Buddington v Secretary of State for the Home Department

A transitional provision governing recall from prison licence must be construed in its statutory context and according to its purpose. A reading which unexpectedly removes all effective sanctions from one arbitrary group of serving prisoners, while preserving them for comparable groups, may be rejected as absurd.

Paragraph 23(1) of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 applies to prisoners released under Part II of the former statutory regime, whether release occurred before or after 4 April 2005. Section 254 of the Criminal Justice Act 2003 therefore authorises their recall. Necessary punctuation may be supplied to give effect to that construction.

The appellant received a sentence of two years and five months’ imprisonment and was released on licence under Part II of the Criminal Justice Act 1991. After that Act’s recall provision had been repealed, the Secretary of State revoked his licence and recalled him under the successor regime in the Criminal Justice Act 2003.

The Divisional Court, in [2005] EWHC 2198 (QB), held that the recall was lawful. The appellant appealed, contending that paragraph 23(1) of Schedule 2 to the commencement and transitional Order applied only to prisoners released after 4 April 2005. The central issue was whether the transitional provision brought a prisoner released before that date within the recall power in section 254 of the 2003 Act.

1. Appeal dismissed. The President of the Queen’s Bench Division delivered the judgment. May LJ and Sir Peter Gibson agreed.

2. A prisoner released on licence under the Criminal Justice Act 1991 remained a person serving a sentence of imprisonment. Release permitted the sentence to be served in the community subject to licence conditions and liability to recall. The appeal therefore concerned the statutory arrangements governing a serving prisoner, rather than the liberty of a person no longer subject to sentence.

3. The 2003 legislation preserved the system of early release on licence and the Secretary of State’s power to revoke a licence and recall a prisoner. The transitional regime was intended to operate seamlessly. Nothing in the legislation indicated an intention to remove recall sanctions from prisoners released shortly before 4 April 2005 while retaining them for comparable prisoners released later.

4. The appellant’s proposed construction produced an absurd and incoherent result. It would leave a prisoner legally subject to a continuing licence but practically free from any sanction for non-compliance. It would also create arbitrary differences between prisoners sentenced under the same regime and between ordinary licence conditions and preserved curfew conditions.

5. Paragraph 23(1) of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 was to be read so that the words “after 4 April 2005” governed sub-paragraphs (a) and (b). The expression “falls to be released under the provisions of Part 2 of the 1991 Act” covered every prisoner released under those provisions, whether release occurred before or after that date. If necessary, a comma could be supplied before the date to express that meaning.

6. Section 254 of the Criminal Justice Act 2003 consequently applied to the appellant. The Secretary of State had authority to revoke his licence and recall him notwithstanding that he had been released before 4 April 2005.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court affirmed that section 254 of the Criminal Justice Act 2003 authorised the appellant’s recall.

2. Divisional Court of the Queen’s Bench Division: Silber and Leveson JJ held in [2005] EWHC 2198 (QB) that the Secretary of State had lawfully recalled the appellant.