CO/157/2005 
Neutral Citation Number: [2005] EWHC 1991 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 22 July 2005
 
B E F O R E:

LADY JUSTICE SMITH DBE 

MR JUSTICE SIMON 
 
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MICHAEL GILBERT
(CLAIMANT)

-v- 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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MR KRIS GLEDHILL (instructed by Anthony Stokoe) appeared on behalf of the CLAIMANT
MR STEVEN KOVATS (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	LADY JUSTICE SMITH:  There is before the court an application for judicial review of the decision of the prison authorities in calculating the date on which the claimant was to be released from prison and the date on which his licence expired.  Permission to seek judicial review was granted by the single judge.  
2.	The case is concerned with the correct interpretation of section 40A of the Criminal Justice Act 1991 (as amended), to which I shall refer as "the 1991 Act", and also the extent of its effect, if any, on the operation of section 39 of that Act.  The case is of considerable importance to the claimant, but is not of general interest because the provisions under discussion have already been repealed with effect from April 2005 by the coming into force of the Criminal Justice Act 2003.  
3.	 On 19 January 2003 the claimant was sentenced to three years' imprisonment for an offence under the Firearms Act 1968.  Under the provisions of section 33 of the 1991 Act, he was a short-term prisoner and was entitled to be released on licence after serving half his sentence.  He was so released on 24 March 2004, account having been taken of some weeks spent in custody before sentence.  His licence period was due to last until the three-quarter point in his sentence, ie for a period of nine months.  It was due to expire on 23 December 2004.  
4.	On 5 April 2004, about two weeks after his release on licence, the claimant was arrested for an offence of shoplifting.  The following day he pleaded guilty in the Magistrates' Court and was committed in custody to the Crown Court for sentence.  On about 20 April, the probation officer who had been responsible for the claimant's supervision while under licence, recommended to the Secretary of State that the claimant be recalled to custody under section 39 of the 1991 Act.  Section 39(1) provides: 
"If recommended to do so by the [Parole] Board in the case of a short-term ... prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
 (2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable."
5.	The Probation Service recommended the claimant's recall because it was their view that he was not motivated to address his offending behaviour, which was said to be linked to his abuse of drugs.  He had admitted to the probation officer that he was a heroin addict and was still using the drug.  He had of course also committed a further offence.  The probation officer had formed the view that he could not adequately supervise the claimant in the community without there being an unacceptable risk to the public.  On 29 April 2004, the Secretary of State accepted and acted upon that recommendation and revoked the claimant's licence.  He issued a recall to prison.  It is not clear whether the Secretary of State followed the procedure under section 39(1) or section 39(2).  We cannot see any evidence that the Parole Board was consulted before the order for recall was issued.  It seems likely, therefore, that the Secretary of State acted under section 39(2).  In any event, no legal challenge was mounted against the legality of the recall and we must work on the assumption that it was lawful and valid.  
6.	In due course the Parole Board considered representations made on behalf of the claimant pursuant to section 39(3) of the 1991 Act.  The Board rejected those representations and   affirmed the Secretary of State's decision to recall.  Having been recalled under section 39, the claimant was due, by virtue of section 33(3) of the 1991 Act, to stay in prison until he had served three quarters of his original three-year sentence, ie until 23 December 2004.  He would then be released on licence and his licence would be due to expire on 23 September 2005.  
7.	On 18 June 2004 the claimant came before Guildford Crown Court for sentence for the offence of shoplifting.  The Recorder was told that the claimant had been recalled to prison under section 39.  He imposed a sentence of four months' imprisonment, which he declared was to be served consecutively to the sentence already being served.  Because of the provisions of section 84 of the Powers of Criminal Courts (Sentencing) Act 2000, this was an unlawful sentence.  
8.	On 30 June the claimant appeared again at Guildford Crown Court for variation of the sentence previously imposed.  On that occasion, the Recorder said this: 
"I will exercise the court's powers under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and order the defendant to be returned to prison for a period of five months, and that, as I understand it, begins today.  Then that period of imprisonment, that five months, shall be served before the four months' imprisonment which I imposed on the last occasion, and therefore, as I have already said, section 40A of this Criminal Justice Act 1991 applies and the defendant will be released after he has served half of the term of nine months, which is the effect of the order."  
9.	The Recorder there referred to section 116(1) of the Powers of Criminal Courts (Sentencing) Act 2000, which provides as follows: 
"116. 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 Criminal Justice Act 1991 (early release of prisoners) [Part II includes sections 32 to 51, with which this case is concerned];
    (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." 
10.	Sub-sections (3)-(5) are of no application in the present case.  
(6) The period for which a person to whom this section applies is ordered under subsection (2) above to be returned to prison-  
    (a) shall be taken to be a sentence of imprisonment for the purposes of Part II of the 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." 
11.	The Recorder had also referred to section 40A of the 1991 Act.  That provided as follows: 
"(1) This section applies (in place of sections 33, 33A, 37(1) and 39 above) where a court passes on a person a sentence of imprisonment which - 
    (a) includes or consists of an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000; and 
    (b) is for a term of twelve months or less (2) As soon as the person has served one-half of the sentence, it shall be the duty of the Secretary of State to release him on licence.
 (3) Where the person is so released, the licence shall remain in force for a period of three months.
 (4) If the person fails to comply with such conditions as may for the time being be specified in the licence, he shall be liable on summary conviction-- 
    (a)  To a fine not exceeding level 3 on the standard scale or 
    (b)  To a sentence of imprisonment for a term not exceeding the relevant period 
but not liable to be dealt with in any other way.
 (5) In subsection (4) above 'the relevant period' means a period which is equal in length to the period between the date on which the failure occurred or began and the date of the expiry of the licence. 
 (6) As soon as a person has served one-half of a sentence passed under subsection (4) above, it shall be the duty of the Secretary of State to release him, subject to the licence if it is still subsisting."
12.	In the light of those provisions it is clear that it was the Recorder's intention to impose a total sentence of nine months on the claimant, starting on 30 June 2004.  That was five months' imprisonment under section 116 and four months for the offence of shoplifting; the four months to be served consecutively, as was permitted.  Bearing in mind the early release provisions contained in section 40A, which applied because the total sentence he had imposed was 12 months or less, it is clear that he intended that the claimant should be released from prison four and a half months after the sentence was passed, after which he would be subject to a licence for three months.  That would mean that the claimant was due to be released from prison some weeks before the release date which would apply following his recall to prison under section 39.  The precise release date is somewhat unclear because the Recorder said that the five-month sentence under section 116 would begin on the day in which he imposed it (30 June), whereas the more usual arrangement is that, where a sentence has been varied, the sentence as varied runs from the date on which the original sentence before variation was imposed.  However, that makes but little difference in the circumstances of this case in the light of the conclusion that I, at any rate, have reached.  In any event, whether the sentence would be calculated from 18 June or 30 June, the release date under the Recorder's order would be several weeks earlier than the release date under his recall to prison under section 39. 
    Following the Recorder's sentence, the Prison Service served a sentence calculation on the claimant which showed that he was to be released on licence on 23 December 2004, that is at the end of the period of recall from his first sentence: in other words the Prison Service had taken the view that the section 39 recall would run its course regardless of the fact that the Recorder had passed a sentence which would permit release at an earlier date.  
13.	The claimant queried this release date and the reasoning behind it, but the Prison Service confirmed their original calculation.  A letter before action challenging their sentence calculation was sent.  A full reasoned reply was provided, in which the correctness of the calculation was confirmed.  These proceedings were then commenced.  
14.	In short, the claimant's argument is that where a judge has invoked his powers under section 116 to return a defendant to prison for the whole or part of his original sentence, that order effectively brings the operation of the original sentence to an end and replaces it with a new sentence in a case to which section 40A applies.  At the heart of the submission is the effect of section 40A, which is said to apply in the place of sections 33, 33A, 37(1) and 39, where the court passes on a person a sentence of imprisonment including an order under section 116, where it is for a term of 12 months or less.  
15.	Mr Gledhill, on behalf of the claimant, submitted that, where section 40A applies, the effect is to override an order for recall already made under section 39, and the operation of section 33 which sets the release date after recall, and the imposition of a new licence period running to the end of the original sentence period.  The judge or Recorder is not obliged to make an order having that effect.  He can deal with the offender for the new offence without invoking section 116.  But if he does invoke that section, and if the sentence is of less than 12 months, the original sentence ceases to be of any effect.  That, submitted Mr Gledhill, is an entirely appropriate outcome and is what one would expect to see.  Decisions about the length of time a prisoner should serve should primarily be determined by a judge in open court.  It is entirely appropriate that an administrative order made by the Secretary of State should be superseded in that way.  
16.	Mr Gledhill submitted that this effect was entirely consistent with the ordinary and natural meaning of the opening words of section 40A.  He submitted too that the words of the heading of section 40A were suggestive of this construction.  The heading is, "Release on licence following return to prison".  He also submitted that the words of the heading to the groups of sections 38 to 40 in the 1991 Act into which section 40A would fit, namely "Misbehaviour during Licence," also pointed towards this construction.  For my part, I have not found the headings of any great assistance in construing section 40A.
17.	  Mr Gledhill also submitted that, in most case to which section 40A applied, the judge or Recorder's order would be of no effect if the person had already been recalled to prison under section 39.  That was because the additional period to be served under section 39 would in most cases be longer than the term to be served under the judge's order, which could, by definition, not be longer than six months, being half the maximum of the 12-month sentence to which section 40A could apply.  Parliament could surely not have intended to introduce a provision which would almost always be of no effect.  
18.	Mr Gledhill submitted that one of the purposes of section 40A was to govern the interrelationship between section 39 and section 116.  Certainly, there is no other section which governs that interrelationship.  However, the question remains as to whether section 40A does or does not govern the interrelationship between those two sections.  There may be no provision governing the interrelationship between the two.  
19.	Mr Gledhill's final submission was that, even if section 40A did not bear the meaning he contended for, it was at the very least unclear and ambiguous.  That being so, it should as a matter of general principle, be construed in favour of the liberty of the subject. On that point,  Mr Kovats, for the Secretary of State, accepted the general principle, but submitted that there was no ambiguity.  
20.	Mr Kovats, in response, submitted that the effect of section 40A is not as contended for by Mr Gledhill.  First, he drew attention to the effect of section 116(6)(a), which I have already read.  The effect of that sub-section, submitted Mr Kovats, is that a sentence passed which included an order made under section 116 shall be taken to be a sentence of imprisonment for the purposes of Part II of the 1991 Act.  Section 116(6)(a) must, he submitted, be read in conjunction with section 51(2) and section 51(2B) of the 1991 Act.  They are interpretation provisions.  Section 51(2) provides: 
"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.  
 (2B) Where a person has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term -  
    (a) nothing in this Part shall require the Secretary of State to release him in respect of any of the terms unless and until the Secretary of State is required to release him in respect of each of the others." 
21.	Mr Kovats submits that, bearing in mind those provisions, the two sentences to which the claimant was subject were not to be aggregated; they fell to be treated quite separately.  Thus the claimant was following his sentence by the Recorder subject to two quite separate sentences: the three-year sentence beginning in March 2003, from which after recall under section 39 he was due to be released on 23 December 2004; and a second quite separate nine-month sentence imposed by the Recorder on 30 June, which would in itself entitle him to be released some weeks earlier.  However, because the two sentences overlap, under section 51 the claimant was to be detained until the second of the two release dates.  
22.	All that was accepted by Mr Gledhill as accurate.  Mr Kovats submitted that when that situation was established, the claimant's position, as it were, fell into place.  Mr Kovats contended that section 40A relates only to the sentence that is being imposed by the court at the time when it invokes section 116.  Any ouster of section 39, and indeed section 33(3) and section 37(1), applies only in respect of  that new sentence and does not have any application to the original sentence.  If 40A applies, its provisions apply prospectively to that new sentence and effectively prevent the Secretary of State from exercising his powers under section 39 in the event that the prisoner commits a further offence during the three-month period for which he will be under licence following h is ease after serving half of that short sentence.  Mr Kovats submitted that section 40A does not bite at all on the section 39 power of recall in respect of the first sentence. 
23.	 Both counsel referred the court to the case of R v Sharkey [2000] 1 WLR 160.  In that case the Court of Appeal (Criminal Division) had to consider the interrelationship between what was then section 40 of the 1991 Act and section 39.  Section 40 has now been repealed and replaced by section 116 of the Powers of Criminal Courts (Sentencing) Act.  Thus, in effect, the court in Sharkey was considering the interrelationship between section 39 of the 1991 Act and what is now section 116 of the Powers of Criminal Courts (Sentencing) Act.  
24.	The facts of the case were very similar to those of the present.  There had been a release on licence from an original sentence.  There had been a recall to prison under section 39.  There had then been an order for return for a fresh offence under section 40 (now section 116).  Section 40A was not applicable, as the term imposed by the judge as a second sentence was for longer than 12 months.  The court in Sharkey made a number of observations about the purpose and operation of sections 39 and 40 (as it then was) which are germane to this application.  
25.	First it was said that the purpose of section 39 was to provide for recall for the protection of the public.  The regime allowed the Secretary of State to make a discretionary recall of a person at liberty on licence, even where no further offence had been committed.  This regime was subject to the supervision of the Parole Board.  Section 40 (now section 116), on the other hand, was primarily concerned with the punishment of an offender who had committed a further offence during the period of his original sentence, whether or not he was also under licence at the time of commission of that further offence.  The court could order the return to prison for anything up to the remainder of the original sentence, and could, if it wished, add something on for the new offence.  
26.	Lord Bingham said that there was no reason why the two regimes (section 39 recall and a new sentence under section 40) could not continue to operate separately.  No practical difficulties would be created if that were the effect of the two sections. The court held that when a section 40 order was made in a case where a section 39 recall had taken place, both sentences continued to operate independently of the other.    
27.	In my view, the submissions of Mr Kovats as to the effect of section 40A are correct.  In my view, it is clear that section 40A, when considered as a whole, is intended only to refer to the new sentence that is passed, which includes an order under section 116.  The introductory words of section 40A define when the provision will apply.  Then sub-sections (2) to (4) set out the effects of the provision, namely to replace the provisions of section 33, 33A, 37(1) and 39 with a new self-contained regime which applies to that sentence and that sentence alone.  I am quite satisfied that it was not the intention of Parliament that this provision should in any way interfere with the Secretary of State's powers of recall which are exercised for the purposes of public protection.  
28.	I accept that Parliament might have wished to give the judge the power to override the Secretary of State's section 39 power and to bring the operation of the original sentence to an end, save insofar as it was incorporated into the new sentence, but it does not appear to me that the words of section 40A have that effect.  Without clear words to that effect, in my view they do not have that effect.  They apply only to the new sentence and not to the old one.  
29.	I reject Mr Gledhill's submission that section 40A will rarely have any effect where a section 39 order has been made, and that Parliament would not have passed it if it were to be of marginal application.  It is true that there will be some cases in which a section 39 recall has been made where the judge's later order will be nugatory, because the release date decreed by him will precede the section 39 release date.  However, there will also be many cases in which that is not so.  Even in cases where there has been a section 39 recall, the judge's order could quite easily result in a later release date than would be produced by the recall provisions.  That would be so if the recall occurred towards the end of the licence period when only a few months remain.  The short sentence imposed, to which 40A applied, might well then result in a release date later than that under the section 39 recall.  But quite apart from that, section 40A will be applied in many cases in which the only process that results from the the commission of a further during the currency of the old sentence, is the passing of a new sentence by the judge. In cases to which there has been no section 39 recall, the judge will be able to order a return to prison under section 116, together with such other sentence as he wishes to impose for the further offence.  If the total is 12 months or less, section 40A will apply.  Section 40A will then be determinative of the release date, (at the half way point); the length of the licence period (three months); and the consequences of any breach of the licence.  It seems to me that, in those circumstances, section 40A reflects the wish of Parliament that where a person is sentenced to a short term of imprisonment for an offence which is committed during the currency of another sentence, there should be no possibility of a further administrative recall, and no possibility of a further fresh sentence comprising a return to prison and a sentence for the fresh offence.  In other words, it seems to me that Parliament's intention in enacting section 40A was to bring the curtain down on the consequences of the first offence and its original sentence, where the  second offence was not of such seriousness as to warrant a sentence of more than 12 months.  
30.	I am quite satisfied that it was not Parliament's intention that section 40A should deprive the Secretary of State of his powers of recall in respect of the original sentence.  It is, in general, appropriate for judges to determine the loss of liberty for criminal offences, but Parliament has also decreed that the Secretary of State should be able to make decisions affecting the safety and protection of the public with the concurrence of the Parole Board.  
31.	I conclude, therefore, that the Secretary of State's recall of this claimant under section 39 triggered the operation of section 33(3) of the 1991 Act so that the claimant was lawfully detained in prison until 23 December 2004.  Further, he remains on licence until 23 September 2005.  The imposition of the sentence by the Recorder in June 2004 had no effect upon that position.  
32.	Accordingly, and for those reasons, I refuse this application.
33.	MR JUSTICE SIMON:  I agree; and only add a few words on one issue.  As my Lady has noted, at one point Mr Gledhill sought to rely on a breach of Article 5 -- the right to liberty and security -- on the basis that the detention regime did not have the necessary quality of lawfulness because of obscurity in the legislation.  In the course of his submissions, he conceded that the better argument was that, if there was obscurity in the language, such obscurity should be resolved in favour of the liberty of the individual as a matter of statutory construction.  
34.	For the reasons indicated by my Lady, I do not accept that there was any obscurity.  But I would wish to record my view that Mr Gledhill's concession was rightly made.
35.	MR GLEDHILL:  Just two ancillary matters, if I may.  One is an application for detailed assessment of my public funding certificate.  If it is not in the file, I will undertake to make sure that it gets there.  The second is that, for the sake of completeness, if this is a criminal causal matter, then I accept that there would be no point of law of general public importance in light of the fact that these provisions have now gone, and that therefore it would be pointless seeking to take it any further -- if it is a criminal causal matter.  But if it is a civil case, because it relates to the action of the Home Secretary in calculating the sentence release dates, then if that is the case, then I seek permission to appeal to the Court of Appeal on the point that the issue from Mr Gilbert's point of view, and the prospect of him establishing that he was unlawfully imprisoned for a significant period of time, would meet the test of the Court of Appeal considering the matter further, albeit that I accept that that would probably be a matter for the Court of Appeal to determine, rather than this court.
36.	LADY JUSTICE SMITH:  Yes, particularly in view of the fact that he is now released and the fact that the provisions are -- 
37.	MR GLEDHILL:  Yes, in essence it becomes more a damages claim, subject to the point that he is subject to license supervision for a period of time.
38.	LADY JUSTICE SMITH:  Mr Kovats, what do you say about this being a criminal matter or a civil matter? 
39.	MR KOVATS:  My Lady, we submit that this is a criminal cause or matter.  The reason why we say that is a matter of principle.  It is because we say that the construction of the sentence of a court is a criminal causal matter, and this case is, in essence, a case about the construction of the sentence of a court, albeit (inaudible) considerations of recall.  Traditionally -- this is the second limb of the answer -- sentence calculation cases have been treated as criminal causal matters.  They have been heard in the first instance in the Divisional Court, and appeals have gone from there to the House of Lords -- I think only one case, which is Francois, went to the House of Lords.  So for those two reasons, both in principle and practice, we say it is a criminal causal matter.
40.	LADY JUSTICE SMITH:  We are of the view that this is a criminal matter, and for that reason there is no right of appeal.  However, if we were to be wrong about that, we would, in any event, refuse permission to appeal to the Court of Appeal and would leave you to make your application to that court.  
41.	Our reasons for so saying are that it does not appear to us that the point has real prospects of success, and in any event is of no public interest now; only a matter of private interest.
42.	MR GLEDHILL:  I am obliged.  My Lady did not make the order in relation to public funding.  
43.	LADY JUSTICE SMITH:  Yes, you may certainly have that.
44.	MR GLEDHILL:  I am much obliged.  
45.	LADY JUSTICE SMITH:  We have not got the appropriate form on file apparently.  Will you undertake to ensure that that is filed?  
46.	MR GLEDHILL:  Can I say within 7 days?  
47.	LADY JUSTICE SMITH:  Thank you very much.