Buddington, R (on the application of) v Secretary of State for the Home Department

Transitional provisions made under the Criminal Justice Act 2003 permitted the Secretary of State to recall prisoners released on licence under the earlier statutory regime, where the recall occurred after the commencement of the new regime. The words governing release were construed as qualifying the operation of the transitional provisions, rather than the date of release.

That construction was supported by the statutory purpose, the extreme and anomalous consequences of the alternative interpretation, and the requirement to consider the reasonableness of the consequences. The court rejected arguments based on unfairness, legal certainty, section 3 of the Human Rights Act 1998, and section 16 of the Interpretation Act 1978.

The claimant had been sentenced to imprisonment in January 2004 and released on licence under section 33 of the Criminal Justice Act 1991 on 1 December 2004. After the repeal of section 39 of that Act took effect on 4 April 2005, he was recalled for breach of licence.

The Secretary of State accepted that section 39 of the 1991 Act could not provide the statutory authority for the recall, and section 254(1) of the Criminal Justice Act 2003 did not directly apply to a prisoner released under the earlier Act. The central issue was whether paragraph 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional Savings Provisions) Order 2005 extended the new recall power to such prisoners.

1. Application dismissed. The Secretary of State had power, after 4 April 2005, to recall prisoners released on licence under the 1991 Act before that date.

2. Paragraph 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional Savings Provisions) Order 2005 was ambiguous. Read in the context of the 2003 Act and the circumstances giving rise to it, the words referring to release after 4 April 2005 qualified the operation of sub-paragraphs (a) to (c). They did not require the prisoner to have been released after that date.

3. The court applied the established principles that delegated legislation is construed in the same manner as an Act, that statutory provisions must be read in their statutory and historical context, and that the court must give effect to Parliament’s purpose. It was also proper to consider the reasonableness of the consequences and to reject an interpretation producing an absurd or highly inconvenient result. These principles were drawn from R (Quintavalle) v Secretary of State for Health, River Wear Commissioners v Adamson and Garside v IRC.

4. The claimant’s interpretation would have created an unexplained amnesty for prisoners released before 4 April 2005, while prisoners released or recalled at different dates remained liable to recall. That result was inconsistent with the protective policy of the 2003 Act and depended on administrative timing. It could not have been Parliament’s intention.

5. The alleged unfairness arising from the absence of an equivalent to section 33(3) of the 1991 Act did not alter the construction. Any disadvantage resulted from the repeal of that provision, not from paragraph 23. The court also relied on the safeguards involving the Parole Board, the Secretary of State’s directions, and the recall procedures under the 2003 Act. The claim that paragraph 23 required a Convention-compatible reading under section 3 of the Human Rights Act 1998, or that section 16 of the Interpretation Act 1978 preserved the claimant’s position, therefore failed.

First-instance judicial review proceedings. Collins J had granted permission for the claim to proceed. The Divisional Court dismissed the application.