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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Page, R (on the application of) v Secretary of State for Justice [2007] EWHC 2026 (Admin) (15 August 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2026.html Cite as: [2007] EWHC 2026 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15th August 2007

1. MR JUSTICE COLLINS: This is an application for permission for judicial review ordered to be listed as what is described as a rolled up hearing; that is to say that if permission is granted then the substantive claim will be heard immediately. I grant permission. It is perfectly clear, and I do not think the contrary has really been suggested, that the point is arguable and accordingly I dispense with all further procedural requirements and treat this as the hearing of the claim.
2. The claimant is a prisoner and what he is seeking is review of a decision of the Secretary of State, taken through the relevant official in the prison service, not to exercise the royal prerogative to allow his release at a stage that is now some six weeks or so before the date when he would otherwise, as a matter of law and true construction of the relevant statutory provisions, be released. The background is somewhat complicated and it led to a mistake, and in my view a most understandable mistake, made by the relevant official in the prison service as to the correct date of release for this particular claimant and the difficulties have arisen as a result of the imposition upon him of a number of different sentences resulting from criminality on different occasions, some of which were ordered to run consecutively to the initial sentence imposed, which was four years for robbery. Subsequently the Court of Appeal quashed that conviction and it is that that has led to the difficulties in this case.
3. I should set out briefly the relevant background. On 23rd January 2002, the claimant was convicted of robbery at the Nottingham Crown Court and received a sentence of four years' imprisonment. On 8th March, he escaped from custody. In fact, he engineered his escape from a Magistrates' Court, to which presumably he had been taken as a result of a charge of an offence which had been committed before he was sent to prison for the robbery, and indeed he had, it is clear, committed other offences. The escape was in circumstances which led in due course to further convictions and were serious indeed. They are described in the judgment of the Court of Appeal on hearing an appeal against sentence imposed for his conduct during the escape. What happened, very briefly, was that he had a toothbrush with a razor blade inserted in it and he threatened a police officer (a custody officer, who was a lady) with that, holding it to her face and indicated that if he was not allowed to escape he would cut her and he, in due course, as a result of that conduct, was able to escape. He was apprehended on 3rd July 2002 and on the next day he was sentenced by a Magistrates' Court in London to five months' imprisonment consecutive to the four year sentence for a number of driving offences. Then, on 28th February 2003, he was sentenced to a total of six years' imprisonment, which was ordered to run consecutively to the four year sentence for his conduct in relation to the escape. There was a concurrent sentence of three years imposed for another offence at the same time. It is not clear from the history that I have whether that was also consecutive to the five months, which itself was consecutive to the four years, but from the charts that I have been provided with and the various calculations it appears that it was. The result of all that was that he was subject to a sentence of ten years and five months because the law requires that all sentences are aggregated and release dates are calculated on the basis of that aggregated period.
4. So far perhaps so good but there was a further sentence because, on 3rd April 2003, he was sentenced to 18 months' imprisonment but that was ordered to run concurrently with the sentences that he was already serving. The result of that was that, on the face of it, that 18 months sentence ran from the date that it was imposed, namely 3rd April. I was told by Mr Sachdeva, or rather he was instructed, that that would have had the effect somehow of advancing by an small amount the release date on the six year sentence, or rather the total sentence which was imposed. I am bound to say that I think both he and certainly I were somewhat surprised at that information but it has not been necessary for me to go into it. Suffice it to say that, in relation to the issue which I have to decide, I do not think that the 18 month sentence has any material effect, save that of course it means that as from 4th April, on any view, he was serving a sentence and was in custody for a matter for which he fully deserved to be in custody.
5. Then, on 30th July 2003, the robbery conviction was quashed, it seems on the basis that the judge should have, but failed to, give a proper alibi direction. The result of that, of course, was that he had served a time in prison based upon the four year sentence which he should not have served had he not been convicted as ought to have been the position. However, the law is clear that he cannot obtain any direct advantage from that because it was a lawful sentence, he was lawfully in custody whilst he was serving it and it is not a matter that is capable of being taken into account against the ultimate sentence that was imposed for whatever offence had been committed. Attempts to suggest in an earlier case, not in a case involving this appellant, that that could happen, have failed and rightly failed because clearly the period in custody that could be taken into account against a sentence imposed is a period in custody on remand in relation to that offence and not a period in custody in relation to other matters.
6. Accordingly, he was not able, as a result of that quashing, to get any direct benefit. However, it meant that there was no outstanding sentence to which the six year sentence could run consecutively. The five months which had been imposed by the Magistrates' Court would have been served by then in any event. That being so, it appears to have been assumed by whomever was responsible in the prison service for assessing the proper release date that the six year sentence should be deemed to have started on 28th February 2003, that is to say the date on which it was imposed, because the four year sentence had, as a result of the allowing by the Court of Appeal of the appeal against conviction, disappeared. That being so, the date of his release was told to him as 28th February 2007. That is two thirds of the six year sentence and that would indeed be the date upon which he would have to be released had it been imposed to run from the time it was imposed and if there were no time in custody spent on remand in relation to it which fell to be taken into account. That was the information which was provided to him a few days after his appeal against conviction had been allowed and that was the date that he believed, and indeed continued to be told, was the appropriate date until February 2007, a few days before that date became effective. In the meantime, in November 2003 his appeal against the six year sentence was dismissed by the Court of Appeal. By then the Court was aware that the four year sentence had been quashed. The argument put before the Court of Appeal is recorded in its judgment. I have a copy of the transcript, and its number is [2003] EWCA Crim 3156. Davis J, who gave the judgment of the court, records in paragraph 9:

"There is nothing in the point which Mr Barlow [who represented the claimant] has made in his written submissions that the judge erred in principle in imposing a longer than commensurate sentence to run consecutively with the sentence previously imposed. The argument in fact has a certain unreality about it given that the previous sentence has been quashed..."

Then it goes on in the next paragraph:

"Mr Barlow's principal submission before us today is that the judge wrongly took into account the recent conviction for robbery which has now been quashed. He submits that the judge therefore arguably was wrong to assess the applicant as a dangerous man and this factor may have wrongly influenced him in deciding on the total sentence of six years which he imposed.

In our judgment, however, considering the background of this applicant he can fairly and properly be described as a dangerous man, even if one removes from the equation the conviction, now quashed, of January 2002."

In fact he had a number of convictions recorded against him apart from those to which I have specifically referred.

7. What was not put before the Court of Appeal was the point that he had, as a result of the quashing of the conviction, served a period of imprisonment that he should not otherwise have been subjected to and Mr Sachdeva has submitted that that was a matter that could easily have been put to the court and it may well be that, had it been, the court could have taken it into account and might have been influenced by it. Having regard to the way the Court of Appeal approached the application (it was not in fact a full appeal), it may well be that that point would have got nowhere on the basis that the court clearly took the view that a sentence of six years was for the offending in question not at all too long. But it is right to recall that at that time the claimant believed that he was to serve two thirds of the six years calculated from the date upon which it was imposed, having regard to the quashing of the conviction and so the sentence for the robbery. Whether or not the Court of Appeal was under the same misapprehension is not clear. I think, without looking into the matter, I would have been prepared to assume that the calculation or the method of calculation adopted by the individual which led to the view that the six years would then run from the date it was imposed was a reasonable way to approach the matter. Since there was nothing to which the sentence could be consecutive, the sentence having disappeared, it would seem only fair and logical that the sentence should run from that date. Unfortunately, fairness and logic do not play a particularly large part in the present sentencing regime imposed by Parliament and I should say that there was a judicial review brought before Deputy Judge Nicholas Blake in which it was sought to argue that as a matter of law the original calculation was correct, namely that the release should have occurred on 28th February. Mr Blake decided, and Mr Southey tells me that there is an appeal -- I am not sure in being or contemplated but there may well be an appeal -- that as a matter of statutory construction the approach adopted by the decision-maker was wrong, that in fact the sentence of four years continued to exist until it was quashed on 30th July and therefore the date for commencement is not 2nd February but 30th July. Quite why that has led to a greater period than that between the end of February and the end of July, because the release date is now calculated as 30th September 2007, I am by no means clear but fortunately I do not need to go into that. Suffice it to say that that is the calculation which has now been decided is correct and that calculation has been upheld by Mr Blake as being a correct application of the relevant statutory provisions.
8. What Mr Southey submits is that in the circumstances the claimant was not able to put before the Court of Appeal the adverse effect upon his release date of the four year sentence, notwithstanding that it had been quashed, and had he been able to put that before the Court of Appeal it might have influenced them to reduce pro rata, or at least to reduce to some extent, the sentence of six years. Whether or not it would have done I do not know and I do not propose to speculate as to that. However, that I accept that it could have had an effect and that the claimant was not able in the circumstances to put it forward. I say not able; in theory, of course, those advising him could have checked the complicated statutory provisions and reached the conclusion that was contrary to that put forward by the prison service but it is, as Mr Southey submits, unrealistic to expect any counsel appearing for an appellant in those circumstances to undertake that sort of investigation. The result was that the Court of Appeal has decided the matter and that is the end of that. I say that is the end; it is not quite the situation because at least in theory there is a right to renew the application out of time, because this was not a dismissal of an appeal but a refusal of an application for leave to appeal. However, I think, realistically, it may well be that the view has properly been taken that if there is to be recourse to any means of achieving what the claimant submits is a fair result, it is through the exercise of the royal prerogative in the circumstances of this case.
9. Mr Blake, in his judgment, referred to that and encouraged the claimant to take that course. He clearly took the view that the claimant has been misled by the error of calculation and he said that there was a compelling case for that error to be addressed by the prerogative of mercy. He went on:

"It may well be that the exercise of the prerogative of mercy in that respect would also fit other policy considerations presently before the Secretary of State, but I make no comment about that."

I suspect he may have referred to prison overcrowding in those comments but they are not material.

10. In fact, the recalculation occurred when the claimant had been moved to Doncaster Prison shortly before his anticipated release date, because that was a prison near his home to which he would in due course be released, and indeed he was initially told, on 23rd February, that he was going to be released five days later. Whoever at Doncaster investigated the correct position discovered that the mistake had been made and that the true release date was actually -- I think it was then thought 1st October but it is now 30th September of this year. It is not difficult to imagine the distress that that caused to the claimant when only a very short time before what he had, ever since effectively the quashing of his conviction some time in August 2003, looked to as the date upon which he was due to be released.
11. It is common ground that the manner in which the prerogative of mercy is exercised is capable of being judicially reviewed. However, the prison service has by Prison Service Order 6650, which deals with sentence calculation and which runs to a very large number of pages, which perhaps reflects how complicated this exercise can be, dealt with what is described as special remission, which is remission whereby a part of the sentence is cancelled by the exercise of the royal prerogative of mercy. That is dealt with in chapter 13, and what is said so far as material is as follows:

"If a mistake in calculation which changes a prisoner's release date is found to have been made, immediate action must be taken to rectify it. If there is any doubt, the sentence calculation helplines in headquarters must be consulted before the release dates are changed."

Then 13.1.4:

"Where a prisoner has been given to understand for several months that he or she will be released on a date before the correct release date, consideration must be given to whether the sentence imposed should be served up to the correct release date or whether the period in question should be cancelled out by the exercise of the Royal Prerogative of Mercy (sometimes referred to as 'special remission'). The decision whether to seek the exercise of the Royal Prerogative in such cases must take account of the relevant circumstances, balancing the expectations or distress of the prisoner and his or her family against the obligations on the Prison Service to ensure that the sentence of the court is implemented. The Royal Prerogative cannot be exercised lightly: each case must be carefully considered on its individual merits."

Then we have a sentence which I criticised as being meaningless at 13.1.5:

"The issue that must be determined is whether public faith has been pledged to such an extent as to justify the validation of the incorrect release date."

It then goes on:

"Consideration must be given as to whether the relevant sentencing court should be consulted. Depending on the circumstances, the following factors may need to be taken into consideration:

1. The length of time the prisoner has been under a misapprehension

If the error is discovered and rectified soon after it was made, then the prisoner is unlikely to have suffered any substantial disappointment and special remission would not normally be granted. If, however, the mistake is not discovered until shortly before the date on which he or she expects to be released or the prisoner was given the date some time before being released then there may be a case for granting remission. There are no hard and fast rules; individual cases must be considered on their merits and in the light of precedents.

2. The extent to which the prisoner has made plans for release on the incorrect date

If the prisoner has no family or job to go to and the mistake results only in a measure of personal disappointment, without affecting his or her future plans, the case for remission is weakened. If, on the other hand, the prisoner has made domestic plans or has secured an offer of employment which may be lost if he or she is not released to take it up, the grounds for remission are stronger.

3. Whether the prisoner has deliberately withheld knowledge of the error..."

That does not apply here:

"4. The length of time or proportion of the sentence that would not be served

Only in very exceptional circumstances would a liability to serve more than 25% of the term imposed by the court or a period of more than 2 months be cancelled by exercise of the Royal Prerogative. Where, exceptionally, this is considered appropriate, the views of the sentencing court must be obtained."

That is all, I think, I need to quote.

12. It is to be noted that this is based upon a miscalculation of a sentence imposed by the court in circumstances where the miscalculation would result in the full sentence which the court had imposed not being served. It does not directly deal with a situation such as has arisen here where the error has resulted from the quashing of a conviction and so a sentence in respect of which other sentences have been imposed consecutively. Certainly, so far as the six year sentence is concerned, it may well have been considered by the Court of Appeal, although one cannot say for sure, and certainly would on the face of it have been the approach of the court that for that sentence he should serve two thirds which was the relevant provision in force at the material time. Accordingly, on one view, this is not a situation where the sentence of the court is not being implemented if the earlier date is regarded as the appropriate date. Of course, as a matter of statutory construction, it may well be that the effect of the court's sentence was as is now suggested, and certainly as Mr Blake has decided, and I have not been asked for the purposes of this judgment to go behind that decision. But that is a circumstance in this case which is not applicable generally and is undoubtedly a special factor. So far as the criteria are concerned, other than the plans for release in that the claimant has not a family or a job to go to, and so the release does not effect future plans in that sense, he qualifies under the other headings to which I have referred.
13. An application was made following a dismissal by Mr Nicholas Blake of that judicial review claim, that dismissal taking place on 5th July of this year. Initially, the matter was refused by a letter of 11th July by reference to the Prison Service Order 6650 and the author of the letter did not refer to Mr Blake's judgment or Mr Blake's comments. That was pointed out in a response by the claimant's solicitors of 12th July and indeed, as it seems to me, it is clear that that would have been a fatal flaw in the decision as at that date. However, there has been a subsequent reconsideration by the same official which has led to a letter of 10th August 2007 and it is that letter which forms the decision against which this challenge is brought. I say that because, although of course the challenge when instituted related to the earlier letter, it is accepted, and indeed it is obvious, that the matter must be considered in the light of that subsequent decision and it is that decision to which I now turn. It sets out the background. I have already done that and then it refers to Mr Blake's observations about fairness and it says:

"It is accepted that at the time of his appeal against the 6 year sentence Mr Page was under a misapprehension in regard to his correct release date. Although he was not denied the opportunity to ask the Court of Appeal to take into account the time he had spent in custody as a result of the quashed 4 year sentence (that argument was available to him in any event), he did lose the opportunity to argue that unfairness would result from the aggregation of his consecutive and concurrent sentences such that he would serve 7 months more than 6 years from the imposition of the 6 year sentence on 28 February 2003."

That, of course, is the crucial point. He then refers to the guideline factors to which I have already cited from 6650. The misapprehension had indeed existed for a very substantial time and so the first factor was clearly met and it was accepted that he was within the criterion set out that it should not be more than two months before the release date as a general approach. The point was made that his release plans have been unaffected, although of course he would have been no doubt very disappointed by the result. It would have had a damaging effect upon him. The letter then goes on to make the point that each case has to be considered on its individual merits and must balance the expectations or distress of the prisoner and his family against the obligations to ensure that the sentence of the court was implemented. It is also necessary to consider whether the decision supports the aims of protecting the public and assisting the resettlement and rehabilitation of the prisoner.

14. I am, I am bound to say, concerned about the reference there made to the obligations to ensure that the sentence of the court is implemented. As I have already indicated, it seems to me that account should have been taken of the fact that the sentence of four years had been quashed and the effect that that had upon the future release date. If there had been no error, and if he had been told from the outset that he was due to be released at the end of September rather than in February, then that matter could have been put before the Court of Appeal and that might have had an effect, because prima facie it is the Court of Appeal or, in other circumstances, where it is possible for the sentencing court to deal with the matter, for the fairness to be exercised then and any sentence adjusted to take account of what the court considers to be fair. But that opportunity has been lost in the circumstances of this case and to regard this as falling squarely within 6650 is to omit to take into account the very important consideration of the quashing of the conviction, not the effect that that would have upon the ability to take account of the time already served, but the effect that that had on the release date, and that was the crucial factor, the time to be served rather than the time which had been served, and it was that point which was not, as I say, before the Court of Appeal because it could not be put before the Court of Appeal because the claimant had been misled. Equally, it was not in my judgment properly taken into account in the terms of the decision that was made. Reference is also made there to the possible difficulties in making arrangements for his placement on release. I have received evidence that that can be and has been dealt with but that in itself would not be a reason for failing to exercise the prerogative. It might well be a reason for exercising it in a way which ensured that there was not an immediate release but only when the necessary arguments had been made, but it is put in the letter rather as, it would seem, a factor to be taken into account against the exercise of the prerogative of mercy at all. That, in my view, equally is not correct.
15. Reference is also made to his behaviour in prison, the fact that he has not undertaken the necessary work to address his sexual offending behaviour, as some of the convictions related to indecent assaults, and also the seriousness. Although seriousness of the offending is not specifically referred to in the letter, it is referred to by Mr Sachdeva as a relevant factor. These are matters which, he submits, can properly be taken into account in deciding on the exercise of the prerogative. As a general proposition, that is no doubt correct. They are factors which can be taken into account. This after all is the exercise of discretion by the Secretary of State and he is entitled to have regard to factors such as that. But in the circumstances of a situation such as arises in this case, it is difficult to see that they merit any great weight since he will in any event be released at the end of September, however dangerous he may be regarded as still being and whatever particular work he had or had not undertaken in prison to address his offending behaviour.
16. It is clear, as I have said, that there is jurisdiction to review the exercise of the prerogative of mercy. So much was decided by the Divisional Court in R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349. But at page 363, at letter E, Watkins LJ, giving the judgment of the court, said this:

"As originally framed, the applicant sought to attack the Home Secretary's application of long standing Home Office policy that a free pardon would not be granted unless he was satisfied that the person concerned was both morally and technically innocent of the crime. That disclosed an error of law, so it was argued, since it misunderstood the nature and effect of a free pardon. If that had remained the basis of the applicant's case we have considerable doubt as to whether the decision could have been reviewed on the basis contended for. We think that Mr Richards was probably right in submitting that the formulation of criteria for the exercise of the prerogative by the grant of a free pardon was entirely a matter of policy which is not justiciable."

17. That, of course, is not directly relevant in the sense that what Bentley's case concerned was a free pardon. We are not here concerned with a free pardon but with an exercise of the prerogative by releasing from prison at a time which was in advance of what the law provided to be the date of release. But the principle to be applied shows, in my view, that Mr Southey was correct in not attacking the criteria. The criteria set out are a proper indication by the Secretary of State as to the approach that he will adopt in exercising the prerogative. But they do make clear that all the circumstances have to be taken into account and that what are there set out are merely guidance in appropriate cases. As I have said, it seems to me that in the circumstances of this case there has been a failure properly to take account of the fact of the allowing of the appeal and the effect that that had on the release date, rather than in respect of any time which had already been served.
18. It seems to me that in the circumstances of this case it was indeed unfair that the claimant should not have the benefit of the earlier release date. I do not decide, because it is not necessary for me to decide, that without the misleading, without the giving of the expectation of an earlier release date than was proper, there might have been success. That I leave to a case which raises that point. But it seems to me that the crucial point here is that the claimant was led to believe that he would be released at the earlier date and he was not able as a result to put before the Court of Appeal the true position and that that has indeed led to unfairness and, quite independently of whether he could put it before the Court of Appeal, there is no question but that he meets the criteria set out in the service order, other perhaps than number 2 relating to the effect on any plans for release. But he suffered distress and the fact is that that is merely indicated as a matter which might weaken a claim which could otherwise be made.
19. In all the circumstances, I am satisfied that this is a rare case, and I emphasise that it is a rare case, and that the decision which was made was not one which can lawfully stand. In those circumstances I am prepared to make a declaration that in all the circumstances the matter should be reconsidered in light of the judgment that I have given. I do not think it is appropriate for me to direct that the matter should be dealt with by the exercise in favour of the claimant of the prerogative but I do say that it is difficult to see that there would be in the circumstances any good reason now for refusing to allow his release as soon as the necessary arrangements can be made.
20. Mr Southey, are you legally aided?
21. MR SOUTHEY: I am legally aided, my Lord.
22. MR JUSTICE COLLINS: Mr Sachdeva, I do not think you can resist an order for costs, can you, in the usual way?
23. MR SACHDEVA: My Lord, I do not think I can.
24. MR JUSTICE COLLINS: Then in that case, Mr Southey, you can have an order for costs and the necessary order for detailed assessment.
25. MR SOUTHEY: Thank you, my Lord.
26. MR SACHDEVA: Thank you very much, my Lord. My Lord, one other matter that I am being instructed to ask for and that is permission to appeal to the Court of Appeal on this matter.
27. MR JUSTICE COLLINS: This is a one-off case. It does not give rise to any point of principle. It is a case depending on its own facts. You will have to persuade the Court of Appeal. But you will have to go to the Court of Appeal immediately if you want to get any stay on the order.