Gilbert v Secretary of State for the Home Department

Where a prisoner has been recalled under section 39 of the Criminal Justice Act 1991, a later sentence incorporating an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 does not terminate or override the original sentence. Section 40A of the 1991 Act establishes a separate release and licence regime for the new sentence alone. The original recall remains effective, including the release date arising under section 33(3). Clear statutory words would be required before section 40A could deprive the Secretary of State of recall powers exercised for public protection. The two sentences operate independently, subject to the statutory rules governing overlapping sentences and release.

The claimant had been sentenced to three years’ imprisonment and released on licence. After committing a further offence, he was recalled under section 39 of the Criminal Justice Act 1991. The Crown Court later imposed a sentence comprising an order under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and a sentence for the further offence. Because the total sentence was twelve months or less, section 40A of the 1991 Act applied. The Prison Service calculated that the claimant remained detained until the release date under the original recall. The issue was whether section 40A displaced the original sentence and recall.

The application for judicial review was refused. The claimant was lawfully detained until 23 December 2004 and remained on licence until 23 September 2005.

1. Section 40A of the Criminal Justice Act 1991 applies to the new sentence passed by the court, where that sentence includes an order under section 116 and is for twelve months or less. Its subsections replace sections 33, 33A, 37(1) and 39 with a self-contained regime applying to that new sentence alone.

2. Section 40A does not interfere with the Secretary of State’s power to recall a prisoner under section 39 in respect of the original sentence. That power serves public protection and is distinct from the court’s power under section 116, which is primarily punitive following a further offence.

3. The court followed the approach in R v Sharkey [2000] 1 WLR 160, where the section 39 recall regime and the equivalent sentencing regime were treated as capable of operating independently. The later sentence therefore did not bring the original sentence to an end.

4. Section 116(6)(a), read with sections 51(2) and 51(2B) of the 1991 Act, required the two sentences to be treated separately, while the claimant remained detained until the later applicable release date. The statutory provisions were not ambiguous, so the liberty-favouring principle of construction did not arise. The court also rejected the suggested Article 5 obscurity argument.

5. The matter was a criminal cause or matter, so there was no right of appeal. In any event, permission to appeal would have been refused because the point had no real prospect of success and no current public interest.