| PRISONS — Prisoner’s rights — Release on licence — Long-term prisoners re-released following release on licence and recall — Whether re-release unconditional or on licence — Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005, Sch 2, para 23
R (Kelly) v Secretary of State for Justice; R (Bailey) v Secretary of State for Justice; R (Gibson) v Governor of Wymott Prison [2008] EWCA Civ 177; [2008] WLR (D) 84
CA: Sir Anthony Clarke MR, Laws and Wilson LJJ: 12 March 2008
Long-term prisoners who had been convicted of offences committed after 29 September 1998 and before 4 April 2005, and who after 4 April 2005 had been released on licence, recalled and then re-released having served three-quarters of their sentences, remained subject to licence conditions for the remainder of their sentences. That was because para 23 of Sch 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 should be read as though it included a reference to s 33(3) of the Criminal Justice Act 1991.
The Court of Appeal so held in a reserved judgment, when dismissing appeals by Fitzroy Kelly, William Bailey and Paul Anthony Gibson from the Queen’s Bench Divisional Court (Keene LJ and Gibbs J) [2007] EWHC 2670 (Admin) who, on 2 November 2007, dismissed judicial review claims and a habeas corpus application challenging the legality of decisions that their licences continued until the expiry of their original sentences.
LAWS LJ said that each of the claimants had been released at the two-thirds point in his sentence, thereafter recalled, and then re-released at the three-quarters point. Had all those events happened before the coming into force of the Criminal Justice Act 2003 on 4 April 2005, their re-release would have been on licence and not unconditional: ss 33(3) and 37(1A) of the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998, would have applied. However, the claimants submitted that because s 39 of the 1991 Act had been repealed by the time they were recalled, the requirement in s 33(3) that release at the three-quarters stage be on licence did not apply to them. S 33(3) would have applied but for its omission from para 23(1)(b) of Sch 2 to the 2005 Order. That omission was a drafting mistake which the court would correct, applying Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592. The intended purpose of the statute, in relation to prisoners in the claimants’ position, was to treat them (in common with other pre-2003 Act offenders) as subject to licence after release at the three-quarter mark. By inadvertence that was not given effect. The substance of the provision Parliament would have made would have been by way of an appropriate reference to s 33(3) in para 23 of Sch 2 to the 2005 Order. It would take very clear and unambiguous word in a statute before the courts would construe it as empowering the state to deprive an individual of his liberty. If judicial modification of the statutory instrument would deprive the claimants or anyone else of settled rights of liberty enjoyed by them, his Lordship would decline to take such a course. But that was not the position. The claimants had no prior settled right to be released free of licence but were seeking to secure a purely adventitious benefit.
WILSON LJ and SIR ANTHONY CLARKE MR agreed. |
Appearances: Edward Fitzgerald QC and Hugh Southey (Prisoners Advice Service and Langleys, York) for Kelly and Bailey, respectively; Stephen Simblett (Kristina Harrison, Salford) for Gibson; Parishil Patel (Treasury Solicitor) for the Secretary of State
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