Lindo, R (On the Application Of) v Secretary of State for the Home Department [2003] EWHC 2918 (Admin)

Case No CO/6048/2003[2003] EWHC 2918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 25th November 2003
Strand
London WC2
B E F O R E:
MR JUSTICE GOLDRING
Between
THE QUEEN ON THE APPLICATION OF MICHAEL LINDOClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J LENNON (instructed by HENRY HYAMS SOLICITORS) appeared for CLAIMANTMISS N GREANEY (instructed by THE TREASURY SOLICITOR) appeared for DEFENDANT
J U D G M E N TTuesday, 25th November 2003

MR JUSTICE GOLDRING: Introduction:

[2]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? The Legal Framework:

[3]Section 33 of the Criminal Justice Act 1991 deals with early release. Section 33(1) states:
"As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State... (b) to release him on licence if that sentence is for a term of twelve months or more."
[4]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."[5]The claimant's sentence was two years.[6]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.[7]Section 34A(1) states:
"... subsection (3) below applies where a short-term prisoner aged 18 or over is serving a sentence of imprisonment for a term of three months or more."
[8]Subsection (3) states:
"After the prisoner has served the requisite period for the term of his sentence, the Secretary of State may, subject to section 37A below, release him on licence."
[9]Subsection (4) states:
"In this section "the requisite period" means... (c) for a term of eight months or more, a period that is 60 days less than one-half of the term."
That period of 60 days was subsequently increased to 90 days, as from 16th December 2002. That is the material provision for this case.[10]Section 37A deals with, "Curfew condition to be included in licence under Section 34A." It provides in subsection (1):
"A person shall not be released under section 34A(3) above unless the licence includes a condition ("the curfew condition") which - (a) requires the released person to remain, for periods for the time being specified in the condition, at a place for the time being so specified... and (b) includes requirements for securing the electronic monitoring of his whereabouts during the periods for the time being so specified. (3) The curfew condition shall remain in force until the date when the released person would (but for his release) have served one-half of his sentence."
[11]Section 38A of the Criminal Justice Act 1991 deals with breach of the curfew condition. Subsection (1) provides:
"If it appears to the Secretary of State, as regards a person released on licence under section 34A(3) above - (a) that he has failed to comply with the curfew condition; ... The Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison."
[12]Subsection (5) provides:
"On the revocation... of a person's licence under section 34A(3) above, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
[13]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.[14]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: "Where any person sentenced to imprisonment... is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence... then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the [place in which he is required in accordance with law to be detained]".[15]There are also two relevant Prison Service Orders.[16]Prison Service Order 6650 of 23rd October 2002, in chapter 7 headed "Unlawfully at Large," states at paragraph 7.1.1:
"When a sentenced prisoner... has been unlawfully at large (UAL) from prison and is then returned to custody, the period of absence will not be treated as part of the sentence served unless the Home Secretary directs that it should. In exceptional circumstances, it may be appropriate to allow a period spent UAL to count towards completion of the sentence."
[17]Paragraph 7.2 is headed:
"Calculation of the period unlawfully at large."
[18]Paragraph 7.2.1 states:
"The period unlawfully at large will extend all release dates (including the SED [Sentence Expiry Date]), when the prisoner is returned to custody. At the point at which the UAL [Unlawfully At Large] period begins, the sentence is in effect frozen."
[19]Prisoner order 6700 is headed "Home Detention Curfew." Paragraph 9.9 is headed "Automatic Release After Recall." 9.9.1 provides:
"Prisoners recalled for breach of HDC [Home Detention Curfew], who do not successfully appeal against that decision, or apply for re-release will be released at their conditional or automatic release date at the halfway point of sentence. This date will be put back by any time spent unlawfully at large."
[20]9.9.2 provides:
"If a prisoner is being re-released on ACR [Automatic Conditional Release] licence at the halfway point of sentence following recall from Home Detention Curfew, the licence expiry date will be at the three quarter point of sentence less the time spent on supervision whilst curfewed. Time spent unlawfully at large following recall by the Parole Unit will not count towards the calculation of the LED [Licence Expiry Date]."
[21]It is agreed that of themselves the Prison Service Orders do not have statutory force. A summary of the facts:[22]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.[23]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.[24]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.[25]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. The contentions on each side:[26]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.[27]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."
[28]Mr Lennon also refers me to paragraphs9.9.1 and9.9.2 of the Prison Service Order 6700. His argument is effectively summarised in the grounds of the application in these terms: "It is clear that the HDC [Home Detention Curfew] scheme envisaged that days spent UAL [Unlawfully At Large] following a breach of a HDC [Home Detention Curfew] licence would be added to the ACR [Automatic Conditional Release] date (para 9.9.1). Paragraph 9.9.2 does state that days UAL [Unlawfully At Large] do not count towards calculation of the LED [Licence Expiry Date] but this is in the context of prisoners who, following HDC [Home Detention Curfew] licence revocation, are then re-released at the halfway point of the sentence. Thus a prisoner recalled from his HDC [Home Detention Curfew] licence because his electronic equipment has failed, for example, could be re-released at the halfway point of his sentence but spend longer on standard licence if he had spent any time UAL [Unlawfully At Large]. It will be noted that para 9.9.1 refers to "recalled for breach," ie a s38A(1)(a), or possibly (c) scenario... as opposed to a s38A(1)(b) [scenario] which deals with recall for technical reasons. In any event para 9.9.1 is clear. Furthermore, with respect to the Defendant, it is common-sense that days spent UAL [Unlawfully At Large] cannot be added to a sentence twice".[29]Additionally, Mr Lennon relies on Article 5 of the European Convention on Human Rights. It states:
"Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court..."
[30]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).[31]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. My view:[32]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?[33]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.[34]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.[35]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.[36]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.[37]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.[38]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.[39]In the circumstances, therefore, this application for judicial review fails.[40]Yes, Mr Lennon?[41]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.[42]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.[43]MR JUSTICE GOLDRING: I understand what you are saying Mr Lennon. I will ask Miss Greaney if she has any observations to make?[44]MISS GREANEY: I apologise, my Lord, because I was taking some instructions at the point --[45]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.[46]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.[47]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.[48]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.[49]MR JUSTICE GOLDRING: Yes, I will certainly order that the transcript be expedited. I will obviously correct it very speedily.[50]MR LENNON: I am grateful.[51]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.[52]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?

[54]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.

[56]Thank you both very much indeed.