Law Report: Concurrent sentences to be treated as one

Regina v Governor of Brockhill Prison, ex parte Evans; R v Governor of Onley Young Offenders Institution, Rugby, ex parte Reid; Queen's Bench Divisional Court (Lord Bingham of Cornhill, Lord Chief Justice, Lord Justice Rose, Mr Justice Blofeld) 15 November 1996

Where a person was sentenced to concurrent terms of imprisonment, the amount by which time served was to be offset by time spent in custody on remand was to be calculated by treating the concurrent terms as a single term and making a single deduction in respect of remand time, rather than by treating the sentences and remand periods for each offence separately and so reducing the total term only by the remand time relating to the last expiring sentence.

The Queen's Bench Divisional Court granted Michele Evans and Paul Reid leave to apply for judicial review of decisions calculating their respective release dates which had not taken account of all separate periods of custody on remand prior to the imposition of concurrent sentences of imprisonment.

Edward Fitzgerald QC and Pete Wetherby (John Howell & Co, Sheffield) for Evans; Michael Mansfield QC and Martin Soorjoo (J.R. Jones, Ealing) for Reid; Stephen Richards and Michael Fordham (Treasury Solicitor) for the respondents.

Lord Bingham CJ referred to sections 33(1), 41 and 51(2) of the Criminal Justice Act 1991 and section 67(1A) and 104(2) of the Criminal Justice Act 1967 (as amended by the Police and Criminal Evidence Act 1984).

In interpreting the combined effect of these provisions the respondents contended that time spent in custody in connection with a particular offence could only be used to reduce the sentence imposed for that offence, not any other for which the defendant might be sentenced concurrently (the "particular" approach). The applicants contended that the concurrent sentences were to be treated as a single term, against which the whole period of pre-sentence custody was to be set (the "aggregate" approach).

Four previous decisions of the Divisional Court supported the particular approach: see R v Governor of Blundeston Prison, ex p Gaffney [1982] 1 WLR 696, R v Home Secretary, ex p Read (1987) 9 Cr App R (S) 206, R v Governor of Styal Prison, ex p Mooney [1996] 1 Cr App R (S) 74 and R v Home Secretary, ex p Woodward (unreported, 24 June 1996).

But the particular approach had been criticised and in R v Home Secretary, ex p Naughton (Law Report, 8 October 1996) the Divisional Court had commented on the absurdity of the particular approach if (as they held it should not be) applied to consecutive sentences.

His Lordship concluded as follows. Section 33(1) of the 1991 Act required the Home Secretary to release short-term prisoners such as the applicants after serving half their sentences. For this purpose section 51(2) required "sentences" to be treated as single terms even though made up of separate consecutive or concurrent terms. The length of that single term expired when the last of the concurrent or overlapping sentences expired.

The reference to sentence in section 41 of the 1991 Act (under which time spend remanded in custody was to count towards time served in prison) had to be read subject to section 51(1). A short-term prisoner was accordingly to be treated as having served such part of the half of his sentence he was required to serve as was to be regarded as a "relevant part" of that sentence as defined in section 67(1A) of the 1967 Act.

In section 67(1A), which defined the relevant part as any period during which the offender was in police detention or remanded in custody in connection with "the offence for which the sentence was passed" or "proceedings relating to that sentence or the offence for which it was passed", the singular was to be interpreted by virtue of section 6(c) of the Interpretation Act 1978 as including the plural, no contrary intention appearing.

Thus time spent in custody in relation to any of the offences for which sentence was passed should count to reduce the term to be served, subject always to the condition that time could never be counted more than once.

The construction put on the provisions under review in the four previous cases supporting the particular approach was wrong and produced injustice.

Paul Magrath, Barrister