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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stellato v Secretary of State for the Home Department [2006] EWCA Civ 1639 (01 December 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1639.html Cite as: [2007] WLR 608, [2006] EWCA Civ 1639, [2007] 1 WLR 608 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
(Lady Justice Hallett and Mr Justice Jack)
Lower Court Case No:C0/8848/2005
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SCOTT BAKER
and
LORD JUSTICE HUGHES
____________________
PAUL CHRISTIAN STELLATO |
Appellant |
|
- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
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David Pannick Q.C. and Parishil Patel (instructed by The Treasury Solicitor) for the Respondent
____________________
Crown Copyright ©
Lord Justice Scott Baker:
Facts.
"The Parole Board shall take into account the fact that prisoners who have been sentenced under the provisions of the Criminal Justice Act 1991 cannot be disadvantaged by the recall provisions of the Criminal Justice Act 2003."
The legislation.
The key features of the 1991 Act are:
Definition of long-term prisoner | s.33(5). |
Power of release at half way stage | s.35(1). |
Duty to release at two thirds stage | s.33(2). |
Unconditional release at three quarter stage | s.33(3). |
Compassionate release | s.36. |
Licence expiry at three quarter stage | s.37(1). |
Revocation provisions | s.39(1). |
Power of Court to order offender to serve rest of term | s.40. |
Special provision for sex offenders. | s.44. |
Amendment to s.33(3) preserving entitlement to release at three quarter stage but making re-release subject to licence rather than unconditional, | s.104 |
New provisions extending the scope of s.44. | s.59 |
Duty to release fixed term prisoners on licence at half way stage in cases other than extended sentences, sentences of less than 12 months and intermittent custody orders | s.244. |
Licence continues to end of sentence unless revoked | s.249. |
Conditions of licence provided for | s.250. |
Duty to comply | s.252. |
Power of revocation and recall in Secretary of State | s.254. |
Provisions for further release after recall | s.256. |
S.116 of Powers of Criminal Courts (Sentencing) Act 2000 repealed |
"Savings for prisoners convicted of offences committed before 4 April 2005."
It reads:
"19. The coming into force of –
(a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds), 249 (duration of licence) and 250 (licence conditions);
(b) paragraph 8(2)(b) of Schedule 32 (Criminal Appeal Act 1968);
(c) the repeal of sections 33, 33A to 38A, 40A to 44, and 46 to 47 and 51 of the 1991 Act; and
(d) the repeal of sections 59 and 60, 99 and 100, 101, 103 to 105 and 121 of the Crime and Disorder Act 1998,
is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005.
Paragraph 23 is headed:
"Transitional Arrangements for recall after release."
It reads:
"23.- (1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4 April 2005 –
(a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and
(b) the reference in sections 37(1) and 44(3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act.
(2) paragraph 12(1) and (2) of Schedule 9 of the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act.
(3) the repeal of section 39 of the 1991 Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4 April 2005."
"After your release you will also be subject to supervision on licence until the end of three quarters of the total sentence"
see [1998] 1 WLR 278.
The reasoning of the Divisional Court.
Jack J.'s reasoning, with which Hallett L.J. agreed, was as follows:
"19 The section on which the appellant, a recalled prisoner, must rely for his release at the three quarter point is section 33(3) of the 1991 Act. If it had been provided in paragraph 23(1)(b) that the reference in section 33(3) to recall under section 39 was to be read as a reference to recall under section 254 it would be clear that a 1991 Act prisoner who was recalled under section 254 was entitled to his release at the three quarter point. That omission is crucial. The substitution of references to section 39 was considered by the draftsman and that consideration has borne its fruit in paragraph 23(1)(b) of Schedule 2 to the Order and section 33(3) is not referred to. On the other hand, if it was the intention that section 33(3) was to be deprived of effect, it can be asked why the whole section was saved by paragraph 19(c). The omission of the subsection from the saving would have made the position clear. It would have been a direct indication of the intention. But clarity is not the hallmark of this drafting.
"Section 250 is the relevant section under the 2003 Act. It is one of the sections which by paragraph 19(a) do not apply to 1991 Act prisoners. The section under the 1991 Act is section 37, in particular subsections (4) to (6). The section is preserved for 1991 Act prisoners by paragraph 19(c). It is clear that a 1991 Act prisoner who is released under section 33(1) or section 35(1) – that is at the two thirds point or earlier - must have his conditions specified under that section."
"23. The conclusion I have reached is that the (2005 Order) is to be construed to provide that once a prisoner has been recalled under section 254, if he is subsequently released prior to the expiry of his sentence either under section 254 or section 256, it is on licence in accordance with Chapter 6. I consider that the intention of the transitional provisions contained in the (2005 Order) is to impose the new regime once a recall takes place, which is in substitution for the regime provided by the previous legislation. The repeal of section 39 without saving points to that, though I accept that it is explicable as part of an intention not to have two parallel recall procedures. The intention is most clearly to be deduced from the omission to include section 33(3) in paragraph 23(1)(b) of Schedule 2. Section 249 (duration of licence) does not apply, but in the absence of provision for the determination of the licence it continues until the sentence itself expires."
The Secretary of State's argument.
(1) Since s.33(3) of the 1991 Act is not referred to in paragraph 23(1)(b) of Schedule 2 to the 2005 Regulations it follows that the reference to recall under s.39(1) of the 1991 Act cannot be treated as being a reference to recall under section 254 of the 2003 Act.
(2) If that is so, s.33(3) of the 1991 Act has no meaning because, except for paragraph 23(3) cases, recall under section 39(1) of the 1991 Act no longer exists.
(3) Since s.33(3) of the 1991 has no meaning, it is to be treated as extinguished for recalled prisoners, not withstanding its express preservation under paragraph 19(c) for all prisoners serving a sentence for offences committed before 4 April 2005.
(4) On its true construction, although it does not expressly say so, paragraph 19 does not apply to prisoners serving a sentence for an offence committed before 4 April 2005 once they are recalled.
(5) Any recall and release under the provisions of ss.254 and 256 of the 2003 Act can only be "release on licence under this Chapter." Since s.33(3) no longer exists for recalled prisoners, that means a licence governed by section 249 of the 2003 Act (i.e. a licence remaining in force for the remainder of the prisoner's sentence).
The appellant's argument.
"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93-105. He comments, at p. 103:
"In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation."
Approach to the solution.
Lord Justice Hughes:
Lord Justice Longmore:
"Savings for prisoners convicted of offences committed before 4th April 2005."
These savings include the saving that certain provisions of the 2003 Act (including the duration of licence provisions (s. 249)) and the repeal of various provisions of the 1991 Act (including the provision for release after two-thirds of the sentence and the provision for licences to expire after three-quarters of the sentence have been served (ss. 33 and 37)) are to be of no effect in relation to a prisoner (such as the appellant) serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005. On the face of it nothing could be much clearer than that. It would moreover accord with the principle, hitherto observed by Parliament, that serving prisoners should not be disadvantaged by subsequent changes of sentencing and licensing regimes; see the provisions of the Crime and Disorder Act 1998 which likewise preserve the 1991 Act regime for prisoners already sentenced. One would think that if Parliament's intention had been to disadvantage prisoners who had committed offences before the coming into force of the 2003 Act that would have been clear on the face of the Order.
"Transitional arrangements for recall after release".
It has, of course, already been provided (albeit by inference) in paragraph 19 of the Schedule that recall arrangements are to be the same for 1991 Act prisoners as for 2003 Act prisoners. Paragraph 23 makes explicit what has already been implicit from paragraph 19 and provides in sub-paragraph 1(a) that, when section 254(1) of the 2003 Act refers to release on licence for recalled prisoners, such release on licence is to include release on licence under the provisions of the 1991 Act. This can hardly mean that the duration of the licence is to be changed when paragraph 19 of the Schedule expressly preserves the relevant provision of the 1991 Act relating to duration of licences. Sub-paragraph 1(b) of paragraph 23 then deals with the parallel concept of revocation of licences and provides that certain references to revocation in the 1991 Act are to be treated as revocations under section 254 of the 2003 Act. One of the references to revocation in the 1991 Act is contained in section 33(3) of that Act. That reference to revocation is not singled out as a revocation to be treated as revocation under section 254 of the 2003 Act. Since 33(3) is one of the sections of the 1991 Act which refers to the duration of the licence under that Act as being for three-quarters of the sentence, the Divisional Court decided that what I may call "the three-quarters provision" no longer applied to prisoners who were recalled after 4 April 2005.
Note 1 Not April 2005, by reason of s. 104 of the Crime and Disorder Act 1998 [Back]