31 December 2004. Now, assuming this prisoner was released on HDC 90 days before his automatic conditional release date, ie on 3 October 2003, immediately breached the conditions and was recalled the same day but was unlawfully at large for four months and was returned to prison only on 1 February 2004, on the appellant's case only the prisoner's automatic conditional release date would be affected. He would therefore spend 90 days in custody, that being the period he would have been in custody but for being unlawfully at large, ie from approximately 3 October 2003 to 1 January 2004, and be released on or about 30 April 2004. If the appellant is correct, instead of spending six months on licence and under supervision, ie the first six months of 2004, he would then only spend two months on licence because, on the appellant's case, the licence expiry date is not affected and remains 2 July 2004. He would thus gain a significant benefit from having been unlawfully at large and he would not in reality have completed the constituent elements of the two-year sentence of imprisonment.

17. Taking the same basic facts as above, but on this occasion the prisoner is unlawfully at large for two years, and is finally picked up on 1 October 2005. On the appellant's case, his sentence would have already expired and it would be difficult to see how he could serve any further period in custody. Even if, notwithstanding the expiry of the sentence, the appellant could be kept in custody for 90 days, he would then be released without any period of supervision on licence at all because his licence expiry date would have passed on 1 July 2004.

18. I do not believe that the effect of the Criminal Justice Act 1995 (as amended) when read in conjunction with section 49(2) of the Prison Act 1952 is to place the prisoner released on HDC who breaks his licence and is unlawfully at large in a more advantageous position in the latter part of his sentence than a prisoner serving a comparable sentence who is not released on HDC. Looked at another way, a prison sentence is structured so that there are certain consequences at the half, two-thirds and three-quarter points, and indeed at the sentence expiry date. Logic dictates that if the halfway point is moved as a consequence of a period unlawfully at large so, too, should the two-thirds, three-quarters and end points.

19. I accept the Secretary of State's argument that the effect of a period unlawfully at large following release on HDC is, by virtue of section 49(2) of the Prison Act 1952, to put the whole sentence back by the number of days for which he is at large. The sentence is, as it were, frozen for the relevant period - in this case 17 days. The Secretary of State was correct, therefore, that the appellant's licence expiry date was 15 Dec 2003, rather than the date that had been calculated at the beginning of his sentence.

20. I would dismiss the appeal.

21. LORD JUSTICE MUMMERY: I agree.

22. LORD JUSTICE POTTER: I also agree.

(Appeal dismissed; applicant do pay defendant's costs, such costs to be the subject of a detailed assessment).