Lindo, R (On the Application Of) v Secretary of State for the Home Department

MR JUSTICE GOLDRING:

In this application for judicial review the claimant, who is a serving prisoner, claims that his release date should be no later than 28th November 2003. The Secretary of State asserts that the correct release date is 16th December 2003. The claimant was unlawfully at large for what is now agreed to be 17 days. The issue is: what effect does that period have, for the purposes of his release on licence, under section 33(3) of the Criminal Justice Act 1991?

Section 33 of the Criminal Justice Act 1991 deals with early release. Section 33(1) states:

Short term prisoner is defined by subsection (5) as meaning, "a person serving a sentence of imprisonment for a term of less than four years."

The claimant's sentence was two years.

Section 34A deals with release of short-term prisoners on licence. It has to be read in conjunction with section 37A which deals with Home Detention Curfew.

Section 34A(1) states:

Subsection (3) states:

Subsection (4) states:

Section 37A deals with, "Curfew condition to be included in licence under Section 34A." It provides in subsection (1):

Section 38A of the Criminal Justice Act 1991 deals with breach of the curfew condition. Subsection (1) provides:

Subsection (5) provides:

Section 39 of the Criminal Justice Act 1991 is also material. By subsection (1) the Secretary of State may revoke the licence and recall the person to prison. He may do so by subsection (2), where it appears to him expedient in the public interest.

I return to Section 38A(5) and the reference to a person "deemed to be unlawfully at large." Section 49(2) of the Prison Act 1952 states:

There are also two relevant Prison Service Orders.

Prison Service Order 6650 of 23rd October 2002, in chapter 7 headed "Unlawfully at Large," states at paragraph 7.1.1:

Paragraph 7.2 is headed: "Calculation of the period unlawfully at large."

Paragraph 7.2.1 states:

Prisoner order 6700 is headed "Home Detention Curfew." Paragraph 9.9 is headed "Automatic Release After Recall." 9.9.1 provides:

9.9.2 provides:

It is agreed that of themselves the Prison Service Orders do not have statutory force.

On 28th August 2002 the claimant was sentenced to two years' imprisonment. He had been on remand in custody for 92 days. On 3rd March 2003 he was released on Home Detention Curfew. That was 87 days before his automatic conditional release date. On 7th April 2003 his Home Detention Curfew was revoked by the Secretary of State. He had broken its terms. He was unlawfully at large for 17 days. On 25th April he was arrested and returned to prison.

On 29th May 2003 what would have been the halfway point of his original sentence was reached. That would have been his automatic conditional release date. It was recalculated to take account of the days at large. On the basis of the calculation then used that period was 18 days. Mr Lennon, on behalf of the claimant, has no issue regarding the recalculation of his automatic conditional release date.

He was released on licence on 16th June 2003. On 8th July 2003 that licence was revoked. It seems he had committed further criminal offences. He was returned to prison that day. Having been returned he is entitled to be released on licence after serving three quarters of the sentence; see section 33(3) of the Criminal Justice Act 1991. The original date was 28th November 2003.

On 29th August 2003 the Secretary of State wrote the decision letter in this case which is challenged. He stated that the licence expiry date had been recalculated to take account of the period when the claimant was unlawfully at large. Instead of 28th November the new date was to be 15th December 2003. The original sentence expiry date also was recalculated. It was originally 28th May 2004. After recalculation it was to be 14th of June 2004.

Mr Lennon, on behalf of the claimant, accepts that section 49(2) of the Prison Act 1952, and section 38A(5) of the Criminal Justice Act 1991, mean that those who breach their Home Detention Curfew are unlawfully at large and that unless the Secretary of State directs, no account of that period can be taken when calculating the release date.

He submits that in this case what has happened is that effectively the claimant's sentence has been extended by 17 days. He was first released on licence 17 days after he would have been, had he not been unlawfully at large. He will be released on licence 17 days later than otherwise he would have been (because of the recalculation of the three quarter period). The claimant has, therefore, submits Mr Lennon, effectively served the 17 days during which he was unlawfully at large, twice. His sentence has been extended. Mr Lennon has worked out the detail of the calculations. It is not necessary to go into them. As he put it in his closing submissions: "I emphasise the days in prison."

Mr Lennon also refers me to paragraphs 9.9.1 and 9.9.2 of the Prison Service Order 6700. His argument is effectively summarised in the grounds of the application in these terms:

Additionally, Mr Lennon relies on Article 5 of the European Convention on Human Rights. It states:

He submits that the detention is not lawful. It is therefore in violation of Article 5. The claimant is entitled to release after serving half his sentence, plus any time unlawfully at large. There is no procedure prescribed by law which justifies longer detention. The proposed release is 17 days longer than envisaged by a competent court, and therefore a breach of Article 5(1)(a).

Finally, he submits, that in fairness the Secretary of State should exercise his discretion to allow the period when unlawfully at large to count towards the sentence.

It seems to me that on the statutory interpretation of the various provisions, Miss Greaney, on behalf the Secretary of State, is right. The Secretary of State has not extended the claimant's sentence. The sentence is, and has always been, a 2 year sentence. All that has happened is that in accordance with section 49(2) of the Prison Act 1952, a time during which the claimant was unlawfully at large, has not been counted as part of the sentence. As Prison Order 6650 puts it, the sentence has effectively been frozen for those 17 days. That has an inevitable and consequential knock-on effect on the subsequent parts of the sentence. As Miss Greaney put it in argument: if the claimant does not reach halfway until 17 days later, how can the three quarter point not be shifted back 17 days?

In my view it inevitably follows that the automatic conditional release date is put back by 17 days, as is the licence expiry date, as is the sentence expiry date. It is not a question of double counting. It is simply a question of interpreting the statutory provisions which, on their face, are clear.

Indeed, as Miss Greaney submits, if the claimant is right, what would the effect be? If, for example, a man were unlawfully at large for say 2 years, when sentenced to a term of 2 years' imprisonment, it would mean he would not serve a total of 2 years.

It does not seem to me that what is said in Prison Order 6700 can affect the clear statutory provisions, or have been intended to do so.

As to Article 5 it follows, inevitably, from what I have said, that there is nothing unlawful about the procedure laid down by the Secretary of State. It is prescribed by law.

As to the exercise of discretion, it seems to me that there is no arguable basis for saying that the failure to exercise that discretion in the claimant's favour was in any way unlawful.

Everything that has happened is a result of the claimant's behaviour. He broke the detention curfew. He was unlawfully at large. When released on licence again he broke the conditions of that licence. He committed criminal offences.

In the circumstances, therefore, this application for judicial review fails.

Yes, Mr Lennon?

MR LENNON: My Lord, I have two applications. My Lord, I would seek your leave to appeal to the Court of Appeal only on the first point, not on the second point about discretion. The reason is this: it is a narrow point, but one of some importance because it will affect a number of prisons. Both my learned friend and I have not relied on any authority. This is now the authority on this narrow point, and in my respectful submission deserves to be argued on that basis alone before the Court of Appeal.

It is a narrow point, but it is a narrow point which directly affects people's liberty and in some cases could be fairly substantial chunks of time, and ought to be, if I may say so, my Lord, argued alternatively in the Court of Appeal.

MR JUSTICE GOLDRING: I understand what you are saying Mr Lennon. I will ask Miss Greaney if she has any observations to make?

MISS GREANEY: I apologise, my Lord, because I was taking some instructions at the point --

MR JUSTICE GOLDRING: Mr Lennon is asking for permission to appeal to the Court of Appeal. He is submitting that this is a narrow but important point upon which so far there is no authority, that the matter therefore ought to be considered by the Court of Appeal. I think I correctly summarised what he is submitting.

MISS GREANEY: What I say in relation to that, my Lord, is: I agree with my learned friend there is not any authority on this particular point, but as you have indicated, my Lord, the statutory provisions are clear. I would also say, as a matter of common sense, what the claimant says cannot be right. For those reasons I would say that the appeal would have no reasonable prospect of success.

MR JUSTICE GOLDRING: Thank you, Miss Greaney. Mr Lennon, I am not going to grant you permission to appeal, of course you may go and ask the Court of Appeal for that permission.

MR LENNON: My Lord, two more matters. One, I would ask, so that I can consider my position, that a transcript is expedited, because I have a short time limit, in the circumstances, if I am going to apply to the Court of Appeal.

MR JUSTICE GOLDRING: Yes, I will certainly order that the transcript be expedited. I will obviously correct it very speedily.

MR LENNON: I am grateful.

MR JUSTICE GOLDRING: I would be content -- forgive me interrupting you -- I would obviously arrange for it to be faxed to your solicitors so that you have it, and obviously to the Secretary of State.

MR LENNON: I am grateful for that. My Lord, finally, I would ask for a detailed assessment of costs, thank you.

MR JUSTICE GOLDRING: Miss Greaney, do you have any observations?

MISS GREANEY: No, my Lord. The defendant does not seek costs against the claimant.

MR JUSTICE GOLDRING: No, I would have thought, in the circumstances, that would not be sensible.

Thank you both very much indeed.