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

Where consecutive sentences fall partly under the Criminal Justice Act 1991 and partly under the Criminal Justice Act 2003, the statutory schemes cannot be combined merely to produce a single calculation. Transitional provisions preserve separate regimes for sentences of less than 12 months.

However, a policy for calculating Home Detention Curfew eligibility is unlawful if its operation depends arbitrarily on the order in which consecutive sentences were pronounced. The lawful approach must approximate the rational effects intended by the statutory schemes, while preserving the maximum lawful licence period. The court may declare the policy unlawful, stay that declaration pending appeal, and grant individual relief to prevent continuing prejudice.

The claimant received consecutive sentences totalling 27 months for theft and contempt of court. Her sentence comprised terms governed by the former statutory regime and the regime introduced by the Criminal Justice Act 2003. The Secretary of State applied a policy under which Home Detention Curfew eligibility depended on the order in which the sentences had been imposed.

The claimant challenged both the construction of the transitional provisions and the lawfulness of the policy. The court upheld the defendants’ construction but considered whether the policy produced arbitrary and irrational consequences.

1. Statutory construction. The transitional provision in paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 preserved the former regime for sentences of imprisonment of less than 12 months. The separate 1991 and 2003 regimes could not be combined to create one aggregate calculation. The reasoning and conclusion of Dobbs J in R (Steven Highton) v Governor of HMYOI Lancaster Farms [2007] EWHC 1085 (Admin) were correct.
2. Policy. The Secretary of State’s policy treated the first sentence pronounced as the lead sentence and calculated Home Detention Curfew eligibility by reference to the last sentence, or the aggregate of short sentences. Its effect depended on the order of pronouncement. A prisoner serving the short sentence first could become eligible earlier than one serving the long sentence first, despite otherwise comparable sentences.
3. That arbitrary consequence was irrational. The policy should have produced an outcome approximating the rational expectations and statutory objectives of the 1991 and 2003 regimes, including protection against arbitrary disadvantage in Home Detention Curfew eligibility and the maximum lawful period of licence. The analogous observations in R v C and others [2007] EWCA Crim 680 supported that conclusion.
4. The policy was therefore unlawful. The court declared it unlawful, stayed the declaration pending the Secretary of State’s appeal, directed the governor forthwith to reconsider the claimant’s eligibility for Home Detention Curfew and her sentence and licence expiry date, granted permission to appeal, and ordered the Secretary of State to pay one half of the claimant’s costs.

First-instance judicial review. The judgment does not state any appellate decision.