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

An order returning a released prisoner to custody under Powers of Criminal Courts (Sentencing) Act 2000, section 116, is a statutory deeming device. It is treated as a sentence for the operation of the early-release regime, but it is not a sentence imposed in respect of the original offence. Accordingly, where the original offence is within Schedule 15 to the Criminal Justice Act 2003 but the later offence is not, the Schedule 15 exception does not apply to the aggregated term. The question is one of statutory construction. No general presumption in favour of liberty determines the issue.

The claimant was serving a sentence for attempted rape when he committed burglary. The burglary court ordered his return to prison for the unexpired 533 days of the earlier sentence, to be served before the sentence for burglary. The terms were therefore aggregated for the purposes of the early-release provisions.

After the statutory regime was amended, the central issue was whether the returned period was being served in respect of the original Schedule 15 offence, so that release at the halfway point was excluded, or whether the return order was not made in respect of that offence.

1. The claim was dismissed. The claimant’s release on licence at the halfway point of the aggregated term had been lawful. Permission to appeal was granted because the statutory construction issue was difficult and potentially affected other prisoners.
2. Section 116 required the court to order the claimant’s return for the unexpired period of the earlier sentence. Under section 116(6), that period was deemed to be a sentence of imprisonment for the purposes of Part II of the Criminal Justice Act 1991, allowing it to be aggregated with the new sentence. The deeming provision did not convert the return period into a sentence imposed for the new offence or for the original offence.
3. The reasoning in R v Worthing Justices, ex parte Varley [1998] 1 WLR 819 was directly relevant. A return order reactivated the earlier sentence; it was not, in the ordinary sense, a new sentence. The deeming provision existed to regulate the operation of the early-release scheme.
4. R v Taylor, reported under the headnote beginning R v Secretary of State for the Home Department, ex parte Probyn [1998] 1 WLR 809, showed that totality applied where both a return order and a sentence for the new offence were imposed. That principle did not make the return period a sentence imposed for the burglary.
5. R v Lowe [2000] 1 WLR 153 reinforced that the return period was a deeming provision used to calculate the single term for Part II purposes. It remained distinct from a sentence from which the offender had been released.
6. The phrase “one of the offences in respect of which he is serving the sentence” therefore referred to the offences for which the sentence was imposed, not to the original offence merely because its unexpired term had been revived and deemed to be a sentence. The claimant was consequently subject to the applicable halfway-point release regime.