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

The House of Lords considered the proper construction of paragraphs 19 and 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (the 2005 Order) and whether, on their true construction, a recall after 4 April 2005 extended the duration of a pre-2005 offence prisoner's licence to the end of his sentence. The Lords held that paragraph 19 saves the 1991 Act regime for pre-Act offenders (in particular section 37 of the Criminal Justice Act 1991) so that a prisoner convicted of an offence committed before 4 April 2005 remains entitled to unconditional release at the three-quarter point and is not, merely by being recalled after 4 April 2005 under the 2003 Act, made subject to licence until the end of the sentence. Paragraph 23 operates only to govern the process of recall and re-release (bringing recall within sections 254 and 256 of the 2003 Act) and does not alter the saved rule on the duration of licence. The Lords also treated the method of making the 2005 Order (under section 330(4)(b) and subject to the negative resolution procedure) as a factor reinforcing the conclusion that no retrospective deprivation of pre-Act rights was intended.

This was an appellate challenge by the Secretary of State to a decision that a prisoner (the respondent), convicted of offences in June 1998 and serving a ten year determinate sentence, was entitled to unconditional release on reaching the three-quarter point of his sentence notwithstanding a recall after 4 April 2005. The respondent brought judicial review seeking a declaration that his release at the three-quarter point must be unconditional under the Criminal Justice Act 1991 regime as saved by the transitional provisions in the 2005 Order.

The issues were: (i) whether paragraphs 19 and 23 of Schedule 2 to the 2005 Order (the saving and transitional provisions) permitted the Secretary of State, by recall after 4 April 2005, to extend the duration of a pre-Act prisoner's licence such that any re-release would be on licence until the end of the sentence; (ii) whether paragraph 23 should be read as importing section 33(3) of the 1991 Act or as displacing it in post-Act recall cases; and (iii) whether the manner in which the Order was made (under section 330(4)(b), subject to negative resolution) had any bearing on interpretation.

The House reviewed the relevant statutory regimes: the 1991 Act (which entitled long-term prisoners to unconditional release at three-quarters), the 1998 amendments (which changed licensed release for post-1998 offenders) and the 2003 Act (which generally provides for release at the halfway point and licence until the end of sentence). Paragraph 19 of Schedule 2 to the 2005 Order disapplied specified provisions of the 2003 Act and preserved key provisions of the 1991 Act for pre-Act offenders, notably the provision governing duration of licence (section 37). Paragraph 23 was read as concerned with the mechanics of recall and re-release (bringing pre-Act prisoners within sections 254 and 256 for recall procedure) and not as modifying the saved rule on the duration of licence. The Lords noted poor drafting in paragraph 23 (including typographical errors and the omission of an express reference to section 33(3)) but concluded the omission did not change the saving effect of paragraph 19. The manner in which the Order was made (avoiding the affirmative resolution procedure) reinforced the view that Parliament had not intended to produce a substantive and retrospective change to pre-Act prisoners' rights without clearer formality and debate.

Procedural history: Divisional Court dismissed the judicial review ([2006] EWHC 608 (Admin)); Court of Appeal allowed the respondent's appeal ([2006] EWCA Civ 1639); House of Lords dismissed the Secretary of State's appeal and discharged the respondent.

Appeal dismissed. The House held that paragraphs 19 and 23 of Schedule 2 to the 2005 Order must be construed so as to preserve for pre-Act offenders the 1991 Act rule that licence expires at the three-quarter point; paragraph 23 relates only to the recall and re-release procedure (bringing such matters within sections 254 and 256 of the 2003 Act) and does not convert re-release after a post-2005 recall into release on licence until the end of the sentence. The drafting shortcomings did not alter that result, and the use of the section 330(4)(b) power (subject to the negative procedure) reinforced the conclusion that no substantive retrospective deprivation was intended.

Divisional Court (Hallett LJ and Jack J) dismissed the judicial review: [2006] EWHC 608 (Admin); Court of Appeal (Longmore, Scott Baker and Hughes LJJ) allowed the respondent's appeal: [2006] EWCA Civ 1639; House of Lords dismissed the Secretary of State's appeal: [2007] UKHL 5.