Secretary of State for the Home Department and Another, Ex Parte François, R v.

The House of Lords held that for the purposes of Part II of the Criminal Justice Act 1991 sentences which are wholly or partly concurrent or consecutive are to be treated as a single term under section 51(2). In consequence the aggregated total determines whether an offender is a short-term or long-term prisoner under section 33 and so which fraction of the sentence must be served before automatic release.

The court rejected the appellant's contention that section 51(2) should be read as limited to sentences imposed on the same occasion, and rejected arguments that treating aggregated sentences as a single term unlawfully increased an earlier sentence or violated article 7 by imposing a heavier penalty. The court explained that aggregation affects the execution of the sentence (the period to be served) rather than altering the sentence imposed by the court.

The court noted that judges may in appropriate cases reduce a later sentence (applying the totality principle) to avoid injustice caused by aggregation but that the statutory scheme operates irrespective of whether sentences are imposed on the same or different occasions. The appeal was dismissed.

Background and parties: The appellant, François, received a series of custodial sentences on different dates: an initial bundle totalling nineteen months (short-term), later two consecutive and concurrent sentences totalling four years (making him long-term), and subsequent short additional sentences. The appellant claimed that for the purposes of early release under Part II of the Criminal Justice Act 1991 the groups of sentences imposed on different occasions should be treated separately so that his earlier release date fell earlier than that determined by treating the sentences as a single aggregated term.

Procedural posture: The matter reached the House of Lords on appeal from the Divisional Court of the Queen's Bench Division following an application for judicial review. The appellant sought a declaration as to the correct method of calculating the point at which a prisoner becomes eligible for early release under section 33 read with section 51(2) of the 1991 Act.

Issues framed:

• Whether section 51(2) should be read as applying only to sentences imposed on the same occasion or by the same court, or more broadly to consecutive and concurrent terms however imposed.
• Whether the operation of section 51(2) so as to change the fraction of a sentence served amounts to a retrospective increase in sentence contrary to domestic principle or article 7 of the European Convention on Human Rights (analogously applied).
• Whether any unfairness should be addressed by judicial mitigation (totality principle) when imposing later sentences.

Reasoning and conclusions: The House concluded that the language of section 51(2) is clear and requires aggregation of consecutive and concurrent terms for the purposes of Part II, without any limitation to sentences passed on the same occasion. The court distinguished earlier authority dealing with executive discretion and emphasised that aggregation affects execution (the period actually served) rather than altering the sentence imposed by the court. The argument that aggregation amounted to a heavier penalty under article 7 was rejected on the basis that the measure relates to execution rather than to the substantive penalty. The court observed that judges may, if justice requires, reduce a later sentence to offset the practical effect of aggregation, but that this is a matter for sentencing judges under the totality principle. The House dismissed the appeal.

Wider context: The judgment recognised the unsatisfactory state of sentencing law and observed that subsequent statutory reform (Crime (Sentences) Act 1997) would change the release regime, but that those provisions were not yet in force and could not affect the result.

Appeal dismissed. The House held that section 51(2) of the Criminal Justice Act 1991 requires that consecutive and concurrent sentences be treated as a single term for the purposes of Part II so that the aggregated total determines short-term or long-term status under section 33; this does not increase the sentence already imposed but alters the execution (period to be served), and any injustice may in appropriate cases be addressed by sentencing judges applying the totality principle.

On appeal from the Divisional Court of the Queen's Bench Division (judicial review). No further neutral citation for the Divisional Court decision is provided in the judgment.