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Judgments - Regina v. Secretary of State for the Home Department and Another, Ex Parte François (A.P.) (On Appeal from a Divisional Court of the Queen's Bench Division)


  |Lord Browne-Wilkinson   Lord Slynn of Hadley   Lord Nolan
  Lord Hope of Craighead   Lord Hutton







ON 12 MARCH 1998



My Lords,

      I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives I would answer the certified question in the affirmative and dismiss the appeal.


My Lords,

      Part II of the Criminal Justice Act 1991 deals with the early release of prisoners. Section 33 thereof provides:

     "(1) As soon as a short-term prisoner has served one-half of his sentence, it shall be the duty of the Secretary of State -   (a) to release him unconditionally if that sentence is for a term of less than twelve months; and   (b) to release him on licence if that sentence is for a term of twelve months or more.

     "(2) As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence.

     "(3) As soon as a short-term or long-term prisoner who -   (a) has been released on licence under subsection (1)(b) or (2) above or section 35 or 36(1) below; and   (b) has been recalled to prison under section 38(2) or 39(1) below, would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him unconditionally.

     "(4) . . . .

     "(5) In this Part -   'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more;   `short-term prisoner' means a person serving a sentence of imprisonment for a term of less than four years."

      That section is to be read with section 51 of the Act which provides that in Part II of the Act:

     "(1). . . .

      'sentence of imprisonment' does not include a committal in default of payment of any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.

     "(2) For the purposes of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term."

      The appellant was sentenced on 5 August 1993 as follows:

       (a) burglary 9 months concurrent with (b) and (c); (b) burglary 9 months concurrent with (a) and (c); (c) handling stolen goods 9 months consecutive to (e); (d) theft 2 months concurrent; (e) handling stolen goods 6 months; (f) theft 4 months.

      That made a total of nineteen months' imprisonment. For the purposes of section 3 of the Act he was, therefore, at that stage a short-term prisoner.

      On 7 January 1994 the appellant was sentenced to:

      (g) for possession of LSD with intent to supply 4 years consecutive to (a) to (f) above;

      (h) for possession of ecstasy with intent to supply 4 years concurrent with (g).

      In respect of those offences the sentence of 4 years in total makes him a long-term prisoner.

      Subsequently on 18 April 1994 he was sentenced to 6 months' imprisonment:

      (i) for possession of a controlled drug consecutive to (a) to (f) but concurrent with (g) to (h);

      (j) for possession of a controlled drug £75.00 or 7 days concurrent to (i).

      It is agreed between the appellant and the respondents that on the basis of these sentences if the four years for (g) to (h) above and the nineteen months for (a) to (f) above are to be treated as a single term, as the Divisional Court held, then the appellant's early release date (leaving parole out of account but allowing for time spent on remand and for additional days awarded in Governor's adjudications) was 19 April 1997. If on the other hand the two groups of sentences are to be treated separately, as the appellant contends, then the appellant's calculated release date for sentences (a) to (f) was 19 May 1994 and for (g) to (h) 13 January 1997 respectively.

      It is agreed that the sentences in (i) and (j) above do not affect the position.

      The appellant thus says that it was because the two groups of sentences were treated as a single term (contrary, it is agreed, to what the judge sentencing him for items (g) to (h) above appears to have thought) that he was not released on 13 January 1997. If, as should have been done, they were treated as separate offences he would have been released on that date.

      Although the appellant was still in prison when his application for judicial review was first made and at the date of the Divisional Court's judgment, he has long been out of prison. It seems to me that despite this it was right that the House, in the exercise of its discretion, should hear this appeal. The result would be relevant to any civil claim which may fall to be considered but, no less, it is of relevance to a number of other cases where a similar point arises. The point is also important for the administration of the prison service and is of ongoing relevance for the respondents. It ought to be resolved by your Lordships since the appeal has got so far. I do not consider that anything said in Ainsbury v. Millington (Note) [1987] 1 W.L.R. 379 or in Reg. v. Secretary of State for the Home Department, Ex parte Wynne [1993] 1 W.L.R. 115 precludes such a course.

      Mr. Fulford Q.C. for the appellant contends that section 51(2) as a matter of ordinary language can only be taken as referring to sentences passed on the same occasion; if it had been intended otherwise Parliament would have said specifically "whether passed on the same or different dates or whether by the same or by different courts." If there is ambiguity the language must be resolved in favour of an accused. The interpretation contended for by the respondents is contrary to principle in that it results in a sentence once passed being increased as a result of the prisoner's status being changed on a subsequent sentence. Mr. Fulford illustrates this by the example of an offender being sentenced to twelve months' imprisonment on 1 January when he is told that he will spend six months in prison. During that period of six months he is sentenced to four years' imprisonment consecutive to the earlier sentence. If the appellant's approach is correct he will still serve half the sentence first passed, i.e. six months. He will then serve two-thirds of the long-term sentence, i.e. thirty two months. That makes a total of thirty eight months. If the two sentences are treated as one term that makes a total of sixty months of which he will serve forty months of which eight rather than six relate to his first sentence of imprisonment. This is a retrospective increase in his sentence; it is contrary to the clear principle that a prisoner should know when sentenced what his sentence is, and what is its practical effect. The latter, it is said, has been emphasised by the Practice Direction of 22 January 1998 in which Lord Bingham of Cornhill C.J. said: "In future, whenever a custodial sentence is imposed on an offender, the court should explain the practical effect of the sentence in addition to complying with existing statutory requirements." The statement in the Annex recommended to be used for a prisoner sentenced to a term of twelve months and less than four years will not give any indication that on aggregation of sentences the requirement to spend half the sentence in prison will be changed.

      Moreover, counsel submits, such a change in sentence cannot be justified by section 2(2)(a) of the Criminal Justice Act 1991 (as amended by section 66(2) of the Criminal Justice Act 1993) which provides that a custodial sentence not fixed by law shall be "for such term . . . as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it." Such a sentence on a different occasion is not for an associated offence within the meaning of section 31(2) of the Act of 1991. The position is quite different from the provisions in section 40 of the Act of 1991. By that section, if a prisoner released under Part II commits another offence during the period between his release and the date on which he would have completed the sentence actually passed on him in full, he may be returned to prison for a period not longer than the period equal in length to the period between the date when the new offence was committed and the date on which he would have served his sentence in full. There a wholly new offence is committed. Here the period of the original sentence is extended for the offence for which he was initially sentenced. The former is, the latter is not, justified.

      There is, counsel argues, in practice no difficulty on the occasion of the second sentence in maintaining one earlier release date for the first sentence and a different one for the second. Such a course is necessary if an offender has been sentenced for one offence and then falls to be sentenced under section 45 as being in contempt of court where different periods of time to be spent in prison are prescribed from those under section 33.

      Admirably as these arguments have been put I cannot accept them. In the first place it seems to me that the language of section 51(2) is clear--terms of imprisonment whether consecutive or concurrent are to be treated as one term for the purposes of Part II of the Act; I do not think it is necessary or permissible to read in the words "but only if the sentences are imposed by the same court on the same occasion."

      Nor do I consider that the result of a prisoner being converted from a short-term prisoner to a long-term prisoner retrospectively increases "the sentence." What it does is to postpone the period of early release. It is to be noted in this regard that Part I of the Act is dealing with "Powers of Courts to deal with Offenders" including sentencing; Part II of the Act is headed "Early Release of Prisoners" and is dealing in section 33 not with what the court does but with what the prison authorities do on behalf of the Secretary of State. When they come to carry out the Secretary of State's duty to release a prisoner they must ask the question "is he now a short term prisoner or a long-term prisoner?" Section 51(2) for that purpose directs that consecutive and concurrent terms are to be treated as a single term. The total of those terms will tell them if the sentence is for four years or more or for a term of less than four years.

      It is true, as Mr. Fulford says, that the effect of the change of status, if his interpretation is not accepted, is that in some cases the total spent in prison is longer with aggregation than if the two sentences are not aggregated. But as Mr. Pleming has shown and as Mr. Fulford agrees, it can work the other way. I refer, without quoting, to the example given by Simon Brown L.J. in the Divisional Court in the present case.

      I do not think that any help is to be derived from the existence of section 45 of the Act of 1991 since it is dealing with limited and entirely different categories of offence.

      It is obviously desirable that a prisoner should be told the potential length of his imprisonment. There is no difficulty as I see it in a judge telling him on sentence that if, before the first sentence is completed, he is subsequently sentenced for a further offence, and that sentence brings the total sentence for both offences to four years or more, then he will have to serve two-thirds of the total sentence. This does not seem to me to violate the essential principle that a person should be told what he will serve. He will be told that it is half x being less than four years, unless the total becomes four years (y) when it will be two-thirds of y.

      It has been suggested that since the change of categorisation results in a longer time in prison that should be taken into account by the second judge when fixing the sentence for the second offence. Simon Brown L.J. and Curtis J. thought that this should happen. Dr. David Thomas in commenting on the Divisional Court judgment in the present case ([1997] Crim.L.R. 838, 839) commented that it will presumably be appropriate to allow some discount (in the name of the totality principle) in the later sentence to avoid injustice. I agree that justice in some cases may require this to be done. It will be a matter for the judge in each case to decide whether the sentence which he otherwise considers appropriate for the second offence should be reduced to allow for the fact that the prisoner will spend extra time in prison in respect of the first offence because the penalty on the second offence has converted him into a long-term prisoner.

      Then it is submitted that the effect of a change of category would amount to a violation of article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides:

     "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence . . . at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

      That article is of course not yet part of domestic law but it is said that it should be applied by analogy and that since domestic legislation in section 33 and section 51(2) of the Act of 1991 is ambiguous it should be construed in a way which conforms with the convention since that must have been Parliament's intention. The answer to this point in my opinion is the same as to the objection in principle that sentences cannot subsequently be increased. The sentence is not changed but because of the change in category due to a subsequent sentence a longer part of the original sentence will be spent in prison. As the European Commission of Human Rights held in an analogous case "such matters relate to the execution of the sentence as opposed to the 'penalty' which remains that of life imprisonment." (Hogben v. The United Kingdom, Application No. 11653/85, Commission decision of 3 March 1986).

      I do not think it is right to say as the appellant does that where three sentences, e.g. of six months, are aggregated (so that nine months falls to be served as a short term and twelve months as part of an aggregated four-year sentence for a long-term prisoner), it is still permissible to split up the aggregated sentences to see whether the six-month period has in reality been completed and that if such period has been completed there is no power to increase the sentence. On the contrary it seems to me that once the two sentences are aggregated if the total amounts to four years or more the offender becomes a long-term prisoner and he must be treated as such.

      Extensive passages have been cited from the speeches in your Lordships' House in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1997] 3 W.L.R. 492 in which the House held by a majority, and for a number of reasons, that the Home Secretary was not entitled in the exercise of his discretion under section 61 of the Criminal Justice Act 1967 (subsequently section 35(2) and (3) of the Criminal Justice Act 1991) to postpone the release on licence of a prisoner serving a mandatory life sentence beyond the period of fifteen years fixed by the Home Secretary's predecessor in accordance with the judges' recommendations. He relies in particular on passages such as:

     "The general principle of our law is therefore that a convicted criminal is entitled to know where he stands so far as his punishment is concerned. He is entitled to legal certainty about his punishment. His rights will be enforced by the courts": per Lord Steyn, at p. 517.

     "The minimum standard of fairness does not permit a person to be punished twice for the same offence. Nor does it permit a person, once he has been told what his punishment is to be, to be given in substitution for it a more severe punishment": per Lord Hope of Craighead, at p. 533

      I agree with both those passages. That case, however, was concerned with the exercise of a discretion by the Home Secretary and not with the performance of a duty laid on him by statute. In the present case what falls to be decided is the correct meaning of the words used in the statute. I do not consider that the decision in Ex parte Pierson alters what I have said in the present case in relation to the statutory provisions. As already made plain I do not consider the sentence is increased by the change of category, nor do I see any real difficulty in judges warning an accused that if he falls to be sentenced for other offences the fraction of the period which he serve will be increased from one-half to two-thirds if the total of the sentences aggregated is four years or more.

      In the Divisional Court Simon Brown L.J. considered that the point in this case had been decided in Reg. v. Governor of Brockhill Prison, Ex parte Evans [1997] Q.B. 443 dealing with concurrent sentences (see also Reg. v. Secretary of State for the Home Department, Ex parte Naughton [1997] 1 W.L.R. 118 dealing with consecutive sentences). Those cases were dealing with the question as to how time spent in custody on remand was to be treated but it is clear in Ex parte Evans that the Divisional Court accepted that the aggregation required by section 51(2) applies whether the sentences are imposed on the same or on different occasions. Whether or not the Divisional Court in the present case was bound by that decision (as the appellant contended) in my opinion the Divisional Court in Ex parte Evans on that point and the Divisional Court in the present case came to the right conclusion.

      Mr. Fulford attached importance to section 67(4) of the Criminal Act of 1967. Assuming as I think is right that the provision applies to sections 33 and 51(2) of the Act of 1991, it seems to me to do no more than to require that any reference to the length of a sentence of imprisonment be taken as a reference to the sentence passed by the court and not as the sentence reduced for the period spent in custody on remand. I do not consider that it has direct relevance to the question of construction to be answered in the present case.

       In Ex parte Naughton it is to be noticed that the court referred to the problems involved in computing the reduction for time spent in custody on remand and referred to Ex parte Read (1987) 9 Cr.App.R.(S.) 206, 209 and Ex parte Woodward and Wilson ((unreported), 24 June 1996 DC) where the need for legislation to deal with the law relating to sentences was referred to. This was stressed forcefully by the Divisional Court in Ex parte Evans where the hope was expressed "that this may be seen as a task commanding a high degree of priority."  Our attention was drawn in argument to the Crime (Sentences) Act 1997 which by section 56(2) and Schedule 6 repeals sections 33 and 51 of the Act of 1991 but provides that, subject to the provisions of Schedule 5 to the Act, they shall continue in effect in relation to persons sentenced to determinate sentences of imprisonment for offences committed before Chapter I of Part II of the Act of 1997 is brought into force. This Act provides a new system of release on specified grounds rather than automatically at the expiry of a fraction of the term of the original sentence, the distinction between long-term and short-term prisoners being removed. This Part of the Act of 1997 is not yet in force and their Lordships have not been told whether or when it will be brought into force. It must therefore be ignored for the purposes of the present case.

      The position as to the need for a clear statutory framework in respect of sentencing remains as stated in the judgments to which I have referred with which statements I agree.

      The certified question, therefore, falls to be answered in the affirmative and I would dismiss this appeal.


My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons he gives I would answer the certified question in the affirmative and dismiss the appeal.


My Lords,

      I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons which he has given I also would answer the certified question in the affirmative and dismiss the appeal.


My Lords,

      I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons he gives I would answer the certified question in the affirmative and dismiss the appeal.


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