Galiazia, R (On the Application Of) v Governer of HMP Hewell & Anor

Time spent on remand under section 240 ZA(3) of the Criminal Justice Act 2003 counts as time served in custody as part of the sentence. It does not automatically reduce the period on licence or extinguish the sentence. Unused credit may be relevant on recall, subject to section 240 ZA(6). The different treatment of credit on automatic and standard recall is not arbitrary for the purposes of Article 5. A recall during a determinate sentence does not necessarily engage Article 5(4), and review by the Parole Board can in principle satisfy that provision. The judicial review claim was dismissed.

The claimant received a 12-month sentence after pleading guilty to handling stolen goods. He had spent 411 days on remand. The Secretary of State treated that time as credit against custody but placed him on licence, later recalling him for breach of licence conditions.

The claimant sought judicial review, arguing that section 240 ZA(3) of the Criminal Justice Act 2003 extinguished the sentence or reduced the licence period. He also relied on Article 5 of the Convention, challenging the legality and alleged arbitrariness of recall. Permission had been granted by Green J, with Convention grounds added.

The application for judicial review was rejected.

1. Construction of section 240 ZA(3). The phrase requiring remand days to count as time served as part of the sentence refers to time actually served in custody. It does not require remand credit to be set off against time spent on licence. The claimant’s construction would make section 240 ZA(6), concerning automatic recall for 28 days, ineffective because no unused remand credit would remain. The treatment of suspended sentences under section 240 ZA(7), and the language of section 241, supported the Secretary of State’s construction.
2. Precedent. R v The Governor of HM Prison, Haverigg ex parte McMahon supported this interpretation. Its analysis of the similarly worded section 41 of the Criminal Justice Act 1991 focused on time actually served and did not treat licence time as time served. Credit could be given only once, consistently with R v Home Secretary ex parte Naughton and R v Gordon.
3. Article 5(4). The challenge to recall was misconceived. Under section 255 B, written representations may lead to referral to the Parole Board, whose review is in principle capable of satisfying Article 5(4), as explained in R (West) v Parole Board. The observations of Lord Neuberger in R (Whiston) v Secretary of State for Justice also indicated, albeit obiter, that Article 5(4) was not engaged by recall during a determinate sentence.
4. Article 5(1). The distinction between automatic and standard recall was not arbitrary. The two forms of recall differ materially, including in the likelihood and timing of release. Del Rio Prada v Spain did not bear on the issue. The application of the statutory scheme therefore remained lawful.

Elias LJ also noted that, in practice, the sentence end date was brought forward to reflect remand credit. Hickinbottom J agreed with the judgment but reserved his position on relying on that alternative explanation because its legal basis had not been argued.

The judgment describes permission to apply for judicial review being granted by Green J after an oral hearing. No appeal history is stated.