R v Secretary of State for the Home Department, Ex parte Francois (Francois, Ex parte)

Under section 51(2) of the Criminal Justice Act 1991, consecutive and wholly or partly concurrent terms of imprisonment must be treated as a single term for the early-release provisions in Part II. This applies whether the sentences were imposed by the same or different courts and on the same or different occasions.

If aggregation produces a term of four years or more, the offender becomes a long-term prisoner and the statutory release point is calculated accordingly. This changes the execution of the sentences rather than retrospectively increasing them. A later sentencing judge may nevertheless reduce the later sentence under the totality principle where aggregation would otherwise cause injustice.

The appellant received several sentences totalling 19 months, followed on a later occasion by a consecutive four-year sentence. Treating the sentences separately would have produced an earlier release date. Treating them as one term under section 51(2) of the Criminal Justice Act 1991 made him a long-term prisoner and postponed his release.

The Divisional Court held that the terms had to be aggregated. Although the appellant had been released by the time of the hearing, the House heard the appeal because the answer could affect a civil claim, other prisoners and prison administration. The issue was whether section 51(2) applies to sentences imposed on different occasions and whether the resulting change in release date unlawfully increases the original sentence.

1. Appeal dismissed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Browne-Wilkinson, Lord Nolan, Lord Hope of Craighead and Lord Hutton agreed with his reasons. The certified question was answered in the affirmative.

2. Per Lord Slynn, section 51(2) of the Criminal Justice Act 1991 is clear. Consecutive terms and terms which are wholly or partly concurrent must be treated as a single term for Part II. The provision contains no limitation to sentences imposed by the same court or on the same occasion.

3. The aggregation does not retrospectively increase the judicial sentence. Part I concerns courts' sentencing powers, whereas Part II concerns the Secretary of State's administration of early release. When release falls to be calculated, the prison authorities must determine the prisoner's current status. The aggregated total determines whether the prisoner is serving less than four years as a short-term prisoner or at least four years as a long-term prisoner.

4. Once aggregation produces four years or more, the offender must be treated as a long-term prisoner throughout the aggregated term. The component sentences cannot then be separated to preserve an earlier short-term release point. The longer period in custody concerns execution of the sentences rather than the imposition of a heavier penalty. The analogous reasoning in Hogben v United Kingdom was applied.

5. The principle of legal certainty stated in R v Secretary of State for the Home Department, Ex parte Pierson [1997] 3 WLR 492 was accepted but did not alter the construction. Pierson concerned the discretionary postponement of release, whereas the present case concerned performance of a statutory duty. A sentencing judge can explain that a later sentence may raise the aggregated term to four years and change the applicable release fraction.

6. Per Lord Slynn, justice may sometimes require the later sentencing judge to reduce the sentence otherwise appropriate for the later offence. That is a case-specific application of the totality principle where conversion to long-term status causes additional custody attributable to the earlier sentence.

7. The Divisional Court's construction in R v Governor of Brockhill Prison, Ex parte Evans [1997] QB 443 was approved. Section 51(2) applies even where sentences were imposed on different occasions. Section 67(4) of the Criminal Justice Act 1967 did not affect that conclusion. The uncommenced replacement regime in the Crime (Sentences) Act 1997 had to be ignored.

1. House of Lords: Dismissed the appeal unanimously and answered the certified question in the affirmative.
2. Divisional Court of the Queen's Bench Division: Held that the consecutive sentences imposed on different occasions were to be treated as a single term under section 51(2) of the Criminal Justice Act 1991.