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

Saving provisions for prisoners whose offences preceded a new statutory release regime preserve their existing substantive entitlement to unconditional release unless clear language provides otherwise. Transitional provisions which introduce new procedures for recall and re-release do not, without such language, extend the duration of a prisoner's licence or period of liability to recall.

Where the proposed construction would retrospectively deprive prisoners of a statutory entitlement, the legislative text must state that consequence in the clearest terms. The limited parliamentary scrutiny given to a commencement order may reinforce the conclusion that its transitional provisions address definition and procedure rather than substantive rights.

The respondent was serving a ten-year sentence for offences committed before 30 September 1998. Under the applicable Criminal Justice Act 1991 regime, he was entitled to unconditional release at the three-quarter point. After his recall under the later regime, the Secretary of State contended that his licence continued until the end of his sentence.

The Divisional Court dismissed the respondent's claim for judicial review: [2006] EWHC 608 (Admin). The Court of Appeal allowed his appeal, holding that he became unconditionally entitled to release at the three-quarter point: [2006] EWCA Civ 1639; [2007] 1 WLR 608.

The central issue was whether paragraphs 19 and 23 of Schedule 2 to the 2005 commencement order preserved the earlier limit on the duration of the licence, notwithstanding the new procedures governing recall and re-release.

1. The Secretary of State's appeal was dismissed unanimously, and the respondent was discharged. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Bingham, Lord Hoffmann, Lord Hope and Lord Carswell agreed with his reasons.

2. Per Lord Brown, paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 preserved the substantive release rights of prisoners whose offences were committed before 4 April 2005. In particular, it disapplied section 249 of the Criminal Justice Act 2003 and preserved sections 33 and 37 of the Criminal Justice Act 1991. The latter provisions limited the licence of a prisoner in the respondent's position to the three-quarter point of the sentence.

3. Paragraph 23 of Schedule 2 concerned only the procedure for recalling and re-releasing prisoners after 4 April 2005. It extended section 254 of the 2003 Act to prisoners released under the 1991 Act and adapted references to the former recall procedure. It did not alter the duration of their licences. The powers of the Secretary of State and Parole Board under sections 254 and 256 therefore ended when a prisoner became entitled to unconditional release under the saved provisions.

4. The omission from paragraph 23(1)(b) of an express adaptation of section 33(3) of the 1991 Act did not imply that section 33(3) ceased to apply. That section was expressly preserved by paragraph 19. Its omission was also explicable because it referred to a prisoner being recalled under section 39, rather than to revocation under that section.

5. The Secretary of State's construction would have retrospectively deprived existing prisoners of a statutory entitlement and lengthened their exposure to licence conditions and recall. Per Lord Brown, such a surprising consequence required the clearest legislative language. The order instead indicated that existing substantive rights were preserved.

6. Lord Hope added, with Lord Hoffmann's agreement, that the legislative procedure reinforced that construction. An alteration of substantive rights would ordinarily have been expected to use the power attracting affirmative parliamentary approval. The use of a commencement and transitional power subject only to the negative procedure strongly indicated that the provisions addressed transitional definition and procedure, not substantive prisoners' rights.

1. House of Lords: The Secretary of State's appeal was dismissed unanimously, and the respondent was discharged: [2007] UKHL 5.
2. Court of Appeal: The respondent's appeal was allowed. His release became unconditional at the three-quarter point, after which there was no power to recall him: [2006] EWCA Civ 1639; [2007] 1 WLR 608.
3. Divisional Court: The claim for judicial review was dismissed. The court held that the respondent's licence continued until the final expiry of his sentence: [2006] EWHC 608 (Admin).