Noone, R (on the application of) v HMP Drake Hall & Anor [2008] EWHC 207 (Admin)

Case No CO/11433/2007[2008] EWHC 207 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 31 January 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF REBECCA NOONEClaimantv
Between
GOVERNOR OF HMP DRAKE HALLDefendantSECRETARY OF STATE FOR JUSTICEDefendant
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 Prisoners' Advice Service) appeared for ClaimantMr P Patel (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: Section 174(1)(b)(i) of the Criminal Justice Act 2003 requires a court passing sentence to explain to an offender in ordinary language the effect of the sentence. This requirement has been in place since 1991. These proceedings show that, in relation to perfectly ordinary consecutive sentences imposed since the coming into force of much of the Criminal Justice Act 2003, that task is impossible. Indeed, so impossible is it that it has taken from 12 noon until 12 minutes to 5, with a slightly lengthier short adjournment than usual for reading purposes, to explain the relevant statutory provisions to me, a professional judge.[2]The position at which I have arrived and which I will explain in detail in a moment is one of which I despair. It is simply unacceptable in a society governed by the rule of law for it to be well nigh impossible to discern from statutory provisions what a sentence means in practice. That is the effect here. Under the provisions of the Criminal Justice Act 1991, as indeed under many statutes before it, the imposition of consecutive sentences for different offences was permissible. The power to impose consecutive sentences appears to derive from common law. It is re-enacted in section 154(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which provides that a sentence imposed by the Crown Court shall take effect from the beginning of the day on which it is imposed unless the court otherwise directs. The court is accordingly impliedly empowered to direct that an element of successive sentences shall be served consecutively.[3]Under section 51(2) of the 1991 Criminal Justice Act, a sentence of imprisonment imposed consecutively to another sentence of imprisonment "shall be treated as a single term". Prisoners to an aggregate term of between 12 months and four years were known as short-term prisoners. By virtue of section 33 it was the duty of the Secretary of State to release them on licence at the halfway point of their sentence. When it became apparent that there was pressure on the prison estate, section 34A was inserted into the Act by the 1998 Crime and Disorder Act. Sub-section (3) permitted the Secretary of State to release a prisoner on licence once he had served the requisite term. It was a power to release, not a duty, expressed in the word "may". Where the aggregate term imposed exceeded 18 months, the maximum period of release on licence, known as Home Detention Curfew, was 135 days, see sub-section (4)(c). This simple and rational scheme was put into effect daily. Thus, someone such as this claimant, who was sentenced to consecutive terms of imprisonment of 22 months, four months, and one month (a total of 27 months) would be required to be released on licence after 13 and a half months and would be eligible to be released on Home Detention Curfew 135 days before that time.[4]The Criminal Justice Act 2003 contained very similar provisions although somewhat differently expressed. Section 264 provides:
"(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 ... (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 ..."
[5]Sub-sections (4) and (5) made provision for consecutive sentences which individually amounted to less than 12 months each. Those provisions, as I shall explain, are not in force.[6]For the purposes of section 264(2) "custodial period" was defined by sub-section (6)(a). The whole of sub-section (6)(a) is in force. It reads:
"(a) "custodial period"- ... (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 sub-section (3)(a) of that section."
[7]The effect of section 264(2) was therefore, in principle, the same as that of section 51(2): to aggregate two consecutive sentences imposed on the same occasion. The route by which that was achieved was slightly different. What was aggregated in section 264(2) was the custodial period, the term actually served subject to early release on licence, and sub-section (3) aggregated the periods of licence. But the effect was precisely the same.[8]The major change introduced prospectively by the 2003 Act was to short-term sentences. Section 181 prospectively provides, in the briefest of summaries, that any sentence of less than 12 months must be for at least 28 weeks and must not exceed 51 weeks, and must have a licence period of at least 26 weeks, and a custodial period of not less than two weeks nor more than 13 weeks. It was up to the judge to determine what the custodial period should be within those parameters. The judge would be required under sub-section (3) to specify that period as the custodial period. Accordingly, had the 2003 Act sentencing provisions been brought into force in full, a sensible, easily understood and logical scheme very similar to that operating under the 1991 Act would have come into existence, short and long-term sentences would have been aggregated, the custodial period would have been the period specified by the judge in relation to the short sentence and the halfway point in relation to the long sentence. The two would have been added together and that would have provided the answer as to when the prisoner was to be released.[9]Furthermore, under earlier provisions of the 2003 Act, it would have been possible to establish beyond argument and without difficulty the point at which a prisoner sentenced to consecutive sentences was eligible for early release on licence Home Detention Curfew.[10]Section 246 permits the Secretary of State to:
"(a) release on licence under this section a fixed-term prisoner ... at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period ..."
[11]Sub-section (6) defines "the requisite custodial period" as:
"... in relation to a person serving any sentence other than a sentence of intermittent custody, has the meaning given by paragraph (a), (b) or (d) of section 244(3)."
[12]Section 244(3) defines "the requisite custodial period" as:
"(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, (b) in relation to a person serving a sentence of imprisonment for a term of less than twelve months ... the custodial period within the meaning of section 181. ... (d) in relation to a person serving two or more ... consecutive sentences, the period determined under sections ... 264(2)."
[13]Accordingly, as in relation to the point at which the prisoner was entitled to be released, so the point at which he might be released on Home Detention Curfew was also established; and that applied in relation both to those sentenced to terms of imprisonment of more than 12 months and those sentenced to terms of imprisonment of less than 12 months. However, sub-section (b) of section 24(3) has not yet been brought into force.[14]Accordingly, looking at the primary legislation alone, there is no provision for sentences of imprisonment of less than 12 months or for establishing the point at which a prisoner so sentenced is entitled to be released or may be released on Home Detention Curfew. That position was plainly unacceptable, and so by secondary legislation passed to bring the provisions of the 2003 Act into force, transitional arrangements were made by the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005. Paragraph 14 of Schedule 2 provides for a saving for prisoners serving sentences of imprisonment of less than 12 months by these words:
"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)."
[15]Accordingly, by virtue of that transitional provision it remains lawful for a sentencing court to impose a sentence of imprisonment of less than 12 months which does not comply with section 181 of the 2003 Act.[16]The draftsman of paragraph 14 cannot, however, have had in the forefront of his mind the impact of the saving on the Home Detention Curfew provisions. On any view, the position achieved by paragraph 14 produces difficulty and obscurity - one is tempted to say "absurdity".[17]Mr Patel advanced the submissions which he canvassed before Dobbs J in R(Steven Highton) v The Governor of HMYOI Lancaster Farms and the Secretary of State for the Home Department [2007] EWHC 1085 Admin. Mr Weatherby, who appears for the claimant, drafted grounds of appeal in that case. Both are therefore thoroughly familiar with the complexities of the legislation and the difficulties to which it gives rise. Both have made helpful and, insofar as it is possible with legislation of this obscurity, clear, submissions about its effect.[18]In the very briefest of summaries, Mr Weatherby contends that the aggregation provisions which applied under the 1991 Act and apply under the 2003 Act to consecutive sentences apply together so as to produce a single term to which the provisions of both Acts apply to determine the mid-point of the sentence at which the prisoner is entitled to be released, and so the point at which the power to release him or her on Home Detention Curfew may be exercised.[19]Mr Patel submits that it is simply not possible to aggregate sentences imposed under the two different Acts for that purpose or with that effect. He persuaded Dobbs J that that was the position. She expressed her reasons agreeing with it in paragraphs 39 and 40 of her judgment, which read: 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."[20]Unattractive though the answer which she gave is, and hard though I have struggled to avoid it, in my respectful view her reasoning and conclusion were right. I need not set out the blind allies into which I have driven myself in an effort to escape the unattractive conclusion to which she and I feel driven.[21]When this appeal was opened by Mr Weatherby, he indicated that there was a second ground of challenge which Dobbs J expressly did not consider: to the policy by which the Home Office and now the Ministry of Justice have sought to reconcile the difficulties created by the continued existence of two different regimes applying to sentences imposed on the same occasion.[22]The policy and the reasons for it are set out in the witness statement of Jane Seddon, the team manager of the Sentence Calculation Policy and Home Detention Curfew Policy teams in the National Offender Management Service. She prepared her statement for the purpose of the Highton case. It is dated 28 March 2007. It frankly acknowledges the difficulties created by the continued existence of the two statutory schemes. She and her fellow officials concluded that it was necessary to have a policy which addressed the difficulties. They considered five possible options. First, that which was preferred, follow the order of the court as far as possible. That involved treating the first sentence pronounced by the court as "the lead sentence", and any subsequent sentence as being imposed after it. In relation to Home Detention Curfew, the policy to be applied was to treat the point at which a prisoner became eligible to be considered for Home Detention Curfew as arising by reference only to the last of the sentences imposed by the court, or where there were two or more short sentences, by reference to the aggregate of those. The advantages of that policy were, she states, that it is transparent, impartial and objective. She might also have added that, in appearance at least, it gives maximum deference to the order of the court.[23]The other options were: always to calculate the 1991 Act sentence first; the third, always to calculate the 2003 sentence first; the fourth, always to calculate the longest sentence first; and the fifth, for which Mr Weatherby contends, always to calculate the shortest sentence first. She and her team rejected the fifth option because it would have an adverse consequence for the prisoner in that the licence period would be longer.[24]An example is needed to illustrate the difference between the options which she gave in her witness statement. She gave as her example two sentences imposed consecutively of ten months and 12 months. If the ten-month sentence was served first under the 1991 Act, the prisoner would become eligible for release after five months. He would, however, not be released because he had the two-year sentence to serve. He would be required to be released after he had served 12 months of that sentence. Of his total sentence of 34 months, he would be required to serve 17. Because his longer sentence was more than 18 months, he would be eligible for Home Detention Curfew 135 days before 17 months. He would then be on licence for the remainder of the two-year term.[25]If the sentence was imposed and served the other way round, he would be detained under the 2003 Act sentence for 12 months, and would then be required to be released, but he would still have the shorter ten-month term to serve. Accordingly, he would serve five months of that term beginning at the end of 12 months. The custodial term would accordingly be the same, 17 months, but the Home Detention Curfew provision would be different. He would only be eligible to be released for the number of days applicable in the case of someone sentenced to a term of ten months' imprisonment, not two years, or two years and ten months.[26]The effect of the policy adopted by the Home Office and now the Ministry of Justice therefore depends upon the order in which the court pronounces its sentence. Unless the court applies its mind to the differential effects of sentencing in any particular order, the outcome in relation to any individual prisoner is likely to be arbitrary. As the example given by Ms Seddon demonstrates, the prisoner who serves the short sentence first is eligible for release on Home Detention Curfew before the prisoner who serves the long sentence first.[27]I accept that the policy is transparent and, in a limited sense, objective. Some guidance, I understand, has been given to sentencing judges as to the need for caution in relation to the imposition of consecutive sentences to avoid arbitrary consequences. If I have understood the guidance correctly -- and I have not read it -- and if all of those who impose sentences in Crown Courts, including Recorders who sit part-time, understand, remember and follow it, then the difficulties created by the two sentencing regimes may be ameliorated, but at least until Highton, and guidance consequent upon it, it is unlikely that the majority of judges appreciated the fiendish complexity caused by the interaction of two separate statutory regimes, and unlikely that they tailored their sentences to fit the Home Office policy.[28]Very similar difficulties have been caused to sentencing judges imposing consecutive sentences and extended sentences at the same time, as is apparent from the decision of the Court of Appeal, Criminal Division in R v C and others [2007] EWCA Crim 680. In considering the submission made on behalf of the Secretary of State for the Home Department on that occasion, that a prisoner sentenced to an extended sentence and a consecutive determinate term might have to apply for a decision of the Parole Board to direct release at a surprising stage in the total sentence which he was serving, the court observed as follows:
"The consequence would be to require any prisoner subject to an extended sentence who wished to obtain early release from custody to make his application at a time when he might not, instinctively, consider it appropriate ie during the first part of the period spent in custody. In our view the only proper approach would be to treat, in this respect, the custodial period in the same way whichever sentence is expressed to be consecutive to the other ie to treat the final part of the period in custody as the custodial term of the extended sentence. That would be consistent with the concept of aggregation, and can be achieved by the exercise of the Secretary of State's discretion. There should be no difficulty. It equates the approach in both scenarios, and meets the statutory objective."
[29]The fifth option considered by Ms Seddon would, if applied as policy, come closer to the result indicated by those observations in a similar, if strictly different, context than would the application of the first and chosen option.[30]Mr Weatherby draws my attention to the observations of Lord Hope in R(Stellato) v Secretary of State for the Home Department [2007] 2 AC 70 at paragraph 15, in which he observed:
"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 in this case ..."
[31]He went on to describe the negative resolution procedure. The facts of that case are not on all fours with the facts of this case. What the Secretary of State was contending for there was that a prisoner sentenced under the 1991 Act could upon recall after release on licence be released on terms less favourable to him than applied under the 1991 regime. That does not apply here, but there is an echo of it here.[32]The contention of the Secretary of State produces an outcome which any legislator would have found surprising if he had had his attention drawn to it, namely that a prisoner sentenced entirely under the 1991 regime or entirely under the 2003 regime would be dealt with in one way, but for no reason that anybody could explain sensibly, a prisoner who fell to be dealt with under both regimes would be dealt with in a way which objectively is less advantageous to him. I do not accept Ms Seddon's rejection of the fifth option on the basis that the licence period would be or might be somewhat longer, and that that would operate as a disadvantage to a prisoner sufficient to outweigh the advantage that might be gained by early release on Home Detention Curfew. Furthermore, it does not fit in with one of the manifest purposes of the 2003 sentencing provisions, which were to ensure, by extending the licence period to the end of the sentence, a maximum period during which a prisoner would be under the eye of the authorities and eligible to be recalled should he misbehave. The only policy capable of giving effect to the policy of the 2003 Act and to the rational expectations of prisoners dealt with under both Acts is to ensure that they are not disadvantaged in relation to Home Detention Curfew, but are subject to the maximum period of licence on release which can lawfully be imposed.[33]Accordingly, and on a ground not considered by Dobbs J, I come to the conclusion that the policy, applied in good faith and to overcome the great difficulties created by the statutory provisions, is not lawful.[34]In relation to this claimant, I will hear submissions from counsel upon what relief should be given. It is necessary for me very briefly to deal with her actual position, although I anticipate her position will be shared by many other prisoners.[35]She was prosecuted for offences of dishonesty and for contempt of court. She was remanded in custody on 13 April 2007, and on 23 May 2007 sentenced to a total of 27 months' imprisonment at Stafford Crown Court made up as follows: 22 months for theft; four months for three further counts of theft, concurrent with each other but consecutive to the 22 months; and one month consecutive for contempt of court. All offences were committed after 4 April 2005.[36]On 24 May 2007, she was given a release date notification slip, which identified her Home Detention Curfew eligibility date as 15 January 2008, the date which would be consistent with the choosing of option five. On 18 July 2007, she was given a further release date notification slip indicating her new eligibility date as 20 April 2008, the date which results from the application of option 1, the current policy.[37]She is said to be, and I have no reason to doubt, a model prisoner and a mother of a young child. No reason is advanced in any of the documents which I have seen beyond the application of the policy as to why she should not be eligible for release on the earlier of the two dates. Accordingly, in her case, the application of a policy which I have decided is unlawful has had and is having a detrimental effect upon her. I invite submissions as to what should be done.[38]Mr Weatherby?[39]MR WEATHERBY: Well, my Lord, I wonder whether the Secretary of State would go first on this. It may be that the Secretary of State would have a view as to how quickly a new policy could be put in place, there obviously having been consideration of this point.[40]MR PATEL: My Lord, I am happy do go first. I would like to have some indication from my Lord. You have held that the policy is unlawful, could I just ask, because one of the points that I made in the summary grounds was that it was not entirely clear upon what basis the unlawfulness was being asserted, is your Lordship saying that it is irrational for the Secretary of State to have a policy on this basis?[41]MR JUSTICE MITTING: Yes, as I had explained, the policy should, in the light of the observations of the Court of Appeal about the analogous situation in relation to consecutive and extended sentences, have applied a policy which produced a result which approximated as near as possible to the 1991 provisions or the 2003 provisions in relation to Home Detention Curfew.[42]MR PATEL: My Lord, the difficulty with that is that -- sorry, I do not wish to address your Lordship's judgment. I cannot now. I need to seek leave to appeal.

MR JUSTICE MITTING: Of course.

[44]MR PATEL: But the difficulty is that, as you will understand, the Secretary of State has to have a policy and the policy is not in relation just to paragraph 14, as your Lordship quite clearly observed, because there is a mixing of the co-existence of the two regimes, and it is not simply an existence in terms of eligibility of HDC, but there are other considerations that the Secretary of State has to have in mind, and I think the Secretary of State needs to consider all of these if he is to decide how to adopt another policy in accordance obviously with this judgment and in accordance with his responsibilities under the statute and in relation to public law duties that he would have. I think essentially the difficulty here is that, whilst the claimant has been prejudiced by the application of a policy in relation to HDC or the timing of eligibility of HDC, it does mean that she is -- just the way in which the policy has been applied to her and will be applied to her -- does mean that her licence period once she is actually released is going to be much shorter, and that is not a matter that the Secretary of State can take back, as it were. He cannot recalculate the whole thing and take it all back. It has already been done. So in relation to this particular claimant --[45]MR JUSTICE MITTING: Why not? He took back the Home Detention Curfew eligibility date. Why can he not now take back the licence notification just as he took back the curfew date?[46]MR PATEL: Well, because simply is the claimant then going to say: "Well, hang on, in relation to HDC I have explained once. Now in relation to the licence period, this is an arbitrary policy in relation to me now because it is not as favourable as it otherwise would have been had you stuck with your original view".

MR JUSTICE MITTING: No, she cannot have her cake and eat it.

[48]MR PATEL: I appreciate that, but that is the difficulty, and those are the points that the Secretary of State considered under the policy, which is why he came to the view that he did as to which option to choose. That is why I asked your Lordship whether it was a finding of irrationality as to the choice of the policy to be adopted by the Secretary of State.

MR JUSTICE MITTING: Yes.

[50]MR PATEL: Now that I have understood that, I think what needs to happen is the Secretary of State would seek leave to appeal from your Lordship's judgment --

MR JUSTICE MITTING: I readily grant that.

[52]MR PATEL: -- in relation to the policy, and we would seek a stay on any relief that the claimant would seek pending a determination by the Court of Appeal in relation to the policy.[53]MR JUSTICE MITTING: The trouble with that is that, if I am right, and for the time being I am presumed to be right, she will be being detained, or at any rate she will not be being considered for release in circumstances where she should be.[54]MR PATEL: Certainly. It may be that they will say she is not eligible.[55]MR JUSTICE MITTING: Is there any reason why I should not direct that in her case the governor forthwith considers whether she should be released on Home Detention Curfew?[56]MR PATEL: My Lord, I understand the force of what your Lordship is saying. In relation to this particular case, I can see where your Lordship is coming from. What I do not wish to set is a precedent in relation to the other cases because that obviously needs to be --[57]MR JUSTICE MITTING: Sorry, the Secretary of State for Justice will have some time in which to reconsider the policy, but not much because there will be other cases, I have no doubt, following upon this one.[58]MR PATEL: It is upon that basis that we seek leave to appeal.

MR JUSTICE MITTING: Of course, and I grant it to you.

[60]MR PATEL: My Lord, can I just take some instructions on what your Lordship is saying?

MR JUSTICE MITTING: Yes. (pause)

[62]MR PATEL: My Lord, I wonder whether we could take this course. My Lord, in Stellato, the case that obviously your Lordship has seen, what happened in the Court of Appeal was that Mr Stellato -- the declaration was made that his detention was unlawful because of the way in which the Secretary of State had operated the statutory procedures, but that declaration was stayed pending the Court of Appeal's decision -- sorry, pending the Secretary of State's application to the House of Lords for leave to appeal. Now, that obviously was of concern to the Secretary of State because that was how other cases were to be affected by what the Court of Appeal said in relation to Mr Stellato. That did not prevent Mr Stellato from receiving an order that he be granted bail on particular conditions, and I wonder whether we can adopt an analogous position in this case, which is that your Lordship obviously will declare that the policy is unlawful. Your Lordship will direct, I think by way of a mandatory order, that the Governor consider Miss Noone's eligibility for HDC, but your Lordship puts a stay upon declaration pending an appeal to the Court of Appeal, so that in relation to other prisoners, what your Lordship has said is of no effect until the Court of Appeal have considered this particular point. But in relation to Miss Noone, your Lordship's judgment obviously bites by way of a mandatory order.[63]Now, clearly, my Lord, the Secretary of State would be seeking, and I am not sure it could come from you, but would be seeking expedition of any appeal to the Court of Appeal so that these matters can be dealt with very, very quickly.[64]MR JUSTICE MITTING: Quite. What I propose, subject to Mr Weatherby's submissions, is this: I declare that the policy is unlawful; I stay the declaration pending your appeal to the Court of Appeal, for which I will give you permission; I direct the governor of the prison to consider forthwith whether the claimant should be released on Home Detention Curfew and to reconsider her sentence and licence expiry date in the light of my decision, so that she does not have her cake and eat it.[65]MR PATEL: My Lord, I think those would be acceptable to the Secretary of State.

MR JUSTICE MITTING: Mr Weatherby?

[67]MR WEATHERBY: With respect, I entirely agree with that. Could I ask for leave to cross-appeal your judgment?[68]MR JUSTICE MITTING: You do not need leave to cross-appeal. If you want to put in a respondent's notice --[69]MR PATEL: I think, my Lord, what happens is that it would be an appellant's notice, but it would be an appellant's notice for cross-appeal. The respondent's notice would be if Mr Weatherby was trying to uphold your Lordship's decision on another matter which you had not --[70]MR WEATHERBY: Yes, I think my learned friend is right.

MR JUSTICE MITTING: You are absolutely right.

[72]MR PATEL: But I do not think you need leave to cross-appeal. You can as a matter of right, if someone brings an appeal, cross-appeal.[73]MR JUSTICE MITTING: If you need it, you can have it. Perhaps between now and when the order is finally drawn up you would research the point and insert whichever is appropriate.[74]MR WEATHERBY: And two final matters of addition: would my Lord indicate that this case really ought to be dealt with as quickly as the Court of Appeal can?[75]MR JUSTICE MITTING: That I think is obvious from the nature of the subject matter, and it will be the Secretary of State for Justice who will have the greatest interest in having it dealt with expeditiously.[76]MR WEATHERBY: I am obliged, and finally costs.

MR JUSTICE MITTING: You said costs, I think, but your voice disappeared into the ether.

[78]MR WEATHERBY: I am sorry. It is indeed costs, and I seek costs to protect the legal aid fund.[79]MR PATEL: My Lord, I would resist costs on the basis that whilst the claimant has succeeded on one part of the claim, the statutory construction part which has formed the primary element -- in fact Mr Weatherby's primary submission is that you do not have any recourse to policy in this case, and I think that the appropriate order in this case is no order as to costs. My Lord, can I also ask for an expedited transcript. I realise how difficult it may be, but could we ask for one because of the need to bring an appeal.[80]MR JUSTICE MITTING: Of course. Mr Weatherby, on costs, do you want to come back?[81]MR WEATHERBY: I conceded that, as far as my submission can go. I hear what my learned friend says. It is two public funds. I am simply seeking to protect the Legal Services Commission.[82]MR JUSTICE MITTING: The claimant has succeeded in the outcome, although not on the argument which occupied most of the time. In my judgment, justice would be served if I were to order the Secretary of State to pay one half of the claimant's costs, to be the subject of a detailed assessment if not agreed. There will be a public funding assessment of the claimant's costs.[83]Mr Patel, as you have the greatest interest in expedition, would you have carriage of the order?[84]MR PATEL: My Lord, I am happy to.

MR JUSTICE MITTING: Content with that, Mr Weatherby?

[86]MR WEATHERBY: I am obliged.[87]MR JUSTICE MITTING: Can I end by thanking both of you for a very interesting and well-informed argument which navigated me through the statutory thicket, whether successfully or not we shall see in due course.

Cited in 3 later judgments