Elam v Secretary of State for Justice

Where consecutive sentences include offences committed before and after 4 April 2005, the transitional provisions do not preserve a separate three-quarter licence expiry date for the pre-commencement sentence if the sentences must be aggregated under the Criminal Justice Act 2003.

Paragraph 19 of the Criminal Justice Act (Commencement No 8 and Transitional and Saving Provisions) Order 2005 cannot be given a purposive construction which deducts the unlicensed part of an earlier sentence from the aggregate term. A prisoner sentenced after 4 April 2005 has no accrued right to termination of the licence regime at the three-quarter point. The court should avoid the anomalies identified in R (Noone) v Governor of Drake Hall Prison.

John Elam, a serving prisoner, sought judicial review of the Secretary of State’s calculation of his release and licence expiry dates. His aggregate sentence included an 18-month term for an offence committed before 4 April 2005 and consecutive terms relating to offences spanning or committed after that date.

The Secretary of State aggregated the sentences under section 264(3) of the Criminal Justice Act 2003. Mr Elam argued that the transitional provisions preserved the pre-commencement sentence’s entitlement to release after one half of the term and termination of the licence at the three-quarter point. Permission was granted because it was arguable that paragraph 25 of the 2005 Order applied.

1. Application dismissed. The Secretary of State was entitled to calculate the sentences as an aggregate seven-year term and to apply the corresponding licence expiry date.
2. Under section 264(3) of the Criminal Justice Act 2003, consecutive sentences must be aggregated where any term is 12 months or more. The transitional provisions do not permit the court to deduct the period which would have represented the post-release, pre-three-quarter-point period under section 37(1) of the Criminal Justice Act 1991.
3. Paragraph 19 of the 2005 Order preserves the effect of the repealed 1991 Act provisions for a sentence imposed for an offence committed before 4 April 2005. It does not, however, contain the additional words required to produce the claimant’s proposed deduction. That construction could not be read into the paragraph.
4. Applying the licence provisions of the 1991 Act separately to the pre-commencement sentence would create the anomalies identified in R (Noone) v Governor of Drake Hall Prison, including submergence of one licence period within another and uncertainty about which sentence was being served first. Those anomalies supported applying the aggregation provisions consistently.
5. The reasoning of Lord Mance in R (Noone) v Governor of Drake Hall Prison, at paragraph 76, clearly supported the Secretary of State’s construction. Although expressed obiter, it was appropriate for a first-instance court to follow that reasoning.
6. The principle relied upon from Stellato v Secretary of State for the Home Department did not assist. The claimant was not deprived of an accrued right. The relevant legislation was in force when he was sentenced, and its proper interpretation produced the challenged sentence and licence expiry date.

Permission to appeal was granted but the application was dismissed. Costs were ordered in the usual terms, subject to the publicly funded costs provisions.

This was a first-instance judicial review claim. Permission to bring the claim had been granted by Langstaff J on 4 April 2011.