Supreme Court ruling on HDC for prisoners

30 October 2010

In R (on the application of Rebecca None) v (1) the Governor of HMP Drake Hall, (2) Secretary of State for Justice [2010] UKSC 30; The Times Law Reports 2/7/10, in which Garden Court North Chambers’ Pete Weatherby and Andy Fitzpatrick appeared for the Appellant, the Supreme Court upheld the appeal and reversed the lower court decisions on Home Detention Curfews in a ruling that will affect the release dates of hundreds of prisoners on an ongoing basis.

The Appellant, Ms Noone, was sentenced to consecutive terms totalling 27 months for offences of theft and contempt of court. Because of the way in which the SSJ interpreted the relevant provisions she was deemed eligible for release on HDC about 100 days later than a prisoner who had been sentenced to a single term of 27 months on the same day. The Supreme Court have recognised the absurdity of this interpretation and adopted the Appellant’s construction which gives consistent and just results regardless of how sentences are passed. It is clear that many low risk prisoners will be immediately released as a result of this decision.  This case concerned the calculation of eligibility for Home Detention Curfew (otherwise known as tagging) for prisoners who are serving consecutive sentences made up of terms of more and less than 12 months. The decision affects hundreds of prisoners on an ongoing basis, who were artificially prevented from being released on this scheme by the Secretary of State’s mistaken construction of the relevant Legislation.

In R (Steven Highton) v Gov of HMYOI Lancaster Farms and SSHD [2007] EWHC 1085 Admin the High Court upheld the SSJ’s construction of Para 14, Sch 2 of the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005, which meant that where prisoners were sentenced to consecutive terms of 12 months or more, and less than 12 months, different statutory regimes applied to the sentence calculation of the two parts; the sentences of 12 months or more were to be dealt with under the CJA 2003, and the less than 12 month sentences were to be dealt with under the CJA 1991. Under the SSJ’s construction HDC was only applied to the latter term which meant that prisoners would have to serve up to 135 days longer than under either the 1991 Act scheme or that which replaced it under the 2003 Act, and the order in which consecutive sentences were passed became critical.

For example, a prisoner is sentenced to 18 months for theft with 1 month consecutive for contempt of court. Under the 1991 Act scheme he/she would be eligible for the maximum 135 days release on HDC. Under the 2003 Act exactly the same would apply. Under the SSJ’s construction, calculation of release dates would be separate, the 1 month term would be served last, and there would be no HDC eligibility. If another prisoner had been sentence to the same terms but in reverse order he/she would be eligible for full 135 days HDC as the 18 month term would be served last.

In the instant case at first instance, Mitting J expressed his concern for the SSJ’s construction of the statutory provisions adopted in Highton describing it as an “unattractive conclusion”, nevertheless he felt compelled to uphold it. However, he allowed the claim for judicial review on policy grounds.

The SSJ appealed and Ms Noone cross-appealed on the construction point. The appeal was upheld and the cross-appeal dismissed; [2009] 1 WLR 1321 (Lord Clarke MR, Scott Baker and Wall LJs), with the judgment holding that the “policy” of the SSJ was no more than the proper interpretation of the provisions.

The Supreme Court were unanimous (Lords Phillips, Saville, Brown, Mance and Judge) in reversing the Court of Appeal and over-ruling Highton in the most forthright terms, and adopting the Appellant’s construction. Lord Phillips commenced his judgment thus: “The road to hell is paved with good intentions”, with “hell” being the problem of statutory interpretation in this case. His conclusion was to re-word Paragraph 14 so as to make it work in accordance with the clear intention of Parliament.

Lord Brown asserted at para 43:
“The construction of this legislation hitherto adopted has led to the most astonishing consequences which no rational draftsman can ever have contemplated, let alone intended”. He continued: “To my mind the problems created by the Court of Appeal’s construction of this legislation are, quite simply, intolerable.”

At para 47 he concluded:

As to the precise route by which this plainly preferable construction is to be reached, I am entirely content to follow that taken by Lord Phillips and Lord Mance so absurd is the alternative conclusion hitherto arrived at, almost any coherent alternative construction will suffice.”

At para 86-7 Lord Judge joined the fray:

I have studied the judgments of Lord Phillips and Lord Mance. Their judgments tell the lamentable story of how elementary principles of justice have come, in this case, to be buried in the legislative morass. They have achieved a construction of the relevant legislation which produces both justice and common sense. I should have been inclined to reject the Secretary of State’s contention on the grounds of absurdity  absurd because it contravened elementary principles of justice in the sentencing process, but Lord Phillips and Lord Mance have provided more respectable solutions, either or both of which I gratefully adopt.

Nevertheless the element of absurdity remains. It is outrageous that so much intellectual effort, as well as public time and resources, have had to be expended in order to discover a route through the legislative morass to what should be, both for the prisoner herself, and for those responsible for her custody, the prison authorities, the simplest and most certain of questions at the prisoner’s release date.”

The judgment will mean that hundreds of low risk prisoners will have to have their release dates urgently re-calculated and they will be released on HDC where appropriate. An FOI request in the course of these proceedings revealed that the Prison Service themselves do not know how many prisoners will be affected but it will clearly be many hundreds and the effect will be continuing.

The construction arrived at by the Supreme Court will be straightforward for the Prison authorities to operate and should be easier for prisoners and their advisors to understand. In all cases involving concurrent and consecutive sentences the sentences will be combined under the provisions of Sections 263 and 264 of the 2003 Act other than where all the constituent sentences are less than 12 months when the 1991 Act regime will still apply. HDC will thereby apply to the totality of the term in all cases and hence there will be no anomalies or reductions in the number of eligible days.

Apart from the HDC problem the judgments are also important in respect to the extent to which the judges were prepared to go to in reading down legislative provisions to make them work to the clear intention of Parliament.

Pete and Andy were instructed by Deborah Russo of the Prisoners Advice Service.

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