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

Transitional provisions governing the recall of prisoners released on licence before a statutory regime changed must be construed in the context and purpose of the legislation as a whole. Where competing constructions produce radically unequal or unreasonable consequences, the court may prefer the construction that preserves the statutory scheme and its protective purpose. Paragraph 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional Savings Provisions) Order 2005 therefore enabled prisoners released under the former regime to be recalled under the new regime after 4 April 2005. The repeal of the former automatic-release provision did not result from paragraph 23 and did not make the recall unlawful.

The claimant was sentenced to two years and five months’ imprisonment in January 2004 and released on licence under the Criminal Justice Act 1991 on 1 December 2004. After 4 April 2005, relevant provisions of the Criminal Justice Act 2003 replaced the former regime. The claimant was recalled on 24 May 2005 for breach of licence.

The judicial review concerned the construction of paragraph 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional Savings Provisions) Order 2005. The central issue was whether the paragraph permitted the Secretary of State to recall a prisoner released before 4 April 2005.

1. The application was dismissed. The Secretary of State had power after 4 April 2005 to recall prisoners who had been released on licence before that date.

2. Delegated legislation is construed in the same manner as primary legislation. The court must ascertain and give effect to Parliament’s purpose by reading the disputed provision in the context of the legislation as a whole and the historical circumstances leading to its enactment. The reasonableness of the consequences may be considered where the language is uncertain. These principles were drawn from R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, River Wear Commissioners v Adamson (1877) 2 App Case 743 and Garside v IRC [1968] AC 533.

3. Paragraph 23 was ambiguous as to whether the words “after 4 April 2005” qualified the date of release or the operation of sub-paragraphs (a) to (c). The latter construction was required by the statutory context. The claimant’s construction would create an accidental amnesty for prisoners released before 4 April 2005, produce arbitrary differences based on administrative delay, and undermine the public-protection purpose of the new regime.

4. The possible disadvantage caused by the repeal of section 33(3) of the 1991 Act did not alter the construction of paragraph 23. Any such consequence resulted from the repeal and the absence of a saving for section 39, rather than from paragraph 23 itself. The court therefore found no basis for applying section 3 of the Human Rights Act 1998 or section 16 of the Interpretation Act 1978 to require the claimant’s construction.

5. The claimant had been detained beyond the date on which he should have been released, but that admitted error was separate from the lawfulness of the recall.

Not stated in the judgment. Collins J granted permission for the judicial review application.