Martin v Secretary of State for the Ministry of Justice

A short-term prisoner released on licence under the pre-2005 regime is entitled to unconditional release at the three-quarter point unless he is in custody at that date. A previous recall followed by release does not preserve licence conditions beyond that point.

The transitional provisions implementing the Criminal Justice Act 2003 must not disadvantage prisoners sentenced for pre-4 April 2005 offences by extending the effective period of liability to recall or supervision. The court determines the issue by reference to the prisoner’s actual custody at the relevant date, rather than by reconstructing what the Parole Board might have done under the former regime.

The claimant was serving a three-year sentence for robbery committed before 4 April 2005. He had been released on licence after serving half the sentence, recalled, and then released again following consideration by the Parole Board.

He was at liberty when he reached the three-quarter point on 16 December 2006. He was later recalled and detained for alleged breaches of licence conditions. The central issue was whether the transitional provisions preserved those licence conditions after the three-quarter point, having regard to the interpretation given in R (Stellato) v Secretary of State for the Home Department [2007] 2 WLR 531.

1. The claim for judicial review succeeded. The claimant was entitled to unconditional release from his three-year sentence when he reached the three-quarter point on 16 December 2006.
2. Section 33(3) of the Criminal Justice Act 1991 required release on licence at that point only where a prisoner released on licence and recalled to prison was in custody when the three-quarter point was reached. If the prisoner was lawfully at large, the provision had no operative application.
3. The transitional provisions did not replace the reference to section 39 in section 33(3) with a reference to section 254 of the Criminal Justice Act 2003. Section 33 remained applicable to pre-4 April 2005 offences, but section 33(3) could not preserve licence status where the claimant was not in custody at the material time.
4. The approach in R (Stellato) v Secretary of State for the Home Department [2007] 2 WLR 531 prevented the Secretary of State from arguing that the claimant should be treated as still subject to licence because the Parole Board might have adjourned the earlier proceedings under the old regime. The court had to examine the actual custody position, not hypothetical alternatives.
5. From 16 December 2006 the claimant was no longer subject to licence conditions. His subsequent detention was unlawful, subject only to any separate imprisonment resulting from the later offence. The court ordered his immediate release, made provision for declaratory relief, and adjourned damages and costs to the Queen’s Bench Division.

First-instance judicial review proceedings in the Divisional Court. The court refused permission to appeal, leaving the defendant to seek permission from the Court of Appeal.