CO/4602/2010 
Neutral Citation Number: [2010] EWHC 1714 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 24 June 2010 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
THE QUEEN ON THE APPLICATION OF WEBB 
Claimant

v 

SECRETARY OF STATE FOR JUSTICE 
Defendant
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr H Southey QC (instructed by Prisoners Advice Service) appeared on behalf of the Claimant
Mr J Strachan (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE MITTING:  This case yet again raises a question which should in principle be simple to answer:  when should a serving prisoner be released?  The answer, however, requires consideration of a complex statutory scheme introduced over the years without, as far as I can tell, Parliamentary consideration being given to, or minds being addressed to the particular problem that arises in this case.  
2.	That it matters can be demonstrated by the following propositions.  The claimant was released on licence on 2 April 2009, but his liberty did not last long because he refused to accept the conditions of his licence.  It was accordingly revoked.  If the Secretary of State's argument is right, he can lawfully be detained until, I am told, 10 June 2012.  The precise date, like many other matters in this case, cannot be established with certainty, but does not alter the principle.  
3.	If the argument advanced by Mr Southey QC for the claimant is right, he would be entitled to be released on licence in six days time on 30 June 2010.  The same problem as has arisen on 2 April 2009 might arise again, but the claimant is, if he is right, entitled to have the benefit of being put to his election.  
4.	How does this strange situation arise?  A little need first be said about the claimant's own background.  On 19 June 1997, he was sentenced at Bristol Crown Court to ten years' imprisonment for an offence of attempted rape.  I do not know the date upon which he was released, nor whether he was released pursuant to an order of the Parole Board, or automatically and as of right, but at some stage before 5 November 2004 he was released because on that date he committed an offence of burglary.  By then he was not subject to any licence conditions, but the term of ten years' imprisonment, imposed on 19 June 1997, still had 533 days to run.   
5.	On 20 May 2005, at Swindon Crown Court for an offence of burglary, he was sentenced to seven years' imprisonment, reduced on appeal to six years' imprisonment.  The judge who sentenced him made an order under section 116(2) of the Powers of Criminal Courts (Sentencing) Act 2000 ordering him to be returned to prison for 533 days, the difference between the date on which he committed the offence of burglary, 5 November 2004, and the final date of his ten‑year sentence, to be served before the seven (six)‑ year sentence imposed for burglary.  Thus in the simplest of terms he was required, as a result of the order of the Swindon Crown Court, to serve a term of seven years and five‑and‑a‑half months' imprisonment in total.
6.	To understand why it is difficult to answer the question which this case poses, it is necessary to analyse the evolution of the statutory regime.  In the Criminal Justice Act 1991, Part II, Parliament provided for the first time that serving prisoners should be eligible for release, or considered for release, at different stages in their sentence and on different conditions according to the length of the sentence.  Section 33 provided that the Secretary of State was under a duty to release prisoners in three different categories:  those serving a sentence of less than 12 months unconditionally, after they had served one half of the sentence; those serving short‑term sentences, that is to say sentences between 12 months and four years, after they had served one half of the sentence, but on licence.  The licence was to endure until three quarters of the term imposed had passed.  Those who were long‑term prisoners, that is to say those who were sentenced to a term of four years or more  were to be eligible for release at the halfway point, if their release was ordered by the Parole Board, and were entitled to be released at the two‑thirds point if not, and in either event were released on licence which expired at the three‑quarters point.  
7.	As in the case of the short‑term sentence, the sentence remained in being until the end of term.  It remained in being for a particular purpose: to permit a court before which a former prisoner was sentenced for an imprisonable offence to be required to serve some or all of the unexpired term.  That was enacted originally in section 40 of the 1991 Act, but with minor amendments was re‑enacted in section 116 of the Powers of Criminal Courts (Sentencing) Act 2000.  It provided:   
"Power to order return to prison etc. where offence committed during original sentence 
 (1) This section applies to a person if— 
 (a) He has been serving a determinate sentence of imprisonment which he began serving on or after 1st October 1992;  
 (b) He is released under Part II of the [1991 c. 53.] 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 [1991 c. 53.] 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 that sentence."
Section 116 contains one further deeming provision.  Subsection (9) provided that the order for return could be  the subject of an appeal to the Court of Appeal under section 9 of the Criminal Appeal Act 1968. 
8.	Section 51(2) of the Criminal Justice Act 1991, the interpretation section of Part II, provided that: 
"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) where 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." 
9.	In the case of a prisoner sentenced on the same occasion, or on subsequent occasions when he has not been released meanwhile, to two or more terms of imprisonment consecutively, totalling four years or more, that prisoner was treated as if a single sentence of four years, or more, had been imposed upon him for the purpose of the early release provisions in Part II of the 1991 Act.  The same regime applied in the case of someone whose return was ordered under section 116(2) of the 2000 Act.  When the period of return, plus the sentence of imprisonment for the new offence ordered to run consecutively, totalled four years or more, the long‑term prisoner scheme applies.  Up until that point these provisions created no real difficulty.  The Secretary of State, prison governors and prisoners knew where they stood.  If they were still in force, they would have applied in the way contended for by Mr Southey.  
10.	The order for return to prison, made at Swindon Crown Court on 20 May 2005, added to the new sentence would have created a single sentence for the purposes of the early release provisions of seven years and five and a half months.  The claimant would have been eligible to be released at the halfway point, entitled to be released on licence at the two‑thirds point and subject to licence until the three‑quarters point.
11.	Subsequent amendments to the legislation have complicated the picture.  Thankfully I need not describe and need only mention in passing, the repeal of all of these provisions and the amendment of repeal sections, save in one respect, to which I will return in a moment, because it is common ground that notwithstanding repeal the provisions which I have to consider, which include those that I have mentioned, subject to amendments that I have yet to mention, apply in this claimant's case.  They do so because the offences, with which I am, or might be concerned, all occurred before 4 April 2005, the date from which the repeals took effect.
12.	Section 26 of the Criminal Justice and Immigration Act 2008 amended Part II of the Criminal Justice Act 1991 as from 9 June 2008, and did so in respect of those prisoners who remained in prison under what I can call, in shorthand, "the old regime".  I do not propose to set out the terms of section 26, but to set out the terms of section 33 of the 1991 Act, as it has now been amended by section 26.  I am going to do so only in relation to long‑term prisoners.  The relevant parts of section 33 now provide: 
"(1A) 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.  
 (1B) 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). 
    ...  
(2) As soon as a long‑term prisoner [to whom subsection (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."
Section 35 of the 1991 Act was preserved substantially unaltered: 
"(1) After a long‑term prisoner has served one‑half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.  
 (1A) Subsection (1) does not apply to a long‑term prisoner to whom section 33(1A)applies."
13.	In the case of a prisoner sentenced to consecutive terms of imprisonment on the same occasion, or without having been released between the two occasions, the new provisions are easy to operate.  Where one of the offences is an offence specified in Schedule 15 of the 2003 Act, and is a serious sexual or violent offence, then the old regime applies.  He is eligible to be released halfway through the aggregate term.  He is entitled to be released at the two‑thirds point.  He will be released on licence until the three quarters point. 
14.	Problems only arise when the new regime is applied in circumstances in which the return of a prisoner has been ordered under section 116(2).  A period for which return has been ordered and the new term are, as before, aggregated.  If the total term is four years, or more, the prisoner is a long‑term prisoner.  What happens when the offence for which he was originally sentenced was an offence within Schedule 15 to the 2003 Act, but the new offence is not ‑ the situation which has arisen here?  All turns upon the meaning of a phrase in the newly inserted section 33(1)(b) of the Criminal Justice Act 1991: 
"one of the offences in respect of which he is serving the sentence".  
Mr Southey contends that the claimant is serving 533 days in respect of the offence of rape, for which he was sentenced originally on 19 June 1997.  Mr Strachan contends that he is not serving any part of the term of seven years and five and a half months in respect of that offence.  He puts his case in alternative ways: first, he submits that the claimant is serving the 533 days in respect of the burglary, and secondly, and alternatively, that he is not serving the 533 days in respect of the offence of attempted rape.
15.	For reasons which I will explain, I do not accept his first proposition.  The real contest is between Mr Southey's proposition and Mr Strachan's second proposition.  
16.	The nature of these provisions has been considered in a number of cases.  For present purposes I need only refer to three.  In R v Worthing Justices, ex parte Varley [1998]1 WLR 819 the Divisional Court, presided over by Lord Bingham CJ, had to consider whether, in a case in which the return of a prisoner was ordered under section 40 of the Criminal Justice Act 1991, when the term for which his return was ordered, together with the new term imposed for a new offence, exceeded six months, the total sentence exceeded that which the magistrates had jurisdiction to impose.  He concluded that it did not.  The question was:  
"when the court orders that a defendant be returned to prison, is it passing a sentence of imprisonment?"
His answer was no, and the first three reasons he gave for that answer were as follows:  
"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 the sentence from which the defendant has been prematurely released.  The sentence in question which 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.  
  Thirdly, by section 40(4)(a) the period of return is to be taken to be a sentence of imprisonment for the purposes of Part II of the Act of 1991.  There would, I think, be no need for such a deeming provision if the order were actually a sentence of imprisonment within the meaning of section 133."  
17.	Lord Bingham's second and third reasons have direct application to the construction of sections 116(2) and amended section 33(1)(b).  The claimant has not received two sentences for burglary, he has received one sentence for burglary and an order has been made for his return to prison separately.  For the purposes of Part II that separate order is deemed to be a sentence of imprisonment and to be aggregated with the new sentence.  It is, however, as Lord Bingham observed, a deeming provision, which would not be necessary, if, in truth, it were a sentence in respect of the burglary.
18.	Section 40 was considered in a different context.  In 
R v Taylor reported under a headnote beginning R v Secretary of State for the Home Department, ex parte Probyn [1998] 1 WLR 809, the appellant, Taylor, contended that it was wrong to impose a consecutive sentence for an offence to be served after the order for return to prison made on the same occasion.  Lord Bingham's observations in Varley were considered by the court to be not inconsistent with the court's answer to the particular question posed in Probyn and Taylor.  However, in the course of giving judgment and guidance about how the sentencing exercise should be approached, in circumstances in which a return was ordered together with a consecutive sentence, Rose LJ stated at page 818C to D:  
"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 period of return should be served before or concurrently with the sentence for the new office and in determining, particularly if it is to be served before the new sentence, how long the return term should be."  
19.	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 one occasion when nothing else is being taken into account.  This seems to me to point against Mr Strachan's first contention that the order for return was in respect of the burglary.
20.	The third case is R v Lowe [2000] 1 WLR 153.  By the stage that section 40 came to be considered by the Court of Appeal in Lowe, a statutory change had occurred.  Section 102 of the Crime and Disorder Act 1998 had prohibited the imposition of a term of imprisonment to commence on the expiration of any other sentence of imprisonment from which the prisoner had been released.  An order for the return of the appellant had been made under section 40 of the 1991 Act.  Self‑evidently that could only then be made after he had been released, and a further term of imprisonment imposed for the new offence was imposed to run consecutively.  
21.	Ingeniously, it was argued, that section 102 of the 1998 Act prohibited the imposition of a consecutive sentence because it was to run from the date on which a sentence expired from which the claimant had been released.  The court, presided over by Lord Bingham, answered that proposition at pages 157H to 158A:  
"The short answer to that submission is that by virtue of section 40(4)(a) of the Act of 1991, the period for which a person is ordered under that section to be returned to prison is to be taken to be a sentence of imprisonment for the purposes of Part II of the Act of 1991, and there is nothing in section 102 to preclude the imposition of a term consecutive to that sentence at any time before the offender has been released from that sentence." 
In observations made later on in the judgment, Lord Bingham said at page 159B:
"The period for which an offender is ordered to be returned under section 40 is taken to be a sentence of imprisonment for the purposes of Part II of the Act of 1991 in order to ensure that account is taken of it when determining the length of the single term to which the offender is subject.  It cannot be regarded as a 'sentence of imprisonment' from which the offender has been released for the purposes of section 102."  
22.	Lowe emphasises what is already apparent ‑ that I am dealing with a deeming provision.  Policy arguments have been addressed to me by both Mr Southey and Mr Strachan, to which I do not propose to make detailed reference, because, as it seems to me, policy considerations could point either way.  I would have been willing to take them into account if in a Ministerial statement to Parliament, or in the explanatory notes to the legislation, there had been anything to indicate that there was a policy behind the changes introduced in 2008, but there is no such material. 
23.	In the end the opposing propositions come down to this: for the claimant the statutory language, in particular, of section 116(2) of the 2002 Act, authorising the making of an order for an offender to be "returned" to prison, points to the continued relevance of the original offence and of the sentence imposed for it.  Accordingly, Mr Southey submits the period of return ordered, deemed to be a sentence for the purposes of Part II of the 1991 Act, must be a sentence imposed "in respect of" an offence to which Schedule 15 of the 2003 Act applies.
24.	Mr Strachan's alternative and final proposition is that it is no such thing.  Although it is true that an order for return could not be made unless there was in existence a sentence of imprisonment, which had not yet fully run its course, the occasion for the making of the order for return is the commission of a further imprisonable offence.  The order for return is, in truth, not a sentence of imprisonment imposed for, or in respect of, the original offence; it is an order made which is sui generis, or at the very least it is an order made which is not made "in respect of" the original offence.  
25.	This is not an easy question to determine.  The conclusion which I have reached is that Mr Strachan's alternative submission is right.  I reach it not for any policy reason, nor applying any principle in favour of the presumption of liberty.  No such principle applies here (see Kelly v Secretary of State for Justice [2009] QB 204).  I do so simply because it seems to me that Part II of the 1991 Act, in its current and original form, was simply a device to ensure that courts could, when an individual committed a further imprisonable offence, be required to serve the unexpired term of an existing sentence, and to ensure that the administration of that sentence, and any new sentence imposed for the new offence, could be dealt with in a single orderly, easily comprehensible, manner.  
26.	The device used was to deem the order for return to be a sentence of imprisonment.  The different consequences of that deeming provision are demonstrated in the three cases, to which I have referred.  This is purely a question of statutory construction.  The answer, I believe, is that which I have given.  
27.	It follows, therefore, that when this claimant was released on 2 April 2009 on licence at the halfway point of the total of seven years and five‑and‑a‑half‑months' imprisonment imposed upon him, or deemed to be have been imposed upon him on 20 May 2005, he was lawfully released under a regime which required him to be subject to licence conditions for the unexpired term of the sentence.  I am not concerned with whether or not his licence was lawfully revoked.  This claim must therefore fail. 
28.	MR SOUTHEY:  Firstly, I think I have one correction.  Your Lordship at one point, I think, talked about how if the old regime applied the release would have been two thirds now and the licence would extend until sentence expiry.  That would only occur under the old regime if a prisoner were recalled.  The reason I rose is because we were talking about recall, so the first release is until three quarters. 
29.	MR JUSTICE MITTING:  The claimant is going to be subject to a licence until the end of the total term any way now; is that right?
30.	MR SOUTHEY:  No, had I been correct ‑‑ and this is the point I was correcting ‑‑ it is my understanding, and my learned friend may think I am raising a point that did not arise in the judgment, he would have been released at two thirds with a licence until three quarters.  The change that was introduced by the 2008 Act that would apply to him, even if I were correct, is that if he were then recalled his licence automatically, whenever he was then released by the Parole Board, would extend until sentence expiry.  However, the initial release at two thirds would be on licence until three quarters. 
31.	MR JUSTICE MITTING:  If he refused to get (inaudible) he would have been recalled immediately and he would then be on licence until the end. 
32.	MR SOUTHEY:  That is right.  I think I corrected your Lordship first.  It may be on re‑reading the transcript I have confused the passage with your Lordship's judgment.  I thought on listening to it there was a passage where I think it seemed to imply that had he been released, and were he to be released on two thirds, it would be on licence until sentence expiry.  That is not correct.
33.	MR JUSTICE MITTING:  Thank you for that.  I rather fear it may be the case.  I am entitled to read the transcript and correct it and will take that into account.
34.	MR SOUTHEY:  More significantly we do perhaps, not surprisingly,  seek permission to appeal.  Your Lordship has indicated in judgment that it is not a straightforward question.  That, in my submission, is not entirely correct in that this is a difficult point, and it is a point that will impact on not just the claimant but a number of prisoners, how many I have no idea.  One will assume it is not necessarily a handful, it is probably ‑‑ 
35.	MR JUSTICE MITTING:  Would it do the claimant any good?
36.	MR SOUTHEY:  Yes, it will in the sense that because he will not be released at the end of this week he will remain in custody until, whatever the date is, probably 2012 on the last calculation sheet.  However, if his appeal were to be allowed the consequence of that would be that (1) he would be released immediately because inevitably any appeal will be heard after the automatic release date, and (2) he would have been unlawfully imprisoned up until whenever the court order is released.  
37.	By the time the appeal is heard he will still be in custody given the release date of 2012, but if his construction is correct he should not be in custody.  The Court of Appeal would be effectively obliged to conclude that he was being unlawfully detained and order his relief.
38.	MR STRACHAN:  Can I go back to the conventional order and ask that the court make an order dismissing the claim?  Also I seek a section 11(1) Access to Justice Act Costs Order, which simply deferred, if I understand my learned friend‑‑ 
39.	MR JUSTICE MITTING:  You are publicly funded? 
40.	MR STRACHAN:  The conventional order in these circumstances is an order for costs against the claimant, but that order may only be enforced to the extent it is reasonable in all the circumstances to do so.
41.	MR SOUTHEY:  My learned friend is correct.  It is costs subject to section 11 of the Access to Justice Act.  What that effectively does is it puts enforcement into the hands of the costs‑‑ 
42.	MR JUSTICE MITTING:  The principle upon which he does it‑‑ 
43.	MR SOUTHEY:  Is the same one.  The technical term, as my learned friend, was indicating, is Access to Justice Act. 
44.	MR STRACHAN:  It is surprising for me to be right about these things.  I am grateful my learned friend said I am.
45.	MR JUSTICE MITTING:  I will make the order you seek.
46.	MR STRACHAN:  My Lord, just in terms of the application for permission to appeal, we oppose that application.  My Lord, it is a matter of statutory construction.  Your Lordship has given your judgment on the correct construction and we submit that it is of course the correct one.  If my learned friend wishes to take it further he should seek permission from the Court of Appeal.
47.	MR JUSTICE MITTING:  I am going to give permission.  This is a difficult question.  There is potentially more than one answer.  I believe mine is right, but others make take a different view.
48.	MR SOUTHEY:  There is one other provision we would seek in the order, which is assessment of the claimant's publicly funded costs.
49.	MR JUSTICE MITTING:  Yes.
50.	MR SOUTHEY:  Can I raise one other issue which is whether the transcript can be expedited, give that the claimant's liberty essentially is at stake?  We would seek to have it before the Court of Appeal sooner rather than later.
51.	MR JUSTICE MITTING:  You are, as a matter of form, responsible for the cost of that? 
52.	MR SOUTHEY:  Yes.
53.	MR JUSTICE MITTING:  Transcripts are very rarely delayed.  I am not going to make an order for expedition, but no doubt your request has been heard and will be considered.  
54.	MR SOUTHEY:  Thank you.