Kelly & Ors R. (On the Applications of) v Secretary of State for Justice

These three appellants were all sentenced to five year terms of imprisonment for serious offences. Each was at length released when three-quarters of his sentence had elapsed. They were so released on licence, and not unconditionally. The issue in these appeals is whether that extension of the licence period until sentence expiry was lawful. The issue depends upon the proper construction of provisions contained in subordinate legislation, namely the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Savings Provisions) Order 2005 (“the 2005 Order”), in the context of the Criminal Justice Act 2003 Act and the predecessor legislation which I will describe. Two of the appellants, Mr Gibson and Mr Bailey, have been returned to custody since being released at the three-quarter point. In their case, if the extension of the licence period beyond that point was unlawful and they were in fact entitled to be released unconditionally, their detention since recall is also unlawful. Mr Kelly has remained on licence since his release, but of course is liable to be recalled.

The Divisional Court (Keene LJ and Gibbs J), in their judgment delivered on 2 November 2007, accepted submissions advanced by the Secretary of State and held that the licence extensions were lawful. These appeals are brought with permission granted by the court below (though Mr Gibson’s case was a habeas corpus application, and Mr Simblet on his behalf says that permission to appeal was not required: the claims of the other two were brought by way of applications for judicial review).

The offence or offences of which each appellant was found guilty, and which led to the imposition of the five year prison sentences, were all committed after 29 September 1998 and before 4 April 2005. During that period the statutory regime relating to the release on licence and recall of convicted prisoners was that contained in the Criminal Justice Act 1991 as amended by the Crime and Disorder Act 1998 (“the amended 1991 Act”). On 4 April 2005, by virtue of the 2005 Order, material provisions of the Criminal Justice Act 2003 came into force. Though their offences were as I have said all committed before 4 April 2005, each appellant was released, recalled and then re-released at the three-quarter stage in his sentence after 4 April 2005. It is this sequence of events that opens the door upon the appellants’ arguments as to the legality of their licences being extended to expiry of sentence.

It is first convenient to see what the position would have been if the amended 1991 Act alone contained the provisions regulating these appellants’ release on licence, as it would have done if the three-quarter point in their sentences had arrived before the 2005 Order took effect on 4 April 2005.

As to that, first, these appellants (being sentenced to prison terms over four years) were under the amended 1991 Act classified as long term prisoners (s.33(5)). They would therefore have been eligible, but not entitled, to release at the half-way point in the sentence: s.35(1). They would have been entitled to release on licence at the two-thirds point: s.33(2). Subject to certain exceptions, their licence would then have endured to the three-quarter point in the sentence and at that stage the prisoner’s liberty would become unconditional: see s.37(1), which provides:

“Subject to subsections (1A), (1B) and (2) below, where a short-term or long-term prisoner is released on licence, the licence shall, subject to any revocation under section 39(1) or (2) below, remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.”

However, s.39(1) and (2) empowered the Secretary of State (while the licence was current) in certain circumstances to revoke the licence of a prisoner so released at the two-thirds stage and recall him to prison. In that case s.33(3) applied. It provided:

“(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 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.”

In such a case the licence period would not expire at the three-quarters mark but would extend to the end of the sentence. S.37(1A) provided:

“Where a prisoner is released on licence under section 33(3) or (3A) above, subsection (1) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.”

S.37(1A) was introduced into the Criminal Justice Act 1991 by s.104 of the Crime and Disorder Act 1998.

Each of these appellants were in fact released at the two-thirds point in his sentence, thereafter recalled, and then as I have said re-released at the three-quarters point. Had those events all happened before 4 April 2005 the release of each appellant at the three-quarters point would have been on licence, and not unconditional: ss.33(3) and 37(1A) would have applied.

It is the appellants’ case, however, that the position was transformed by the circumstance that their release, recall and re-release all happened after 4 April 2005. On that date, by force of the 2005 Order, s.39 of the amended 1991 Act was repealed. New provisions governing the recall and re-release of all prisoners came into force. Certain transitional and savings provisions had effect by virtue of paragraphs 19 and 23 of Schedule 2 to the 2005 Order.

The new provisions relating to release, recall and re-release are contained in ss.254 and 256 of the Criminal Justice Act 2003, as follows:

“254(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2)

A person recalled to prison under subsection (1) -

(a)

may make representations in writing with respect to his recall, and

(b)

on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(3)

The Secretary of State must refer to the Board the case of a person recalled under subsection (1).

256(1) Where on a reference under section 254(3) in relation to any person, the Board does not recommend his immediate release on licence under this Chapter, the Board must either -

(a)

fix a date for the person’s release on licence, or

(b)

fix a date as the date for the next review of the person’s case by the Board…

(5)

On a review required by the subsection (1)(b) in relation to any person, the Board may -

(a)

recommend his immediate release on licence, or

(b)

fix a date under subsection (1)(a) or (b).”

Paragraphs 19 and 23 of Schedule 2 to the 2005 Order provide in part as follows:

“19 The coming into force of

…

(c)

the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 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^th April 2005.

...

23(1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4^th 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 in sections 37(1) and 44(3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act…”

The appellants say that the effect of these provisions in their case is as follows.

Mr Patel for the Secretary of State submits that the omission of any reference to s.33(3) of the amended 1991 Act in paragraph 23(1)(b) of Schedule 2 to the 2005 Order was a mistake by the draftsman; and the court has power to, and should, correct the mistake, applying the reasoning of their Lordships’ House in Inco Europe [2000] 1 WLR 586.

Inco had nothing to do with the law of crime or the liberty of the subject. But it addresses the case where the court is satisfied that there has been a drafting error in a statute such that the provision cannot sensibly take effect according to the meaning of the words used. Their Lordships’ House provided guidance as to the circumstances in which, in such a case, it is legitimate for the court to write words into the statute so as to correct the error. Lord Nicholls of Birkenhead said this (592F-G):

“… the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.”

Plainly this reasoning can only be applied where the court is satisfied that the there has indeed an error in the drafting of the statute. The appellants do not accept that the omission of s.33(3) from paragraph 23(1) of Schedule 2 to the 2005 Order was done by mistake. They point to the fact that in Stellato [2007] 2 AC 70 the Secretary of State himself submitted to the House of Lords that the omission of s.33(3) from the Schedule was entirely deliberate. Both sides rely on this authority, and it is convenient to describe it generally now, before concluding the question whether the omission of a reference to s.33(3) from paragraph 23 of the Schedule was a mistake or not.

The claimant in Stellato was in December 1998 sentenced to 10 years imprisonment for offences committed before 30 September 1998 – committed, therefore, before the 1991 Act was amended by the Crime and Disorder Act 1998. He was released at the two-thirds point in June 2005, but recalled in August 2005. He was re-released on 23 December 2005, at the three-quarter point. On 28 December 2005 the Secretary of State recalled him to prison, purporting to Act under s.254 of the Criminal Justice Act 2003. In judicial review proceedings he claimed that he had been entitled to be released unconditionally at the three-quarter stage and that, accordingly, his later recall by the Secretary of State was unlawful. The claim was dismissed by the Divisional Court, but his appeal was allowed by this Court, whose decision was upheld on the Secretary of State’s appeal to their Lordships’ House. The decision in Stellato does not of course conclude the result in these proceedings, since in that case their Lordships were concerned with a prisoner subject to the unamended provisions of the 1991 Act. However certain observations made by Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood are with respect of considerable assistance.

Lord Hope said this:

“14.

The provisions in paragraphs 19 and 23 of Schedule 2 to the 2005 Order on which the Secretary of State’s argument depends do not purport to amend or repeal the provisions of the Criminal Justice Act 1991 under which long-term prisoners were entitled to be released unconditionally when they reached the three-quarter point of their sentences: see sections 33(3) and 37(1). Nor do they purport to amend the Crime and Disorder Act 1998 by giving retrospective effect to section 104 [sc. introducing s.37(1A)], which provided that, if a pre-30 September 1998 Act prisoner was released on licence and then recalled, his further release was to be on licence until the end of his sentence. Yet the result for which the Secretary of State contends would have the effect of depriving the respondent, and all the other pre-2003 Act offenders who are in the same position as he is, of the entitlement to unconditional release at the three-quarter point which they were afforded by the 1991 Act. The effect would be to amend the regime under which the respondent and others like him were sentenced retrospectively.

15.

I respectfully agree with Lord Brown that, if such a surprising result were intended, it ought to have been enacted in the clearest of terms. In my opinion this conclusion is greatly strengthened by the method of legislating that was employed in this case. It could not have been better designed to ensure that, if it was intended, the matter would escape attention when the 2005 Order was being scrutinised under the parliamentary procedures which I have described. We have no means of knowing what instructions the draftsman was given, or whether the Minister of State’s attention was expressly drawn to these provisions before she signed the Order on 24 March 2005. All we have to go on is the wording that is to be found in the Schedule. But one would have expected, in the light of the carefully worded provisions of sections 330 and 333 of the 2003 Act [sc. which contain provisions, including procedural requirements for the making of subordinate legislation under the 2003 Act], that the Order would have been made under section 333(2)(b) and the affirmative resolution procedure used if it was the Secretary of State’s intention that the respondent and others like him should be deprived of their statutory entitlement. The fact that the order was not made under section 333(2)(b), with the result that the affirmative resolution procedure was not used, is a powerful indication that paragraphs 19 and 23 are to be understood as dealing only with matters of definition and procedure of a transitional nature, not with matters of substance affecting prisoners’ rights about which an opportunity ought to have been given for debate in Parliament.”

Lord Brown of Eaton-under-Heywood said this:

“40.

This brings me to the Secretary of State’s final argument on the construction of these paragraphs, an argument based on what Mr Pannick QC submits is the conspicuous omission from paragraph 23(1)(b) of any mention of section 33(3) of the 1991 Act. Section 33(3), it will be remembered, required a prisoner released on licence and then ‘recalled to prison under section 39’ to be released at the three quarter point of his sentence (unconditionally in the case of pre-1998 Act offenders like the respondent). But, submits the Secretary of State, section 33(3) is concerned only with the re-release of prisoners recalled under section 39 of the 1991 Act. Once, as provided for by paragraph 23, recall after 4 April 2005 and any further release thereafter came to be governed by sections 254 and 256, then any re-release was to be effected under the new regime—in every case, therefore, subject to licence until the end of the sentence. The reference to section 33(3), it is suggested, was deliberately omitted from paragraph 23(1)(b) because it was not intended to apply in post-Act recall cases...

41.

I understand the respondent to accept that paragraph 23(1)(b) ought properly to have included reference to section 33(3)—his argument being that its ‘omission was entirely accidental and … merely a further reflection of the poor drafting’ in the 2005 Order.

42.

To my mind the likeliest explanation for section 33(3)’s omission from paragraph 23(1)(b) is that it contains no ‘reference … to revocation under section 39’: the reference is rather to the prisoner having been ‘recalled under section 39’ (in each case my emphasis). Nevertheless it would have been better for the draftsman to provide (perhaps in an additional sub-paragraph) that section 33(3)’s reference to recall under section 39 should be treated as a reference to recall under section 254 (which uses the omnibus expression ‘revoke his licence and recall him to prison’).

43.

Whatever be the explanation, however, the omission cannot begin to bear the weight the Secretary of State seeks to put upon it. In the first place, section 33 is expressly preserved in the case of pre-Act offenders by paragraph 19(c) of the Schedule. Secondly, and most importantly, section 37 (the section expressly governing the duration of the licence) is similarly preserved by paragraph 19(c) and this section is mentioned in paragraph 23(1)(b). Thirdly, the longer one considers the scheme of this part of Schedule 2, the plainer it becomes that paragraph 23 is concerned only with the process of recalling and re-releasing prisoners on licence and not in any way with the duration of their licences and the point at which they become entitled to unconditional release. Of course under these ‘transitional arrangements’ sections 254 and 256 will be operated in the case of pre-Act offenders in the same way as for every other recalled prisoner and the Secretary of State and Parole Board will discharge their respective duties and exercise their respective powers as the Act provides. But their powers extend only to the point where the prisoner is entitled to an unconditional release and, as paragraph 19 makes abundantly plain, the rights of pre-Act offenders are in that critical respect saved.

44.

Although these provisions are, indeed, somewhat opaque and ill-drafted, their intended effect is in the last analysis quite clear. The new scheme for recalling and re-releasing prisoners was to come into immediate effect for everyone: no longer was the Parole Board to be primarily responsible for initiating a prisoner's recall by making a recommendation under section 39(1), the Secretary of State’s power being limited by section 39(2) to urgent cases where it was impracticable to await a recommendation. Henceforth recall was to be solely for the Secretary of State. Pre-Act offenders were not, however, to be disadvantaged by the new parole regime, in particular with regard to the effective length of their sentences and the period for which they were to be at risk of recall after release on licence…”

These passages from their Lordships’ opinions seem to me, with respect, to yield the following propositions.

In my judgment these propositions overall lend powerful support for the view that, just as “[p]re-Act offenders were not... to be disadvantaged by the new parole regime”, so also the regime does not bestow a substantial advantage, entirely unrelated to the changes plainly intended to be made by the legislation, upon offenders who happen to have committed their crimes before 4 April 2005 but been released, recalled and re-released after that date. In short the indications are that prisoners such as these appellants, being “pre-Act offenders”, should be in no better position vis-à-vis their licence period on account only of the release and recall process having in their case taken place after 4 April 2005.

However if we are to reach that conclusion as a matter of final judgment, there are two necessary steps in the reasoning along the way. First we should have to conclude that the omission of any reference to s.33(3) from paragraph 23 of Schedule 2 to the 2005 Order was indeed a drafting mistake. Unless it was, Mr Fitzgerald’s vade mecum through the construction of the relevant provisions (which I have set out at paragraph 9), yielding the result that each of these appellants enjoys a right under s.37(1) of the amended 1991 Act to have his licence terminated at the three-quarter point, possesses very considerable force. Finding such a mistake of course requires us to exclude any other rational explanation for the omission. We should thus have to be satisfied that the legislature did not intend to confer on these and like prisoners the benefit contended for by Mr Fitzgerald.

The second step along the way is that, if the omission of s.33(3) from paragraph 23 was indeed a mistake, we should also have to be satisfied that it is properly open to us to correct it along Inco Europe lines, although the context (unlike that of Inco Europe itself) is the law of criminal punishment and an offender’s liability to incarceration.

It is submitted in counsel’s skeleton argument on behalf of Mr Kelly and Mr Bailey (paragraph 4.20) that “it is not arbitrary or surprising that the application of s.33(3) of the 1991 Act should depend upon the date of recall. That is because those recalled once ss.254 and 256 of the 2003 Act entered into force are subject to a different procedural regime that does not require s.33(3) to enable them to be released after they have served three-quarters of their licence”. But this merely summarises a consequence of ss.254 and 256; it goes nowhere to explain what rational purpose Parliament might have had in singling out a particular group – pre-2003 Act offenders who were released, recalled and re-released after 4 April 2005 – for special favourable treatment.

Mr Fitzgerald in reply offered a suggestion that the Secretary of State (in seeking the legislation) “may have been focussed” on removing the automatic re-release provision contained in s.33(3) and substituting a discretionary regime. Again this offers no explanation for the special treatment of a limited class of prisoners for which Mr Fitzgerald contends.

In his judgment in the court below Keene LJ said this:

“23.

There are also other powerful indications that the applicants’ interpretation is unsound. The whole of section 33 and the whole of section 37 of the 1991 Act as amended are expressly preserved in relation to prisoners whose sentence related to a pre-4th April 2005 offence. Paragraph 19(c) of the second schedule to the 2005 Order explicitly so provides. Yet if the applicants are right, what was the point of preserving section 33(3) and section 37(1A)? The only situation the applicants can suggest where those provisions would still operate, on their argument, would be where a prisoner on licence had been recalled before 4th April 2005 under section 39 powers but only reached the three-quarter stage of his sentence after that date. He would have a whole sentence licence. But it is absurd to believe that Parliament intended to put him in a worse position than the applicants merely because his recall preceded that date rather than followed it, when he had been sentenced under precisely the same regime as they have. It seems to me that Mr Patel is entirely right when he argues that this would display an arbitrary and unjustified distinction.”

This reasoning, with which I agree, together with what I regard as the appellants’ failure to offer any rational basis on which Parliament might have proposed to effect so bizarre a state of affairs, demonstrates in my judgment that the omission of any reference to s.33(3) from paragraph 23(1)(b) of Schedule 2 to the 2005 Order was indeed a drafting error. I should add that I attach no weight to the fact that in Stellato counsel for the Secretary of State submitted to their Lordships’ House that the omission of s.33(3) was done advisedly. Counsel’s argument was no more than that – argument. It is not, as it were, evidence of the legislature’s intention. It gave Mr Fitzgerald a jury point, nothing more. Nor, finally on this point, was I assisted by a brief submission made by Mr Fitzgerald about the Secretary of State’s directions to the Parole Board into which, with respect to Mr Fitzgerald, I need not travel further.

The appellants say that the starting-point is the well known dictum of Lord Reid in Black-Clawson International Ltd [1975] AC 591, 613G:

“... [W]here the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further inquiry is permissible.”

With respect, however, Lord Reid’s words cannot be taken literally, since that would prove too much: it would mean that there was no scope at all for the Inco Europe approach to be deployed, whatever the context. As the law has developed since 1975 we have seen a growing acceptance of purposive constructions. They have their dangers; there is a price to be paid in the coin of legal certainty, and in a debasement, however marginal, of the constitutional truth that it is the legislature’s will, found from the words of the Act, and not the executive’s will, found from the promoter’s intentions, that drives the meaning of statute law. A way often has to be found between an approach that is too lax and an approach that is too austere. In an appropriate case Inco Europe will give the right direction, but its scope is tightly confined, as Lord Nicholls himself made clear.

In the present case, however, I entertain no doubt but that Lord Nicholls’ three tests are well met. The intended purpose of the statute, in relation to prisoners in the appellants’ position, was to treat them (in common with other “pre-2003 Act” offenders) as subject to licence after release at the three-quarter mark. By inadvertence that was not given effect. The substance of the provision Parliament would have made would have been by way of an appropriate reference to s.33(3) in paragraph 23 of Schedule 2 to the 2005 Order, perhaps along the lines suggested by Lord Brown at paragraph 42 in Stellato.

Does the context rule out such a recourse? I need cite no authority for the proposition that it will take very clear and unambiguous words in a statute before the courts will construe it as empowering the State to deprive an individual of his liberty. It is to be noted that Lord Nicholls himself in Inco Europe stated that “the subject matter may call for a strict interpretation, as in penal legislation”. If I considered in the present case that judicial modification of the statutory instrument, following Inco Europe, would have effect to deprive the appellants or anyone else of settled rights of liberty enjoyed by them, I would decline to take such a course. But in my judgment that is not the position. The appellants have no prior settled right to be released free of licence. If they had any expectation in the matter, it could only be an expectation to be treated in the same way as a prisoner who happened to be released and recalled before 4 April 2005. In this litigation they are seeking to secure a purely adventitious benefit. Keene LJ’s comment on Stellato at paragraph 22 is with respect apt:

“There, of course,... the House of Lords were seeking to ensure that prisoners’ rights were not reduced by some procedural changes. By the same token, Parliament cannot have intended to enlarge those rights by such changes.”

There is no rule or principle to the effect that the courts will avoid a purposive construction (including recourse to Inco Europe) on account only of the fact that the statute in question touches the criminal law. In Haw [2006] EWCA Civ 432 the question was whether the Serious Organised Crime and Police Act 2005, whose application in any given case carried potential criminal implications, applied to a particular demonstration which for some time had been carried on in Parliament Square. A literal reading of the material provisions powerfully suggested that it did not. Applying a purposive approach, this court held that it did. Giving the judgment of the court Sir Anthony Clarke MR said this:

“27.

We have considered whether such a construction is impermissible having regard to the principle of doubtful penality or to the principle stated by Pollock CB. We entirely accept the general principle stated by Simon Brown LJ in R v Bristol Magistrates Court ex parte E and quoted above that a person should not be penalised except under clear law. Equally we are mindful of the importance of the liberty of the individual. However, whether or not there is ‘clear law’ depends in this context upon the true construction of the relevant statute. We have reached the conclusion that in the case of the Act, once the intention of Parliament is ascertained from the language used, construed in its context, there is in the relevant sense clear law.

28.

We should refer in this regard to two cases to which we were referred by Mr Pannick, albeit in very different statutory contexts. The first is McMonagle v Westminster City Council [1990] 2 AC 716, where the House of Lords treated words as surplus age in a statute which contained criminal sanctions in order to avoid what Lord Bridge described as the substantial frustration of the object of the Act: see especially at page 726 C-F and 727F-G. The second is DPP v McKeown [1997] 1 WLR 295, where in a breathalyser case the House of Lords refused to give the words of a statute their literal meaning because to do so would produce a result which Lord Hoffmann (with whom the other members of the House agreed) said would produce a result which was ‘quite irrational’. Thus all depends upon the circumstances of the particular case, even if the case involves the construction of a statute which contains penal provisions.”

It is clear that much depends upon the individual case. There is in my judgment nothing in the circumstances of this case that should inhibit the court from construing the 2005 Order, in light of the relevant primary legislation, so that it may be read free of the draftsman’s error.

On behalf of Mr Gibson Mr Simblet advanced a further submission, to the effect that the Secretary of State’s argument, and the Divisional Court’s judgment, involved a violation of Article 5 of the European Convention on Human Rights (right to liberty) for want of sufficient legal certainty: the appellants would be liable to be detained (indeed Mr Bailey and Mr Gibson are in fact detained) on an arbitrary basis, given the exercise in re-constructing the 2005 Order that is required to confer authority for the extension of their licences beyond the three-quarters point. Mr Simblet relied on the decision of the Strasbourg court in Baranowski (Application No 28358/95) which with respect I need not cite. This submission is misplaced. It is plain that the 2005 Order was intended only to make procedural transitional provision. The fact that some revision of the text, along Inco Europe lines, is needed to put the matter beyond the scope of nice argument does not begin to establish an objectionable want of legal certainty.

These appeals have required us to conduct an examination of interlocking statutory provisions, an exercise of no little complexity. Though as I have said I would reject Mr Simblet’s argument on legal certainty, it is I think much to be regretted that so intricate a process is required in order to ascertain definitively the competing rights of State and prisoner as regards release on licence. And I repeat, had I thought that judicial modification of the Order, following Inco Europe, would have effect to deprive the appellants or anyone else of settled rights of liberty enjoyed by them, I would decline to take such a course. No doubt all statutes should be clearly and accurately drafted. The public interest in that being done is heightened in the case of measures dealing with the State’s treatment of prisoners.

I would dismiss these appeals.

I agree.

I also agree.