Stellato v Secretary of State for the Home Department

For prisoners serving sentences for offences committed before 4 April 2005, the savings in Criminal Justice Act 2003 (Commencement No.8 and Transitional and Savings Provisions) Order 2005 preserve the earlier release and licence-duration regime in the Criminal Justice Act 1991. That remains so after recall.

The transitional recall provisions introduce the new, unified recall procedure. They do not convert a recalled prisoner’s preserved licence into one lasting until the end of the sentence. A court should not insert an unstated exception into a saving provision unless the stringent conditions for correcting a drafting error are met.

The appellant was serving a ten-year sentence for offences committed in June 1998. He was initially released on licence after serving two thirds of his sentence. Following later recalls and releases, he was released shortly before the three-quarter point of his sentence in December 2005.

The Secretary of State treated him as remaining subject to licence until the end of his sentence and recalled him again in January 2006. The appellant contended that his licence had expired at the three-quarter point, so that his release had become unconditional.

The Divisional Court refused judicial review. On appeal, the central issue was whether the release following recall was governed by the preserved regime in the Criminal Justice Act 1991 or by the later regime in the Criminal Justice Act 2003, on the true construction of Schedule 2 to the 2005 Order.

1. Appeal allowed unanimously. The appellant’s release after recall remained governed by the Criminal Justice Act 1991. His licence expired at the three-quarter point of his sentence. He was then released unconditionally and could not lawfully be recalled for an alleged subsequent breach of licence.

2. Scott Baker LJ, with whom Hughes LJ agreed, held that paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No.8 and Transitional and Savings Provisions) Order 2005 expressly preserved both the earlier release provisions and section 37(1) of the 1991 Act for prisoners convicted of offences before 4 April 2005. Section 37(1) was not confined to an initial release. It applied whenever such a prisoner was released on licence, subject to revocation, and fixed expiry at the three-quarter point.

3. Paragraph 23 introduced a single procedure for revocation and recall under section 254 of the Criminal Justice Act 2003. It did not alter the substantive duration of a preserved 1991 Act licence. The omission of section 33(3) from paragraph 23(1)(b) could not displace the express saving in paragraph 19 or impose the more onerous post-2003 licence regime on recalled prisoners.

4. The Secretary of State’s construction required an unexpressed limitation to be read into paragraph 19. Applying Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, the court held that the conditions for correcting a drafting error were not met. In particular, the legislation’s intended purpose did not include disadvantaging this small class of existing prisoners.

5. Longmore LJ gave concurring reasons. He emphasised that Parliament had preserved the earlier licence-duration provisions while changing recall procedure for all prisoners. If recalled 1991 Act prisoners were to lose their preserved three-quarter release entitlement, the Order would have needed to say so clearly.

• Court of Appeal (Civil Division) Allowed the appeal and held that the appellant’s licence expired at the three-quarter point: [2006] EWCA Civ 1639.
• Divisional Court Refused the appellant’s application for judicial review, holding that a recalled prisoner remained subject to licence until the end of the sentence.