Case No: C1/2010/1689
Neutral Citation Number: [2010] EWCA Civ 1115
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM HIGH COURT OF JUSTICE, 
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 8th September 2010

Before:

LORD JUSTICE PILL
LORD JUSTICE WILSON
and
LORD JUSTICE SULLIVAN
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Between:

	THE QUEEN on the application of WEBB	
Appellant	
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Secretary of State for JUSTICE	

Respondent	

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Mr D H Southey QC (instructed by Prisoners' Advice Service ) appeared on behalf of the Appellant.
Mr James Strachan (instructed by Treasury Solicitors ) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

1.	This is an appeal with the permission of Mitting J against his order dated 24 June 2010 dismissing the appellant's claim for judicial review of the respondent's decision that the early release provisions in section 33(1A) of the Criminal Justice Act 1991 ("the 1991 Act"), introduced by section 26 of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"), do apply to the appellant.  Subsection (1A)  provides that:

"As soon as a long term prisoner has served one half of his sentence, it shall be the duty of the Secretary of State to release him on licence."

2.	In his judgment dated 24 June 2010, [2010] EWHC 1714 (Admin), Mitting J rejected the submission made on behalf of the appellant that he was not entitled to benefit from subsection (1A) because the circumstances of his imprisonment fell within subsection 33(1B), which provides that:

"Subsection 1A does not apply to a long term prisoner if the offence or one of the offences in respect of which he is serving the sentence is specified in Schedule 15 to the Criminal Justice Act 2003 (specified violent offences and specified sexual offences)."

3.	If subsection (1A) does not apply to the appellant, subsection 33 (2) provides that: 

"As soon as a long term prisoner to whom sub section (1A) does not apply has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."

4.	Those listening to or reading this judgment might be wondering why any prisoner would wish to contend that the respondent was under a duty to release him at the two-thirds rather than the halfway stage of his sentence.  They might also be asking how it comes about that a prisoner is able to obtain the answer to what should be a relatively simple question, when is he entitled to be released from prison, only by going to the Court of Appeal with the permission of a High Court judge.  The answer to the second question is, as the judge said, the complexity of the statutory scheme which has been introduced by way of statutory amendments, reamendments and yet further amendments over the last 20 years or so.

5.	In order to answer the question raised in the appellant's judicial review claim, it is necessary to consider the provisions of the 1991 Act as enacted and as amended by the 2008 Act, the Criminal Justice Act 2003 ("the 2003 Act"), which specifies violent and sexual offences, and the Powers of the Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"), section 116 of which confers power on the courts to order prisoners who have been released early to be returned to prison if they re-offend whilst on release before the end of their sentence.

6.	The relevant provisions of section 116 are as follows: 

"(1) This section applies to a person if – 

(a) he has been serving a indeterminate sentence of imprisonment which he began serving on or after 1st October 1992; 

(b) he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners); 
(c) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment ("the new offence"); and 
(d) whether before or after that date, he is convicted of the new offence. 

(2) subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which – 

(a) begins with the date of the order; and 
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(c) above. 
…
(6) The period for which a person to whom this section applies is ordered under subsection (2) or (4) above to be returned to prison – 

(a) shall be taken to be a sentence of imprisonment for the purposes of Part II of the Criminal Justice Act 1991 and this section 
(b) shall, as the court may direct, either be served before and be followed by, or be served concurrently with, the sentence imposed for the new offence; and (c) in either case, shall be disregarded in determining the appropriate length of the sentence. 
…
9) For the purposes of sections 9 and 10 of the Criminal Appeal Act 1968 (rights of appeal), any order made in respect of a person by the Crown Court under subsection (2) or (4) shall be treated as a sentence passed on him for the offence for which the sentence referred to in sub section (1) above was passed."

7.	I should also mention section 51(2) of the 1991 Act, the interpretation section of Part II of that Act, which provides that:

"(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 if --

(a) the sentences were passed on the same occasion; or (b) they were passed on different occasions, the person has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions."

8.	Against this statutory background the answer to the first question is as follows. On 19 June 1997 the appellant was sentenced to ten years’ imprisonment for an offence of attempted rape.  At some stage before 5 November 2004 he was released.  We do not know the date on which he was released or whether his release was automatic or as a result of a recommendation by the Parole Board.  That is of no consequence because it is common ground that his release at some time prior to 5 November 2004 was lawful.

9.	On that date he committed an offence of burglary.  The sentence of ten years’ imprisonment for attempted rape still had 533 days to run.  On 31 August 2005 the appellant was sentenced at Swindon Crown Court to seven years’ imprisonment for the offence of burglary.  That sentence was subsequently reduced on appeal to six years.  The Crown Court also exercised its powers under section 116 of the 2000 Act and ordered that the appellant be returned to prison for 533 days, the maximum period specified by section 116, to be served before his seven (reduced to six) year sentence.  

10.	The respondent considered that section 33(1A) applied to the appellant, and he was released on 2 April 2009 at the halfway point at what I will call for convenience the “combined sentence” imposed by Swindon Crown Court (returned to prison for 533 days followed by six years’ imprisonment).  The appellant was recalled to prison on the same day for breach of the terms of his licence on release.  He had refused to accept those conditions.  If the respondent is correct and section 33(1A) applies to the appellant, then following his recall, he can lawfully be detained until the end of the combined sentence, which the judge was told is 10 June 2012.

11.	On behalf of the appellant, Mr Southey QC submits that the respondent erred in concluding that section 33(1A) applied to the appellant.  The appellant is a long-term prisoner, but subsection (1A) does not apply to him because "the offence or one of the offences in respect of which he is serving the [combined] sentence” is a specified offence in schedule 15 to the 2003 Act.  There is no dispute that attempted rape is a specified sexual offence in schedule 15.  Burglary is not a specified offence.  If subsection (1A) does not apply to the appellant, then he was entitled to be released at the two-thirds stage of the combined sentence on 30 June 2010.  If he then again declined to accept the conditions of his release licence, he would no doubt have been promptly returned to prison, but Mr Southey submits that he was entitled to be released on 30 June 2010 and to have the option of deciding whether or not to accept the licence conditions.

12.	The question is therefore whether the appellant is serving what I have described as the combined sentence in respect of the 1997 offence of attempted rape.  Mr Southey says that, yes he is, as to the 533 days for which he was ordered to be returned to prison under section 116.  Section 116(6) makes it clear that an order that the person be returned to prison under subsection (2) is to be treated as a sentence of imprisonment for the purposes of Part II of the 1991 Act (within which section 33 is contained). 

13.	 Mr Southey submits that there is no such thing as a freestanding sentence of imprisonment.  Sentences of imprisonment are imposed in respect of offences. That Parliament anticipated that prisoners would be serving sentences of imprisonment for offences is demonstrated, he submits, by the words "the offence or one of the offences" in subsection (1B).  In the present case there are only two offences, burglary and attempted rape.  The 533 days’ sentence of imprisonment was imposed in respect of the latter and not the former.

14.	The appellant accepted that the order for return to prison under section 116 was, by virtue of subsections 116(6) and (9), to be treated as a fresh sentence of imprisonment.  Mr Southey submitted that these deeming provisions were necessary because without them the order for return to prison would simply be a means of enforcing the original sentence. The deeming provisions required the order for return to be treated as a fresh sentence, but if one asked the question, in respect of what offence, the answer was the original offence of attempted rape because it was the sentence for that offence that was being enforced by the court under section 116.  

15.	In support of his submission that section 116 was a mechanism for enforcing the original sentence, Mr Southey relied on the decision of the original court in R v Worthing Justices ex parte Varney [1998] 1 WLR 819.  The issue before the court in that case was whether the magistrates had exceeded their powers by passing a sentence of imprisonment in excess of six months when they ordered that the applicant should have been returned to prison for 128 days under section  40 of the 1991 Act (the predecessor of section 116) and imposed a six-month consecutive sentence of imprisonment.  Rejecting the application for judicial review, Lord Bingham CJ, with whom Buxton J agreed, said at page 822 E-H: 

"The argument rests on two propositions.  First, when justices order the return of a defendant to prison they are imposing imprisonment or passing a sentence of imprisonment; and second, that section 133 prevails and has effect unless it is subject to derogation.  The first argument rests fairly and squarely on section 133 and the limits there provided of six months and 12 months.  Section 150(1)  however defines ‘impose imprisonment’ as ‘pass a sentence of imprisonment’. It is therefore necessary to ask: when the court orders that a defendant be returned to prison, is it passing a sentence of imprisonment.  In one sense it may, indeed, be said that it is, since it is making an order which returns the defendant to custody. 

There are, however, in my judgment a series of difficulties which arise in giving an affirmative answer to the question. First, when the court orders the return of a defendant to prison it is not in any ordinary sense passing a sentence of imprisonment but, in effect, reactivating a sentence from which the defendant has been prematurely released. The sentence in question is that the defendant is ordered to serve is, in truth, that which had been imposed by the first court on the first occasion.  

Secondly, section 40 only applies to short-term and long-term prisoners, that is, persons already sentenced to imprisonment whose sentences have not expired.  On return to prison such prisoners are continuing to serve their old sentences, not new sentences.  If, on returning to prison, they were serving new sentences, the effect would either be that they were not serving the old sentences or that they were serving two sentences for the same offence at the same time. It is in my judgment plain that, when returned, they are continuing to serve the old sentence."

16.	The appellant's submission has a superficial attraction, but, in agreement with Mitting J, I am not persuaded that it is correct. It is true that the end date for the calculation of the maximum return period under section 116 is defined by the date on which the prisoner would have served his original sentence in full:  see section 116(1)(c) and (2)(b).  In that limited sense there is a relationship between the original sentence and the order to return to prison.  However, that does not carry the argument very far because the other factor determining the maximum period of return is the date when the new offence is committed: ie for how long has the prisoner gone straight since his release from prison for the original offence.

17.	Mr Southey rightly accepts that an order to return to prison is deemed by section 116 to be a fresh sentence of imprisonment for the purposes of, inter alia, calculating the total length of the term of imprisonment and release dates and most importantly the right of appeal to the Court of Appeal Criminal Division.  Is that "fresh sentence" imposed in respect of the original offence: in the present case the offence of attempted rape? Although the question is one of statutory interpretation, the exercise is not one of semantics.  In attempting to ascertain Parliament's intention in enacting section 26 of the 2008 Act amending Section 33 in the 1991 Act, it is important to bear in mind that Parliament was not legislating in a sentencing vacuum.  The correct approach to the sentencing exercise under section 40 of the 1991 Act was well established.

18.	In R v SSHD ex parte Probyn [1998] 1 WLR 809 Rose LJ, giving the judgment of the court, said at pages 818 B-D:

"There is no authority to which we have been referred which deals with the considerations which the court should have in mind when deciding whether and how to exercise the powers conferred by section 40. It seems to us that the sentencing tribunal must, first, decide what is the appropriate sentence for the new offence so that it receives the sentence which it merits and the possibility of an order for return must at this stage be disregarded: section 40(4)(c).  In then considering whether an order for return should be made, it will usually be appropriate to have regard to the nature and extent of any progress made by the defendant since his release on licence and the nature and gravity of the new offence and whether it calls for a custodial sentence. It will also, as it seems to us, be necessary to have regard to totality, both in determining whether a return to prison should be ordered and whether such a period of return should be served before or concurrently with the sentence for the new offence and in determining, particularly if it is to be served before the new sentence, how long the return term should be."

19.	Mr Southey submits that the reference to totality makes it clear that the order to return cannot be imposed in relation to the new offence because, as Mitting J pointed out in paragraph 19 of his judgment:

"The principle of totality can only apply when two sentences or orders deemed to be sentences are imposed.  It can have no application when one sentence is being imposed for one offence, or one order is being made on the one occasion when nothing else is being taken into account."

20.	I see the force of that conclusion, not least because Probyn makes it clear that the first step of the sentencing exercise is to impose the appropriate sentence for the new offence regardless of the power to order return.  However, in my view Probyn is of assistance in determining the issue before us because it makes it clear not merely that a fresh sentence is imposed under section 116 but that that fresh sentence is imposed as a consequence of a wholly fresh sentencing exercise, an exercise which is not carried out "in respect" of the original offence.  

21.	In R v Lowe [2000] 1 WLR 153, Lord Bingham revisited his earlier judgment in Varney and in summary emphasised that his comments in that case were not intended to alter the effect of the statutory deeming provisions.  He endorsed the decision in Probyn insofar as it had not been reversed in part by section 102 of the Crime and Disorder Act 1998: see page 159 letters C-F. Subject to this qualification, the approach in Probyn to the fresh sentencing exercise under section 116 has been consistently followed: see for example R v Cox [2000] 2 Cr. App. Rep (S) 57, R v Griffiths [2000] 2 Cr.App.Rep (S) 224 and R v Martin [2002] 2 Cr. App. Rep (S) 112.  These authorities make it plain, and in my judgment it must have been plain to Parliament when enacting section 26, that the sentencing exercise under section 116 is not in ordinary language carried out "in respect" of the original offence.  An order for return under section 116 is not mandatory.  There must have been both an original offence and a new offence, but that is not of itself sufficient to require the making of an order for return.  Whether to order a person convicted of a new offence whilst on release before the end of the sentence for the original offence to be returned to prison is a matter for the court's discretion.  The court may order a return to prison for the whole or any part of the period which is equal to the period between the date of the new offence and the end of the sentence for the original offence.  Whether return is ordered, and if so whether it is ordered for the whole or part of that period, will be determined not by reference to the original offence, but in the light of the court's assessment of the person's conduct since his early release from the sentence for that offence.  Thus the court will consider such factors as the nature and seriousness of the new offence, the time that has elapsed since the person's release from the sentence for the original offence, and his conduct generally during that period.  Is the new offence an isolated lapse by a person who has been making strenuous efforts to go straight, obtaining employment, providing for a family etcetera, or is it part of a pattern of behaviour in which the person released has shown little or no inclination to go straight?

22.	If one asks the question, why has this prisoner been returned to prison by order under section 116, the answer is not because he committed the original offence, nor is it solely because he committed the new offence having previously committed the original offence, it is because, having committed a new offence, his overall conduct whilst on release from his sentence for the original offence, including but not limited to the new offence, has been such as to warrant ordering his return.  

23.	Mr Southey submits that the nature and seriousness of the original offence will still have been relevant for the purpose of this sentencing exercise.  The more serious the original offence, the more likely it is that the court will view more seriously the breach of any license conditions whilst on release.  I accept that the original offence will be relevant in that sense as a part of the historical background, but the focus for the purpose of the section 116 sentencing exercise is upon the prisoner's conduct, including the commission of the new offence, since his release from the sentence for the original offence.  The nature of the original offence may well influence the court's view of the prisoner's conduct after release, the seriousness of any breaches of licence conditions etc, but the focus is still upon the prisoner's subsequent conduct after his release.  

24.	It should not be assumed that Parliament enacted section 26 in ignorance of the well-established sentencing practice under section 116.  It is part of the factual matrix in which section 26 was enacted.  If one bears that practice in mind, it is not realistic in my judgment to say that, insofar as a part of his sentence of imprisonment consists of an order to return to prison, the prisoner is serving that part of his sentence "in respect" of the original offence. He is serving that part of his sentence "in respect" of an order under section 116 which confers a unique statutory power which is not exercised in respect of either the original or the new offence but in respect of the prisoner's conduct including the latter whilst on release from the sentence for the former.  

25.	Mr Southey submitted that the purpose of the exclusion in section 33(1B) was to exclude from the benefit of subsection (1A) a group of offenders who posed the greatest risk of harm, but that increased risk would have been taken into consideration in deciding whether, and if so when, the prisoner should be released early in the first instance.  Given the well-established context in which section 26 was enacted in 2008 I do not accept that Parliament intended that a prisoner in the appellant's position, whose original violent or sexual offence may well have been committed many years ago, should be excluded by section 33(1B) from the benefit of section 33(1A) when his conduct since his release from prison for that offence rather than the nature of that offence was the reason why he was ordered to return to prison under section 116.

26.	For these reasons, I for my part would dismiss this appeal.

Lord Justice Wilson :  
27.	I agree.

Lord Justice Pill:  
28.	I also agree.

Order: Appeal dismissed