Kelly & Ors R. (On the Applications of) v Secretary of State for Justice

A court may correct a statutory drafting error only where it is abundantly sure of the provision’s purpose, the draftsman’s inadvertence, and the substance of the correction Parliament would have made. That narrowly confined purposive approach remains available where legislation concerns criminal punishment and liberty, provided it does not remove settled rights of liberty.

Applying Inco Europe [2000] 1 WLR 586, the omission of section 33(3) from the transitional provisions was a drafting error. The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Savings Provisions) Order 2005 was to preserve, not alter, the pre-existing substantive licence regime. Prisoners recalled after commencement therefore remained liable to licence until sentence expiry. The correction did not breach Article 5 because the intended legal position was sufficiently certain.

The three appellants had each received a five-year sentence for serious offences committed before 4 April 2005. Each was released at the two-thirds point, recalled, and re-released at the three-quarter point after the new recall regime had commenced. Bailey and Gibson were later returned to custody; Kelly remained on licence.

Under the amended Criminal Justice Act 1991, a recalled prisoner re-released at the three-quarter point would remain on licence until sentence expiry. The appellants contended that the transitional provisions in the 2005 Order failed to adapt section 33(3) to the new recall power, with the consequence that they became entitled to unconditional release at that point.

The Divisional Court (Keene LJ and Gibbs J), in a judgment delivered on 2 November 2007, held that the extended licences were lawful. The appeals raised whether the omission from paragraph 23(1)(b) of Schedule 2 was a correctable drafting error and, if so, whether correction was permissible in a context affecting liberty.

1. Appeals dismissed. Laws LJ, with whom Wilson LJ and the Master of the Rolls agreed, held that the appellants’ licences lawfully continued until expiry of their sentences.

2. Paragraphs 19 and 23 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Savings Provisions) Order 2005 were procedural transitional provisions. They introduced the new process for recall and re-release under sections 254 and 256 of the Criminal Justice Act 2003, but did not alter the substantive duration of licences preserved for pre-commencement offenders. Stellato [2007] 2 AC 70 strongly supported that construction.

3. The omission of section 33(3) of the Criminal Justice Act 1991 from paragraph 23(1)(b) was a drafting error. No rational legislative purpose explained why offenders sentenced under the same regime should receive a substantial and arbitrary advantage merely because recall occurred after, rather than before, 4 April 2005. The preservation of the whole of sections 33 and 37 also showed that the omission could not have been intended.

4. The stringent conditions in Inco Europe [2000] 1 WLR 586 were met. The intended purpose was to retain a whole-sentence licence for recalled long-term prisoners; the omission was inadvertent; and the corrective substance was identifiable. The Order could therefore be read so as to give effect to section 33(3), with section 37(1A) applying. Re-release at the three-quarter point was consequently on licence until sentence expiry.

5. The criminal and liberty context did not bar that construction. A court would not use a purposive correction to take away settled liberty rights, but the appellants had no such pre-existing right. Their asserted benefit was adventitious. Nor did the necessary correction create an Article 5 want of legal certainty: the Order’s procedural transitional purpose and the resulting legal position were sufficiently clear.

• Court of Appeal (Civil Division): The appeals were dismissed in [2008] EWCA Civ 177. The court upheld the lawfulness of the extended licences.
• Divisional Court (High Court): Keene LJ and Gibbs J, in a judgment delivered on 2 November 2007, dismissed the judicial review claims and held that the licence extensions were lawful. No citation was stated in the judgment.