Administrative Court ruling on HDC for prisoners  

R (on the application of Rebecca Noone) v (1) the Governor of HMP Drake Hall, (2) Secretary of State for Justice [2008] EWHC 207 (Admin)

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On 31 January 2008 Mitting J declared the Secretary of State’s policy irrational and unlawful. The case relates to the difficult question of Home Detention Curfew eligibility for prisoners who are serving consecutive sentences made up of terms of more and less than 12 months. The decision affects hundreds of prisoners on an ongoing basis.

The provisions of the Criminal Justice Act 2003 dealing with sentences of less than 12 months have not been brought into force. Therefore, the SoS has determined that where there are terms of more and less than 12 months, the provisions of the 2003 Act apply to the more than 12 month sentences, and those of the CJA 1991 apply to the shorter terms, and one follows the other. The Claimant argued that all terms should be aggregated under the new provisions, with the custodial periods determined under one or other of the Acts, pursuant to the transitional provisions of the; Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005. If that was the correct interpretation of the provisions then HDC eligibility for these cases would be exactly the same as where either parent Act was applied exclusively.

The SoS’s solution leads to consecutive sentences being served in various orders, not necessarily as passed by the court. For example where there are consecutive sentences of 12, 6 and 18 months, the 12 and 18 month sentences would be aggregated under the 2003 Act, and served prior to the 6 month term despite the fact that this was the second term as expressed by the sentencing judge. The SoS’s submissions also result in radically different and reduced HDC eligibilities, depending on which sentence is served first. The results are absurd, inconsistent, and cannot have been intended or envisaged by Parliament.

To illustrate the point, on the Claimant’s facts (consecutive sentences of 22 months, 4 months and 1 month) she would be eligible for HDC 135 days prior to the halfway point of her sentence if either Act was applied to her sentence exclusively, or on her submissions as to how they should be aggregated and the overall sentence calculated. The SoS’s argument reduced her eligibility by approximately 100 days. Had the consecutive sentences been passed in reverse order the SoS’s argument would have reached different conclusions; 135 days eligibility.

However absurd the result, on the question of jurisdiction the Court felt driven to support the SoS’s submissions, which had previously been upheld in; R (Steven Highton) v Gov of HMYOI Lancaster Farms and SSHD [2007] EWHC 1085 Admin judgment . At paragraph 20, Mitting J made clear how unattractive this answer was, but felt unable to conclude otherwise.

However that was not the end of the matter. If the SoS was correct that the terms of less than 12 months had to be treated separately to those of more than 12 months, then he had to operate a rational policy as to how the two sets of sentences were to be served. The current policy was irrational as it lead to absurd and inconsistent results, and a policy which allowed for the sentence calculation to be based on the sentences being deemed to be served in a different order was perfectly possible and permissible.

The SoS has permission to appeal, and Ms Noone is cross-appealing the jurisdiction point. The declaration that the policy is unlawful was stayed pending appeal, save in the Claimant’s case.

Pete Weatherby appeared for the Claimant, instructed by Deborah Russo of the Prisoners Advice Service .