Stellato v Secretary of State for the Home Department [2006] EWCA Civ 1639

Case No C1/2006/0867/QBACF[2006] EWCA Civ 1639
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(Lady Justice Hallett and Mr Justice Jack)
Lower Court Case No:C0/8848/2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 1st December 2006
Before
LORD JUSTICE LONGMORELORD JUSTICE SCOTT BAKERLORD JUSTICE HUGHES
Between
PAUL CHRISTIAN STELLATOAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Keir Starmer Q.C. and Phillippa Kaufmann (instructed by Messers Bhatt Murphy) for AppellantDavid Pannick Q.C. and Parishil Patel (instructed by The Treasury Solicitor) for Respondent
Judgment
[1]Paul Stellato appeals with the permission of the Divisional Court (Hallett L.J. and Jack J.) against their decision that as a prisoner recalled to prison after 4 April 2005 he was not entitled to unconditional release at the three quarter point of his sentence but remains, if released, subject to licence until the end of his sentence. The Divisional Court refused his application for judicial review. Facts.[2]On 17 December 1998 the appellant was sentenced to a total of 10 years imprisonment for offences including arson with intent to endanger life and perverting the course of justice committed in June 1998. He had been in custody since 27 June 1998, so the period of 10 years expires on 26 June 2008. On 17 February 2005, at the two thirds point of his sentence, he was released, as was his entitlement, on licence. However, the very same day he was recalled to prison for breach of his licence. On 16 June 2005 he was again released on licence but on 1 August 2005 his licence was again revoked and on 11 August 2005 he was returned to custody. On 24 October 2005 the Parole Board issued a decision letter replacing an earlier decision letter dated 4 October 2005. It stated that he should be released on licence on his notional licence expiry date namely 27 December 2005, which was the three quarter point of his sentence. He was in fact released on 23 December because it is the practice, where a prisoner’s release date falls on a Bank Holiday or a weekend, to release him on the last working day prior to it.[3]The decision of the Parole Board was unsurprising because of a direction it had received under section 239(6) of the Criminal

Justice Act 2003 (“the 2003 Act”) that:

“The Parole Board shall take into account the fact that prisoners who have been sentenced under the provisions of the Criminal Justice Act 1991 cannot be disadvantaged by the recall provisions of the Criminal Justice Act 2003.”
[4]I shall turn in more detail to the legislation in a moment, but one of the major changes brought about by the 2003 Act was that henceforth a prisoner was entitled to release at the half way point in his sentence rather than two thirds, but he remained on licence for the whole of the remainder of his sentence.[5]The appellant was returned to custody on 9 January 2006 following breach of his licence. It is his case that he had been released the previous month unconditionally as was his entitlement under the legislation; he was not subject to any licence and could not therefore be in breach. He remains in prison.[6]The fundamental question on this appeal is whether the appellant’s release following recall to prison after 4 April 2005 is governed by the 2003 Act or the Criminal Justice Act 1991 (“the 1991 Act”). If it is the latter, the appellant’s release on licence became, as he contends, unconditional at the three quarter point of his sentence on 27 December 2005. If it is the former, he remains, or if free would have remained, on licence until the completion of his 10 year sentence which is not until 26 June 2008. The answer to this question turns on the true construction of Schedule 2 to the Criminal Justice Act 2003 (Commencement No.8 and Transitional and Savings Provisions) Order 2005 (“the 2005 Order”). And in particular paragraphs 19 and 23. The legislation.[7]It is necessary to consider three statutory schemes relating to release of prisoners on licence. The first is to be found in part 2 of the 1991 Act, the second in part 4 of the Crime and Disorder Act 1998 (“the 1998 Act”) and the third in Chapter 6 of Part 12 of the 2003 Act. The key features of the 1991 Act are: Definition of long-term prisoner s.33(5). Power of release at half way stage s.35(1). Duty to release at two thirds stage s.33(2). Unconditional release at three quarter stage s.33(3). Compassionate release s.36. Licence expiry at three quarter stage s.37(1). Revocation provisions s.39(1). Power of Court to order offender to serve rest of term s.40. Special provision for sex offenders. s.44.[8]Accordingly, save where the sentencing court exercised its powers under section 44 at the time of sentence or where the offender committed a further imprisonable offence and the sentencing court exercised its powers under s.40 to return him to prison in respect of the original offence, the three quarter point marked the end of the period when the offender was subject to the coercive effects of the sentence. If an offender was detained at that point, he should have been released unconditionally. If he was not so detained, he ceased to be liable to recall or to any of the terms of the licence. A 10 year sentence was, for practical purposes, a 7 ½ year sentence.[9]But the position changed with the 1998 Act which amended the 1991 Act in a number of respects. The key features are: Amendment to s.33(3) preserving entitlement to release at three quarter stage but making re-release subject to licence rather than unconditional, s.104 New provisions extending the scope of s.44. s.59[10]S.116 of the Powers of Criminal Courts (Sentencing) Act 2000 replaced s.40 of the 1991 Act giving the court power on a subsequent conviction to order an offender to serve the rest of the term.[11]None of these amendments affected the appellant because they only applied to offenders whose offence was committed after 30 September 1998.[12]The key features of the 2003 Act are: Duty to release fixed term prisoners on licence at half way stage in cases other than extended sentences, sentences of less than 12 months and intermittent custody orders s.244. Licence continues to end of sentence unless revoked s.249. Conditions of licence provided for s.250. Duty to comply s.252. Power of revocation and recall in Secretary of State s.254. Provisions for further release after recall s.256. S.116 of Powers of Criminal Courts (Sentencing) Act 2000 repealed[13]The 2003 Act received Royal Assent on 20 November 2003. Some provisions came into force on that date (s.336(1)), others four weeks later (s.336(2)). The rest come into force by orders under the enabling powers under ss.336(3) and 330(4)(b). This appeal is concerned with the 2005 Order which was made on 24 March 2005. Subject to paragraph 2(2) and Schedule 2, it brings into force Chapter 6 of Part 12 of the 2003 Act and repeals Part 2 of the 1991 Act, both as from 4 April 2005.[14]Schedule 2 contains two paragraphs that are of importance to the present appeal. They are paragraphs 19 and 23. Paragraph 19 is the first in a group of paragraphs headed:
“Savings for prisoners convicted of offences committed before 4 April 2005.”
It reads:
“19. The coming into force of – (a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds), 249 (duration of licence) and 250 (licence conditions); (b) paragraph 8(2)(b) of Schedule 32 (Criminal Appeal Act 1968); (c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act; and (d) the repeal of sections 59 and 60, 99 and 100, 101, 103 to 105 and 121 of the Crime and Disorder Act 1998, is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005. Paragraph 23 is headed: “Transitional Arrangements for recall after release.”
It reads:
“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 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. (2) paragraph 12(1) and (2) of Schedule 9 of the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act. (3) the repeal of section 39 of the 1991 Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4 April 2005.” (a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds), 249 (duration of licence) and 250 (licence conditions); (b) paragraph 8(2)(b) of Schedule 32 (Criminal Appeal Act 1968); (c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act; and (d) the repeal of sections 59 and 60, 99 and 100, 101, 103 to 105 and 121 of the Crime and Disorder Act 1998, is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 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. (2) paragraph 12(1) and (2) of Schedule 9 of the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act. (3) the repeal of section 39 of the 1991 Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4 April 2005.”
[15]It is common ground that the clear intention behind these provisions is that the initial release and licence provisions for prisoners serving a sentence for offences committed before 4 April 2005 should not be affected by the 2003 Act. The benefit for prisoners sentenced under the 2003 Act of release having served half their sentence was not extended to this category of prisoner, but neither was the disadvantage of remaining subject to a licence (and hence recall) for the whole of the remainder of their sentence. This is consistent with the longstanding principle that existing prisoners should not be adversely affected by changes to the sentencing regime after their conviction. This is a principle to which Parliament has been loyal in successive Criminal Justice Acts. It is to be noted that on 22 January 1998 Lord Bingham of Cornhill C.J. issued a Practice Direction that defendants should be told on sentence the effect of the sentence. In the appellant’s case that would have included: “After your release you will also be subject to supervision on licence until the end of three quarters of the total sentence” see [1998] 1 WLR 278.[16]Accordingly, the initial release and licence provisions for prisoners serving a sentence for offences committed before 4 April 2005 remain governed by Part 2 of the 1991 Act, with the result that they are entitled to be considered for release from the point at which they have served half of their sentence (s.35(1)) until actual release on licence not later than at the two thirds stage (s.33(2)) and to unconditional release at the three quarter stage (save where they are convicted of a subsequent offence etc.) (s.33(3)). The conditions of any licence on which they are released are governed by ss.37(2) – (4) and the licence duration by s.37(1) (i.e. it expires at the three quarter stage subject to revocation.)[17]The problem in this appeal is caused by paragraphs 19 and 23 of the 2005 Order. For the Secretary of State, Mr Pannick Q.C.’s argument is that although after 3 April 2005 the provisions in the 1991 Act apply to the release of a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005, nevertheless the provisions in the 2003 Act apply in relation to the recall of such prisoners once they have been released on licence. Once they have been recalled, the regime of the 2003 Act applies to their further treatment. Not so, submits Mr Starmer Q.C., who has appeared for the appellant. The key provision relied on by Mr Pannick, namely paragraph 23 of Schedule 2 to the 2005 Order is, submits Mr Starmer, aimed simply at ensuring that there is a single procedure for recall; it has no effect on the status of recalled and re-released prisoners during the final quarter of their sentence. In particular it does not result in such a prisoner being on licence and liable to recall.[18]This court has already had cause to consider paragraph 23(1) in Buddington v Secretary of State for the Home Department [2006] EWCA Civ 280. The court there accepted that where an offender is released on licence after 3 April 2005, revocation of the licence is pursuant to the 2003 Act and not the 1991 Act. At paragraph 20 Sir Igor Judge P. said that paragraph 23 is concerned with the continuing and preserved duty of the Secretary of State to release prisoners after they have served a specified proportion of their sentence. When this duty arises the prisoner “falls to be released.” Paragraph 23(1) should therefore be read as “is entitled to be released,” or “is released.”[19]The President drew attention to two obvious drafting errors in Paragraph 23(2). First, the date of the Crime and Disorder Act is 1998 and not 1988 and second the reference to “prisoners whose sentence was committed” should be to offence rather than sentence.[20]The Divisional Court in the present case found in favour of the Secretary of State. The result of this finding is that the appellant is one of a very small group of offenders sentenced under the 1991 Act who does not qualify for release on licence at the half way point of his sentence (because the 1991 Act regime applied) and yet finds himself subject to licence, and therefore to be recalled to prison for breach of it, for much longer than he previously was, solely because he was recalled after 3 April 2005. On the Secretary of State’s argument it makes no difference whether his recall was justified; even if it was not and he was subsequently released by the Parole Board when the error was appreciated, the very fact of recall would have triggered the operation of the new regime and the extended licence provisions. The reasoning of the Divisional Court. Jack J.’s reasoning, with which Hallett L.J. agreed, was as follows: “19 The section on which the appellant, a recalled prisoner, must rely for his release at the three quarter point is section 33(3) of the 1991 Act. If it had been provided in paragraph 23(1)(b) that the reference in section 33(3) to recall under section 39 was to be read as a reference to recall under section 254 it would be clear that a 1991 Act prisoner who was recalled under section 254 was entitled to his release at the three quarter point. That omission is crucial. The substitution of references to section 39 was considered by the draftsman and that consideration has borne its fruit in paragraph 23(1)(b) of Schedule 2 to the Order and section 33(3) is not referred to. On the other hand, if it was the intention that section 33(3) was to be deprived of effect, it can be asked why the whole section was saved by paragraph 19(c). The omission of the subsection from the saving would have made the position clear. It would have been a direct indication of the intention. But clarity is not the hallmark of this drafting.[21]Jack J. went on to pose the question:
“If a 1991 Act prisoner is released on licence following recall under section 254, under what provisions are the conditions of his licence to be specified?”
He continued:
“Section 250 is the relevant section under the 2003 Act. It is one of the sections which by paragraph 19(a) do not apply to 1991 Act prisoners. The section under the 1991 Act is section 37, in particular subsections (4) to (6). The section is preserved for 1991 Act prisoners by paragraph 19(c). It is clear that a 1991 Act prisoner who is released under section 33(1) or section 35(1) – that is at the two thirds point or earlier - must have his conditions specified under that section.”
[22]The judge then went on to say that the 1991 and 1998 Acts made no reference, at least expressly, to the possibility of a second release following recall, whereas section 254 does. He posed the question if further release occurs under what provisions are the conditions to be specified? The judge accepted that there was little if any argument on the matter but before us it has been accepted by both sides that s.37(1) is not limited to a single, or first, release on licence. The section does not become a spent force once a prisoner has been recalled. What the section means is that once a prisoner has been released on licence, whether on the first or subsequent occasion, except whilst the licence is revoked he remains on licence until the three quarter point of his sentence. It is in my view important and significant that s.37 is expressly preserved by paragraph 19 of Schedule 2 to the 2005 Order for 1991 Act prisoners.[23]When s.37(1) uses the expression “subject to any revocation” it expressly refers to revocation under s.39(1) or (2). This in my judgment leads into an important point. The 2003 Acts made a significant change with regard to recall. Previously there were two routes to recall, one by the Secretary of State following recommendation by the Parole Board and the other utilised, when speed was of the essence, by the Secretary of State of his own volition. S.254 of the 2003 Act provides for a single procedure with the recall decision being taken by the Secretary of State and the Parole Board is only involved thereafter. Thus it is argued by Mr Starmer, and in my judgment with some considerable force, that paragraph 23(1)(b) of Schedule 2 to the 2005 Order is doing no more than making the necessary transitional arrangements to apply the new unified recall procedure to all recalled prisoners. It obviously makes sense not to have the old and new procedures running in parallel at the same time. Further, one would not expect to find a provision headed: “Transitional Arrangements for recall after release” to have the consequences contended for by Mr Pannick i.e. to make a recalled 1991 Act prisoner subject to licence for the last quarter of his sentence, when previously he was not, and, on Mr Starmer’s argument, on close examination it does not.[24]Jack J. expressed his conclusion in these terms:
“23. The conclusion I have reached is that the (2005 Order) is to be construed to provide that once a prisoner has been recalled under section 254, if he is subsequently released prior to the expiry of his sentence either under section 254 or section 256, it is on licence in accordance with Chapter 6. I consider that the intention of the transitional provisions contained in the (2005 Order) is to impose the new regime once a recall takes place, which is in substitution for the regime provided by the previous legislation. The repeal of section 39 without saving points to that, though I accept that it is explicable as part of an intention not to have two parallel recall procedures. The intention is most clearly to be deduced from the omission to include section 33(3) in paragraph 23(1)(b) of Schedule 2. Section 249 (duration of licence) does not apply, but in the absence of provision for the determination of the licence it continues until the sentence itself expires.”
[25]He thus recognised that s.249 does not apply to existing prisoners but in the absence of a provision for the determination of the licence concluded it continued until the end of the sentence. The Secretary of State did not, however, rely before us on this aspect of the Divisional Court’s reasoning. The Secretary of State’s argument.[26]The Secretary of State’s argument can be summarised thus:(1) Since s.33(3) of the 1991 Act is not referred to in paragraph 23(1)(b) of Schedule 2 to the 2005 Regulations it follows that the reference to recall under s.39(1) of the 1991 Act cannot be treated as being a reference to recall under section 254 of the 2003 Act.(2) If that is so, s.33(3) of the 1991 Act has no meaning because, except for paragraph 23(3) cases, recall under section 39(1) of the 1991 Act no longer exists.(3) Since s.33(3) of the 1991 has no meaning, it is to be treated as extinguished for recalled prisoners, not withstanding its express preservation under paragraph 19(c) for all prisoners serving a sentence for offences committed before 4 April 2005.(4) On its true construction, although it does not expressly say so, paragraph 19 does not apply to prisoners serving a sentence for an offence committed before 4 April 2005 once they are recalled.(5) Any recall and release under the provisions of ss.254 and 256 of the 2003 Act can only be “release on licence under this Chapter.” Since s.33(3) no longer exists for recalled prisoners, that means a licence governed by section 249 of the 2003 Act (i.e. a licence remaining in force for the remainder of the prisoner’s sentence).[27]Mr Pannick points out that among the sections of the 2003 Act that do apply to prisoners serving a sentence imposed in respect of an offence committed before 4 April 2005 are s.254 (recall while on licence) and s.256 (further release after recall), whereas s.39 of the 1991 Act on the recall of prisoners released on licence is generally repealed. By paragraph 23(1)(a) of Schedule 2 to the 2005 Order references to s.39 in ss.37(1) and 44(3)(4) of the 1991 Act are to be treated as references to s.254 of the 2003 Act. And this applies even to prisoners serving sentences for pre 4 April 2005 offences.[28]Thus, after 3 April 2005 the 1991 Act still applies to the release of a prisoner serving a sentence of imprisonment imposed before 4 April 2005. But, as from 4 April 2005, the provisions in the 2003 Act apply in relation to the recall of such prisoners once they have been released on licence (see Buddington). Once recalled, the regime of the 2003 Act applies to their further treatment.[29]Mr Pannick argues that paragraph 23(1)(a) provides that the reference in s.254(1) of the 2003 Act to release on licence under this Chapter (i.e. Chapter 6 of the 2003 Act) is to be read as including release under Part 2 of the 1991 Act. S.254(1) refers to “any person who has been released on licence under this Chapter” and the recall provision in s.39 of the 1991 Act has been repealed. Accordingly, any prisoner recalled on or after 4 April 2005, even if previously released under the 1991 Act, falls within the recall provision in s.254(1). However, paragraph 23(1)(a) does not make the same provision in respect of the same wording (“release on licence”) in s.254(4) or s.256(1) of the 2003 Act. The reason, he submits, is because any prisoner recalled after 3 April 2005, whether or not he was originally released under Part 2 of the 1991 Act, is thereafter further released under the provisions of Chapter 6 of the 2003 Act.[30]Turning to paragraph 23(2)(b), he argues that this is designed to emphasise that revocation decisions are taken under s.254 of the 2003 Act even in relation to a prisoner serving a sentence of imprisonment imposed for an offence committed before 4 April 2005.[31]Paragraph 23(3) expressly preserves s.39 for a specific situation, that is where the Secretary of State has been asked for the recall of an offender by a local Probation Board before 4 April 2005. This obviously makes sense in a very specific situation where the s.39 recall process has already started. So, submits Mr Pannick, the way the legislation worked in the present case was this. The purpose and effect of the transitional provisions is that when a prisoner is recalled to prison after 3 April 2005, even if his original offence was before that date, the provisions of the 2003 Act apply to that recall and to any subsequent release (leaving aside the one situation provided for in paragraph 23(3) of Schedule 2 to the 2005 Order). This is in contrast to release on licence for the first time after 3 April 2005 of prisoners whose offence was committed before 4 April 2005. They remain covered by the 1991 Act.[32]Accordingly, when the appellant was recalled to prison on 1 August 2005 his licence was revoked under s.254 of the 2003 Act. His further release in December 2005 was under s.256 of the 2003 Act. S.254(4) applies and so the licence under which he was released was to continue (unless further revoked) until the end of the sentence (s.249). The licence was subject to conditions under s.250. The licence was lawfully revoked on 28 December 2005 under ss.245(1) and 254(6). The Secretary of State has referred the case to the Parole Board and the Board has power:(i) to direct immediate release (s.254(4));(ii) to direct release at a future date (s.256(1)(a) or (iii) to direct a future review at a specified date (s.256(1)(b)). The appellant’s argument.[33]True it is that s.33(3) is not referred to in paragraph 23(2)(b) but it is not the only provision of the 1991 Act that governs the duration of licences for prisoners serving a sentence for offences committed before 4 April 2005. S.37(1) provides that such a licence remains in force only until the three quarter point of the sentence. Since, contrary to the analysis of the Divisional Court, s.37(1) applied to the appellant, his licence expired on 27 December 2005. S.37(1) was expressly preserved for prisoners serving a sentence for offences committed before 4 April 2005. Paragraph 19(a) expressly excludes the application of s.249 (new rules for duration of licence) to that category of prisoner. Further, paragraph 19(c) expressly provides that the repeal of s.37(1) is of no effect for this category of prisoner.[34]It is a cornerstone of the Secretary of State’s argument that the omission of s.33(3) of the 1991 Act from paragraph 23(1)(b) is highly significant. The omission is, on the face of it surprising, but so, if the Secretary of State is correct, is the preservation without qualification of ss.33(3) and 37(1) in paragraph 19. One might have expected this paragraph to have concluded with words to the effect:
“except where he is recalled on or after that date under s.254 of the 2003 Act.”
[35]Mr Starmer submits that the Secretary of State’s construction is fundamentally at odds with the clear intention underpinning the savings provision for prisoners convicted of offences before 4 April 2005 (i.e. paragraph 19), namely that the release and licence provisions for these prisoners should remain governed by the 1991 Act. The target of paragraph 23, which is apparent from its heading, is transitional arrangements for recall after release. It is not directed to the substantive consequences for a prisoner on a subsequent re-release.[36]The Secretary of State’s directions to the Parole Board that prisoners sentenced under the provisions of the 1991 Act cannot be disadvantaged by the recall provisions of the 2003 Act reflect the intention underpinning the savings provisions. Whilst his directions cannot determine the true meaning of the legislation, they are completely inconsistent with the legislation having been drafted deliberately to achieve the construction contended for. They are, however, consistent with a drafting error and two others have already been identified in paragraph 23(2).[37]The rationale underpinning paragraph 19 is reasonable and logical whereas to suggest that the release and licence provisions for prisoners serving a sentence for an offence committed before 4 April 2005 should remain governed by the 1991 Act before recall but not after recall is neither reasonable nor logical. As Mr Starmer points out, a recalled prisoner serving a sentence for an offence committed before 4 April 2005 would not have had the benefit of the early release provisions of the 2003 Act (the release at the mid point of the sentence) but would attract the burden of a licence until the very end of his sentence. Further, the 1991 Act including s.37(1) would apply for a prisoner recalled before 4 April 2005 (even where not immediately re-released) but a prisoner recalled after that date and re-released (even where the recall was unjustified) would remain on licence for the whole of the rest of his sentence.[38]There is no reason why Parliament should single out a small group of 1991 Act prisoners and render them liable to licence (and consequently recall) for the last quarter of their sentence. Search as one may, it is not possible to find any other group of prisoners treated by the legislation in the same manner. It is interesting to note that paragraph 19 saves ss.34A and 38A of the 1991 Act. S.38A(1) is a recall provision applicable to prisoners released under s.34A(3). Once recalled s.34A(1) and (2) continue to govern release. This, it is submitted, cuts across the Secretary of State’s argument that the 2003 Act and 2005 Order were intended to create one regime and not just one procedure for recalled prisoners.[39]Finally, Mr Starmer makes what in my judgment is a most telling submission. It is that the Secretary of State’s approach to construction conflicts with the principle in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. He submits that in order to give paragraph 19 the effect contended for by the Secretary of State the provision has to be significantly re-written by reading words into it along the lines I have already mentioned, see para 26(4) and 34 supra.[40]The principle in Inco is that the courts will only re-write a provision by reading words into it where it is clear about three matters(i) the intended purpose of the statute or provision in question(ii) that by inadvertence the draftsmen failed to give effect to that purpose in the provision in question and(iii) the substance of the provision Parliament would have used had the error in the Bill been noticed. In Inco Lord Nicholls of Birkenhead said at page 592c:
“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93-105. He comments, at p. 103: “In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way 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. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.” “In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.” Approach to the solution.[41]My starting point is that there is no obvious reason why Parliament should have sought to disadvantage this small group of prisoners. To do so would in any event involve running contrary to the long established principle that prisoners are not to be adversely affected by changes to the sentencing regime occurring after their conviction. It was, of course, open to Parliament to depart from this longstanding principle had it wished to do so, but I would have expected such a change to have been clearly and expressly stated rather than to have been brought about in a statutory instrument in a paragraph that contains two admitted drafting errors and whose heading gives the reader no clue of the change. Further, the Secretary of State’s construction involves reading words into paragraph 19 that are not there.[42]I can see the logic of the path along which Mr Pannick has taken us through the maze of this tortuous legislation. However, as both members of the Divisional Court observed, clarity is not a word that any court would associate with these provisions. In my judgment Mr Pannick’s submission cannot be accepted primarily for the reason that to do so would contravene the principle in Inco. Whilst the likely difficulties with the 2005 Order were in all probability caused by an error on the part of the draftsman, the intended purpose of the statute does not I think include putting the small group of prisoners to which the appellant belongs in a more disadvantageous position than those 1991 Act prisoners released before 4 April 2005, or indeed those released after 4 April 2005 who were not being released after a previous recall.[43]It is the Secretary of State’s argument that paragraph 19 should be construed as applying only to existing prisoners who have not been recalled after 4 April 2005. If that is correct then s.37(1) does not apply to recall cases. For the reasons I have already explained the Divisional Court was in error as to its understanding of the operation of s.37(1). The Secretary of State’s submission is in my judgment not compatible with the ordinary meaning of the 2005 Order. It involves reading words into paragraph 19 along the lines I have already indicated (see para 34). In my view the title and content of paragraph 19 suggests it should not be so limited.[44]In my judgment the Inco test is not met in the present case for reading words into paragraph 19.[45]It may be that the Divisional Court’s misapprehension that s.37(1) of the 1991 Act did not cover re-release after recall led them to accept the Secretary of State’s submissions on the true construction of the 2005 Order. Be that as it may, for the reasons I have given Mr Pannick’s argument cannot be accepted. The appellant was released unconditionally at the three quarter point of his sentence. He should not have been subject to any licence conditions thereafter. Consequently the contention that he was in breach of licence is unsustainable and he should not have been recalled to prison. In my judgment the appellant’s release following his recall to prison was governed by the 1991 Act and not the 2003 Act. In my view this is to be concluded from paragraph 19 of Schedule 2 to the 2005 Order. Paragraph 23 was never intended to bite on the situation. True it is that the position would have been clearer had there been reference to s.33(3) of the 1991 Act in paragraph 23(1)(b) of the 2005 Order but I am able to reach the conclusion nonetheless.[46]I would allow the appeal.[47]I agree.[48]I agree but since we are differing from a considered decision of the Divisional Court, I will put my reasons into my own words.[49]The question in this appeal is whether a long-term offender sentenced for an offence committed before 30 September 1998 Not April 2005, by reason of s. 104 of the Crime and Disorder Act 1998 and thus, on the face of it, entitled to the benefit of the provisions for release on licence contained in the Criminal Justice Act 1991 (“the 1991 Act”) continues to be so entitled, if his licence is revoked and he is recalled to prison after 4 April 2005 when the provisions of the Criminal Justice Act 2003 (“the 2003 Act”) came into force. The reason why that is important is that under the 1991 Act the offender was entitled to be released on licence after he had served two-thirds of his sentence such licence expiring after he had served three-quarters of his sentence, so that after that time he was released unconditionally; there was a separate provision dealing with any future offences committed during the remainder of the sentence period. By contrast under the 2003 Act, although an offender is entitled to be released on licence after serving half his sentence, that licence (with its conditions) continues until the end of the sentence during which period he can be recalled to serve the remainder of his sentence.[50]The appellant was initially released on 17 February 2005 after he had served two-thirds of his sentence but has had his licence revoked three times in all since that date. He was first recalled to prison on the same day as his release for failing to reside in the hostel designated by the probation service. That was before the 2003 Act came into effect on 4 April 2005. On 16 June 2005 he was re-released and it is common ground that any question of licence revocation and recall to prison was then to be governed by the 2003 Act. On 1 August his licence was revoked because he failed to comply with the hostel’s curfew arrangements; he was returned to custody on 11 August but again applied for release on licence. The Parole Board considered that application on 3 October and decided that he should not be released at that time. The Board originally intended to review the matter in April 2006, but recorded the appellant’s assertion that, since he was a 1991 Act prisoner, he would have to be released in any event at the three-quarter stage of his sentence viz 27 December. The Board decided that they had better take up that point with the Home Office and recorded in an amended decision of 24 October 2005 that the Home Office had confirmed that the appellant’s view of the matter was correct. In the circumstances they decided to recommend release on 27 December 2005, being the notional licence expiry date. This may be thought to have conformed to the guidance already given in Parole Guidance Manual PSO 6000 of 31 March 2005 in which it was stated that prisoners sentenced under the 1991 Act “cannot be disadvantaged by the recall provisions” of the 2003 Act (Appendix 1 p. 36).”[51]The appellant was in fact released on 23 December. By that time the Home Office appears to have changed its mind. On 9 January 2006 the Secretary of State asserted that the appellant was still on licence and was again in breach of that licence. He was accordingly returned to prison and there he remains, the Divisional Court having decided that the Secretary of State’s second thoughts were correct.[52]The resolution of the question depends on the Transitional Provisions contained in Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005. Without those provisions, the provisions of the 2003 Act would no doubt have taken immediate effect, unless any point could have been taken pursuant to the Human Rights Act. As it is, paragraph 19 states that there are to be:
“Savings for prisoners convicted of offences committed before 4th April 2005.”
These savings include the saving that certain provisions of the 2003 Act (including the duration of licence provisions (s. 249)) and the repeal of various provisions of the 1991 Act (including the provision for release after two-thirds of the sentence and the provision for licences to expire after three-quarters of the sentence have been served (ss. 33 and 37)) are to be of no effect in relation to a prisoner (such as the appellant) serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005. On the face of it nothing could be much clearer than that. It would moreover accord with the principle, hitherto observed by Parliament, that serving prisoners should not be disadvantaged by subsequent changes of sentencing and licensing regimes; see the provisions of the Crime and Disorder Act 1998 which likewise preserve the 1991 Act regime for prisoners already sentenced. One would think that if Parliament’s intention had been to disadvantage prisoners who had committed offences before the coming into force of the 2003 Act that would have been clear on the face of the Order.[53]The argument to the contrary is based on the fact that it was undoubtedly the intention of Parliament to change the provisions in relation to recall of prisoners whether their offences were committed before or after 4 April 2005. The 1991 Act had provided for the revocation of licence and recall of the prisoner at the instigation of either the Parole Board or the Secretary of State but provided also that any recall by the Secretary of State should be referred to the Parole Board. This was changed by the 2003 Act to provide for revocation and recall by the Secretary of State alone, albeit with an obligation to refer the matter to the Parole Board. No doubt this was because it was thought better that the Parole Board should confine itself to adjudications rather than becoming involved in the essentially executive actions of initial revocation and recall. That this intention of Parliament was to apply immediately to all prisoners is made clear by the fact that the provision of the 2003 Act relating to recall (s. 254) and the repeal of the corresponding provision of the 1991 Act (section 39) were not numbered among the provisions which were not to come into force in paragraph 19 of Schedule 2 of the Order.[54]It is then said, on behalf of the Secretary of State, that it inexorably follows from this state of affairs that, in respect of those prisoners whose licences are revoked and who are recalled to prison after 4 April 2005, the provisions as to the duration of their licence are to be governed by the 2003 Act rather than the 1991 Act. That does not seem to me to follow at all, especially since paragraph 19 expressly provides that the provisions of the 2003 Act which deal with licence duration and the repeal of the provisions of the 1991 Act dealing with licence duration are to be of no effect in relation to prisoners serving a sentence imposed in respect of an offence committed before 4th April 2005. For the Secretary of State’s argument to be correct it would have to be made clear that, although paragraph 19 applied in general to those prisoners who had committed pre-4 April offences, it did not apply to those of such prisoners whose licences had been revoked and who had been recalled to prison after 4 April 2005. There is just no indication of that in the paragraph.[55]The Divisional Court reached a different conclusion as a matter of construction of paragraph 23 of Schedule 2 of the Order headed “Transitional arrangements for recall after release”. It has, of course, already been provided (albeit by inference) in paragraph 19 of the Schedule that recall arrangements are to be the same for 1991 Act prisoners as for 2003 Act prisoners. Paragraph 23 makes explicit what has already been implicit from paragraph 19 and provides in sub-paragraph 1(a) that, when section 254(1) of the 2003 Act refers to release on licence for recalled prisoners, such release on licence is to include release on licence under the provisions of the 1991 Act. This can hardly mean that the duration of the licence is to be changed when paragraph 19 of the Schedule expressly preserves the relevant provision of the 1991 Act relating to duration of licences. Sub-paragraph 1(b) of paragraph 23 then deals with the parallel concept of revocation of licences and provides that certain references to revocation in the 1991 Act are to be treated as revocations under section 254 of the 2003 Act. One of the references to revocation in the 1991 Act is contained in section 33(3) of that Act. That reference to revocation is not singled out as a revocation to be treated as revocation under section 254 of the 2003 Act. Since 33(3) is one of the sections of the 1991 Act which refers to the duration of the licence under that Act as being for three-quarters of the sentence, the Divisional Court decided that what I may call “the three-quarters provision” no longer applied to prisoners who were recalled after 4 April 2005.[56]With respect I cannot agree. The fact that the particular reference to revocation in section 33(3) of the 1991 Act has not been identified as a reference which is to be treated as a reference to revocation under section 254 of the 2003 Act does not mean that for a (possibly substantial) number of prisoners the duration of licence provision in the 1991 Act has been swept aside. The whole thrust of the relevant provisions of Schedule 2 of the Order is that prisoners who committed offences before 4 April 2005 are not to be disadvantaged. If it was intended that 1991 Act prisoners who happened to have been recalled after 4 April 2005 should be subjected to the more onerous requirement that their licence was to extend to the end of their sentence, that would have been expressed with much greater clarity.[57]In short the Home Office’s first thoughts on being consulted by the Parole Board in October 2005 were correct and their second thoughts of January 2006 were not. For these reasons and the reasons given by Scott Baker LJ I would allow this appeal.[58]One can only sympathise with Prison Governors, the Parole Board and indeed Home Office officials and judges in having to interpret these almost intractable provisions.

Cited in 5 later judgments