A, R (on the application of) v Huntercombe Young Offenders' Institute & Anor

A detention and training order must comply with the statutory terms prescribed by the Powers of Criminal Courts (Sentencing) Act 2000. Time spent on remand is taken into account when fixing the term of the order, not by reducing its later release date. The early-release power under section 102(4) is available only at the statutory one-month or two-month points. Under section 102(3), exceptional circumstances, compassionate grounds and justification for release must be established, although release remains discretionary. Compassion is not confined to serious illness. An apparently reliable assurance of immediate release, combined with exceptional circumstances and resulting distress, may require release unless there is a good reason to retain the offender.

The claimant was detained under a three-year sentence imposed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The Criminal Division of the Court of Appeal quashed his conviction, substituted a section 20 conviction and imposed an 18-month detention and training order, stating that 43 days spent on remand were to count towards the sentence.

The Prison Service considered that the amended order was unlawful and refused immediate release. It also refused to exercise the statutory early-release and compassionate-release powers. The claimant sought judicial review. The central issues were whether remand time could reduce the release date, whether section 102(4) permitted release outside its specified periods, and whether the circumstances required release under section 102(3).

1. The claim succeeded. The claimant was entitled to immediate release. The court rejected the contention that the sentencing court could deduct remand time from the release date. Section 101(8) required remand to be taken into account in fixing the term of the order, while section 101(1) restricted the available terms. The Court of Appeal’s amended order was therefore unlawful.
2. Section 102(4) did not authorise release at an approximate date within the stated period. It permitted release only one month before the halfway point for an order of the relevant length. The Prison Service was correct that this power was unavailable on 22 September 2006.
3. The preconditions under section 102(3) were exceptional circumstances, compassionate grounds and justification for release. Even when those preconditions existed, release remained discretionary, subject to good reasons such as risk or conduct.
4. Birthdays, family inconvenience and ordinary mistakes about sentencing powers were not, individually, exceptional circumstances. Here, however, the deferred appeal hearing extended detention by almost a month, the Court of Appeal had indicated that remand time should count, the Prison Service had apparently assured the family that a judicial recommendation would lead to immediate release, and two judges had made that recommendation. Taken together, those matters were exceptional.
5. Compassion was not confined to illness or death. The repeated indications of immediate release had caused real distress to the claimant and his family. The Governor had adopted too narrow a construction of section 102(3) and had failed to take material matters into account. In the absence of any good reason to retain the claimant, the power should have been exercised.

The Criminal Division of the Court of Appeal had earlier quashed the claimant’s section 18 conviction, substituted a section 20 conviction and imposed an 18-month detention and training order. The present court treated the judicial review proceedings as the substantive hearing and ordered the claimant’s immediate release.