HMP Drake Hall & Anor v Noone, R (on the application of)

Where consecutive determinate sentences fall under different release regimes, transitional savings for sentences under 12 months apply to each such sentence even where another sentence is longer. The Criminal Justice Act 1991 and Criminal Justice Act 2003 regimes therefore operate sequentially, with each sentence governed by its applicable provisions.

The sentencing judge determines the sequence. A consecutive sentence begins when release from the preceding sentence would otherwise occur as of right. The Secretary of State must apply the statutory consequences of that order and cannot, without statutory authority, create a policy fixing HDC eligibility or licence periods. Aggregation rules apply within each regime.

Rebecca Noone was sentenced to 27 months’ imprisonment for offences committed after 3 April 2005. The sentence comprised 22 months for theft, three concurrent four-month sentences consecutive to that term, and one month for contempt of court consecutive to the four-month sentences.

The prison authorities initially notified one set of release dates and later revised them, delaying eligibility for Home Detention Curfew. Noone sought judicial review, challenging both the construction of paragraph 14 of Schedule 2 to the transitional order and the Secretary of State’s method for sequencing mixed-regime consecutive sentences.

Mitting J rejected the construction challenge but held the Secretary of State’s policy irrational and unlawful. The Court of Appeal considered whether paragraph 14 applied where only some sentences were under 12 months and whether the sequencing approach was an unlawful policy or the consequence of the statutory scheme.

1. Disposition. Scott Baker LJ allowed the appeal and reversed Mitting J’s decision. Wall LJ agreed with the analysis and outcome, and Sir Anthony Clarke MR agreed with both judgments.
2. Construction of the transitional provision. Paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement Number 8 and Transitional and Savings Provisions) Order 2005 applies whenever any sentence of imprisonment is for less than 12 months, regardless of whether other consecutive sentences are 12 months or longer. The court agreed with Dobbs J’s reasons in R (Steven Highton) v The Governor of HMYOI Lancaster Farms and the Secretary of State for the Home Department [2007] EWHC 1085 Admin on that construction. The result is that the two statutory regimes coexist and operate separately.
3. Operative provisions. Under the Criminal Justice Act 2003, section 244, rather than section 264(2) alone, is the operative provision governing mandatory release and the resulting HDC eligibility. Section 264(2) is incorporated through the definition of the requisite custodial period. Where transitional provisions disapply section 244 for an old offence, it is unnecessary to invoke section 264(2) separately for that sentence.
4. Sequencing consecutive sentences. In the absence of statutory authority, the Secretary of State could not dictate release eligibility or licence periods by policy. The purported policy was nevertheless an accurate description of the statutory effect of the sentence imposed. A sentencing judge necessarily identifies, expressly or by clear implication, the lead sentence. The direction under section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 is construed so that the next sentence begins when release from the preceding sentence would otherwise occur as of right, namely at its conditional release date. The succeeding sentence is then governed by its applicable regime.
5. Aggregation and application. Section 51(2) of the Criminal Justice Act 1991 aggregates the relevant sub-12-month sentences, while section 264 of the Criminal Justice Act 2003 aggregates the relevant custodial periods for sentences of 12 months or more. The regimes cannot alternate between individual sentences. In Noone’s case, the 22-month sentence was served first under the 2003 Act, followed by a single five-month sentence under the 1991 Act. Conditional release from the first sentence arose after 11 months; the second sentence then governed, with HDC eligibility after one quarter of that five-month term and automatic release after half of it. The Senior Presiding Judge’s guidance remained an accurate guide to the statutory scheme.
6. Alternative observation. The court added that, if the Secretary of State had possessed power to fill a statutory gap by policy, selecting the first of the available options would not have been irrational.

• Court of Appeal (Civil Division): In HMP Drake Hall & Anor v Noone, R (on the application of) [2008] EWCA Civ 1097, the court allowed the appeal and reversed the High Court’s decision.
• High Court of Justice, Queen’s Bench Division, Administrative Court: On 31 January 2008 Mitting J rejected the challenge to the construction of paragraph 14 of Schedule 2 to the transitional order, but held the Secretary of State’s policy irrational and unlawful. He ordered the governor to reconsider the respondent’s HDC eligibility and recalculate the release and sentence-expiry dates.