Gibson & Anor v Secretary of State for Justice

Transitional provisions governing prisoners sentenced for pre-4 April 2005 offences preserve the substantive release-and-licence regime applicable before the Criminal Justice Act 2003 came into force. They regulate procedural changes in recall and release without enlarging or reducing substantive rights. A prisoner recalled under section 254 of the 2003 Act is treated, for the purposes of the preserved section 33(3) regime, as recalled under section 39 of the amended Criminal Justice Act 1991. On later release at the three-quarter stage, section 37(1A) therefore requires the licence to continue until expiry of the sentence.

Three prisoners serving five-year sentences for offences committed after 29 September 1998 but before 4 April 2005 were sentenced under the amended Criminal Justice Act 1991. Each was released on licence at the two-thirds stage, recalled, and later released at the three-quarter stage. Their licences were treated as continuing until expiry of the original sentences.

They brought two judicial-review claims and an application for habeas corpus, contending that their later release was unconditional because section 33(3) of the 1991 Act was not expressly included in the deeming provision in paragraph 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Saving Provisions) Order 2005. The central issue was whether the omission meant that section 37(1A) could not apply after recall under section 254 of the 2003 Act.

1. Applications dismissed. The judicial-review applications and Gibson’s habeas corpus application were rejected. Permission to appeal to the Court of Appeal was granted.
2. The transitional scheme preserved the substantive regime governing prisoners sentenced for offences committed before 4 April 2005. Paragraphs 19 and 23 of Schedule 2 to the 2005 Order concerned transitional definitions and procedure. They were not intended to alter the duration of licences or confer a substantive advantage merely because recall procedures changed.
3. The court followed the interpretation adopted by the House of Lords in R (on the application of Stellato) v Secretary of State for the Home Department [2007] 2 AC 70. Paragraph 23(1)(b) must be understood as substituting recall under section 254 of the 2003 Act for recall under section 39 of the amended 1991 Act in the preserved regime.
4. Section 33(3) continued to require release on licence at the three-quarter stage after a prisoner released on licence had been recalled. Section 37(1A) consequently extended the licence to the whole sentence where release occurred under that provision. Reading the Order otherwise would create an arbitrary distinction between prisoners recalled before and after 4 April 2005.
5. The conditions identified in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 for correcting an inadvertent drafting omission were amply met, although it was unnecessary to undertake that exercise afresh because of Stellato. The court recognised that liberty was at stake but found the legislative intention sufficiently clear.

There was no order for inter-party costs. Legal Services Commission assessment was permitted.

First-instance decision in the Administrative Court. The court granted permission to appeal to the Court of Appeal, where possible before the end of the following term.