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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HMP Drake Hall & Anor v Noone, R (on the application of) [2008] EWCA Civ 1097 (17 October 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1097.html Cite as: [2009] Prison LR 26, [2009] WLR 1321, [2009] 1 WLR 1321, [2008] EWCA Civ 1097, [2009] 1 All ER 494

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mitting

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2008

Lord Justice Scott Baker:

1. The problem with which this case is concerned is the correct calculation of a prisoner's earliest release date i.e. eligibility for Home Detention Curfew (HDC) and her licence period where she is sentenced to consecutive sentences in part governed by the Criminal Justice Act 1991 ("the 1991 Act") and in part by the Criminal Justice Act 2003 ("the 2003 Act").
2. The answer turns on the true construction of paragraph 14 of schedule 2 to the Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Savings Provisions) Order 2005 ("the 2005 Order"). This paragraph provides:

"Savings for prisoners serving sentences of imprisonment of less than 12 months.

The coming into force of sections 244 to 268 of, and paragraph 30 of schedule 32 to the 2003 Act, and the repeal of sections 33 to 51 of the 1991 Act, is of no effect in relation to any sentence of imprisonment of less than 12 months (whether or not such a sentence is imposed to run concurrently or consecutively with another such sentence)."

3. The problem arises in this way. The 2003 Act was intended to bring into effect a new sentencing regime; the old regime under the 1991 Act was to be swept away. The changeover date was for offences committed on or after 4 April 2005. A number of problems has arisen over the transitional arrangements. For convenience I shall refer to an offence committed before 4 April 2005 as "an old offence" and an offence committed on or after 4 April 2005 as "a new offence" provided it attracted a sentence of 12 months or more. For it is my view that only sentences of 12 months or more presently fall to be dealt with under the 2003 Act regime. The particular problem in this case relates to the computation of consecutive sentences.
4. The respondent, Rebecca Noone, was a serving prisoner at HMP Drake Hall. On 23 May 2007 she was sentenced at the Crown Court at Stafford for a number of offences, all of which were committed after 3 April 2005. The sentences were as follows:

for theft, 22 months imprisonment;

for three further offences of theft, 4 months imprisonment concurrent with each other but consecutive to the sentence of 22 months;

for contempt of court, 1 month imprisonment consecutive."

The total sentence was therefore 27 months imprisonment.

5. On 24 May 2007 the respondent was given a release date notification slip with the following information on it:

eligibility for HDC: 15 January 2008;

conditional release date: 28 May 2008;

sentence and licence expiry date: 13 July 2009.

On 18 July 2007 she was given a further release date notification slip with the following revised information:

eligibility for HDC: 20 April 2008;

conditional release date: 28 May 2008;

sentence and licence expiry date: 10 February 2009.

6. On 21 August 2007 the respondent's solicitor wrote to the governor of Drake Hall prison querying the amended release dates and in particular the delayed eligibility for HDC. This was followed on 19 December 2007 by an application for judicial review. The basis of the claim for judicial review was that the appellants had erred in calculating her eligibility for HDC on the basis:

i) That on the proper construction of para 14 of schedule 2 to the 2005 Order it only applied where all the sentences imposed were of less than 12 months. Where some of the sentences imposed were for 12 months or longer para 14 did not apply and the relevant provisions of the 2003 Act applied.

ii) In any event, the policy adopted by the Secretary of State for determining the order of consecutive sentences (where one or more of the sentences fell to be treated under the 1991 Act and one or more of the sentences fell to be treated under the 2003 Act, was unlawful.

7. On 31 January 2008 the application for permission to apply for judicial review came before Mitting J. Because of the urgency of the situation he granted permission and proceeded to hear the substantive claim. He rejected the first basis of the claim, following the reasoning and decision of Dobbs J. in Highton v Secretary of State for the Home Department [2007] EWHC 1085, but accepted the second basis of claim, holding that the Secretary of State's policy was irrational and unlawful. Mindful of the consequences for other prisoners, he declared the policy unlawful but stayed a declaration to that effect pending an appeal to this court for which he granted permission. He made a mandatory order that the prison governor consider the respondent's eligibility for HDC forthwith and recalculate her dates for (i) entitlement to release on licence and (ii) expiry of the sentences imposed on her in accordance with the terms of his judgment. The respondent was released on 8 February 2008 on HDC.
8. It is not in issue that the court has power to impose consecutive sentences. S.154(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a sentence imposed by the Crown Court shall take effect from the beginning of the day on which it is imposed unless the court otherwise determines.
9. It is necessary to have in mind some key features of the 1991 Act. By s.51(2) a sentence of imprisonment imposed consecutively to another sentence of imprisonment is to be treated as a single term.
10. By s.33(5) a long term prisoner is defined as one serving a sentence of imprisonment for a term of 4 years or more and a short term prisoner is one serving less then 4 years.
11. By s.33(1) it is the duty of the Secretary of State to release a short term prisoner when he has served one half of his sentence, unconditionally if the sentence is for a term of less than 12 months, and on licence if it is for 12 months or more.
12. By s.34A (inserted by the Crime and Disorder Act 1998) the Secretary of State was given power to release certain short term prisoners on licence after the prisoner had served "the requisite period." For a term of 3 months or more the requisite period is 30 days; for 4 months or more but less then 18 months it is a period equal to one quarter of the term and for a term of 18 months or more it is a period that is 135 days less then one half of the term (s.35A(4)).
13. The widely understood description of these early release provisions is HDC. It is to be noted that these provisions give a power of early release to the Secretary of State rather than impose a duty. Not all prisoners who qualify for HDC are given it.
14. Someone such as the respondent who was sentenced to consecutive terms totalling 27 months would be required to be released on licence after serving one half of that period (13½ months) but would be eligible for HDC 135 days before that time.
15. Moving on to the 2003 Act, it contains very similar provisions, although somewhat differently expressed. I shall recite s.264 in full because it will be necessary to refer to it later in some detail.

"S.264 Consecutive terms.

(1) This section applies where –

(a) a person ("the offender") has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other, and

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

(2) Nothing in this Chapter requires the Secretary of State to release the offender on licence until he has served a period equal in length to the aggregate of the length of the custodial periods in relation to each of the terms of imprisonment.

(3) Where any of the terms of imprisonment is a term of 12 months or more, the offender is, on or after his release under this Chapter, to be on licence –

(a) until he would, but for his release, have served a term equal in length to the aggregate length of the terms of imprisonment, and

(b) subject to such conditions as are required by this Chapter in respect of each of those terms of imprisonment.

(4) Where each of the terms of imprisonment is a term of less than 12 months, the offender is, on and after his release under this Chapter, to be on licence until the relevant time, and subject to such conditions as are required by this Chapter in respect of any of the terms of imprisonment, and none of the terms is to be regarded for any purpose as continuing after the relevant time.

(5) In subsection (4) "the relevant time" means the time when the offender would, but for his release, have served a term equal in length to the aggregate of –

(a) all the custodial periods in relation to the terms of imprisonment, and

(b) the longest of the licence periods in relation to those terms.

(6) In this section –

(a) "custodial period"

i) in relation to an extended sentence imposed under section 227 or 228, means the appropriate custodial term determined under that section,

ii) in relation to a term of 12 months or more, means one half of the term, and

iii) in relation to a term less than 12 months complying with section 181, means the custodial period as defined by subsection 3(a) of that section.

(b) "licence period", in relation to a term less than 12 months complying with section 181, has the meaning given by subsection 3(b) of that section.

(7) This section applies to a determinate sentence of detention under section 91 of the Sentencing Act or section 228 of this Act as it applies to a term of imprisonment of 12 months or more."

16. Subsections (4) and (5), which make provision for consecutive sentences which individually amount to less than 12 months each, have not been brought into force. (see para 19 of schedule 1 to the 2005 Order).
17. The effect of s.264(2) is, in principle, the same as that of s.51(2) of the 1991 Act: to aggregate two consecutive sentences imposed on the same occasion. The route by which this is achieved is slightly different. What is aggregated by s.264(2) is the custodial period, the term actually served subject to early release on licence. Subsection (3) aggregates the periods of licence. So, s.51(2) of the 1991 Act and s.264(2) of the 2003 Act each create a mechanism by which the relevant part of each of the consecutive terms is served before early release takes place.
18. Ss.181 and 182 of the 2003 Act provide new provisions for sentences of less than 12 months and the licence conditions that may be imposed. These provisions, like s.264(4) and (5) of the 2003 Act, have not yet been brought into force (see schedule 1 to the 2005 Order) and therein lies the kernel of the problem. The coming into force of the relevant provisions of the 2003 Act and the repeal of the relevant provisions of the 1991 Act is subject to the transitional and savings provisions contained in schedule 2 to the 2005 Order.
19. Ss.244 and 246 of the 2003 Act, which deal respectively with the duty to release prisoners on licence and the power to release on HDC are, along with other sections, of no effect in relation to a prisoner serving a sentence imposed in respect of an offence committed before 4 April 2005 (see para 19(a) of schedule 2 to the 2005 Order.) At the same time the repeal of, inter alia, ss.34A and 51 of the 1991 Act is of no effect in respect of such prisoners i.e. those sections remain in force for those prisoners.
20. The terms of s.244 do, however, have an important bearing on the construction of para 14 of the 2005 Order urged by Mr Weatherby, who has appeared for the respondent, to which I shall return. S.244(1) provides:

"As soon as a fixed term prisoner, other than a prisoner to whom s.247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him under this section."

s.244(2) is not relevant to the present appeal.

s.244(3) provides:

"In this section "the requisite custodial period" means –

(a) in relation to a person serving a sentence of imprisonment for a term of 12 months or more or any determinate sentence of detention under s.91 of the Sentencing Act, one half of his sentence.

(b) In relation to a person serving a sentence of imprisonment for a term of less than 12 months (other than one to which an intermittent custody order relates), the custodial period within the meaning of s.181,"

(c) Relates to intermittent custody orders and is not relevant to the present appeal

"(d) In relation to a person serving two or more concurrent or consecutive sentences, the period determined under s.263(2) and 264(2)."

21. As Mitting J. pointed out at para 14 of his judgment, looking at the primary legislation alone, because ss.181 and 244(3) have not yet been brought into force, there is no provision for sentences of less than 12 months or for establishing the point at which a prisoner so sentenced is entitled to be released or may be released on HDC. However, that position was rectified by para 14 of Schedule 2 to the 2005 Order. That paragraph, which I have set out at the beginning of this judgment, is headed: "Savings for prisoners serving sentences of imprisonment of less than 12 months." As Mitting J. pointed out, by virtue of this provision it remains lawful for a sentencing court to impose a sentence of imprisonment of less than 12 months which does not comply with s.181 of the 2003 Act.
22. The problem arises where there are consecutive sentences imposed under (i) the 2003 Act (sentences of 12 months or more for offences committed on or after 4 April 2005) and (ii) sentences of less than 12 months imposed under the 1991 Act, whether committed before 4 April 2005 or thereafter. When is the prisoner eligible for HDC and for what period is the prisoner on licence?
23. This problem first troubled the courts in R (Steven Highton) v The Governor of HMYOI Lancaster Farms and the Secretary of State for the Home Department [2007] EWHC 1085 Admin. In that case the prisoner was sentenced to a total of 2 years and 8 months for a variety of offences made up as follows: assault occasioning actual bodily harm, 12 months; 12 months consecutive for another offence of assault occasioning actual bodily harm; 3 months consecutive for assault on the police; 3 months consecutive for another assault occasioning actual bodily harm plus 3 months for other offences to run concurrently i.e. a total of 32 months. All the offences were committed after 3 April 2005.
24. If Steven Highton had been sentenced exclusively under the 1991 Act the sentence would have been a single term under s.51(2) giving a total of 32 months. He would have been entitled to release on licence at the halfway point (16 months) under s.33(1)(b) and eligible for HDC 135 days prior to that date under s.34A. If sentenced exclusively under the 2003 Act the sentences would have been aggregated pursuant to ss.263 and 264 giving a total term of 32 months. He would have been entitled to release at the halfway point (16 months) and eligible for HDC 135 days prior to that date, the custodial period being the operative aggregation period under the 2003 Act i.e. 16 months. In other words the identical result is reached by different provisions under each Act. But the legislation did not provide for him to be sentenced exclusively under the 1991 Act or exclusively under the 2003 Act.
25. The Secretary of State through the National Offender Management Service has provided instructions to prison establishments on how to calculate sentences and administer the HDC scheme. Jane Seddon, in a witness statement made in the Steven Highton judicial review proceedings, explains the instructions that were given with regard to the interpretation of para 14 of schedule 2 to the 2005 Order. She said:

"….the 1991 Act applies (and the 2003 Act does not apply) to all sentences of under 12 months whenever the offences are committed, and, so the provisions of the 1991 Act are applied to 'single term' all sentences of under 12 months, the release date to be calculated in accordance with that Act. The 2003 Act plainly applies for this purpose to all sentences of 12 months or more where the offence was committed on or after 4 April 2005 and so the custodial periods of such consecutive sentences of 12 months or more must be aggregated, the release dates calculated in accordance with that Act.

There will of course be transitional cases where a number of consecutive sentences are given, some being 12 months or more and some being under 12 months. We take the position that the 1991 Act therefore applies to those sentences under 12 months and the 2003 Act applies to those of 12 months or more where the offence was committed on or after 4 April 2005. The consecutive sentences that are single termed under the 1991 Act and the aggregated sentences under the 2003 Act are to be treated as two separate sentences – i.e. one 1991 Act sentence and one 2003 Act sentence.

Eligibility for HDC is calculated by reference to the custodial term being served. So for example under the 1991 Act, a prisoner is not eligible for release on HDC until he has served the 'requisite period' – i.e the requisite custodial term, as specified in s.34A(3) of the 1991 Act. Similarly, a prisoner sentenced under the 2003 Act is not eligible for HDC until he has served the requisite custodial period in s.246 of the 2003 Act.

…….A prisoner only becomes eligible for HDC after the requisite custodial period of the last sentence has been served."

26. Ms Seddon went on to observe, as is the case, that whether the 1991 Act sentence or the 2003 Act sentence is treated as being served first can have a significant impact on HDC eligibility – as indeed it can on the licence period. Prison governors were directed as a matter of policy to proceed on the basis that the sentences were to be served in the order imposed by the court, so far as this was possible. Four other options were considered but rejected. These were:

Always calculate the 1991 Act sentence/the single term first.

Always calculate the 2003 Act sentence/aggregate first.

Always calculate the longest sentence first.

Always calculate the shortest sentence first.

27. In Highton the policy itself was not challenged other than that it did not reflect the true construction of para 14 of schedule 2 to the 2005 Order. In the present case it was challenged. Mitting J. held it was unlawful. He concluded:

"The only policy capable of giving effect to the policy of the 2003 Act and the rational expectations of prisoners dealt with under both Acts is to ensure that they were not disadvantaged in relation to Home Detention Curfew, but are subject to the maximum period of licence on release which can be lawfully be imposed."

28. The Secretary of State should, therefore, according to Mitting J, have opted for a policy of always calculating the shortest sentence first. In the present appeal the Secretary of State challenges that finding, contending that the policy was lawful. Alternatively, and this is a point taken by Mr Giffin Q.C for the Secretary of State in his supplemental skeleton argument, it is not a matter of policy but simply a matter of applying the legislation to the sentences imposed by the judge. Where consecutive sentences are passed it should always be apparent from what the judge says which is to be the first or lead sentence.
29. I shall return to the question of policy, but first it is necessary to determine whether the Secretary of State's interpretation of para 14 is correct in that eligibility for HDC and the time spent on licence is dependent on the order in which consecutive sentences are imposed or whether the interpretation rejected by Dobbs J. in Highton and Mitting J. in the present case and as advanced by Mr Weatherby is correct.
30. Returning to Highton, Mr Weatherby's argument in that case as it has been in the present case was that Steven Highton's release and HDC eligibility should have been dealt with exclusively under the 2003 Act. His submission is that whilst para 14 is ambiguous and open to more than one interpretation his interpretation is straightforward and logical and avoids the complications of the Secretary of State's construction. His argument runs thus. If para 14 is read with para 19 of schedule 1, paras 19 and 25 of schedule 2 and s.264 of the 2003 Act, its effect and intention are clear. It is to deal with situations where only sentences of under 12 months are passed or, put another way, where all the sentences are less then 12 months in length. The purpose of para 14 is to cover the fact that para 19 of schedule 1 does not bring s.264(4) and (5) into force. Those subsections cover the situation where all the constituent sentences are less than 12 months. Those excluded subsections could not be brought into force without the 2003 Act provisions for sentences also being in force. The relevant sections, s.181 to 187, are not in force.
31. Dobbs J. rejected Mr Weatherby's argument, albeit accepting there was some force in the submission that para 14 is ambiguous. She said that the heading: "Saving for prisoners serving sentences of less than 12 months" could, without more, be interpreted to mean prisoners only serving sentences of less than 12 months. Moreover, the references in brackets in para 14 to "such a sentence" and "such sentence" are in the light of the remaining part of the paragraph also ambiguous. She expressed her conclusions at para 39 and 40 of her judgment which was cited with approval by Mitting J. in the present case at para 19 of his judgment. They read:

"39 In my judgment, ambiguous though the phrasing may be in the explanatory clause in paragraph 14, the construction advocated by (the Secretary of State) is the correct one. I come to that conclusion for the following reasons. (1) A plain reading of paragraph 14 without the explanatory words in brackets makes it clear that it refers to any sentence of under 12 months. The claimant's construction of the meaning of the word 'any' is artificial. It renders the use of the word 'any' unnecessary. Moreover, there would be no need for brackets if the additional words were amplifying words as the claimant suggests, rather than explanatory words. It is in fact those explanatory words in brackets that cause the confusion. (2) None of the sentencing provisions in relation to any sentence under 12 months is presently in force. (3) The licence provisions in relation to sentences under 12 months are not in force. (4) It is not possible to calculate the relevant custodial periods under section 264 for sentences under 12 months as a result of the relevant provisions not being in force. (5) The claimant's interpretation involves mixing the two different regimes. This is not made explicit in the Order, nor is there any indication that this was the desired effect, given that two different and separate regimes are contemplated. In any event it is highly unlikely. (6) There is no indication that, and it is difficult to see how, section 264 of the 2003 Act could apply to sections 33 and 51 of the 1991 Act, in particular given that the two sections have been repealed, save as provided for under paragraph 14.

40 I turn now to the claimant's submission that it is the (Secretary of State's) construction of paragraph 14 which has caused the anomalies and difficulties to which he alludes. Looking at the provisions in the 2005 Order, it is clear that it establishes the co-existence of the two separate regimes the old and the new – see in particular paragraphs 19 and 44 of Schedule 1 and paragraphs 19 and 25 of Schedule 2. This is by virtue of the coming into force of the 2003 Act provisions. Paragraph 14 merely places those sentences of under 12 months in the old regime because the new provisions for such sentences are not yet in force. Taken in isolation, the paragraph does not lead to the anomalies complained of. It is the policy adopted which achieves that position. There is no mechanism either in the Act or the Order for combining the two regimes and this is why the (Secretary of State) has formulated a policy to deal with these situations. There is no challenge by the claimant to the policy, but I will return to the issue at the end of this judgment. It follows from the foregoing that this aspect of the application is rejected…….".

32. Mitting J. felt himself unable to escape from what he described as the unattractive conclusion reached by Dobbs J. He concluded her reasoning and conclusion were right. Before us Mr Weatherby advanced a detailed and vigorous argument that both Dobbs J. and Mitting J. were wrong and that the construction he put forward of para 14 was right. Essentially, his argument runs thus. S.264 of the 2003 Act came into force on 4 April 2005 (see para 19 of Schedule 1 to the 2005 Order) unless disapplied by any transitional provisions in Schedule 2. Para 14 of Schedule 2 disapplies relevant 2003 Act provisions to individual sentences of less than 12 months and to multiple sentences all of which are less than 12 months. So much is not in dispute. But, Mr Weatherby argues, it also disapplies the 2003 Act to sentences of less than 12 months which are consecutive to a sentence of 12 months or more.
33. He submits that a grammatical construction favours his argument but that what is critical is the context and purpose of para 14. He makes the following points.

i) Para 14 disapplies the 2003 Act to individual sentences of less than 12 months because the new provisions in s.181 et seq are not yet in force.

ii) It disapplies the 2003 Act to multiple sentences all of which are less than 12 months because s.264(4) and (5) were not brought into force. The reason they were not brought into force was there would have been a licence problem if they were. Under s.264 the custodial period of each constituent sentence is separately calculated and then aggregated. (It was the other way round under the 1991 Act). If s.264(4) was in force then with, for example, two consecutive sentences of 6 months there would be no licence period at all because of s.33(1)(a) of the 1991 Act. Under that Act sentences are single termed (s.51(2)) and thus s.33(1)(b) applies and release is on licence.

iii) There is no corresponding purpose to the Act being disapplied to sentences of more and less than 12 months because of s.264(3). The custodial terms are aggregated under s.264(2) and the licence duration is determined by s.264(3).

iv) If para 14 were to be construed as disapplying s.264 in these circumstances then there would be a lacuna. There is a strong presumption that the draughtsman intended the transitional provisions to deal with such a situation and achieve results as close as possible to the parent Acts. He submits that his construction does so.

v) The words in brackets in para 14 indicate that the draughtsman intended any sentence of imprisonment to be the singular rather than include the plural.

34. The main objection to Mr Weatherby's argument is that it is not possible to calculate the "custodial period" for sentences of less than 12 months. Mr Weatherby's response is that the expression "custodial period" in the present context simply means the period of the sentence the prisoner has to serve before being entitled to release. It is not a term of art, as is shown by the wording of s.264(6) which is carefully drafted to define the term only in respect of three specific situations. It does not provide for an exclusive definition of the term because, had this been intended, it would have been expressed differently, for example: in this section custodial period means…….... That was the technique used by the draughtsman in s.244(3). In s.264(6) the draughtsman was not concerned with transitional provisions and so did not deal with other custodial periods.
35. Mr Weatherby says that the fact that the definition is not exclusive is further demonstrated by the position of those sentenced to consecutive terms for offences committed either side of 4 April 2005. Para 19 of Schedule 1 to the 2005 Order commenced s.264 from that date. It is not disapplied by para 19 of schedule 2 for offences committed prior to the commencement date and this is not an error as can be seen from para 25 of schedule 2.
36. Paras 14, 19 and 25 indicate that for all purposes (including s.264(2)) the custodial periods of sentences of less than 12 months or those for offences committed prior to 4 April 2005 are calculated under the 1991 Act. In both situations the 2003 Act combines the sentences and the parent Act calculates the custodial period. So, he submits, although the provisions are not straightforward, on analysis para 14 does not disapply s.264 in the circumstances under consideration and it could not have been the intention that it should.
37. Mr Giffin's essential point is that the fallacy in Mr Weatherby's argument is his proposition that the time to be served in custody in a case of consecutive sentences is provided for by s.264(2) of the 2003 Act. It is this that enables him to go on and argue that this provision is not disapplied in the case of consecutive sentences for "old" and "new" offences, because s.264(2) is not one of the provisions listed in para 19 of schedule 2 to the 2005 Order, and because para 25 of schedule 2 indicates that s.264 "does apply but in a modified way".
38. Mr Giffin exposes the fallacy thus. The relevant section is not s.264(2) but s.244(1). This is the section that places the Secretary of State under a duty to release the prisoner after he has served "the requisite custodial period."

It provides:

"As soon as a fixed-term prisoner, other than a prisoner to whom section 247 applies, has served the requisite custodial period, it is the duty of the Secretary of State to release him on licence under this section."

39. The only instance in which s.244(1) does not operate in this way is in the case of extended sentences where the operative provision is s.247. The requisite custodial period is defined by s.244(3). In the case of a person serving two or more concurrent or consecutive sentences it is the period determined under sections 263(2) and 264(2). Mr Giffin argues that while it is true in the case of consecutive sentences that the definition of "requisite custodial period" in s.244(3) incorporates by reference the period determined under s.264(2) this does not alter the fact that s.244 and not s.264(2) is the operative provision. Likewise, the date of eligibility for HDC release under s.246 of the 2003 Act also depends on the s.244 requisite custodial period: see s.246(1)(a) and s.246(6).
40. Once it is recognised that it is s.244 and not s.264 that is the operative provision it can be seen that the relevant 2003 Act provision (s.244) is disapplied by para 19 of schedule 2 in respect of old offences. Para 19 expressly says that s.244 (inter alia) is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005. Because s.244 is disapplied, one never gets to s.264(2) in such cases because the s.244(3)(a) incorporation by reference does not apply. Accordingly, there is no need for s.264 to be separately disapplied for this purpose. Thus it is wrong to say that in the case of consecutive sentences for old and new offences there is a need to apply s.264 of the 2003 Act and that this must involve deriving a custodial period from the 1991 Act. Because s.244 is disapplied to the sentence for the "old" offence, s.264 is irrelevant in determining when the prisoner falls to be released from that sentence.
41. For my part I am persuaded that Mr Giffin is right. He has exposed the fallacy in Mr Weatherby's ingeniously constructed argument.
42. Although during the course of argument I thought paras 19 and 25 might support Mr Weatherby's argument, Mr Giffin has persuaded me that this is not so. I am satisfied, although it is irrelevant to the outcome of the present appeal, that para 19 operates in the same way as para 14 by requiring separate treatment of sentences for old and new offences. This is perhaps hardly surprising as both paragraphs, as their headings show, are concerned to make savings for a particular type of sentence which is to remain subject to the 1991 Act.
43. As to para 25, which is again not relevant to the outcome of the present appeal, Mr Giffin points out that this paragraph is concerned only with the situation where there are consecutive or concurrent sentences for a mixture of "old" and "new" offences and those include an extended sentence.
44. My conclusion, therefore, is that para 14 of Schedule 2 to the 2005 Order applies in circumstances where any sentence of less than 12 month duration is imposed irrespective of whether other sentences are imposed of longer duration. I agree, as did Mitting J, with the reasons given by Dobbs J in Highton at paragraphs 37 – 39 of her judgment.

The policy issue

45. The Secretary of State's position, at any rate until counsel's skeleton argument of 25 July 2008, has been that as a consequence of the repeal of the 1991 Act, the commencement of the 2003 Act and the transitional arrangements of Schedule 2 to the 2005 Order, there are two regimes coexisting side by side (i.e the 1991 Act and the 2003 Act), but that there is no mechanism to combine consecutive sentences imposed which are subject to the separate regimes. He has therefore had to adopt a policy to fill the lacuna. I have already referred to Ms Seddon's witness statement which explains how this policy was developed and promulgated.
46. On 12 November 2007 the Senior Presiding Judge for England and Wales issued guidance to sentencing judges, informing them of the Secretary of State's policy so that they understood the practical consequences of the sentences that they passed to which the policy applied. That letter and a note attached to it setting out the policy and its effect are attached as an annexe to this judgment. Essentially it pointed out that the practical consequences were dependant on the Order in which the court pronounced the consecutive sentences imposed.
47. The policy was not challenged in Highton in which the judgment was handed down on 17 April 2007, but, at the conclusion of her judgment, Dobbs J. pointed out that if the relevant sections of the 2003 Act were not to come into force for some time and the policy was to remain in force indefinitely, it was important in interests of justice that the policy was widely published so that judges and practitioners could understand the practical effect of the sentences they were passing. There is, after all, an obligation on judges to explain to the defendant the effect of the sentence passed. This is what led to the Senior Presiding Judge's letter some months later.
48. Whilst the Secretary of State's policy was not challenged in Highton, it was in the present case and Mitting J. concluded that it was unlawful. The basis for his conclusion was that the Secretary of State had chosen the wrong option from 5 possible alternatives. He should have chosen the fifth option which was always to calculate the shortest sentence first. Mitting J. said at para 32:

"The only policy capable of giving effect to the policy of the 2003 Act and to the rational expectations of prisoners dealt with under both Acts is to ensure they are not disadvantaged in relation to Home Detention Curfew but are subject to the maximum period of licence on release which can lawfully be imposed."

He rejected the policy adopted by the Secretary of State on the basis that:

"The contention of the Secretary of State produces an outcome which any legislator would have found surprising if he had had his attention drawn to it, namely that a prisoner sentenced entirely under the 1991 regime or entirely under the 2003 regime would be dealt with in one way, but for no reason that anybody could explain sensibly, a prisoner who fell to be dealt with under both regimes would be dealt with in a way which objectively is less advantageous to him. I do not accept Ms Seddon's rejection of the fifth option on the basis that the licence period would be or might be somewhat longer, and that that would operate as a disadvantage to a prisoner sufficient to outweigh the advantage that might be gained by earlier release on Home Detention Curfew. Furthermore, it does not fit in with one of the manifest purposes of the 2003 Act sentencing provisions which were to ensure, by extending the licence period to the end of the sentence, a maximum period during which the prisoner would be under the eye of the authorities and eligible to be recalled should he misbehave."

49. The argument now advanced by Mr Giffin is that on true analysis the approach taken by the Secretary of State, which has been described as being a matter of policy, is not in reality a matter of policy at all but follows from the sentence passed by the court read with the statutory provisions. This, he submits, is not merely a rational policy; more importunately it is the outcome dictated by applying the statutory provisions to the sentences passed.
50. For my part, absent any power conferred by Parliament, I would regard it as objectionable in a democratic society for the Secretary of State to dictate by policy matters such as eligibility for release on licence or the period of time spent on licence and liable to recall. In short, I do not think the Secretary of State has the power to make a policy statement of this kind. That said, however, the Secretary of State's purported statement of policy is in my view no more than an accurate reflection of the manner in which the legislation operates in relation to consecutive sentences. I accept the submission of Mr Giffin.
51. My reasoning is as follows. When a judge passes consecutive sentences it is inevitable that one sentence follows the other. As Ms Seddon explained in her witness statement and the Senior Presiding Judge mentioned in his note, the first sentence handed down should be treated as "the lead sentence" and eligibility for Home Detention Curfew will be determined by reference to the last sentence served. It seems to me inevitable that when passing consecutive sentences the judge will identify which is the sentence to be served first – the lead sentence. The judge will say, for example, "you will go to prison for 6 months on count 1 and 18 months on count 2 and those sentences will be consecutive" or "you will go to prison for 6 months on each of counts 1 and 2 concurrently and those sentences will be consecutive to 18 months on count 3." It seems to me to be impossible for a judge to pass consecutive sentences without saying expressly or by clear implication the order in which the sentences are to run. Thus I do not accept that there will be any circumstances in which, quoting Mr Giffin, "there is literally no answer to be derived from the statutory provisions" and I do not accept his submission that were that to be the case the Secretary of State could fill the void as matter of policy.
52. Mr Giffin points out that whenever a sentencing judge passes sentences to run consecutively he is in effect (whether he says so expressly or not) giving a direction under s.154 of the Powers of Criminal Courts (Sentencing) Act 2000 that one of those sentences is to take effect otherwise than from the beginning of the day on which it is imposed. Were that not so the sentences could not be consecutive.
53. Assuming the judge has said no more than that one sentence is to be consecutive to another, it is necessary to construe in a common sense way what s.154 direction the judge is to be taken to have given as to when the second sentence should commence. It seems to me obvious that the second sentence starts at the point at which release from the first sentence would otherwise occur as of right i.e. the conditional release date of the first sentence. The other theoretical options are unrealistic. The judge could not intend the second sentence to start when there is merely the possibility of release on a discretionary basis from the first sentence and the direction might or might not be exercised in the prisoner's favour. Nor could the judge intend the second sentence to start only at the sentence expiry date of the first sentence because the consequences would be that the prisoner would be released on licence from the first sentence and later recalled to start serving the second sentence. Accordingly, the second sentence begins, by virtue of the s.154 direction, at the conditional release date of the first sentence and the prisoner is to be treated as eligible for release on HDC and/or release on licence in accordance with the statutory provisions applicable to the second sentence. Those provisions will be those of the 1991 Act where the second sentence is less than 12 months and those of the 2003 Act where the second sentence is 12 months or more.
54. Mr Giffin points to a potential complication where there is more than one consecutive sentence of the relevant kind i.e. 12 months or more, or less than 12 months. I agree with him that the answer is that the relevant statutory aggregation rules apply. Thus s.51(2) of the 1991 Act applies to single term all the sentences of less than 12 months and s.264 of the 2003 Act applies to aggregate all the relevant "custodial periods" of the sentences of 12 months or more. Accordingly, the end result is that all the 2003 Act sentences follow the 1991 Act sentences or vice versa: it is not possible for a 1991 Act sentence to precede a 2003 Act sentence and then be followed by another 1991 Act sentence or for a 2003 Act sentence to precede a 1991 Act sentence and then be followed by another 2003 Act sentence. Once the judge has identified the lead sentence all other sentences under the same Act are either single termed or aggregated as the case may be accordingly.
55. In my view therefore the so called policy advocated by the Secretary of State is no more than following the direction of the sentencing judge and applying the relevant statutory provisions to what he has said.

Conclusion

56. I would allow the Secretary of State's appeal and reverse the decision of Mitting J. In my judgment Mitting J's interpretation of para 14 of Schedule 2 to the 2005 Order is correct save that it does not create lacuna to be filled by policy. If, contrary to my view, the Secretary of State has any power to fill a void by policy I do not think her choice of the first of the five possible options could be categorised as irrational. In my view the so called policy promulgated by the Secretary of State is no more then the correct interpretation of the manner in which these complicated statutory provisions are intended by Parliament to operate.
57. Accordingly, the effect of the sentences passed on the respondent is as follows. The lead sentence is the one of 22 months imprisonment. This is followed by a sentence of 5 months being the three concurrent sentences of 4 months for theft and the 1 month consecutive sentence for contempt of court, the 4 and 1 month sentences being aggregated under s.51(2) of the 1991 Act. The 2003 Act sentence is served first followed by the 1991 Act sentences. As to the 22 month sentence, she is entitled to conditional release after 11 months. The 5 month sentence then takes over. She is entitled to automatic release after 2½ months and remains at risk for another 2½ months until the sentence expires. Eligibility for HDC is after she has served one quarter of the 5 month term, i.e. 1¼ months.
58. The note of the Senior Presiding Judge promulgated on 12 November 2007 remains an accurate guide for calculating the effect of consecutive determinate sentences some of which are subject to the release arrangements of the Criminal Justice Act 2003 and some subject to those of the Criminal Justice Act 1991. It does not, however, reflect the Secretary of State's policy; rather it reflects the effect of the statutory provisions applied to the sentence passed.

Lord Justice Wall:
 


59. I have had the opportunity of reading in draft Scott Baker LJ's exemplary analysis of the highly complex statutory provisions governing this case. I entirely agree with that analysis, and with his observations on the policy issue, upon neither of which I can improve, and to neither of which I wish to add. Suffice it to say that for the reasons which Scott Baker LJ gives, I too would allow the appeal.
60. I cannot, however, leave the case without expressing my sympathy both for the "despair" which the judge felt when considering the statutory provisions in the case, and for the view which he expressed in paragraph 2 of his judgment: "It is simply unacceptable in a society governed by the rule of law for it to be well nigh impossible to discern from statutory provisions what a sentence means in practice". The argument in this court lasted for the best part of a day, and the respondent's correct release date has only emerged in a careful reserved judgment. I hope, nonetheless, that Scott Baker LJ's judgment will be of value to those judges charged by section 174 of the Criminal Justice Act 2003 with the difficult task of explaining to offenders "in ordinary language" the effect of the sentences they pass.

Sir Anthony Clarke M.R.:

61. I agree with both judgments.