Penology and criminology – commencement provisions – concurrent sentences – custody plus orders

R (on the application of Noone) (FC) v Governor of Drake Hall Prison and Anor: SC (Lords Phillips, Saville, Brown, Mance, Judge): 30 June 2010

The appellant prisoner (N) appealed against a decision ([2008] EWCA Civ 1097, [2009] 1 WLR 1321) to refuse judicial review of the first respondent prison governor’s calculation of the date she became eligible for release.

N had been sentenced to consecutive sentences of 22, four and one month’s imprisonment. Under paragraph 14 of schedule 2 to the Criminal Justice Act 2003 (Commencement No.8 and Transitional and Saving Provisions) Order 2005, the sentences were partly governed by the Criminal Justice Act 1991 and partly by the Criminal Justice Act 2003. The second respondent secretary of state had given instructions to prisons as to how to calculate sentences and administer the home detention curfew scheme, under which the licence period and curfew scheme eligibility depended on the order in which the consecutive sentences fell to be served. The prison governor calculated N’s release date in accordance with those instructions. The Court of Appeal held that the instructions reflected the position in law. The Supreme Court considered: the object and effect of the words ‘whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence’ in paragraph 14 of schedule 2 to the 2005 order; and, where sentences of under and over 12 months were ordered to be served consecutively, how they were to be linked together and how provisions as to early release, and release on curfew and licence were to operate in relation to each sentence.

Held: (1) The decisions of the courts below offered no explanation for the words in question in paragraph 14 of schedule 2. The words drew an implicit but clear distinction between under-12-month sentences imposed with other similar sentences and under-12-month sentences imposed 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 the paragraph, the words in question were to be read as follows: ‘Other than a sentence which was 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 they were not imposed concurrently or consecutively with sentences of 12 months or over, and the 2003 act applied to sentences of under 12 months that were imposed concurrently or consecutively with sentences of 12 months or over.

(2) Where a prisoner was serving concurrent sentences of under and over 12 months, section 244 of the 2003 act, read with section 263(2), required him to be released on licence when he had served one half of the shorter and one half of the longer of the sentences. In practice, it would always be the longer, over-12-month sentence that constituted the relevant custodial period governing release. Where such sentences were served consecutively, section 244(3)(d) applied, read with section 264(2). Section 264(6)(a)(ii) stated that the requisite custodial period for the over-12-month sentence was half the sentence, but there was no definition of the custodial period for the under-12-month sentence, because section 181, which would have determined that, had not been brought into force. The custodial period was, however, obvious: it was half the sentence the prisoner would have had to serve before release had the sentence not been imposed consecutively with an over-12-month sentence. The relevant custodial period was the amalgam of all the individual custodial periods. The requisite custodial period for the power to order home detention curfew release under section 246 was calculated in the same way. That interpretation of paragraph 14 of schedule 2 and the relevant provisions of the 2003 act provided uniformity of approach, regardless of the order in which individual sentences had been imposed, qualified the prisoner for the maximum grant of curfew release, but at the same time subjected the prisoner to the latest sentence and licence expiry date. The calculation of N’s release date had been incorrect.

(2) (Per Lord Judge) For too many years the administration of criminal justice had been engulfed by a relentless tidal wave of legislation. Elementary principles of justice had come, in the instant case, to be buried in the legislative morass. It was outrageous that so much intellectual effort, as well as public time and resources, had had to be expended in order to discover a route through that morass to what should be the simplest and most certain of questions – the prisoner’s release date.

Appeal allowed.

Pete Weatherby, Andrew Fitzpatrick (instructed by Prisoners Advice Service) for the appellant; Nigel Giffin QC, Steven Kovats (instructed by Treasury Solicitor) for the second respondent.