Sentence Calculation: Licence Expiry Dates (Elam)
HHJ Behrens last week (19.5.11) dismissed the Claimantâs application for judicial review arising from the recalculation of his release dates following the judgment of the Supreme Court in Noone but granted him permission to appeal.
R (John Elam) v SSJ â Leeds Administrative Court
The claimant is serving a sentence of seven yearsâ imprisonment made up of five-and-a-half years for offences committed before 4th April 2005 (âCJA 2003 offencesâ) and eighteen months for offences committed after that date (âCJA 1991 offences.â)
Prior to the decision of the Supreme Court in Noone it was accepted practice that the claimant was entitled to a licence expiry date (âLEDâ) in respect of the CJA 1991 sentence. The licence would expire after three-quarters of that term because the savings provisions preserved the operation of section 37 (1) of the 1991 Act for those who committed offences prior to 4th April 2005. This was achieved by the sentences being directed to run in the order expressed in court, a practice that was heavily criticised in Noone . The result was PSI 55/2010, by which it is ordered that all mixed act sentences should be aggregated pursuant to section 264 of the 2003 Act resulting in a sentence and licence expiry date (âSLED.â)
The claimant argued that his pre-act entitlement to release at the three-quarter point could be preserved without recourse to the method previously adopted by aggregating the terms under section 264 (3) but deducting one-quarter of the 1991 Act sentence from the overall term to protect the claimantâs pre-act entitlements. He relied upon the decision of the House of Lords in Stellato to argue that the recalculation of his sentences so as to remove his LED subjected him to adverse retrospective effect, in conflict with the intentions of parliament.
The defendant argued that on a proper construction the savings provisions did not preserve the pre-act position for mixed act offenders serving multiple sentences and that the claimantâs construction had no basis in law: either section 264 (3) applied in full or not at all. He relied, in particular, on the obiter of Lord Mance at Â§76 of the judgment in Noone .
The court preferred the defendantâs arguments and took the view that the claimant had not been deprived of an accrued right to a licence expiry date in respect of the CJA 1991 sentence, rejecting the claimantâs interpretation of Stellato. HHJ Behrens acknowledged that the judgment of Lord Mance was strictly obiter but considered that he should follow it at first instance.