R (on the application of Stellato) (Respondent) v. Secretary of State for the Home Department (Appellant)
20. The 1991 Act, as amended by the 1998 Act, provided that where a prisoner was released on licence and then recalled, his further release at the three quarter point was to be on licence for the rest of his sentence. This was effected by section 104 of the 1998 Act which amended section 33(3) so as to preserve the prisoner's absolute right to release at the three quarter point but to make that release subject to licence rather than unconditional. Section 37 (under the heading "Duration of licences") was correspondingly amended to provide that in such a case the licence was to remain in force for the whole of the sentence.
21. That new regime, however, was not to operate retrospectively. It was to apply only to those whose offending post-dated its coming into effect. It accordingly did not apply to this respondent whose offences were committed before 30 September 1998.
22. The 2003 Act introduced a very different regime. Long-term prisoners (indeed most prisoners) must now be released at the halfway point (section 244) but never unconditionally, always on licence until the end of their sentences. Section 249 (the counterpart to section 37 of the 1991 Act), under the heading "Duration of licence", provides that "the licence shall, subject to any revocation under section 254 , remain in force for the remainder of [the] sentence." Section 254 (the counterpart to section 39 of the 1991 Act), under the heading "Recall of prisoners while on licence", provides by subsection (1) that "the Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison" and then makes provision for the Parole Board to become involved at that stage. Section 256 makes provision for a prisoner's "Further release after recall."
23. The new regime under the 2003 Act came into effect, as stated, on 4 April 2005. Pursuant to the Act there was made on 24 March 2005 The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (SI 2005/950(C 42)) ("the 2005 Order") which, by paragraph 19 of Schedule 1, brought into force the relevant provisions of the 2003 Act and, by Schedule 2, made certain saving and transitional provisions relating to them.
24. It is necessary to set out in full paragraphs 19 and 23 of Schedule 2, the provisions at the heart of this appeal:
Before turning in some detail to these provisions it is convenient to note both the central difference between the parties as to their true construction and effect, and how the point arises on the facts of the case.
25. The critical question raised is as to the effect on a prisoner whose offence was committed before 4 April 2005 (a pre-Act offender as I shall call him) of a recall after 4 April 2005 (a post-Act recall as I shall call it) from release on licence (a recall which in the case of those like the respondent must by definition occur before the three quarter point of the sentence). It is the Secretary of State's contention that such a recall operates without more to extend the duration of the prisoner's licence and his period at risk from the three quarters point (at which he would otherwise have been entitled under the 1991 Act to unconditional release) to the end of his sentence. The respondent submits to the contrary that, whilst clearly any post-Act recall would now be effected in the way provided for by section 254 of the 2003 Act (under the transitional arrangements for recall set out in paragraph 23 of the second Schedule), that cannot affect the duration of his licence which remains as provided for by section 37 of the 1991 Act.
26. The point here arises on the facts because, having initially been released on licence on 17 February 2005 at the two thirds point of his sentence (under section 33(2) of the 1991 Act), (and then been released again on 16 June 2005 following his recall in February 2005 under section 39 of the 1991 Act for failing to reside at a designated hostel), the respondent was again recalled to custody on 11 August 2005 (this time, the parties agree, under section 254 of the 2003 Act), following the revocation of his licence by the Secretary of State on 1 August 2005 for failing to comply with the hostel's curfew arrangements.
27. Although those are the only facts strictly material to the determination of this appeal, the subsequent course of events may be shortly recorded. On 4 October 2005 the Parole Board upheld the recall to custody and (under section 256(1)(b) of the 2003 Act) directed a further review in April 2006. On 24 October 2005 the Parole Board issued a further decision (in substitution for the previous one) directing that the respondent be released at the three quarter point of his sentence on licence until the end of his sentence (under section 256(1)(a)). On 31 October 2005 the respondent commenced judicial review proceedings claiming that he was entitled to be released from custody unconditionally at the three quarter point of his sentence, 27 December 2005. On 23 December 2005 (the last working day before the three quarter point) the respondent was released on licence under section 256. On 28 December 2005 the Secretary of State again revoked the respondent's licence under section 254, this time for refusing to comply with the conditions of a licence to which, on his case, he should not have been made subject. On 6 January 2006 he was arrested and returned to prison where he has since remained.
28. On 31 March 2006 the Divisional Court (Hallett LJ and Jack J)  EWHC 608 (Admin) dismissed the respondent's judicial review application, holding that his release on 23 December 2005 was properly subject to a licence which would continue until the final expiry of his sentence on 26 June 2008.
29. On 1 December 2006 the Court of Appeal (Longmore, Scott Baker and Hughes LJJ) allowed the respondent's appeal and held that his release became unconditional at the three quarter point of his sentence on 27 December 2005 so that there was no power to recall him to prison thereafter: see  EWCA Civ 1639;  1 WLR 608.
30. The respondent has nevertheless since remained in custody pursuant to a stay granted initially by the Court of Appeal and thereafter continued by your Lordships to enable the Secretary of State to pursue his appeal to the House.
31. At the conclusion of the argument before the House on 22 February 2007 your Lordships indicated that the Secretary of State's appeal was to fail and would be formally dismissed on 28 February for reasons to be given thereafter.
32. It is time finally to return in detail to the two critical provisions, paragraphs 19 and 23 of Schedule 2 to the 2005 Order. Paragraph 19, as its heading states, is expressly aimed at saving the position of pre-Act offenders. These offenders are not, it should be noted, the beneficiaries of various advantages conferred on prisoners by the 2003 Act, most obviously perhaps an entitlement (as opposed to mere eligibility) to release at the halfway point. It is hardly surprising that they should therefore be safeguarded against newly introduced disadvantages, quite apart from the fact that such disadvantages are not generally introduced retrospectively. Paragraph 19 achieves this in their cases by disapplying certain provisions of the 2003 Act and by preserving (disapplying the repeal of) certain provisions of the 1991 Act.
33. Most notably for present purposes, paragraph 19(a) disapplies section 249 of the 2003 Act and correspondingly paragraph 19(c) preserves section 37 of the 1991 Act. These, as already explained, are the sections which directly concern the duration of licences under the respective parole regimes. Section 37 states in terms that the licence remains in force "until the date on which [the prisoner] would (but for his release) have served three quarters of his sentence." Section 249 by contrast states that the licence shall remain in force "for the remainder of his sentence". On the face of it nothing could be clearer than that paragraph 19 was intended to preserve for pre-Act offenders the shorter licence period applicable under the 1991 Act.
34. The Secretary of State's argument is that such indeed is the position with regard to pre-Act offenders who are not recalled after the coming into force of the 2003 Act. But, he argues, if they are recalled, then any further release is on licence up to the end of their sentence. Such further release takes place pursuant to section 254 or section 256 of the 2003 Act (which are not disapplied by paragraph 19(a)). These two sections provide for "release on licence under this Chapter". Chapter 6 includes section 249 and thus, runs the argument, notwithstanding its express and apparently unqualified disapplication in the case of all pre-Act offenders, section 249 operates to extend their licenses on re-release to the full length of their sentence if recalled after Chapter 6 came into force. The argument is not an easy one. I hope I have done it justice. As Scott Baker LJ pointed out in the leading judgment in the court below, its effect is to qualify the apparently plain effect of paragraph 19 and require it to be read as if it ended with the words "except where he is recalled on or after that date under section 254 of the 2003 Act."
35. Before turning to paragraph 23 it should be noticed that paragraph 19(c) does not preserve section 39 of the 1991 Act (the recall provision) (although paragraph 23(3) in terms provides that the repeal of section 39 is to be of no effect in cases where the recall process has already been started by the Parole Board).
36. On any view the drafting of paragraph 23 leaves much to be desired. Paragraph 23(2) (not otherwise of any interest on this appeal) remarkably contains two obvious mistakes: the date of the Crime and Disorder Act is 1998, not 1988, and the reference to a "sentence" being committed should instead be to an "offence". The opening clause of paragraph 23(1) has likewise caused problems: it was decided by the Court of Appeal in Buddington v Secretary of State for the Home Department  EWCA Civ 280 (27 March 2006) that the words "falls to be released" mean "is entitled to be released" or "is released". Meantime, and consistently, the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (Supplementary Provisions) Order 2005 [SI 2005/2122], made on 29 July 2005, stated "for the avoidance of doubt" that the reference in the 2005 Order to a prisoner who falls to be released "is to be read as including a prisoner who was released before 4 April 2005 and the words 'after 4 April 2005' are to be read only as indicating the date from which sub-paragraphs (a) and (b) of that paragraph take effect."
37. In short, sub-paragraphs (a) and (b) of paragraph 23(1) apply after 4 April 2005 to the recall of pre-Act offenders whether or not released before that date.
38. Section 254(1) of the 2003 Act on its face empowers the Secretary of State to revoke the licence of, and recall to prison, only "any prisoner who has been released on licence under this Chapter." Paragraph 23(1)(a) operates to extend that reference to include also those prisoners released on licence under the 1991 Act. Clearly this was necessary given that, as already explained, section 254 was to govern the recall process in all cases after 4 April 2005.
39. Section 37(1) provides that the licence of a prisoner released under the 1991 Act remains in force until the three quarter point "subject to any revocation under section 39". Because section 254 was to apply in all cases, it was likewise necessary for paragraph 23(1)(b) to provide that that reference to revocation in section 37(1) should be treated as a reference to revocation under section 254. Similarly with regard to the references to revocation in sections 44(3) and (4) (provisions dealing with extended sentences and accordingly of no present relevance).
40. This brings me to the Secretary of State's final argument on the construction of these paragraphs, an argument based on what Mr Pannick QC submits is the conspicuous omission from paragraph 23(1)(b) of any mention of section 33(3) of the 1991 Act. Section 33(3), it will be remembered, required a prisoner released on licence and then "recalled to prison under section 39" to be released at the three quarter point of his sentence (unconditionally in the case of pre-1998 Act offenders like the respondent). But, submits the Secretary of State, section 33(3) is concerned only with the re-release of prisoners recalled under section 39 of the 1991 Act. Once, as provided for by paragraph 23, recall after 4 April 2005 and any further release thereafter came to be governed by sections 254 and 256, then any re-release was to be effected under the new regimein every case, therefore, subject to licence until the end of the sentence. The reference to section 33(3), it is suggested, was deliberately omitted from paragraph 23(1)(b) because it was not intended to apply in post-Act recall cases. The argument, of course, reflects that already outlined in paragraph 34 above. Once again I hope to have done it justice.
41. I understand the respondent to accept that paragraph 23(1)(b) ought properly to have included reference to section 33(3)his argument being that its "omission was entirely accidental and merely a further reflection of the poor drafting" in the 2005 Order.
42. To my mind the likeliest explanation for section 33(3)'s omission from paragraph 23(1)(b) is that it contains no "reference to revocation under section 39": the reference is rather to the prisoner having been "recalled under section 39" (in each case my emphasis). Nevertheless it would have been better for the draftsman to provide (perhaps in an additional sub-paragraph) that section 33(3)'s reference to recall under section 39 should be treated as a reference to recall under section 254 (which uses the omnibus expression "revoke his licence and recall him to prison").
43. Whatever be the explanation, however, the omission cannot begin to bear the weight the Secretary of State seeks to put upon it. In the first place, section 33 is expressly preserved in the case of pre-Act offenders by paragraph 19(c) of the Schedule. Secondly, and most importantly, section 37 (the section expressly governing the duration of the licence) is similarly preserved by paragraph 19(c) and this section is mentioned in paragraph 23(1)(b). Thirdly, the longer one considers the scheme of this part of Schedule 2, the plainer it becomes that paragraph 23 is concerned only with the process of recalling and re-releasing prisoners on licence and not in any way with the duration of their licences and the point at which they become entitled to unconditional release. Of course under these "transitional arrangements" sections 254 and 256 will be operated in the case of pre-Act offenders in the same way as for every other recalled prisoner and the Secretary of State and Parole Board will discharge their respective duties and exercise their respective powers as the Act provides. But their powers extend only to the point where the prisoner is entitled to an unconditional release and, as paragraph 19 makes abundantly plain, the rights of pre-Act offenders are in that critical respect saved.
44. Although these provisions are, indeed, somewhat opaque and ill-drafted, their intended effect is in the last analysis quite clear. The new scheme for recalling and re-releasing prisoners was to come into immediate effect for everyone: no longer was the Parole Board to be primarily responsible for initiating a prisoner's recall by making a recommendation under section 39(1), the Secretary of State's power being limited by section 39(2) to urgent cases where it was impracticable to await a recommendation. Henceforth recall was to be solely for the Secretary of State. Pre-Act offenders were not, however, to be disadvantaged by the new parole regime, in particular with regard to the effective length of their sentences and the period for which they were to be at risk of recall after release on licence. Nor is any of this in the least surprising. The more stringent regime introduced by the 1998 Act was, as already explained, to apply only to those offending after September 1998. And this, as Scott Baker LJ pointed out at paragraph 15 of his judgment, "is consistent with the longstanding principle that existing prisoners should not be adversely affected by changes in the sentencing regime after their conviction." The learned Lord Justice also drew attention to the practice direction issued by Lord Bingham of Cornhill CJ on 22 January 1998 (Practice Direction (Custodial Sentences: Explanations)  1 WLR 278) directing that defendants be told the effect of the sentence passed upon them. In the respondent's case this would have required that he be told: "After your release you will also be subject to supervision on licence until the end of three-quarters of the total sentence."
45. The result for which the Secretary of State contends would, in short, be a surprising one, unlikely to have been intended by the legislation. And if it were intended, one would expect it to have been enacted in the clearest of terms. So far from that being the case here, all the indications are, as I have sought to explain, strongly to the contrary.
46. Mr Pannick told your Lordships that 16 pre-Act offenders are in the same position as the respondent, in prison for breaches of licence conditions beyond the three quarter point of their sentences; and that 60 more, albeit at liberty, are wrongly still subject to licence conditions despite having served three quarters of their sentences. This judgment will affect them too and, indeed, all those who have been and continue to be sentenced for offences committed before 4 April 2005.