A prisoner serving a ten-year sentence for pre-2005 offences challenged whether his release at the three-quarter point should be unconditional or on licence. The House of Lords held transitional provisions preserved pre-Act entitlements, meaning pre-2005 offenders retained the right to unconditional release at the three-quarter point of their sentence.
Background
The respondent, Mr Stellato, was serving a ten-year sentence for offences committed in June 1998. Under Part II of the Criminal Justice Act 1991 (the 1991 Act), long-term prisoners were entitled to unconditional release at the three-quarter point of their sentence. The Crime and Disorder Act 1998 (the 1998 Act) amended this regime so that prisoners released on licence and then recalled would, upon further release at the three-quarter point, be subject to licence until the end of their sentence — but this applied only to offences committed after 30 September 1998 and thus did not apply to the respondent.
The Criminal Justice Act 2003 (the 2003 Act) introduced a fundamentally different regime from 4 April 2005, under which prisoners released at the halfway point remained on licence for the remainder of their sentences. The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 (the 2005 Order) brought the new regime into force and made transitional and saving provisions in Schedule 2. Paragraphs 19 and 23 of Schedule 2 were the provisions at the heart of the dispute.
The respondent was initially released on licence on 17 February 2005 at the two-thirds point under the 1991 Act. After recall and re-release, he was recalled again on 11 August 2005, this time under section 254 of the 2003 Act. On reaching the three-quarter point of his sentence on 27 December 2005, the respondent contended he was entitled to unconditional release. He was instead released on licence on 23 December 2005, recalled again on 28 December 2005, and remained in custody thereafter.
The Issue(s)
The central question was whether a pre-2005 Act offender who was recalled after 4 April 2005 under section 254 of the 2003 Act was entitled to unconditional release at the three-quarter point of his sentence (as provided by the 1991 Act), or whether the recall operated to extend the duration of his licence to the end of his sentence under the 2003 Act regime.
The Secretary of State’s Argument
The Secretary of State argued that while paragraph 19 of Schedule 2 disapplied section 249 of the 2003 Act (governing licence duration) for pre-Act offenders, this was only the general position. Once a prisoner was recalled after 4 April 2005 under section 254, any further release would be governed by sections 254 and 256 of the 2003 Act, which provided for release on licence under Chapter 6 — and since Chapter 6 included section 249, the licence would extend to the end of the sentence. The Secretary of State further relied on the omission of section 33(3) of the 1991 Act from paragraph 23(1)(b) of Schedule 2, arguing this was a deliberate exclusion reflecting the intention that pre-Act offenders recalled under the new regime would not retain the right to unconditional release at the three-quarter point.
The Respondent’s Argument
The respondent contended that paragraph 19 of Schedule 2 expressly preserved section 37 of the 1991 Act (limiting the licence to the three-quarter point) and disapplied section 249 of the 2003 Act for all pre-Act offenders. Paragraph 23 was concerned solely with the process of recall and re-release, not with altering the duration of licences. The omission of section 33(3) from paragraph 23(1)(b) was accidental, consistent with the poor drafting evident elsewhere in the Order.
The Court’s Reasoning
Lord Brown of Eaton-under-Heywood delivered the principal opinion. He analysed the three successive statutory regimes governing prisoner release and the transitional provisions in detail.
On paragraph 19, Lord Brown noted its express purpose of saving the position of pre-Act offenders. It disapplied section 249 of the 2003 Act (which extended licences to the end of the sentence) and preserved section 37 of the 1991 Act (which limited licences to the three-quarter point):
On the face of it nothing could be clearer than that paragraph 19 was intended to preserve for pre-Act offenders the shorter licence period applicable under the 1991 Act.
Lord Brown observed that accepting the Secretary of State’s argument would require paragraph 19 to be read as if it ended with additional words qualifying its apparently plain effect:
its effect is to qualify the apparently plain effect of paragraph 19 and require it to be read as if it ended with the words ‘except where he is recalled on or after that date under section 254 of the 2003 Act.’
Regarding the omission of section 33(3) from paragraph 23(1)(b), Lord Brown considered the likeliest explanation was a drafting distinction between the language used in the respective provisions:
To my mind the likeliest explanation for section 33(3)’s omission from paragraph 23(1)(b) is that it contains no ‘reference … to revocation under section 39’: the reference is rather to the prisoner having been ‘recalled under section 39’.
He concluded that whatever the explanation, the omission could not bear the weight placed upon it by the Secretary of State, given that sections 33 and 37 were both expressly preserved by paragraph 19(c), and that the overall scheme of paragraph 23 was concerned solely with the procedural mechanics of recall and re-release, not with altering licence duration or prisoners’ substantive rights:
the longer one considers the scheme of this part of Schedule 2, the plainer it becomes that paragraph 23 is concerned only with the process of recalling and re-releasing prisoners on licence and not in any way with the duration of their licences and the point at which they become entitled to unconditional release.
Lord Brown emphasised consistency with the longstanding principle against retrospective disadvantage:
The result for which the Secretary of State contends would, in short, be a surprising one, unlikely to have been intended by the legislation. And if it were intended, one would expect it to have been enacted in the clearest of terms.
Lord Hope’s Observations on Legislative Procedure
Lord Hope of Craighead delivered a concurring opinion addressing the significance of the legislative method employed. He noted that the 2005 Order was made under section 330(4)(b) of the 2003 Act rather than under section 333(2)(b), with the consequence that only the negative resolution procedure applied, rather than the affirmative resolution procedure that would have ensured Parliamentary debate. Lord Hope considered this a powerful indication against the Secretary of State’s construction:
The fact that the order was not made under section 333(2)(b), with the result that the affirmative resolution procedure was not used, is a powerful indication that paragraphs 19 and 23 are to be understood as dealing only with matters of definition and procedure of a transitional nature, not with matters of substance affecting prisoners’ rights about which an opportunity ought to have been given for debate in Parliament.
He observed that if it had been the intention to deprive prisoners of their statutory entitlement to unconditional release, the method chosen could not have been better designed to ensure the matter escaped Parliamentary attention.
Practical Significance
The decision confirmed that prisoners sentenced for offences committed before 4 April 2005 retained the right under the 1991 Act to unconditional release at the three-quarter point of their sentences, irrespective of any post-Act recall under section 254 of the 2003 Act. Lord Brown noted that 16 prisoners were in the same position as the respondent, held in custody beyond the three-quarter point, and a further 60 were wrongly subject to licence conditions. The judgment reinforced the longstanding constitutional principle that changes to sentencing regimes should not retrospectively disadvantage existing prisoners, and that any such change must be enacted in the clearest terms. Lord Hope’s analysis further underscored that subordinate legislation made under commencement powers and subject only to the negative resolution procedure should not be construed as effecting substantive changes to prisoners’ rights without the most express language.
Verdict: The House of Lords unanimously dismissed the Secretary of State’s appeal. The respondent was entitled to unconditional release at the three-quarter point of his sentence on 27 December 2005. Pre-2005 Act offenders retained their entitlement under the Criminal Justice Act 1991 to unconditional release at the three-quarter point, and a post-Act recall under section 254 of the 2003 Act did not extend their licence to the end of their sentence. The respondent was ordered to be discharged.
Source: R (Stellato) v Secretary of State for the Home Department [2007] UKHL 5
