Highton, R (on the application of) v HMYOI Lancaster Farms & Anor

Paragraph 14 of Schedule 2 to the Criminal Justice Act (Commencement No 8 and Transitional and Saving Provisions) Order 2005 applies to any sentence of imprisonment of less than 12 months, including one imposed consecutively or concurrently with a longer sentence. It preserves the former statutory regime for such a sentence because the corresponding provisions for sentences under 12 months in the Criminal Justice Act 2003 were not in force.

The transitional scheme may produce practical anomalies where the old and new regimes coexist. Those consequences arise from the Secretary of State’s policy for administering the two regimes, rather than from paragraph 14 itself. A wide discretion to grant special remission is not irrationally exercised merely because the prisoner was released in error if, while at large, he breached the conditions of the purported release.

The claimant sought judicial review of the calculation of his release and licence dates following consecutive sentences totalling 32 months. The offences were committed after 4 April 2005, but the sentence included terms both of 12 months or more and of less than 12 months.

The defendants treated the longer sentences under the Criminal Justice Act 2003 and the shorter sentences under the preserved provisions of the Criminal Justice Act 1991, pursuant to paragraph 14 of Schedule 2 to the 2005 Order. The claimant argued that all sentences should instead be aggregated under the 2003 Act. Alternatively, he challenged the refusal to grant special remission for time spent unlawfully at large after an erroneous release.

1. Judicial review dismissed. The sentence calculation was lawful, and the refusal of special remission was not irrational. The claimant’s damages claim therefore also failed.
2. Paragraph 14 of Schedule 2 to the Criminal Justice Act (Commencement No 8 and Transitional and Saving Provisions) Order 2005 applies on its plain reading to any sentence of imprisonment of less than 12 months. The words concerning concurrent or consecutive sentences confirm that the paragraph can operate where such a sentence is combined with another sentence.
3. The 2003 Act provisions relating to sentences under 12 months were not in force. In particular, the relevant custodial period could not be calculated under section 264 because section 181, to which section 264(6) referred for such sentences, was not in force. The claimant’s proposed construction would impermissibly mix the 1991 and 2003 regimes, with no clear basis in the Order.
4. The anomalies identified by the claimant did not result from paragraph 14 alone. The 2005 Order contemplated the coexistence of separate regimes, and the practical consequences resulted from the Secretary of State’s administrative policy for dealing with them. The court did not determine the validity of that policy, but observed that it should be reviewed and published clearly to practitioners and sentencing judges.
5. The Secretary of State had a wide discretion to grant special remission. In assessing the claimant’s case, it was lawful to take account of his breach of the conditions of the purported Home Detention Curfew while he was at large. The decision not to grant remission could not be characterised as irrational in the Wednesbury sense.
6. The application for judicial review was dismissed. The claimant’s costs were subject to detailed assessment. Leave to appeal was refused.

First-instance judicial review application. Permission was granted on 15 March 2007. The application was dismissed by the Administrative Court, and leave to appeal was refused.