West Law Report

Reconciling sentences under different Acts

Posted in Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 10, 2008
Reconciling sentences under different Acts

Court of Appeal

Published November 10, 2008

Regina (Noone) v Governor of Drake Hall Prison and Another

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Scott Baker and Lord Justice Wall

Judgment October 17, 2008

Where a sentence of differing terms of imprisonment was passed in respect of a number of offences, some under the Criminal Justice Act 1991 and others under the Criminal Justice Act 2003, any terms imposed for less than 12 months would be governed by the 1991 Act, but for those over 12 months the governing statute would depend on whether the offence was committed before or after April 4, 2005.

The Court of Appeal so held, allowing the appeal of the Governor of Drake Hall Prison and the Secretary of State for Justice against the grant to Rebecca Noone, on January 31, 2008, of judicial review by Mr Justice Mitting of the governor’s calculation of the earliest date she was eligible for home detention curfew and the date of her conditional release on licence.

Mr Nigel Giffin QC and Mr Parishil Patel for the governor and the secretary of state; Mr Pete Weatherby for the claimant.

LORD JUSTICE SCOTT BAKER said that the case was concerned with the correct calculation of the earliest date a prisoner could be released, namely, her eligibility for home detention curfew and her licence period when she was sentenced to consecutive sentences partly governed by the 1991 Act and partly by the 2003 Act.

The answer depended on the true construction of paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement Order Number 8 and Transitional and Savings Provisions) Order (SI 2005 No 950).

The intention of the 2003 Act was to bring into effect a new sentencing regime, and to sweep away the old regime. The changeover date was for offences committed on or after April 4, 2005. The transitional arrangements had given rise to a number of problems.

In the present case the particular problem related to the computation of consecutive sentences. The problem occurred where consecutive sentences were imposed under (i) the 2003 Act, that was sentences of 12 months or more for offences committed on or after April 4, 2005, and (ii) sentences of less than 12 months imposed under the 1991 Act, whenever they were committed.

Which sentence was treated as being served first, whether the 1991 Act sentence or the 2003 Act sentence, could have a significant impact on eligibility for home detention curfew.

As a matter of policy, prison governors were directed to proceed, so far as possible, on the basis that the sentences were to be served in the order imposed by the court.

His Lordship reached the conclusion that paragraph 14 of Schedule 2 to the 2005 order applied in circumstances where any sentence for a term of less than 12 months was imposed whether or not other sentences were imposed of longer duration.

Mr Giffin pointed out that whenever a sentencing judge passed sentences to run consecutively he was in reality giving a direction under section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 that one of those sentences was to take effect otherwise than from the beginning of the day on which it was imposed. The second sentence was to start at the point when the prisoner would otherwise have been released from the first sentence as of right, namely, the conditional release date of the first sentence.

By virtue of the section 154 direction, the second sentence accordingly began at the conditional release date of the first sentence and the prisoner was to be treated as eligible for release on home detention curfew and/or on licence in accordance with the statutory provisions which applied to the second sentence. Those provisions would be those of the 1991 Act where the second sentence was less than 12 months and those of the 2003 Act where the second sentence was 12 months or more.

Another potential complication arose where there was more than one consecutive sentence of the relevant kind, that was, 12 months or more, or 12 months or less. In that case the answer was that the governing statutory aggregation rules applied.

Section 51(2) of the 1991 Act therefore applied to single-term all the sentences of less than 12 months and section 264 of the 2003 Act applied to aggregate all the relevant custodial terms of the sentences of 12 months or more.

The end result was that all the 2003 Act sentences followed the 1991 Act sentences or vice versa: it was 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.

The judge first identified the lead sentence then all other sentences under the same Act were either single-termed or aggregated as the case might be. Lord Justice Wall delivered a concurring judgment and the Master of the Rolls agreed.

Solicitors: Treasury Solicitor; Ms Deborah Ruffo, Clerkenwell.

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