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

For consecutive prison terms imposed after a change in the release regime, the Criminal Justice Act 2003 aggregation provisions govern the licence expiry date for all terms if they govern any of them. Where offences fall on both sides of the statutory cut-off, preserved provisions may combine the earlier terms, but the resulting term must then be aggregated under the new regime. The former licence rule applies only where every relevant offence predates the change. It cannot be used to calculate one term separately, since that would make the aggregation scheme inoperative and produce arbitrary results depending on sentencing order. The presumption against retrospective substantive change does not require that construction where the sentence was imposed after the new regime was in force.

The appellant received consecutive sentences in March 2009 and July 2010. One term concerned offences committed before 4 April 2005; other offences were committed after, or across, that date. The Secretary of State aggregated the seven years under section 264 of the Criminal Justice Act 2003, producing a licence expiry date of 13 April 2015.

The appellant argued that paragraph 19 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 preserved section 37(1) of the Criminal Justice Act 1991 for the pre-2005 term. The Administrative Court dismissed his judicial review claim. The central issue was whether the saving provisions permitted separate release and licence calculations within one set of consecutive sentences.

Disposition

The Court of Appeal unanimously dismissed the appeal. Laws LJ delivered the leading judgment. Aikens LJ and Tomlinson LJ agreed.

1. Single aggregation regime. Where an offender has consecutive terms and section 264 of the Criminal Justice Act 2003 applies to any of them, it must apply to all of them for calculating the licence expiry date. Section 264(3) works only by aggregating the relevant terms. Section 37(1) of the Criminal Justice Act 1991 cannot be applied separately to one term, because the resulting date would not be the date prescribed by section 264.
2. Mixed pre- and post-cut-off offences. Section 51(2) of the 1991 Act remained saved by paragraph 19 of Schedule 2 to the 2005 Order. It required consecutive pre-2005 sentences to be treated as a single term. That single term was then aggregated with the later sentence or sentences under section 264. The section 264 regime therefore governed licence expiry in every case except one in which all the relevant offences predated 4 April 2005.
3. Limited saving of the former regime. Only in the all-pre-2005 case did section 37(1) determine the licence expiry date. The court rejected the attempt to preserve a shorter licence period for one pre-2005 term within a mixed aggregate. Tomlinson LJ added that paragraph 25 of Schedule 2 saved release-date consequences only to a limited extent and did not preserve a separate licence-expiry calculation.
4. Retrospectivity and anomaly. The presumption against retrospective substantive change could not overcome the statutory construction supported by clarity and the avoidance of arbitrary outcomes. The appellant’s approach would make the result depend on whether the pre-2005 sentence was treated as being served first or last.
5. Authorities. The approach was consistent with the Supreme Court’s purposive reasoning in [2010] 1 WLR 1743, including its treatment of an analogous sentencing-order anomaly. The concerns expressed in [2007] 2 AC 70 about the negative resolution procedure did not govern this case, where the sentence was imposed after the new regime was in force.

• Court of Appeal (Civil Division): [2012] EWCA Civ 29. Unanimously dismissed the appeal.
• Administrative Court: On 19 May 2011, HHJ Behrens, sitting as a Deputy High Court Judge, dismissed the judicial review claim and upheld the Secretary of State’s construction.