Criminology – Long-term prisoners – Rape – Release on licence

R (on the application of Webb) v Secretary of State for Justice: CA (Civ Div) (Lords Justices Pill, Wilson, Sullivan): 8 September 2010

The appellant long-term prisoner (W) appealed against the refusal (R (on the application of Webb) v Secretary of State for Justice [2010] EWHC 1714 (Admin)) of his application for judicial review of the respondent secretary of state’s decision that the early release provisions introduced by section 26 of the Criminal Justice and Immigration Act 2008 applied to him.

In 1997 W was convicted of attempted rape and sentenced to 10 years’ imprisonment. In November 2004, while released on licence under that sentence, he committed a burglary for which he was sentenced to six years’ imprisonment. At the same time, the sentencing judge ordered his return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 for 533 days, being the period of time between the date of the burglary and the expiry of the sentence for attempted rape. W was released on licence in April 2009, at the half-way point of the total aggregated period of imprisonment ordered to be served for the burglary and the return to prison, for which the Prison Service applied the automatic release provisions introduced by section 26 of the 2008 act, which formed by section 33(1A) of the Criminal Justice Act 1991. However, W refused the licence conditions and he was returned to prison. The secretary of state’s view was that W could be lawfully detained until June 2012, whereas W believed that he should have been released on 30 June 2010. His application for judicial review of the secretary of state’s decision that the section 26 early release provisions applied to him was rejected, the judge holding that the return to prison was not ‘in respect of’ the attempted rape for the purposes of section 33(1B) of the 1991 act but was sui generis. W submitted that the return to prison for 533 days was in respect of the attempted rape; sentences were served in respect of offences and were not freestanding.

Held: W’s submission was not correct. It was true that the duration of his return to prison under section 116 was defined by the date on which the sentence for attempted rape would have expired. In that limited sense there was a relationship between the return to prison and the earlier offence. However, the date when the new offence was committed was also a factor. The sentence was deemed to be a fresh one, and involved a fresh sentencing exercise which was not ‘in respect of’ the original offence, R v Secretary of State for the Home Department Ex p Probyn [1998] 1 WLR 809 DC applied. It was important to bear in mind that parliament had not enacted section 26 of the 2008 act in ignorance of section 116 of the 2000 act; and it was plain that parliament did not consider that section 116 was in respect of the original offence. It was within the court’s discretion whether to return a prisoner, and if so for how long. His return was determined not by the original offence but by his conduct: the nature and seriousness of the new offence, the time elapsed since his release, and the extent to which he was trying to manage his life and not reoffend. W was returned to prison under section 116 not because he committed the original offence of attempted rape, but because of his conduct overall.

Appeal dismissed.

Hugh Southey QC for the appellant; James Strachan for the respondent.