Release times of long-term prisoners - Times Law Report

From The Times
March 16, 2007
Release times of long-term prisoners

House of Lords

Published March 16, 2007

Regina (Stellato) v Secretary of State for the Home Department

Before Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Carswell and Lord Brown of Eaton-under-Heywood

Reasons March 14, 2007

A long-term prisoner, sentenced for offences committed before September 30, 1998, who was released on licence and recalled to prison after April 4, 2005, was entitled to be released unconditionally at the three-quarter point of his sentence under the provisions of the Criminal Justice Act 1991.

The House of Lords so stated when giving reasons for dismissing, on February 28, 2007, the appeal of the Secretary of State for the Home Department from the Court of Appeal (Lord Justice Longmore, Lord Justice Scott Baker and Lord Justice Hughes) ( The Times December 1, 2006, [2007] 1 WLR 608) which allowed an appeal by the claimant, Paul-Christian Stellato, from the dismissal by the Queen’s Bench Divisional Court (Lady Justice Hallett and Mr Justice Jack) (unreported [2006] EWHC 608 (Admin)) of his claim for judicial review of the Home Secretary’s decision purporting to recall him to prison for breach of licence after his release at the three-quarter point of his sentence.

Mr David Pannick, QC and Mr Parishil Patel for the Home Secretary; Mr Keir Starmer, QC and Miss Phillippa Kaufmann for the claimant.

LORD BROWN, referring to the core features of three successive statutory regimes as they applied to long-term determinate sentence prisoners, said that under the Criminal Justice Act 1991 eligibility for release on licence, parole, came at the halfway point at the Home Secretary’s discretion on the Parole Board's recommendation: section 35(1).

At the two-thirds point the prisoner became entitled to parole (section 33(2)); at the three-quarter point he was entitled, if then in custody, to unconditional release (section 33(3)) and if on parole his licence expired at that point (section 37(1)); section 39 provided for recall while on licence: either on the board’s recommendation or by the Home Secretary in cases of urgency.

Amendments to sections 33(3) and 37, by section 104 of the Crime and Disorder Act 1998, providing 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, were not retrospective. Accordingly they did not apply to the claimant whose offences were committed before September 30, 1998.

His Lordship said that the regime introduced by the Criminal Justice Act 2003, coming into effect on April 4, 2005, was very different.

Long-term prisoners had to be released at the halfway point (section 244) but never unconditionally, always on licence, subject to revocation, until the end of their sentences (section 249); section 254 provided for revocation and recall by the Home Secretary; and section 256 for further release after recall.

The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order (SI 2005 No 950 (C42)) brought into effect the relevant provisions and made certain saving and transitional provisions relating to them.

Paragraphs 19 and 23 of Schedule 2 lay at the heart of the appeal: the critical question was as to the effect on a prisoner whose offence was committed before April 4, 2005 (a preAct offender) of a recall after that date (a postAct recall).

Paragraph 19 was expressly aimed at saving the position of preAct offenders, in particular, by disapplying section 249 of the 2003 Act and preserving section 37 of the 1991 Act, thus retaining the shorter licence period applicable under the 1991 Act.

The Home Secretary contended that that was the position of preAct offenders who were not recalled after the 2003 Act came into force; but that if they were recalled, any further release under section 254 or 256 was on licence until the end of their sentences.

Those two sections, neither of which was disapplied by paragraph 19, provided for release on licence under Chapter 6 which included section 249 which operated to extend their licences on rerelease to the full length of the sentence if recalled after that Chapter came into force.

His Lordship said that paragraph 23(1)(a) and (b) applied after April 4, 2005 to the recall of preAct offenders whether or not released before that date.

Section 254(1) empowered the Home Secretary to revoke the licence of, and recall to prison, only any prisoner released under that Chapter; paragraph 23(1)(a) extended that reference to prisoners released on licence under the 1991 Act.

Because section 254 was intended to apply in all cases paragraph 23(1)(b) provided that reference to revocation in section 37(1) should be treated as a reference to revocation under section 254.

The Home Secretary, basing his argument on the omission from paragraph 23(1)(b) of any mention of section 33(3), submitted: (i) that section was concerned only with rerelease of prisoners recalled under section 39 of the 1991 Act; (ii) that once, as provided by paragraph 23, recall after April 4, 2005 and any further release came to be governed by sections 254 and 256, any rerelease was to be effected under the new regime: in every case subject to licence until the end of the sentence; and that omission of reference to section 33(3) was deliberate because it was not intended to apply in postAct recall cases.

His Lordship rejected that argument. Whatever the explanation, the omission could not bear the weight the Home Secretary sought to put on it: section 33 was expressly preserved in the case of preAct offenders by paragraph 19; section 37 was similarly preserved and was mentioned in paragraph 23(1)(b).

Paragraph 23 was plainly concerned only with the process of recall and rerelease on licence and not in any way with the duration of licences; under the transitional arrangements sections 254 and 256 would be operated in the case of preAct offenders in the same way as for every other recalled prisoner; but the rights of preAct offenders were preserved in the critical respect of their entitle-ment to unconditional release, as paragraph 19 made plain.

The new recall and rerelease scheme was to come into immediate effect for everyone; henceforth recall was to be solely for the Home Secretary; but preAct offenders were not to be disadvantaged, 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.

The more stringent regime introduced by the 1998 Act was to apply only to those offending after September 1998. That was consistent with the long-standing principle that existing prisoners should not be adversely affected by changes to the sentencing regime after their conviction.

Lord Bingham, Lord Hoffmann and Lord Carswell agreed; Lord Hope delivered an opinion concurring in the result.

Solicitors: Treasury Solicitor; Bhatt Murphy.