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

Where a prisoner sentenced under the earlier release regime is recalled under section 254 of the Criminal Justice Act 2003 after 4 April 2005, any subsequent release is governed by Chapter 6 of Part 12 of that Act. The release is on licence. The licence continues until expiry of the sentence, subject to the statutory power of recall. The prisoner is not entitled to unconditional release at the three-quarter point under section 33(3) of the Criminal Justice Act 1991, because the transitional provisions do not treat a recall under section 254 as a recall under section 39 of the 1991 Act.

The claimant was sentenced in 1998 to ten years’ imprisonment and released on licence under the regime in Part II of the Criminal Justice Act 1991. After repeated recalls, including a recall under section 254 of the Criminal Justice Act 2003, he argued that he remained entitled to unconditional release at the three-quarter point of his sentence.

The issue was the effect of the transitional and saving provisions in the Criminal Justice Act (Commencement No. 8 and Transitional and Saving Provisions) Order 2005. In particular, the court considered whether section 33(3) of the 1991 Act continued to apply after a recall under section 254, or whether subsequent release was governed by the new regime until sentence expiry.

1. The claim was dismissed. The court held that the transitional provisions were to be construed as imposing the new recall and release regime once a prisoner originally sentenced under the 1991 Act was recalled under section 254 of the Criminal Justice Act 2003.

2. Paragraph 19 of Schedule 2 to the Criminal Justice Act (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 saved substantial parts of the 1991 Act for prisoners sentenced for offences committed before 4 April 2005. Paragraph 23 nevertheless brought such prisoners within section 254 after that date and replaced references to recall under section 39 with references to section 254 in the provisions specified there.

3. The omission of section 33(3) from paragraph 23(1)(b) was decisive. Section 33(3) required unconditional release at the three-quarter point only where the prisoner had been recalled under section 39. The transitional provision did not convert a recall under section 254 into a recall under section 39. The court therefore declined to treat section 33(3) as applying after a section 254 recall.

4. Following recall under section 254, any later release under section 254 or section 256 is a release under Chapter 6 of Part 12 of the 2003 Act. It is consequently on licence. Although section 249, dealing expressly with licence duration, was disapplied by paragraph 19, there was no provision terminating the licence before sentence expiry. The licence therefore continues until the sentence expires.

5. The claimant’s earlier recall under section 39 did not alter the legal consequence of the later section 254 recall. The court also noted that the Prison Service guidance relied on in support of legitimate expectation was plainly wrong, but the argument was not pressed.

Lady Justice Hallett agreed with Jack J’s reasoning and conclusion.