Webb, R (on the application of) v Secretary of State for Justice

An order returning a prisoner to custody under section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 is a fresh sentence imposed after a discretionary sentencing exercise. It is concerned with the prisoner’s post-release conduct, including the new offence, rather than being a reactivation of the original sentence. A return term is therefore served in respect of the statutory order and the prisoner’s conduct, not in respect of the original offence. The specified-offence exclusion in section 33(1B) of the Criminal Justice Act 1991 did not apply merely because the original offence was specified in Schedule 15 to the Criminal Justice Act 2003. The halfway-release duty in section 33(1A) consequently applied.

The appellant had received a ten-year sentence for attempted rape in 1997 and was lawfully released before committing burglary. He was later sentenced to six years’ imprisonment for burglary, following reduction of a seven-year sentence, and was ordered under section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 to serve 533 days in custody before that sentence.

The respondent treated the resulting term as subject to the halfway-release provision in section 33(1A) of the Criminal Justice Act 1991. The appellant challenged that decision, arguing that the return term was served in respect of the original attempted rape offence, which was specified in Schedule 15 to the Criminal Justice Act 2003. Mitting J dismissed the judicial review claim: [2010] EWHC 1714 (Admin). The central issue was whether the return term was served in respect of the specified original offence for the purposes of section 33(1B).

Appeal dismissed. Sullivan LJ gave the judgment, with Wilson LJ and Pill LJ agreeing.

1. Section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 contains deeming provisions which treat a return-to-prison period as a sentence of imprisonment for the purposes of Part II of the Criminal Justice Act 1991 and for criminal appeal purposes. The order is therefore a fresh sentence, not merely the reactivation of the original sentence.
2. The decision in R v Worthing Justices ex parte Varney [1998] 1 WLR 819, concerning the predecessor power under section 40 of the 1991 Act, did not govern the present statutory scheme. R v Lowe [2000] 1 WLR 153 had clarified that Varney did not displace the statutory deeming provisions. R v SSHD ex parte Probyn [1998] 1 WLR 809 and the later authorities confirmed that return involves a fresh sentencing exercise.
3. The power to order return is discretionary. The court considers the prisoner’s conduct since release, including the nature and seriousness of the new offence, the time elapsed since release, and conduct generally. The original offence remains relevant as historical background, but the focus is on subsequent conduct.
4. The return order is not imposed in respect of either the original or new offence in the ordinary sense. It is imposed in respect of the statutory order and the prisoner’s conduct while on release. Parliament enacted section 26 of the Criminal Justice and Immigration Act 2008 against that established sentencing practice.
5. The attempted rape therefore did not bring the return term within section 33(1B) of the Criminal Justice Act 1991. Section 33(1A) applied, and the appeal was dismissed.

• Court of Appeal (Civil Division): The appeal was dismissed: [2010] EWCA Civ 1115.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Mitting J dismissed the judicial review claim on 24 June 2010: [2010] EWHC 1714 (Admin).