Kelly & Ors R. (On the Applications of) v Secretary of State for Justice [2008] EWCA Civ 177

“Subject to subsections (1A), (1B) and (2) below, where a short-term or long-term prisoner is released on licence, the licence shall, subject to any revocation under section 39(1) or (2) below, remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.”

“(3) As soon as a short-term or long-term prisoner who - (a) has been released on licence under this Part; and (b) has been recalled to prison under 39(1) or (2) below, would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him on licence.”

“Where a prisoner is released on licence under section 33(3) or (3A) above, subsection (1) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.”

“254(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. (2) A person recalled to prison under subsection (1) - (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations. (3) The Secretary of State must refer to the Board the case of a person recalled under subsection (1). 256(1) Where on a reference under section 254(3) in relation to any person, the Board does not recommend his immediate release on licence under this Chapter, the Board must either - (a) fix a date for the person’s release on licence, or (b) fix a date as the date for the next review of the person’s case by the Board… (5) On a review required by the subsection (1)(b) in relation to any person, the Board may - (a) recommend his immediate release on licence, or (b) fix a date under subsection (1)(a) or (b).” (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

“19 The coming into force of … (c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 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 4th April 2005. ... 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 4th 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…”

“… 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.”

“14. The provisions in paragraphs 19 and 23 of Schedule 2 to the 2005 Order on which the Secretary of State’s argument depends do not purport to amend or repeal the provisions of the Criminal Justice Act 1991 under which long-term prisoners were entitled to be released unconditionally when they reached the three-quarter point of their sentences: see sections 33(3) and 37(1). Nor do they purport to amend the Crime and Disorder Act 1998 by giving retrospective effect to section 104 [sc. introducing s.37(1A)], which provided that, if a pre-30 September 1998 Act prisoner was released on licence and then recalled, his further release was to be on licence until the end of his sentence. Yet the result for which the Secretary of State contends would have the effect of depriving the respondent, and all the other pre-2003 Act offenders who are in the same position as he is, of the entitlement to unconditional release at the three-quarter point which they were afforded by the 1991 Act. The effect would be to amend the regime under which the respondent and others like him were sentenced retrospectively. 15. I respectfully agree with Lord Brown that, if such a surprising result were intended, it ought to have been enacted in the clearest of terms. In my opinion this conclusion is greatly strengthened by the method of legislating that was employed in this case. It could not have been better designed to ensure that, if it was intended, the matter would escape attention when the 2005 Order was being scrutinised under the parliamentary procedures which I have described. We have no means of knowing what instructions the draftsman was given, or whether the Minister of State’s attention was expressly drawn to these provisions before she signed the Order on 24 March 2005. All we have to go on is the wording that is to be found in the Schedule. But one would have expected, in the light of the carefully worded provisions of sections 330 and 333 of the 2003 Act [sc. which contain provisions, including procedural requirements for the making of subordinate legislation under the 2003 Act], that the Order would have been made under section 333(2)(b) and the affirmative resolution procedure used if it was the Secretary of State’s intention that the respondent and others like him should be deprived of their statutory entitlement. 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.”

“40. This brings me to the Secretary of State’s final argument on the construction of these paragraphs, an argument based on what Mr Pannick QC submits is the conspicuous omission from paragraph 23(1)(b) of any mention of section 33(3) of the 1991 Act. Section 33(3), it will be remembered, required a prisoner released on licence and then ‘recalled to prison under section 39’ to be released at the three quarter point of his sentence (unconditionally in the case of pre-1998 Act offenders like the respondent). But, submits the Secretary of State, section 33(3) is concerned only with the re-release of prisoners recalled under section 39 of the 1991 Act. Once, as provided for by paragraph 23, recall after 4 April 2005 and any further release thereafter came to be governed by sections 254 and 256, then any re-release was to be effected under the new regime—in every case, therefore, subject to licence until the end of the sentence. The reference to section 33(3), it is suggested, was deliberately omitted from paragraph 23(1)(b) because it was not intended to apply in post-Act recall cases... 41. I understand the respondent to accept that paragraph 23(1)(b) ought properly to have included reference to section 33(3)—his argument being that its ‘omission was entirely accidental and … merely a further reflection of the poor drafting’ in the 2005 Order. 42. To my mind the likeliest explanation for section 33(3)’s omission from paragraph 23(1)(b) is that it contains no ‘reference … to revocation under section 39’: the reference is rather to the prisoner having been ‘recalled under section 39’ (in each case my emphasis). Nevertheless it would have been better for the draftsman to provide (perhaps in an additional sub-paragraph) that section 33(3)’s reference to recall under section 39 should be treated as a reference to recall under section 254 (which uses the omnibus expression ‘revoke his licence and recall him to prison’). 43. Whatever be the explanation, however, the omission cannot begin to bear the weight the Secretary of State seeks to put upon it. In the first place, section 33 is expressly preserved in the case of pre-Act offenders by paragraph 19(c) of the Schedule. Secondly, and most importantly, section 37 (the section expressly governing the duration of the licence) is similarly preserved by paragraph 19(c) and this section is mentioned in paragraph 23(1)(b). Thirdly, the longer one considers the scheme of this part of Schedule 2, the plainer it becomes that paragraph 23 is concerned only with the process of recalling and re-releasing prisoners on licence and not in any way with the duration of their licences and the point at which they become entitled to unconditional release. Of course under these ‘transitional arrangements’ sections 254 and 256 will be operated in the case of pre-Act offenders in the same way as for every other recalled prisoner and the Secretary of State and Parole Board will discharge their respective duties and exercise their respective powers as the Act provides. But their powers extend only to the point where the prisoner is entitled to an unconditional release and, as paragraph 19 makes abundantly plain, the rights of pre-Act offenders are in that critical respect saved. 44. Although these provisions are, indeed, somewhat opaque and ill-drafted, their intended effect is in the last analysis quite clear. The new scheme for recalling and re-releasing prisoners was to come into immediate effect for everyone: no longer was the Parole Board to be primarily responsible for initiating a prisoner's recall by making a recommendation under section 39(1), the Secretary of State’s power being limited by section 39(2) to urgent cases where it was impracticable to await a recommendation. Henceforth recall was to be solely for the Secretary of State. Pre-Act offenders were not, however, to be disadvantaged by the new parole regime, in particular with regard to the effective length of their sentences and the period for which they were to be at risk of recall after release on licence…”

“23. There are also other powerful indications that the applicants’ interpretation is unsound. The whole of section 33 and the whole of section 37 of the 1991 Act as amended are expressly preserved in relation to prisoners whose sentence related to a pre-4th April 2005 offence. Paragraph 19(c) of the second schedule to the 2005 Order explicitly so provides. Yet if the applicants are right, what was the point of preserving section 33(3) and section 37(1A)? The only situation the applicants can suggest where those provisions would still operate, on their argument, would be where a prisoner on licence had been recalled before 4th April 2005 under section 39 powers but only reached the three-quarter stage of his sentence after that date. He would have a whole sentence licence. But it is absurd to believe that Parliament intended to put him in a worse position than the applicants merely because his recall preceded that date rather than followed it, when he had been sentenced under precisely the same regime as they have. It seems to me that Mr Patel is entirely right when he argues that this would display an arbitrary and unjustified distinction.”

“... [W]here the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further inquiry is permissible.”

“There, of course,... the House of Lords were seeking to ensure that prisoners’ rights were not reduced by some procedural changes. By the same token, Parliament cannot have intended to enlarge those rights by such changes.”

“27. We have considered whether such a construction is impermissible having regard to the principle of doubtful penality or to the principle stated by Pollock CB. We entirely accept the general principle stated by Simon Brown LJ in R v Bristol Magistrates Court ex parte E and quoted above that a person should not be penalised except under clear law. Equally we are mindful of the importance of the liberty of the individual. However, whether or not there is ‘clear law’ depends in this context upon the true construction of the relevant statute. We have reached the conclusion that in the case of the Act, once the intention of Parliament is ascertained from the language used, construed in its context, there is in the relevant sense clear law. 28. We should refer in this regard to two cases to which we were referred by Mr Pannick, albeit in very different statutory contexts. The first is McMonagle v Westminster City Council [1990] 2 AC 716, where the House of Lords treated words as surplus age in a statute which contained criminal sanctions in order to avoid what Lord Bridge described as the substantial frustration of the object of the Act: see especially at page 726 C-F and 727F-G. The second is DPP v McKeown [1997] 1 WLR 295, where in a breathalyser case the House of Lords refused to give the words of a statute their literal meaning because to do so would produce a result which Lord Hoffmann (with whom the other members of the House agreed) said would produce a result which was ‘quite irrational’. Thus all depends upon the circumstances of the particular case, even if the case involves the construction of a statute which contains penal provisions.”