Highton, R (on the application of) v HMYOI Lancaster Farms & Anor [2007] EWHC 1085 (Admin)

Case No CO/1848/2007[2007] EWHC 1085 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 17th April 2007
Strand
London WC2A 2LL
B E F O R E:
MRS JUSTICE DOBBS
Between
THE QUEEN ON THE APPLICATION OF STEVEN HIGHTONClaimant-v-
Between
THE GOVERNOR OF HMYOI LANCASTER FARMSDefendantSECRETARY 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 KARNIK (instructed by Messrs Stephensons) appeared for CLAIMANTMR P PATEL (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MRS JUSTICE DOBBS: This is an application for judicial review of the first defendant's decision of 10th January 2007 regarding a sentence calculation which the claimant submits is not in accordance with the relevant statutory provisions of the Criminal Justice Acts 1991 and 2003 and the enabling and saving provisions of the Criminal Justice Act (Commencement No 8 and Transitional and Saving Provisions) Order 2005 SI 2005/950, hereinafter to be called the 2005 Order. The issue, it is said, concerns the proper interpretation of paragraph 14 of Schedule 2 of the 2005 Order. There is an alternative submission in relation to the first defendant's decision not to allow special remission pursuant to part 13 of PSO 6650 in relation to the period when the claimant was unlawfully at large due to an error by the first defendant. It is submitted that this decision was irrational in the Wednesbury sense, taking into account the extraordinary circumstances of this case.[2]The chronology and background is as follows. On 2nd December 2005, at the Liverpool Crown Court, the claimant was sentenced to a total of two years and eight months' imprisonment for a variety of offences. The sentence was made up as follows: 14 months for an offence of assault occasioning actual bodily harm; 12 months consecutive for another offence of assault occasioning actual bodily harm; three months for assault on the police, consecutive; three months for assault occasioning actual bodily harm to run consecutively; and three months on other offences, all to run concurrently, meaning 32 months in total. All the offences were committed after 4th April 2005. On 26th October 2006, the claimant was released from Her Majesty's Youth Offender Institute Thorn Cross on Home Detention Curfew which required him to comply with the curfew until 9th March 2007. Licence was to expire on 8th January 2008. On 24th December 2006, the claimant breached the curfew and the licence was revoked pursuant to section 255(1)(a) of the Criminal Justice Act 2003. On 25th December he was returned to custody.[3]On 10th January 2007 the claimant was informed by letter and a Release Dates Notification Slip that the release on Home Detention Curfew had been in error and that he was therefore to be treated as unlawfully at large for the period of 26th October until recall. On 18th January 2007 this sentence calculation was confirmed by letter, following representations made by the claimant's solicitor. On 6th February 2007, a detailed explanation of the new sentence calculation was given. The result was that the claimant would be eligible for Home Detention Curfew on 25th March 2007 and release on 8th May 2007, taking into account the 60 days unlawfully at large. The sentence and licence expiry date is 8th March 2008. A claim for permission for judicial review was made and permission was granted on 15th March.[4]In order to put the submissions of counsel into context, the legislative framework has to be considered in some detail. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a sentence imposed by a Crown Court shall take effect from the beginning of the day on which it was imposed unless the court otherwise directs. Section 33 of the Criminal Justice Act 1991 deals with the Home Secretary's duty to release short-term and long-term prisoners. Once a short term prisoner has served half his sentence he will be released unconditionally if the sentence is less than 12 months, or on licence if the sentence is 12 months or more. A long term prisoner, namely one serving four years or more, will be released after serving two thirds of the sentence. Section 51(2) of the Criminal Justice Act 1991 provides that for the purposes of Part 2 of the 1991 Act, a reference to term of imprisonment, consecutive term shall be treated as a single term. So, for example, if a person receives consecutive sentences of two and three years under the 1991 Act, that would be treated for the purposes of release under Part 2 as a single term of five years. The Criminal Justice Act 2003[5]On 4th April 2005 the relevant provisions of the Act came into force and the relevant provisions of the Criminal Justice Act 1991 were repealed. This, however, was subject to transitional and saving provisions contained in Schedule 2 to the 2005 Order.[6]The relevant provisions of the 2005 Order are as follows. Schedule 1 sets out the provisions of the Criminal Justice Act which came into force with minor exceptions on 4th April 2005. These are subject to the provisions of Schedule 2. Paragraph 19 of Schedule 1 sets out the relevant provisions which have come into force. These are sections 237 to 244(1),(2) and (3)(a) and (d), sections 246 to 250(1), and (4) to (7), sections 252 to sections 257 (except section 257 (2)(c)), sections 258 to 261, 263, 264(1) to (3), (6) and (7) and sections 265 and 268 (release on licence), in so far as they are not already in force. Paragraph 44(4)(k) deals with the repeals of sections 32 to 51 of the Criminal Justice Act 1991.[7]Schedule 2 is headed "Transitional and Saving Provisions". Paragraph 14 is entitled "Saving for prisoners serving sentences of imprisonment of less than 12 months". It reads as follows:
"14. The coming into force of sections 244 to 268 of, and paragraph 30 of Schedule 32 to the 2003 Act, and the repeal of sections 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than twelve months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)."
Paragraph 19 is headed "Savings for prisoners convicted of offences committed before 4th April 2005". The relevant passages are as follows.

(a) :

"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)... (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."
Paragraph 25(a) of Schedule 2 relates to consecutive or concurrent terms and reads as follows:
"25. The coming into force of - (a) sections 263 and 264 of the 2003 Act (consecutive or concurrent terms)... [then there are paragraphs (b) and (c), which need not concern us] "does not affect the date on which the Secretary of State is required to release an offender from a sentence of imprisonment passed in respect of an offence committed before 4th April 2005, whether or not that sentence of imprisonment is to run concurrently or consecutively with one passed in respect of an offence committed after that date."
[8]I now turn to the relevant sections of the 2003 Act. Section 244 is headed "Duty to release prisoners":
"(1) As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section. (2) Subsection (1) is subject to section 245. (3) In this section 'the requisite custodial period' means - (a) in relation to a person serving a sentence of imprisonment for a term of twelve months or more or any determinate sentence of detention under section 91 of the Sentencing Act, one-half of his sentence."
Paragraphs 3(b) and 3(c) are not in force and relate to sentences of less than 12 months' imprisonment and intermittent custody orders.

(d) :

"in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2)."
Section 246 relates to power to release on licence before required to do and deals with the computation in relation to Home Detention Curfew.[9]Section 264 relates to consecutive terms. It reads as follows:
"(1) This section applies where- (a) a person ('the offender') has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other, and (b) the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occassions. (2) Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment. (3) Where any of the terms of imprisonment is a term of twelve months or more, the offender is, on and after his release under this Chapter, to be on licence- (a) until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and (b) subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment." (4) and (5) are not in force and relate to the situation where each term of imprisonment is less than 12 months: "(6) In this section - (a) 'custodial period'- (i) in relation to an extended sentence imposed under section 227 or 228, means the appropriate custodial term determined under that section, (ii) in relation to a term of twelve months or more, means one-half of the term, and (iii) in relation to a term of less than twelve months complying with section 181, means the custodial period as defined by subsection (3)(a) of that section; (b) 'licence period', in relation to a term of less than twelve months complying with section 181, has the meaning given by subsection (3)(b) of that section. (7) This section applies to a determinate sentence of detention under section 91 of the Sentencing Act or under section 228 of this Act as it applies to a term of imprisonment of 12 months or more."
[10]Applying the example given before, custodial period is defined in relation to a term of 12 months or more as one half of the term: (section 264(6)(a)(ii)). It follows that if a person has consecutive sentences of three years and two years imposed under the 2003 Act, the relevant custodial periods are one and-a-half years and one year and therefore the aggregate custodial period under section 264(2) would be two and-a-half years.[11]Applying the sentences imposed on the claimant, had they been exclusively under the 1991 provisions, the sentence would be a single term pursuant to section 51(2), giving a total term of 32 months. The claimant would have been entitled to release on licence at the halfway point (after 16 months) under section 33(1)(b) and eligible for Home Detention Curfew 135 days prior to that date under section 34A. If sentenced exclusively under the 2003 Act, the sentences would be aggregated pursuant to sections 263 and 264, which would yield a total term of 32 months. The claimant would be entitled to be released on licence at the halfway point and then eligible for Home Detention Curfew 135 days prior to that date, the custodial period being the operative aggregation period under the new Act, namely 16 months. The effect of the first defendant's construction[12]The effect of the first defendant's construction is to treat the sentences passed in two distinct ways. The sentences of 12 months and 14 months have been dealt with under the provisions of the Criminal Justice Act 2003, section 264(2) and (3). The sentences of less than 12 months were calculated under section 51(2) of the 1991 provisions by virtue of paragraph 14 of Schedule 2 of the 2005 Order. The effect of this, is to aggregate the 12 and 14 months sentences, pursuant to section 264, as a total of 26 months. The remaining three sentences have been treated as a single term of six months under the 1991 Act to be served consecutively to the 26 month term. This is because the sentence of 14 months, being the first sentence passed by the court, was treated as the lead sentence by virtue of a policy adopted by the defendant. The start of the six months single term is said to be the automatic conditional release date of the 26 months term and the Home Detention Curfew eligibility is determined solely by the six months term. Eligibility is one quarter of the six months term, approximately 45 days prior to automatic release under the six months term. The effect is that the claimant will serve 13 months under the first term, under the Criminal Justice Act 2003 regime, with a license for a further 13 months, during part of which he will serve three months of the second term, less 45 days if released on Home Detention Curfew. No licence would attach to the second sentence after the 45 days had expired. Compared with treating the whole sentence under the 2003 Act, the custodial period would be the same, save for the reduction of 90 days in relation to Home Detention Curfew eligibility and the licence period would be reduced from sixteen to ten months. The claimant's submissions[13]The claimant submits that the first defendant's construction of paragraph 14 of Schedule 2 (such construction being supported by the second defendant) is wrong and leads to an illogical, complicated, unworkable and unfair situation for the following reasons.[14](1) It is wholly illogical as it leads to an anomaly whereby a prisoner with a single sentence of 32 months with offences committed after 4th April 2005 is eligible for Home Detention Curfew 135 days before the automatic conditional release date (that is half way); whereas a person in the claimant's position is only eligible for 45 days Home Detention Curfew. His position is worse than if dealt exclusively under either the 1991 or the 2003 regime. The second defendant, who drafted the Order, has given no explanation as to why the transitional provision should be more detrimental than either the 1991 or 2003 regimes. One would expect the transitional provisions to seek to achieve the same result rather than act to the detriment of the prisoner. It is submitted that statutory interpretation should be slow to endorse such an absurd and anomalous construction. The claimant relies on the observations in the case of R (on the application of Stellato) v Secretary of State for the Home Department [2007] UKHL 15, where Lord Hope, dealing with paragraphs 19 and 23 of Schedule 2, said this:
"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."
Whilst it is accepted by the claimant that this claim is concerned with a different paragraph, the same principle is relied on. If paragraph 14 had been designed to change the substantive position, one would expect it to have been placed before Parliament by the affirmative resolution procedure. It was not.[15](2) The system is hopelessly complicated. Had the sentencer been aware of the difficulties of sentence calculation this case presented, some adjustment might have been made to rectify the situation.[16](3) The system is unworkable as there are likely be many such cases as the present one, causing enormous problems for the sentence calculation officers in each establishment across the country.[17](4) Lack of jurisdiction for the commencement of the "under 12 months" single term sentence. There does not seem to be any provision outside section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 or 263 of the Criminal Justice Act 2003 for commencing the 1991 Act term at the ACRD of the 2003 term. The ACRD could be a movable feast given that further disciplinary days can be awarded during the currency of the first sentence.[18](5) In principle, Home Detention Curfew is available for both of the sentences under the 1991 and the 2003 regimes. This would be absurd as in practice it would mean that release on Home Detention Curfew from sentence A would be during the custodial period of sentence B.[19](6) Unwarranted shortening of the licence period. Sentence B would be served during the licence period of the first sentence, the effect of which would be to shorten the overall length of the licence period. This shortening of the licence period is not in the public interest.[20]The claimant contends that release from the sentences in this case and HDC eligibility should have been dealt with exclusively pursuant to the 2003 Act, which is what the first defendant did initially. The claimant submits that paragraph 14 is ambiguous and open to the interpretations given to it by both parties but argues that, taking an overall view, the claimant's interpretation is straightforward and logical and avoids the complications of the defendant's construction. The claimant's argument goes as follows. If read together with paragraph 19 of Schedule 1 and paragraphs 19 and 25 of Schedule 2 and section 264 of the 2003 Act, the effect and intention of paragraph 14 is clear. It is to deal with situations where only sentences of under 12 months are passed or, put another way, where all the sentences are less than 12 months in length. The purpose of paragraph 14 is to cover the fact that paragraph 19 of Schedule 1 does not bring section 264(4) and (5) into force. As has already been indicated, those subsections cover the situation where all the constituent sentences are less than 12 months. Those excluded subsections could not be brought into force without the 2003 provisions for sentences under 12 months also being in force. The relevant sections, sections 181 to 187, are not in force.[21]Read in context, it is submitted by the claimant that paragraph 14 does not disapply sections 244, 246, 263 or 264 of the 2003 Act to the sentences in this case. It disapplies them to the calculation of the custodial period on sentences of less than 12 months, but it does not disapply the sections generally. Section 264 does not provide for the calculation of custodial periods. Rather, it provides that release would be at the expiry of the custodial periods. The argument is fortified, it is contended, by the fact that paragraph 19 of Schedule 2 disapplies sections 244, 246, 248 to 250 for offences committed prior to 4th April 2005, but does not disapply sections 263 to 264. Furthermore, paragraph 25 of Schedule 2 asserts that the coming into force of sections 263 to 264 does not affect the release date for offences committed before 4th April 2005.[22]This paragraph must mean, it is submitted, that the custodial periods of such sentences are to be calculated with regard to the Act relevant to the offence commission date, ie whether the offence was committed before 4th April 2005, or the 1991 Act if the sentence is for less than 12 months, but then sections 263 and 264 are to apply. If this interpretation is correct, and if section 264(2) does apply in this case, then it follows that section 246(1) also applies and that the initial decision to release the claimant 135 days prior to the automatic release date was correct.[23]With regard to interpretation of the words in paragraph 14, the claimant puts stress on the use of the word "such" rather than the word "any", contending that it has to be read in the following way. "Any sentence of imprisonment of less than 12 months" means, for instance, a sentence of six months, eight months, nine months et cetera. Although not advocating a substitution of words, an alternative and better wording would be "a sentence". The word in brackets "(whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)" are amplifying words and relate to a series of sentences under 12 months. Thus the paragraph can apply both to a single sentence of less than 12 months, whatever its length, and to a series of sentences, all of which are less than 12 months. On this interpretation, the claimant's sentence would not fall under the old regime, but under the new one, as the sentences passed were not all under 12 months in length.[24]If this interpretation is correct, the claimant will have been in custody unlawfully. Damages are claimed therefore for the period 9th March 2007 until today's date 17th April 2007.[25]The alternative submission is that, if the defendant's construction is correct, then the Secretary of State should have exercised his discretion to remit the period that the claimant was unlawfully at large, by virtue of having been released too early, as the reason for the claimant being at large was due to the error of the defendant. The Secretary of State has a discretion to grant special remission for this period of approximately two months and should have done so. It was wholly irrational, given the facts, to decline to grant special remission as the reason for refusal to grant special remission is said to be due to the misconduct at large, such misconduct being a breach of curfew condition of an invalid licence.[26]The defendant's response is as follows. (1) Paragraph 14 is plain in its meaning. The word "any" means what it says, namely any sentence under 12 months, and is not confined to a situation where all sentences are under 12 months. The words in brackets are clarifying words and do not have the effect of extending or narrowing the ambit of the paragraph. Moreover, the wording ensures that where any sentence of 12 months is passed, whether together with any other sentence, be it under 12 months or 12 months and over, then paragraph 14 will apply. The simple reason for this is that none of the provisions in the Act for sentences under 12 months are in force. There must therefore be a regime to accommodate this situation. The words "such a sentence" and "such sentence" refer to a sentence of imprisonment.[27](2) The claimant's interpretation does not deal with a situation where there is a combination of a sentence of 12 months and more and a sentence of under 12 months. The claimant's contention that such sentences can be dealt with under section 51(2) and section 33(1) of the 1991 Act is unfounded, as the sections are repealed in relation to offences committed after 4th April 2005, save as provided for under paragraph 14. It is difficult to see how section 264(2) of the 2003 Act could apply to the 1991 Act sentences.[28](3) Paragraphs 19 and 25 of Schedule 2 do not detract from this interpretation. Paragraph 19 deals with offences committed before 4th April 2005 and paragraph 25 is concerned with ensuring that sections 263 and 264 do not affect the length of time someone has to spend in custody in relation to offences committed before 4th April 2005.[29](4) Dealing with the effect of the defendant's construction, it is submitted that even if the scheme is complicated, that does not change the effect of paragraph 14.[30](5) Dealing with the lack of jurisdiction to deal with the commencement of sentences under 12 months, it is submitted that section 154(1) of the 2000 Act does not apply to consecutive sentences. Neither the 2003 Act nor the Order provide a mechanism which allows the requisite custodial parts of the different sentences to be served before release on licence. The Secretary of State has therefore adopted a policy which treats the first sentence handed down as the lead sentence. This achieves consistency of approach and gives effect, so far as possible, to the intention of the sentencing court and the order in which sentences are imposed. It would be impractical to release the prisoner in accordance with the provisions of the first sentence only to then recall him back to custody to serve the second sentence. It is accepted that a person could be in a worse position in relation to his eligibility for Home Detention Curfew where the two regimes are in place. This is not, however, as a consequence of paragraph 14 but as a consequence of the fact that two regimes co-exist during the transitional provisions. There is a clear workable policy in place to deal with the two regimes.[31](7) Whilst there might be a detrimental effect regarding eligibility for HDC as a result of the application of the policy, there may also be an advantageous effect, in that the duration of a person's licence would be shortened. This is the position in the claimant's case.[32](8) The problems identified by the claimant in relation to the awarding of additional disciplinary days, the uncertainty of the commencement date of the second or later sentence and the potential inconsistencies with eligibility for HDC on the first sentence are not a consequence of the Home Secretary's construction of paragraph 14.[33](9) Given that two separate sentencing regimes are in place under the two Acts, the licence period for each of the sentences remains the same. It is accepted, however, that, depending on which sentence is treated as being served first, the licence period may be shortened. The custodial period, however, remains the same. The issue in summary[34]As already stated, in essence the difference between the two parties is that the claimant submits that paragraph 14 applies only to circumstances in which all sentences imposed are of less than 12 months duration, ie in line with the two subsections which have not yet been brought into force. The defendant contends that paragraph 14 applies to the circumstances in which any sentence of 12 months is imposed irrespective of whether there are other sentences imposed of longer duration, not only because section 264(4) and (5) have not been brought into force, but also because none of the provisions relating to sentences under 12 months have been brought into force.[35]There is no dispute between the parties that section 264(3) in isolation, or indeed looked at in the light of subsections (4) and (5), encompasses a situation where sentences of both 12 months and more can be combined with sentences of under 12 months. However, the defendant contends that as the 2003 Act provisions in relation to sentences under 12 months are not yet in force, section 264(3) cannot apply at present and it only applies to consecutive sentences of 12 months and over. This is consistent, it is said, with the effect of paragraph 14, which is makes clear that a sentence of under 12 months does not come into the subsection (3) regime. The claimant argues that such sentences of under 12 months, when combined with sentences of over 12 months, fall into the new sentencing regime and are to be treated differently from the other "less than 12 months" sentences. The reason for this, it is submitted, is that section 264(2) refers to release at the expiry of the aggregate of the custodial periods and does not provide for the calculation of the custodial periods themselves. Thus in the claimant's case it is argued that the custodial periods in respect of sentences 1 and 2 will be seven and six months respectively, pursuant to section 244(3)(a) and the custodial period of the remaining sentences, which are less than 12 months, will be three months, applying paragraph 14 and sections 33 and 51 of the Criminal Justice Act 1991. Then, applying sections 264(2), the custodial periods should be aggregated making for a custodial period of 16 months. The claimant would be eligible for HDC 135 days before, namely 26th October 2006, the date on which he was originally released. Judgment[36]The claimant's submission that paragraph 14 is ambiguous has some force. For instance, the paragraph headed "Saving for prisoners serving sentences of less than 12 months" could, without more, be interpreted to mean prisoners only serving sentence of less than 12 months. Moreover, the references in brackets in paragraph 14 to "such a sentence" and "such sentence" are, in the light of the main part of the paragraph, also ambiguous. The claimant contends that those words refer to sentences of imprisonment of less than 12 months. The defendant contends that they refer simply to a sentence of imprisonment. A purely grammatical construction of the phrase in brackets, at face value, favours the claimant's interpretation. To give effect to the defendant's interpretation, the words "with another such sentence" would have to be deleted and the words "another sentence of imprisonment" be substituted.[37]Proceeding on the claimant's proposition that section 264(2) applies in this case, one has to ascertain what the relevant custodial period is under this section. The answer is to be under section 264(6), a subsection which counsel failed to take into account in his original argument. The subsection sets out clearly that, for sentences under 12 months, section 181 of the 2003 Act applies. As has already been pointed out, section 181 is not yet in force. How therefore does one calculate the relevant custodial period in the light of this, bearing in mind that the claimant argues that paragraph 14 applies only to a situation where all the sentences are under 12 months? In the present case, we are dealing with sentences of both over and under 12 months.[38]The claimant's argument is that sections 33 and 51(2) of the 1991 Act apply. It was pointed out during the course of the hearing that these two sections have been repealed, save as provided for in paragraphs 14 and 19 of Schedule 2. Counsel for the claimant acknowledged that this posed a problem to his argument but submitted that paragraph 14 can be used in order to give effect to the calculation of the relevant custodial periods without applying to the sentences themselves. To quote from counsel's skeleton argument at paragraph 28 as advanced in the hearing:
"It is submitted that read in context, Paragraph 14 does not dis-apply Sections 244, 246, 263 or 264 to the sentence in this case. It dis-applies them to the calculation of the custodial period on the sentences of less than 12 months, but this does not dis-apply the sections generally."
How the claimant is able to reach such an interpretation from the words of paragraph 14 is difficult to understand. There is no reference either to the calculation of custodial periods, or to custodial periods at all. Nothing in the paragraph supports that contention. To the contrary, there are clear references to sentences of imprisonment. Moreover, the essence of what the claimant argues for does not, contrary to his submissions, fall solely within the provisions of the 2003 Act, but represents a mixing of both regimes: the 1991 regime to determine the relevant custodial period and the 2003 regime, in order to aggregate all the sentences. In the highly unlikely event that it was intended to mix the two regimes there would be a need for this to be spelt out clearly, given that the effect of the coming into force of the Act and the 2005 Order is, that two separate regimes are in place.[39]In my judgment, ambiguous though the phrasing may be in the explanatory clause in paragraph 14, the construction advocated by the defendants is the correct one. I come to that conclusion for the following reasons.(1) A plain reading of paragraph 14 without the explanatory words in brackets makes it clear that it refers to any sentence of under 12 months. The claimant's construction of the meaning of the word "any" is artificial. It renders the use of the word "any" unnecessary. Moreover, there would be no need for brackets if the additional words were amplifying words, as the claimant suggests, rather than explanatory words. It is in fact those explanatory words in brackets which cause the confusion.(2) None of the sentencing provisions in relation to any sentence under 12 months is presently in force.(3) The licence provisions in relation to sentences under 12 months are not in force.(4) It is not possible to calculate the relevant custodial periods under section 264 for sentences under 12 months as a result of the relevant provisions not being in force.(5) The claimant's interpretation involves mixing the two different regimes. This is not made explicit in the Order, nor is there any indication that this was the desired effect, given that two different and separate regimes are contemplated. In any event it is highly unlikely.(6) There is no indication that, and it is difficult to see how, section 264 of the 2003 Act could apply to sections 33 and 51 of the 1991 Act, in particular given that the two sections have been repealed, save as provided for under paragraph 14.[40]I turn now to the claimant's submission that it is the defendant's construction of paragraph 14 which has caused the anomalies and difficulties to which he alludes. Looking at the provisions in the 2005 order, it is clear that it establishes the co-existence of the two separate regimes, the old and the new -- see in particular paragraphs 19 and 44 of Schedule 1 and paragraphs 19 and 25 of Schedule 2. This is by virtue of the coming into force of the 2003 Act provisions. Paragraph 14 merely places those sentences of under 12 months in the old regime because the new provisions for such sentences are not yet in force. Taken in isolation, the paragraph does not lead to the anomalies complained of. It is the policy adopted which achieves that position. There is no mechanism either in the Act or the Order for combining the two regimes and this is why the second defendant has formulated a policy to deal with these situations. There is no challenge by the claimant to the policy, but I will return to the issue at the end of this judgment. It follows from the foregoing that this aspect of the application is rejected. As a result the applications for damages is also rejected.[41]I turn to the alternative submission. Simply put, it is said that the claimant should have been credited with the time spent at large, as this was due to the first defendant's error. The defendant says that the discretion afforded to the Secretary of State is a wide one and should not be interfered with lightly. The claimant's case was considered but a decision was taken not to grant special remission. In my judgment, the claimant has failed to show that the decision was irrational. This is not a case where, for instance, the claimant had served the whole period of Home Detention Curfew or, even more acutely, the licence period was nearly at an end before the error was noticed and recall considered. In such circumstances, had the released person complied with all the terms of release, there might be a good argument for challenging any decision not to take this into account. In the present case, however, the claimant, who thought that he was lawfully at large, by his own actions breached the terms of what was thought to be his lawful Home Detention Curfew. He was as a result unlawfully at large, albeit with restrictions. He had demonstrated that whilst at large the trust shown to him was misplaced. The first defendant was entitled to take that into account when considering the claimant's case. In my judgment, in light of the discretion afforded the Secretary of State and the limited circumstances in which a court should intervene, the decision not to grant special remission in this case cannot be said to be irrational in the Wednesbury sense. It follows therefore that this application for judicial review is refused.[42]I conclude by making the following observations. It is clear that in certain limited circumstances such as the present case, where paragraph 14 of the Order comes into play, and possibly other circumstances where the two regimes are in the play, there may be cases where, depending on the order of the sentence of the court, different practical consequences may ensue in the light of the Secretary of State's policy. This has been conceded. It may be that the Secretary of State would wish to give careful scrutiny to the policy in the light of the issues raised in this case. It may be that, if the relevant sections of the Act are not to come into force for some time, clarification of the Order should be made. However, if this policy is to remain in force indefinitely, it is important in the interests of justice, that the policy is widely published so that practitioners and judges alike can understand the practical effect of the sentence in cases of this kind. Judges are required to explain to defendants what the effect of the sentence they have passed is to be. They need to understand the policy when considering the appropriate sentence in order to avoid any potential unfairness. A document from the second defendant to courts and practitioners encapsulating paragraphs 1 to 19 of the witness statement of Jane Seddon, Team Manager of the Sentence Calculation Policy and Home Detention Policy teams in the National Offender Management Service, would serve to make the position clear.[43]MR PATEL: My Lady, we make no application for costs. We are content with an order that the application for judicial review is dismissed, there be no order for costs. I think the claimant is probably legally aided so he may wish for an order but I leave that for my learned friend.[44]MRS JUSTICE DOBBS: Yes, Mr Karnik? Did you hear that because I know we had difficulty last time when Mr Patel was speaking? Did you hear what he said? He is saying, first of all, application for judicial review be dismissed. There is no application for costs. Did you get that?[45]MR KARNIK: Yes, my Lady, I did hear that.[46]MRS JUSTICE DOBBS: And he said you may have some application in relation to your client's legally aided situation.[47]MR KARNIK: Indeed, I do. My client is publicly funded and I would like to make an application for a detailed assessment of costs.[48]MRS JUSTICE DOBBS: So I will make an order that the claimant's costs are to be subject to a detailed assessment in accordance with the Community and Legal Services (Costs) Regulations 2000.[49]MR KARNIK: I am grateful.[50]MRS JUSTICE DOBBS: The application for judicial review is dismissed and I make the order in relation to the claimant's costs.[51]MR KARNIK: Thank you. One other matter, my Lady. If I may, I would like to apply for leave to appeal.

MRS JUSTICE DOBBS: Yes.

[53]MR KARNIK: My submission is it is a complex and novel point based upon difficult and complex provisions and likely to affect a large number of prisoners on an ongoing basis. For those reasons I seek leave to appeal.[54]MRS JUSTICE DOBBS: Leave to appeal is refused. It seems to me that the provisions, the main provisions, are clear for the reasons I gave: first of all, the reading of paragraph 14, absent the explanatory words, and for the other reasons given, namely the lack of provisions for sentences under 12 months being in force. Additional to that, the fact that paragraph 14 is not the reason for the anomalies identified. It is the policy of the Home Secretary that has been thrown up these anomalies. The policy is not the issue that has been under challenge. As I have already indicated, the Secretary of State in any event should make the policy widely known to practitioners and judges so that the anomalies complained of can be considered and any potential unfairness dealt with by the sentence of the court. So leave to appeal is refused.[55]MR KARNIK: My Lady.

MRS JUSTICE DOBBS: Yes, thank you very much indeed.

Cited in 4 later judgments