R (on the application of Noone) v The Governor of HMP Drake Hall and another

Where consecutive or concurrent prison sentences include terms both below and at least 12 months, the mixed sentences are governed by the aggregation provisions of the Criminal Justice Act 2003. The custodial period attributable to each term below 12 months is one-half of that term, derived from the preserved regime of the Criminal Justice Act 1991.

The resulting custodial periods must be aggregated. Eligibility for home detention curfew is calculated by reference to that aggregate, and the licence continues until the end of the aggregate nominal term. The order in which the sentencing judge pronounces the individual sentences makes no difference. A court may correct an evident drafting failure in transitional legislation where the intended purpose, the inadvertent failure and the substance of the intended provision are sufficiently certain.

The appellant received consecutive and concurrent sentences totalling 27 months, comprising a 22-month term and shorter terms totalling five months. The prison initially calculated her release arrangements by aggregating all the sentences. It later treated the longer and shorter sentences as governed separately by the Criminal Justice Act 2003 and the Criminal Justice Act 1991, thereby postponing eligibility for home detention curfew and shortening the licence period.

Mitting J allowed the appellant's judicial review claim: [2008] EWHC 207 (Admin). The Court of Appeal held that the Secretary of State's policy lacked independent legal force but reflected the law: [2008] EWCA Civ 1097; [2009] 1 WLR 1321. The central issue was how paragraph 14 of Schedule 2 to the 2005 commencement and transitional Order regulated sentences on either side of the 12-month threshold when imposed together.

Appeal allowed unanimously. The application for judicial review was allowed, and the court declared that the appellant's release dates had been correctly calculated in the first notification of 24 May 2007.

1. Lord Phillips held that paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 distinguished between cases in which all sentences were below 12 months and cases combining shorter and longer terms. The preserved Criminal Justice Act 1991 regime applies exclusively where the sentence, or every linked sentence, is below 12 months. Where at least one concurrent or consecutive term is 12 months or more, the relevant provisions of the Criminal Justice Act 2003 apply to the mixed group.

2. For concurrent mixed sentences, sections 244 and 263(2) require release when the necessary custodial period has been served for every sentence. A shorter sentence attracts a hypothetical custodial period of one-half, supplied by section 33(1) of the 1991 Act. In practice, the longer concurrent term governs the release date.

3. For consecutive mixed sentences, section 264(2) requires aggregation of the custodial periods attributable to every term. Each term of at least 12 months has a custodial period of one-half under section 264(6)(a)(ii). Each shorter term likewise has a custodial period of one-half, reflecting the period which would have applied had it stood alone. Section 246 then permits home detention curfew release by reference to the aggregated requisite custodial period, while section 264(3) continues the licence to the end of the aggregate nominal term.

4. Lord Mance reached the same result through purposive construction and correction of the evident drafting gap. The conditions described in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 were satisfied: the intended statutory purpose, the inadvertent failure to implement it and the substance of the required correction were sufficiently clear. A literal construction would create irrational disparities dependent only on the order in which sentences were pronounced.

5. Lord Saville, Lord Brown and Lord Judge agreed that the contrary construction produced indefensible anomalies which Parliament could not have intended. The sentencing judge need not manipulate the order or form of sentences to manage early-release consequences. Under the court's construction, pronunciation order makes no difference.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, allowed judicial review and declared that the first release-date notification was correct: [2010] UKSC 30.
2. Court of Appeal: Held that the Secretary of State lacked power to determine release eligibility by policy, but that the policy reflected the legal effect of the legislation: [2008] EWCA Civ 1097; [2009] 1 WLR 1321.
3. Administrative Court: Mitting J held the policy unlawful and directed consideration of the appellant's release on home detention curfew: [2008] EWHC 207 (Admin).