Elam, R (on the application of) v Secretary of State for Justice

On 4 April 2005 the statutory regime relating to the period to be served on licence by a criminal after his release from custody was altered by the Criminal Justice Act 2003 (the 2003 Act), whose relevant provisions came into force on that day. Previously it had been governed by the Criminal Justice Act 1991 (the 1991 Act). This case concerns the calculation of the licence period relating to a criminal who was sentenced after 4 April 2005 to consecutive prison terms for offences committed both before and after that date. In addition to the statutes, the appeal requires consideration of the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (the 2005 Order), a measure which has, as Lord Judge CJ observed in Noone [2010] 1 WLR 1743 (paragraph 85), “already achieved a disturbing notoriety for inaccuracy”.

On 19 May 2011 HHJ Behrens, sitting as a Deputy High Court Judge in the Administrative Court, dismissed the appellant’s claim for judicial review and upheld the construction of the relevant statutory provisions advanced by the Secretary of State. On the interpretation of the material provision put forward on the appellant’s behalf, his licence period would end some 4½ months earlier than on the Secretary of State’s construction. The judge below gave permission to appeal to this court.

Judge Behrens provided a crisp outline of the facts and issues in paragraphs 3-6 of his judgment:

“3.

The facts can be very shortly stated. Mr Elam was born in 1959. On 4 April 2005 the 2003 Act came into force. On 19 March 2009 Mr Elam was sentenced to a total of five years imprisonment in respect of a number of counts. For present purposes it is important to note that he was sentenced to eighteen months for perverting the course of justice between 30 June 2004 and 31 January 2005. (Both of those dates are, of course, before 4 April 2005). In addition he was sentenced to 42 months consecutively for conspiracies to defraud between 26 March 2003 and 8 September 2006. Those dates of course span the coming into force of the 2003 Criminal Justice Act. He had spent some 340 days on remand at the time of the sentence. On 16 July 2010 he was sentenced to a further two years imprisonment, consecutive to the five-year term for offences of conspiracy to defraud.

4.

The Secretary of State has calculated that the sentence and licence expiry date will occur on 13 April 2015. His calculation is along the following lines. The three sentences total seven years. They fall to be aggregated as such under section 264(3) of the 2003 Act. After taking into account the 340 days spent on remand, the overall sentence ends on 13 April 2015.

5.

Mr Elam disputes this. He makes the point that the eighteen-month sentence was in respect of an offence which was committed before 4 April 2005. Under the 1991 Act he would have been entitled to be released after nine months with a licence period expiring after only a further four-and-a-half months – the three quarter point mark. Accordingly there was four-and-a-half months of his sentence when he would have been released and not subject to recall. He submits that this is an accrued right and was not lost by virtue of the provisions of the 2003 Act or the 2005 Commencement Order.

6.

He accordingly submits that the appropriate method is to aggregate the sentences to arrive at a figure of seven years but then to deduct the four and a half months, so as to arrive at a date at four and a half months earlier than that suggested by the Secretary of State. He submits that this can be achieved by what he describes or submits is a purposive construction of paragraph 19 (not it be noted paragraph 25) of the 2005 Order.”

The 1991 Act contains these material provisions in Part II:

“33(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State –

(a)

to release him unconditionally if that sentence is for a term of less than twelve months; and

(b)

to release him on licence if that sentence is for a term of twelve months or more.

(2)

As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.”

By s.33(5) a long-term prisoner was defined as a person serving a sentence of imprisonment for a term of four years or more, and a short-term prisoner less than four years. S.35(1) empowered the Secretary of State to release a long-term prisoner, after he had served one-half of his sentence, on the recommendation of the Parole Board. The provisions dealing with the duration and conditions of a prisoner’s licence after release are contained in s.37. I need only set out s.37(1):

“37(1)… [W]here a short-term or long-term prisoner is released on licence, the licence shall... remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.”

In light of the arguments addressed to us I should also set out s.51(2):

“51(2) For the purposes of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term.”

I turn to the 2003 Act. S.244 replaces s.33 of the 1991 Act. S.244(1) provides that (save for an irrelevant exception) a fixed-term prisoner is to be released as soon as he has served “the requisite custodial period”, which (s.244(3)(a)) is one-half of the sentence in the case of a term of twelve months or more, or in the case of a person serving two or more concurrent or consecutive sentences, is (again save for an irrelevant exception) “the period determined under ss.263(2) and 264(2)” (s.244(3)(d)). I need not trouble with s.263(2), which deals with concurrent terms. S.264 is the critical provision for the purpose of this appeal. By ss.(1) the section applies where an offender has been sentenced to two or more terms of imprisonment to be served consecutively and

“(b)

the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions...”

Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.

Where any of the terms of imprisonment is a term of twelve months or more, the offender is, on and after his release under this Chapter, to be on licence –

(a)

until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and

(b)

subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment.”

S.37 of 1991 Act was repealed by s.332 and Part 7 of Schedule 37 to the 2003 Act. However by s.330(1), (2) and (4)(b) the Secretary of State was given power to make transitory, transitional or saving provisions by statutory instrument as he might think necessary or expedient. Hence the 2005 Order. Paragraph 19 of Schedule 2 to the 2005 Order provides so far as relevant:

“The coming into force of –

...

(c)

the repeal of sections 33, [37]... 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.”

“The coming into force of –

(a)

sections 263 and 264 of the 2003 Act (consecutive or concurrent terms)

...

does not affect the date on which the Secretary of State is required to release an offender from a sentence of imprisonment passed in respect of an offence committed before 4^th April 2005, whether or not that sentence of imprisonment is to run concurrently or consecutively with one passed in respect of an offence committed after that date.”

If s.264(3) of the 2003 Act applies simpliciter to the appellant’s case for the purpose of calculating the expiry date of his sentence and licence period, there can be no doubt but that the date asserted by the Secretary of State – 13 April 2015 – is correct. So much is undisputed. But Mr Weatherby for the appellant submits that as regards the eighteen month sentence for perverting the course of justice, because it related to a crime committed before 4 April 2005 (in fact, as HHJ Behrens stated, between 30 June 2004 and 31 January 2005), s.37(1) of the 1991 Act has to be deployed; and by force of that provision the terminal date for the licence in respect of that offence would have fallen at the expiry of three-quarters of the sentence. So it is submitted, as the judge recorded, that the appellant’s licence period will end four-and-a-half months earlier than contended for by the Secretary of State.

Mr Weatherby submits that this result is produced by the proper construction of paragraph 19 of Schedule 2 to the 2005 Order. The appellant is a prisoner within the description given by the closing words of the paragraph, namely one who is “serving a sentence of imprisonment imposed in respect of an offence committed before 4^th April 2005”. Accordingly, in relation to that sentence, the repeal of s.37 of the 1991 Act is of no effect and the licence period attributable to that sentence expires at the three-quarters mark. It is true, of course, that the appellant is also a prisoner serving sentences imposed in respect of offences committed after 4 April 2005. As regards those, Mr Weatherby accepts that s.264(2) and (3) of the 2003 Act applies; so that the attributable licence period ends at the expiry of the aggregate length of those terms of imprisonment.

Mr Weatherby seeks to draw support for this approach from a number of sources. First, he prays in aid the common law’s general presumption against retrospective change in the substantive law: Pierson [1998] 1 AC 539, 585G – 590A, Makanjuola [1995] 1 WLR 1348, 1351, and Athlumney [1898] 2 QB 547, 551 – 552. He would, I think, submit that the presumption has special force in the context of penal provisions, and insists that the 2003 Act provisions relating to release and licence are to be construed prospectively. Translated to the present case, it means that a criminal sentenced for an offence committed before 4 April 2005 should not be subject to a licence regime which was only enacted on that date and was less favourable than the regime which preceded it.

Closely associated with his deployment of this general presumption is Mr Weatherby’s reliance on the decision of their Lordships’ House in Stellato [2007] 2 AC 70. The respondent had been sentenced in 1998. He was released on licence in June 2005 having served two-thirds of his sentence, but was recalled in August 2005. He was released again on 23 December 2005. On 28 December 2005 the Secretary of State recalled him for a second time, purportedly under the provision of s.254 of the 2003 Act. But the respondent contended that he was entitled to unconditional release under s.33 of the 1991 Act, having served three-quarters of his sentence. He succeeded in the House of Lords, which held that paragraph 19 of Schedule 2 to the 2005 Order preserved s.37 of 1991 Act (and therefore the shorter licence period there enacted) for prisoners such as the respondent who had been sentenced for offences committed before 4 April 2005.

Stellato did not involve any sentence passed for a crime committed after 3 April 2005, so is not comparable to the present case on the facts; but Mr Weatherby draws particular attention to the remarks of Lord Hope of Craighead concerning the fact that the 2005 Order was made by use of the negative resolution procedure in Parliament. The Order might have been made under s.333(2)(b) of the 2003 Act (which I need not set out), in which case an affirmative resolution of each House of Parliament would have been required (s.330(5)); but it was not, and s.330(6) had effect so that the Order was merely subject to annulment by negative resolution. I should cite these passages from Lord Hope’s Opinion:

“4.

It is a remarkable feature of this case that, if [the effect of the material provisions of the 2005 Order] had been that the respondent was entitled only to release on licence despite having reached the three-quarter point of the ten year sentence which he received under the regime that was in force when he committed the offences for which he was sentenced, this would have been achieved by a method of legislating that exposed the measure to the minimum of Parliamentary scrutiny...

12... In practice, subjecting the exercise of the power to the affirmative resolution procedure is the only way of ensuring that an opportunity is given for debate on an order or rule that is made under it.

15... 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.”

All this, says Mr Weatherby, lends powerful support to his position on this appeal.

Mr Weatherby next relies on certain features of the Supreme Court’s decision in Noone, to which I have already referred in passing. Noone concerned paragraph 14 of Schedule 2 to the 2005 Order. It provides (in summary) that the regime of the 2005 Act does not apply to any sentence of less than 12 months. The appellant had committed a number of offences, all after 3 April 2005, and had been sentenced in total to 27 months imprisonment, comprising one term of 22 months, three terms of four months concurrent (but consecutive to the 22-month sentence), and a further one-month term consecutive to the others. The Secretary of State had operated paragraph 14 in such cases by applying the 1991 Act regime to sentences for offences committed before 4 April 2005, and the 2003 Act regime to sentences for offences committed after that date. This meant that the overall expiry date for sentence and licence period would depend on the order in which the consecutive sentences were treated as being or having been served (see per Lord Mance at paragraph 57). The Secretary of State instructed prison governors to proceed on the basis that sentences were to be served in the order in which they had been imposed by the court. The Supreme Court in Noone considered the Secretary of State’sposition to be misconceived. The court held that

“on a purposive construction of paragraph 14, the 1991 Act continued to apply to sentences of less than twelve months only where they were not imposed concurrently with or consecutively to sentences of twelve months or over, and the provisions of the 2003 Act applied to sentences of under 12 months which were imposed concurrently with or consecutively to sentences of twelve months or over, subject to reading in words making the custodial period in respect of such sentences of less than twelve months one half of the term...” (headnote, 1743-1744)

Mr Weatherby submits that Noone supports him generally as showing that a purposive construction of the 2005 Order is required for the avoidance of anomaly, and that the definition of “custodial period” in s.264(6) of the 2003 Act is prospective, “as the scheme of the Act does not provide for retrospective substantive change” (skeleton argument, paragraph 43). More specifically, Mr Weatherby submits that Lord Mance’s observations obiter at paragraph 76, where paragraphs 19 and 25 of Schedule 2 to the 2005 Order are referred to, show that paragraph 19 is intended to apply to all sentences for offences committed before 4 April 2005, whenever passed. This passage is also relied on by Mr Weisselberg for the Secretary of State (skeleton argument, paragraph 49), so I should set it out in full:

“76.

Some attention was directed in argument and in the courts below to further provisions of Schedule 2, especially paras 19 and 25 dealing with the application of provisions of the 2003 Act in relation to offences committed before 4 April 2005. To my mind these cannot be decisive in either direction. I would only comment that, as at present advised, I would find it difficult to agree with the Secretary of State’s and Court of Appeal’s interpretation of their effect as regards sections 263 and 264. The omission from para 19 of any reference to sections 263 and 264 and the reference in para 25 to those sections seem to me more easily understood as indicating an intention to apply the aggregation provisions of those sections from 4 April 2005 in all circumstances (save only where all sentences in question are for less than 12 months and are therefore within para 14). It was understandable to mention section 244 in para 19 (and so to make clear that, where all sentences in question were for offences committed before 4 April 2005, the relevant provisions of the 1991 Act were to apply). But, where offences committed either side of 4 April 2005 are in question, the language of section 264(2) seems to me quite capable of operating, and to have been intended by para 19 to operate, to require the Secretary of State to release the offender on licence after the period specified. Nothing in para 25 suggests that it was to be confined in scope to cases where one of the sentences was an extended sentence. There seems no reason why para 25 should not be relevant generally (for example, to preclude a long-term prisoner serving a sentence of 4 years or more for an offence committed before 4 April 2005 in conjunction with another prison sentence for an offence committed after that date from claiming under section 264(6)(a)(ii) the benefit of a custodial period of one-half in respect of the former sentence, instead of the period of two-thirds which would follow from section 33(2) of the 1991 Act, the application of which is preserved in relation to the former offence by para 19).”

Mr Weatherby’s submission is that it is a premise of this reasoning that paragraph 19 applies to all pre-4 April 2005 offences, whenever sentenced; and so, implicitly, it applies to the present case. I shall indicate in due course where, with respect, paragraph 76 seems to me to take the argument. But I should next confront an important submission advanced by Mr Weatherby based on the language of paragraphs 19 and 25. It addresses what seems to me to be the real problem in this case, namely the fact that the offences committed by the appellant straddle the cut-off date of 4 April 2005.

This submission proceeds as follows. Paragraph 25 has effect so that a prisoner sentenced for a pre-4 April 2005 offence will not, simply because he was also sentenced to concurrent or consecutive terms for offences committed on or after that date, enjoy the benefit of automatic release at the half-way point under the 2003 Act: he remains in custody until the two-thirds point pursuant to s.33(2) of the 1991 Act. But if the repeal of s.33(2) anyway applies to such a prisoner’s case, paragraph 25 is not required to achieve that result and is accordingly otiose. It follows that paragraph 19 has to be read as disapplying the repeal of s.33(2) in such an instance. But in that case the reach of paragraph 19 extends to the case of a prisoner sentenced on the same occasion for multiple offences which straddled the cut-off date of 4 April 2005 – this case. And if paragraph 19 disapplies the repeal of s.33(2) in these circumstances, it must as surely – so the argument runs – disapply the repeal of s.37(1). The door is therefore open to the appellant’s reliance on s.37(1) as entitling him to a shorter licence period after release in respect of the eighteen-month sentence passed for an offence (perverting the course of justice) committed before 4 April 2005.

As I have indicated, the fact that the offences committed by the appellant straddle the cut-off date of 4 April 2005 seems to me to be at the heart of the appeal. Paragraph 19 effects no clear transitional provision for the expiry of licence periods in such a case. But in my judgment one thing is clear, and points towards the correct resolution of the appeal. It is that the regime of s.264 of the 2003 Act must at least apply for the determination of the licence expiry date in relation to the sentences passed for offences committed after 3 April 2005. There is no other provision to govern the matter. Mr Weatherby accepts as much. How does this circumstance stand with Mr Weatherby’s submission that the licence period in respect of the appellant’s eighteen-month sentence passed for his pre-4 April 2005 offence?

In my judgment it is inescapable that where a criminal has been sentenced to two or more consecutive terms of imprisonment, s.264 must apply to all of them if it applies to any. S.264(3) only works on the footing that all the terms of imprisonment in question are aggregated. If all save one are aggregated under s.264(3)(a) for the purpose of calculating the licence expiry date, but the remaining sentence is dealt with, or putatively dealt with, under s.37(1) of the 1991 Act (as Mr Weatherby says should happen here), the resulting licence expiry date is not as prescribed by s.264.

Mr Weisselberg submits, correctly in my judgment, that where there are offences committed both before and after the cut-off date, those passed for the pre-4 April 2005 offences, if there are more than one, are “treated as a single term” pursuant to s.51(2) of the 1991 Act (which I have set out) and that single term is then aggregated with the sentences for the post-3 April 2005 pursuant to and for the purposes of s.264. S.51 is one of the provisions whose repeal is disapplied by paragraph 19, and this submission by Mr Weisselberg demonstrates, in the present context, the utility of its preservation as the vehicle for bringing pre-4 April 2005 offences, sentenced on the same occasion as later offences, into the single regime of s.264 of the 2003 Act.

The s.264 regime thus applies (for the purpose of ascertaining licence expiry dates) in every case save one – namely where all the sentences in question are passed for pre-4 April 2005 offences. In that case, but no other, s.37(1) of the 1991 Act (preserved for this purpose by paragraph 19) has effect to determine the licence expiry date. S.37(1) cannot apply to pre-4 April 2005 offences sentenced alongside later offences because all the sentences passed could not and would not then be aggregated under s.264(3)(a); and, as I have stated, the resulting licence expiry date would not be as prescribed by s.264.

Mr Weisselberg’s argument is in my judgment correct for another reason also. As I have shown, before the decision of the Supreme Court in Noone the Secretary of State’s approach to paragraph 14 of Schedule 2 to the 2005 Order meant that the overall expiry date for sentence and licence period would depend on the order in which the consecutive sentences were treated as being or having been served. This was the “third anomaly” referred to by Lord Mance at paragraph 57, and was plainly one of the reasons why the Supreme Court regarded the Secretary of State’s interpretation of paragraph 14 as misconceived. Lord Mance said:

“57... If the 5-month term of the four shorter sentences were taken first and the 22-month sentence were treated as running from the CRD [sc. conditional release date] (after 2½ months, on or about 28 June 2007) of that 5-month term, then the offender would under section 264(1)(a) be eligible for home detention curfew 135 days before the half-way point (28 May 2008) of the 22-month sentence, i.e. on 13 January 2008. Which way around sentences are treated as being served depends, on the construction advanced by the Secretary of State and accepted by the Court of Appeal, upon which way around the sentencing judge expresses them, or at least... in which order he expresses the first sentence with which he deals in each category (less than 12 months and 12 months or more). Judges in their sentencing remarks commonly take the longest sentence first, which leads to the least favourable result regarding HDC for offenders in the situation presently under consideration.”

But precisely the same anomaly arises on Mr Weatherby’s approach to paragraph 19. Thus if the sentence of 18 months for the pre-4 April 2005 is taken as being served first, the licence period attached to it would run while the sentences for the post-3 April 2005 offences were being served: it would be “submerged” within them, to use the term deployed in counsel’s submissions, and the licence expiry date would be 15 July 2014 (see Mr Weisselberg’s skeleton argument, paragraph 10). But a different date is produced if the 18 month sentence is taken as being served last. I can think of no good (or even respectable) reason for the introduction of so eccentric a mechanism into the processes of criminal sentencing.

No appeal to the presumption against retrospective substantive change can in my judgment prevail against these substantial justifications of the Secretary of State’s approach to paragraph 19 and s.264, which, as it seems to me, is implicitly supported by the Supreme Court’s decision in Noone: not only Lord Mance’s treatment of the “third anomaly”, but also his observations obiter at paragraph 76 which I have set out. As regards Lord Hope’s strictures as to the want of parliamentary scrutiny inherent in the negative resolution procedure in Stellato, it has to be remembered that the respondent in that case was sentenced as long ago as 1998 for offences obviously committed yet earlier; this appellant was convicted and sentenced after 4 April 2005 for offences which, save one, were also committed after that date.

Mr Weatherby’s argument is an elegant and tenacious attempt to re-write the statutory provisions: an attempt only made possible by the negligent drafting of the 2005 Order. The approach advanced by the Secretary of State has the virtues of clarity and simplicity: s.264(3) of the 2003 Act determines the licence expiry date in every case where a prisoner is serving consecutive terms save one, viz. where all the offences in question were committed before 4 April 2005. In that case only, s.37(1) of the 1991 Act serves to fix the licence expiry date.

For all the reasons I have given, I would dismiss this appeal.

I agree. The key points are: (1) s.37(1) and s.51(2) of the 1991 Act are preserved (by paragraph 19 of the Commencement Order) only for sentences of imprisonment imposed after 4 April 2005, but in respect of offences committed before that date; whereas (2) s.264(2) and (3) of the 2003 Act apply to all sentences of imprisonment (greater than 12 months) imposed after 4 April 2005, whether they relate to offences committed before or after that date. Thus, it seems to me, when an offender is sentenced (at the same time) after 4 April 2005 for two offences committed before 4 April 2005 and for one offence committed after that date, two exercises have to be performed. First, under s.51(2) of the 1991 Act, the sentences for the pre- 4 April 2005 offences have to be “treated as a single term”. Secondly, that “single term” and the sentence for the post-4 April 2005 offence have to be aggregated for the purposes of s.264(2) of the 2003 Act, because that provision applies to all sentences, whether relating to pre- or post- 4 April 2005 offences.

Once those exercises have been done, then the time for release on licence can be calculated, viz. once the offender has served a period equal in length to the aggregate of the length of the “custodial periods” in relation to each of the terms of imprisonment, viz. after half the total aggregate sentence. Further, the licence period can be calculated. For sentences where the aggregate is more than 12 months imprisonment, the licence period continues until the offender would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, viz. it continues for the remainder of the aggregate of the sentences.

I too agree that the appeal should be dismissed for the reasons given by Laws LJ.

It seems to me that the presumption against retrospective substantive change is of doubtful application in this case, where the 2003 Act regime had already been both enacted and brought into force by the time the relevant sentence was imposed in March 2009. Only by the most tenuous of reasoning could the appellant here have enjoyed what was sometimes described in argument as an “accrued right” to a licence period expiring after three-quarters of whatever sentence was imposed for his offending prior to 4 April 2005.

In order for his argument to succeed the appellant needs to find a provision clearly disapplying the regime prescribed by s.264(3). Paragraph 19 of Schedule 2 to the 2005 Order does not refer to s.264. Paragraph 25 does refer to s.264, but disapplies it only to a limited extent and in relation to release dates, not licence periods. This suggests to me that the Secretary of State did not think it either “necessary or expedient” (s.330(4)(b) of the 2003 Act) to make any saving provision so as to bring about the result for which the appellant contends. I do not find that altogether surprising.