Ramsden & Anor, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 3502 (Admin)

CO/9288/2006; CO/9383/2006[2006] EWHC 3502 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 12th December 2006
Strand
London WC2
B E F O R E:
MR JUSTICE TOULSON
Between
THE QUEEN ON THE APPLICATION OFClaimantSAMANTHA RAMSDENClaimantPAUL NAYLORClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P WEATHERBY (instructed by Henry Hyams) appeared for CLAIMANTSMR N GIFFIN QC (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE TOULSON: These two cases raise a common issue about the interplay between sections 254 and 255 of the Criminal Justice Act 2003. Both sections contain provisions about the recall of prisoners on licence, but their scope and consequences are different. To understand the different recall provisions it is necessary to begin with the main provisions for release on licence.[2]A person who receives a determinate sentence of 12 months' imprisonment or more is entitled, under section 244, to be released on licence at the halfway point. During the period of 135 days before that date, such a person may be released, but has no right to be released, by the Home Secretary under section 246. The section 246 scheme is otherwise known as the "home detention curfew scheme". Sections 250 and 253 contain various provisions about the terms of a licence. If a licence is issued under section 246, it must contain curfew conditions up to the date when the person concerned would have been entitled to release under section 244. Whether the release is under section 244 or section 246, the licence must also contain standard conditions prescribed by the Home Secretary by order for all prisoners.[3]Under section 249, a licence, whether under section 244 or section 246, will remain in force until the end of the determinate period of the sentence unless revoked under section 254 or 255.[4]Section 254 gives the Home Secretary a general power to revoke any licence and recall the person concerned to prison. There are also provisions by which the person must be told the reasons, he must have an opportunity to make representations about them, and his case must be considered by the Parole Board.[5]Section 255 gives to the Home Secretary a specific power to revoke the licence of a person released under section 246, and in respect of whom the curfew provision is still in force, if it appears to the Home Secretary(a) that he has failed to comply with any condition included in his licence or(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence.[6]The consequences of recall are quite different under sections 254 and 255. In the case of recall under section 254, it becomes the responsibility of the Parole Board to decide in the first instance whether the recall should be confirmed, and, if so, to determine when the prisoner should be released. Under section 255, the Parole Board has no involvement. The recall continues until the point at which the prisoner becomes entitled to automatic release under section 244. So the recall will be for a fixed period necessarily shorter than 135 days (because release under section 246 cannot be earlier than 135 days before the automatic release date, as already explained).[7]Samantha Ramsden is aged 19. On 9th and 10th September 2005 she committed offences of arson with intent to endanger life and assault. The pre-sentence report presented a picture of a disturbed and vulnerable young woman. On 6th February 2006 she was sentenced to a term of 21 months' detention in a young offender institution. On 29th March 2006 she was released on licence. An out-of-date form was used, but the release was meant to be under section 246, and that is how it has been treated. She was directed to live at a bail hostel, but there were further problems there which resulted in her hostel place being withdrawn. She was recalled to prison because of breaches of conditions 16.(vii) and 16.(iv) of her licence. Condition 16.(vii) required her to live at the hostel; condition 16.(iv) related to her employment.[8]In response to a letter before action from her solicitors, in which they suggested that her recall ought to have been under section 255 and not section 254, the National Offender Management Service ("NOMS") summarised the breaches, and continued:
"As the above breaches are of her general licence conditions and not the Home Detention Curfew part, a revocation of licence was issued under section 254 of the Criminal Justice Act and not under section 255 of the same act."
[9]The Parole Board subsequently considered her recall and confirmed it. In giving their reasons, they observed:
"Her emotional state, abuse of drink and drugs, history of fire raising, use of weapons, unpredictability and lack of motivation to address problem areas raise considerable concerns ... In view of the many concerns and the absence of a firm risk management plan, the panel did not consider that Miss Ramsden's risks of re-offending and causing serious harm can at present be safely managed in the community."
[10]Paul Naylor is aged 33. On 22nd August 2005 he was sentenced to two years' imprisonment. On 10th April 2006 he was released on licence under section 246. On 5th August 2006 he caused damage to a door at his bail hostel. He was charged with an offence under the Criminal Damage Act, for which he later received a sentence of 14 days' imprisonment. Meanwhile, on 7th August 2006, he was recalled to prison under section 254. The reason given for his recall was that:
"You have breached licence condition 16(i) to be of good behaviour, not commit any offence and not do anything which could undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending and help you to resettle successfully into the community."
[11]On his solicitors raising with an official in the Release and Recall Section of NOMS whether his recall should not have been under section 255, the official said that he had been correctly recalled under section 254 because that section applied to general licence conditions and he was in breach of general licence conditions, not his curfew. The solicitor asked the official to confirm for the avoidance of doubt whether she was saying that anyone released on curfew conditions who committed a breach of their general licence conditions would be recalled under section 254 and not section 255, and the official confirmed that this was correct.[12]In the Secretary of State's detailed grounds of defence in the case of Samantha Ramsden, his policy is described as follows:
"Where there is a breach of the curfew conditions, or where the prisoner can no longer be electronically monitored at the place specified in the curfew condition, the Secretary of State will generally exercise the power under section 255, which gives rise to a less serious sanction. Where there is a breach of the standard conditions or there is other information which gives rise to a concern that the public may be at risk of serious harm, the Secretary of State will exercise the power under section 254..."
[13]Both claimants were given leave to apply for judicial review in order to argue the question whether their recall under section 254 was lawful in circumstances in which they could have been recalled under section 255.[14]Mr Weatherby's argument on their behalf is simple. He submitted that, on the proper construction of the Act, section 254 and section 255 are mutually exclusive, and that the Home Secretary had no power to recall either claimant under section 254 since they were eligible for recall under section 255.[15]In support of that argument, he advanced four matters. First, Mr Weatherby relied on the general principles of construction traditionally expressed in the Latin tags, generalibus specialia derogant, and expressio unius est exclusio alterius. He referred me to extracts from Bennion on Statutory Interpretation, fourth edition, 2002, including the following at pages 998 to 999:
"Where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision ... Drafters who wish to make clear that a specific provision is not intended to modify the meaning of a wider general provision often preface the former with the formula 'without prejudice to the generality of ...' Sometimes the words 'the generality of' are omitted but the intended effect is the same."
[16]Mr Weatherby also referred me to a number of authorities which illustrate the application of those maxims in different statutory contexts.[17]Applied in the present case, his argument is as follows. Apart, possibly, from highly exceptional cases, in any case in which the Home Secretary might be contemplating the recall under section 254 of a prisoner who has been released under section 246, and who has not yet reached the halfway point of his sentence, it would be open to the Home Secretary to recall the defendant under the specific provisions of section 255. This is because one of the standard conditions of a licence, as in the case of Mr Naylor, is that the prisoner shall be of good behaviour, and it is almost inconceivable that the Home Secretary would contemplate seeking to recall under section 254 a prisoner who has been released on licence and who has behaved perfectly properly.[18]In his submissions on behalf of the Home Secretary, Mr Giffin QC pointed out that section 254 does not require that there should have been a breach of a licence condition. He suggested that there can be circumstances in which the Home Secretary might wish to exercise his recall powers under section 254 where there had been no breach of a licence condition, but on any view these would be highly exceptional.[19]So, for practical working purposes, it does seem to me to be plain that in the overwhelming majority of cases in which the Home Secretary might contemplate the recall under section 254 of a prisoner who has not yet reached the halfway point of the determinate sentence, the power to recall under section 255 would also be available.[20]Mr Weatherby submitted that it cannot have been Parliament's intention that there should be two separate regimes, each equally available to the Home Secretary in such circumstances; there must be some more coherent relationship between the sections. He submitted that the general canons of construction on which he relies apply in this situation. In the case of somebody who is eligible for recall under section 255, those specific provisions are the relevant ones and the general power under section 254 is therefore inapplicable.[21]Secondly, Mr Weatherby relied on the explanatory notes at the time when the Act was before Parliament. The explanatory note to section 254 included this sentence:
"Subsection (7) provides that this section does not apply to offenders recalled from Home Detention Curfew, who are dealt with in Section 255."
In his submission, that explanatory note was precisely accurate and recognised that section 255 was intended to apply in a case of those recalled from home detention curfew.[22]Thirdly, Mr Weatherby relied on the legislative history. The forerunners of sections 254 and 255 were sections 38A and 39 of the Criminal Justice Act 1991, although the language of the earlier sections was not exactly the same. Section 38A, the forerunner of section 255, was headed "Breach of curfew conditions" and began as follows:
"(1) 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; (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in that condition; or (c) that it is necessary to do so in order to protect the public from serious harm from him, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison."
[23]The point that Mr Weatherby makes is that, on his submission, there was under the 1991 Act a recognition of two separate schemes. He acknowledges that section 38A has been altered in the form that now appears in section 255, which applies where a person has failed to comply with any condition of his licence, but he submits that the legislative history is instructive because there was no intention, he suggests, in the 2003 Act to amalgamate what had been distinct schemes into one global scheme with alternatives available to the Home Secretary; rather, the intention was that there should continue to be separate and mutually exclusive schemes, albeit that the ambit of what is now section 255 is rather different.[24]Lastly, Mr Weatherby referred me to some academic commentary on sections 254 and 255.[25]I begin with Mr Weatherby's first argument. The canons of construction on which he relies are well-known aids to construction, but it is trite law that in each case the court has to examine the particular language of the relevant statute, looking at its provisions as a whole. Mr Giffin advanced a number of reasons why sections 254 and 255 should not be treated as mutually exclusive in the way contended for by Mr Weatherby. I find two of the arguments compelling: one has to do with the actual language of the statute; the other has to do with the practical consequences.[26]The drafter has, to a degree, considered the interplay between sections 254 and 255 in section 254(7), which reads:
"Nothing in subsections (2) to (6) applies in relation to a person recalled under section 255."
Those subsections deal with the procedure to be followed after a recall under section 254, including particularly the involvement of the Parole Board. The effect of Mr Weatherby's argument is that section 254 is to be construed as though subsection (7) stated:
"Nothing in this section applies to a person who may be recalled under section 255"
. That would be very different. If the drafter had intended the interrelationship to be that argued for by Mr Weatherby, the words that he chose in subsection 254(7) were inapposite. Mr Weatherby submits that section 254(7) is, on any view, an uninformative and unhelpful section, but even if he were right about that, it is, in my view nothing to the point. The point is that the drafter has considered the relationship between the two sections and put in the words now in section 254(7). It may be that these are there simply for the avoidance of doubt, and that the effect of the section would be the same even if they were not present, but what is significant is that the drafter used those words and not words which would give effect to the construction contended for by Mr Weatherby. I do not think that one can, by a process of construction, infer that the section was intended to be interpreted as though it provided that "Nothing in this applies to a person who may be recalled under section 255".[27]The second compelling point is a consideration of the practical consequences. If somebody committed a very serious breach of the terms of their licence, it would be most anomalous that the effect should vary depending on whether the breach was committed just before or just after the halfway point. If Mr Weatherby's argument is right, however serious the breach might be, if committed just before the halfway point, the worst that could happen to the prisoner would be that they would be recalled until the halfway point and then they would have to be released. Mr Giffin has raised the question whether in such circumstances the Home Secretary might then have the power under section 254 nevertheless to recall the person concerned for the antecedent breach. Either one is driven to a construction of that kind, which makes no coherent sense as a statutory scheme, or one is left with the alternative that indeed the maximum sanction for a really serious breach, just before the halfway point, would be loss of liberty for the remaining days up until the halfway point.[28]The case of Samantha Ramsden illustrates the point. If the Parole Board is right in its assessment, she is a young woman who cannot at the moment be managed in the community. It would be bizarre if the Secretary of State had no power to recall her in a way which would put her case under the control of the Parole Board, ie via section 254, after her release on licence had demonstrated that she was unable to meet the challenge of living in the community.[29]I may deal more shortly with Mr Weatherby's supporting arguments. So far as the explanatory note is concerned, that cannot determine the proper construction of the statute. The reference to the past legislative history does not assist. If one is examining a consolidating statute it is entirely proper to have regard to the way in which the same provisions have been interpreted in a previous statute, but in this area of criminal justice the plates have been shifting with each Criminal Justice Act, and the change from section 38A to section 255 is an illustration of this.[30]Lastly, in relation to academic writing, the comments are brief and do not, in my view, provide an answer to the reasons which have led me to reject Mr Weatherby's submission.[31]There remains the question how the sections do fit together. In one of the authorities to which I have been referred on construction principles, National Grid Co plc v Mayes and others [2001] 1 WLR 864, [2001] UKHL 20, at paragraph 55, Lord Hoffmann observed that expressio unius arguments "are often perilous, especially when applied to a patchwork document ... ". The provisions in the 2003 Act about release and recall of prisoners on licence are unquestionably patchwork provisions. They have been developed from different sources over the years. The present patchwork is complex and does not have obvious coherence.[32]Mr Weatherby's case was based solely on the point which I have already addressed and rejected, namely that the two sections are mutually exclusive. How they are to be reconciled and applied in practice has therefore not been the subject of direct argument. These factors, however, are obvious. The Home Secretary has separate powers under sections 254 and 255 which exist for the public protection but which also involve the prisoner in a loss of liberty. The powers under section 254 are likely to have graver consequences for the prisoner than the powers under section 255. Although the powers under section 254 are subject to the scrutiny of the Parole Board, whereas the powers under section 255 are not, the prisoner is at risk of a much longer period of detention under section 254 than under section 255. Given that the Home Secretary has these alternative powers under different sections, which are likely in the case of prisoners who have not reached the halfway point to be either both exercisable or neither exercisable, are there any legal criteria which should determine which powers are to be invoked? The guiding principle must be that, as with any exercise of public powers, the holder has to consider whether it is necessary and appropriate to use them in the particular circumstances. Given that one set of powers is, in a practical sense, stronger than the other set, the stronger power should only be used if he judges that the public interest requires it. It would not be right for the weaker power to be ignored and so become a dead letter in circumstances where it may be adequate. As I have already indicated, there is some indication in the papers that NOMS has been applying a mechanistic approach: that section 255 is only applicable where there has been a breach of curfew. If such a mechanistic approach is being applied, it would not reflect the change in the legislation in the 2003 Act, by which section 255 is now available to be used where there is a breach of licence. However, these points do not give rise to any question for immediate decision. As I have indicated, I have not heard argument about them and it would be inappropriate for me to say more about the interplay between those sections than in the general observations which I have made.[33]For the reasons which I have given, these applications for judicial review are dismissed.[34]MR WEATHERBY: My Lord, can I thank you for giving judgment tonight.

MR JUSTICE TOULSON: Not at all.

[36]MR WEATHERBY: It would be very inconvenient if it had been tomorrow.[37]Can I make two quick applications. The first is for leave to appeal. This is a very complex area, it is one of significant importance and affects a large number of prisoners, and it is a matter which I anticipate my Lord has not found particularly easy to reach the conclusions that my Lord has in an area where the statutory provisions are not the clearest. In those circumstances, I would seek leave to appeal.[38]MR JUSTICE TOULSON: I am afraid not. My view is clear on the question of mutual exclusivity, and while I agree that the matter is one of importance, I do not personally see you having a realistic prospect of success on appeal and therefore I think you must go to the single judge.[39]MR WEATHERBY: My Lord. Can I seek a detailed assessment of costs, I am legally aided.

MR JUSTICE TOULSON: Yes.

[41]MR GIFFIN: My Lord, I have no applications to make. May I just mention, if your Lordship is checking a transcript at any point, that I think there were a number of places where 254 or 255 came out as 244 or 245.[42]MR JUSTICE TOULSON: I am not surprised, thank you very much. I suppose people are going to want a transcript on this.[43]MR GIFFIN: I would have thought so, my Lord, yes.[44]MR JUSTICE TOULSON: Right. Thank you.