Edwards, R (on the application of) v Governor of HMP Hatfield

Permission for judicial review should be granted where the proposed challenge raises an arguable point requiring determination. A court deciding permission should not resolve the substantive issue. Where a sentence is later varied on appeal, the legal effect of an earlier consecutive committal order may raise an arguable question requiring full consideration.

The claimant sought permission to challenge the governor’s calculation of his release date. He had received a 12-year sentence, followed by a consecutive term of imprisonment imposed for default in paying a confiscation order. The Court of Appeal (Criminal Division) later reduced the principal sentence to nine years by making a consecutive sentence concurrent.

The claimant argued that the committal term therefore had to be treated as consecutive to the reduced sentence, producing an earlier release date. The defendants argued that the committal order could not be backdated and had to operate from the date it was made. The issue before the court was whether that challenge was arguable.

1. The renewed application for permission to seek judicial review was granted. The claimant’s challenge was not unarguable.

2. The relevant question was whether a committal order expressed to be consecutive to a sentence of 12 years retained that temporal relationship after the Court of Appeal varied the sentence to nine years. The claimant submitted that the order itself was not being backdated, although its effect might be brought back to an earlier point. The defendants submitted that the 12-year sentence had already expired and that the committal term could not be backdated, so it had to run from the date of the committal order.

3. The court considered that this raised an interesting and arguable point. It made no determination on the merits, which were left for the judge hearing the substantive claim. The issue was sufficiently substantial to justify giving the claimant an opportunity to present it.

4. Given the claimant’s circumstances, the court directed expedition. There was no order for the costs of the permission hearing.

The judgment records that the Court of Appeal (Criminal Division) allowed the claimant’s criminal appeal on 3 April 2012 and altered a three-year consecutive sentence so that it ran concurrently, reducing the total sentence from 12 years to nine years. No citation for that decision is stated in the judgment.