Niblett v Secretary of State for Justice & Anor

A sentence imposed by a Crown Court following trial on indictment cannot be quashed by judicial review where the statutory exclusion applies. A sentence that is unlawful in the sense that the court failed to comply with a statutory restriction is not thereby a nullity. It remains effective and must be obeyed unless and until set aside on appeal. Habeas corpus cannot determine whether such a sentence should be varied or quashed. The appropriate remedy is an appeal to the Court of Appeal Criminal Division, with bail sought there where appropriate.

The claimant remained detained after the expiry of the recall period relating to an earlier extended sentence. The Crown Court had subsequently imposed a consecutive twelve-month sentence following trial on indictment. The claimant challenged his continued detention by habeas corpus and judicial review, arguing that the later sentence was unlawful because R v Cawthorn and R v Jesson indicated that the statutory restriction on consecutive sentences applied.

The central issues were whether the Administrative Court could quash or disregard the Crown Court sentence, whether the sentence justified continued detention, and what remedy was available to challenge an allegedly unlawful sentence.

1. Relief refused. The application for habeas corpus, judicial review and other relief available in the Administrative Court was refused. The proceedings were not defective merely because NOMS was named as defendant; the jurisdiction itself could not set aside or amend the Crown Court sentence.
2. Under section 29(3) of the Supreme Court Act 1981, a sentence imposed by a Crown Court following trial on indictment was immune from judicial review. The Prison Service was not acting unlawfully or unreasonably by obeying the order of a court of competent jurisdiction, even if the sentence appeared unlawful.
3. The court accepted the principle stated in R v Reynolds [2007] EWCA Crim 538: a Crown Court sentence is not a nullity merely because the court failed to apply a statutory sentencing requirement. It remains valid and effective unless varied or quashed on appeal. The same principle was explained by Lord Scarman in R v Cain [1985] 1 AC 46.
4. The alleged illegality of the consecutive sentence could therefore not answer the writ of habeas corpus. This was different from Evans v Governor of Brockhill Prison, which concerned the true construction of a court order and conflicting judicial decisions on computation of time.
5. The appropriate remedy was an application to the Court of Appeal Criminal Division for permission to appeal out of time, together with an urgent application for bail. A copy of the ruling was directed to be sent to the Registrar of Criminal Appeals.