LAW REPORT: 8 October 1996: Guidelines on prisoner release were wrong

Regina v Secretary of State for the Home Department, ex parte Naughton; Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Popplewell) 4 September 1996

In determining by how much to reduce the time to be served by a person sentenced to consecutive terms of imprisonment, to take account of any period spent in custody before his conviction, the prison service should treat the consecutive terms as a single term in accordance with section 104(2) of the Criminal Justice Act 1967 and should therefore make a single deduction in respect of the pre-trial custody period rather than deducting that period from each consecutive term.

The Queen's Bench Divisional Court dismissed an application by John Thomas Naughton, a prisoner at HMP Lindholme in Doncaster, for judicial review of the Home Secretary's decision on 23 August 1996 to cancel "Instructions to Governors" IG50/1996 issued by a working party of the Home Office to prison governors under the signature of the Director General of the Prison service on 15 August 1996.

Peter Weatherby (John Howell & Co, Sheffield) for the applicant; David Pannick QC and Pushpinder Saini (Treasury Solicitor) for the Home Secretary.

Lord Justice Simon Brown said the applicant contended that, under the guidelines in question, he should have been released in December 1995. He was first arrested in September 1994 for possession of cannabis and spent 81 days in custody in connection with those proceedings before being released on bail. He was later arrested for burglary and spent a further 239 days in custody, in connection with both offences, before being convicted and sentenced at Sheffield Crown Court in November 1995 to 18 months' imprisonment for each offence, the terms to run consecutively.

No one disputed that, in the computation of his overall sentence and release date, he was entitled to credit of 81 days plus 239 days. But he contended that he should get a further credit of 239 days against the second consecutive term of 18 months, representing the period when he was on remand in respect of both offences.

Section 67(1) and (1A) of the 1967 Act (as amended by section 49 of the Police and Criminal Evidence Act 1984) provided that: "The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by" any "relevant period" spent in police detention or while remanded in custody in connection with that offence. But section 104(2) provided that:

For the purposes of any reference in this Act . . . to the term of imprisonment or other detention to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent, shall .

. . be treated as a single term.

The applicant relied on a line of cases concerned with concurrent sentences, namely 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), in which the Divisional Court adopted a construction which, by concentrating on the words "sentence of imprisonment" in section 67(1), required concurrent sentences to be considered separately when making deductions for periods of pre-trial custody in respect of the offences for which those sentences were passed.

It was said that the same approach should be adopted for consecutive sentences. Therefore, each consecutive sentence fell to be reduced by any "relevant period" spent remanded in custody even though the remand related to more than one offence.

This was a result of section 67 which Parliament could not possibly have intended. It would produce a complete nonsense. The language of the section certainly did not lead to that result. If consistency with the approach adopted in the Gaffney line of cases required consecutive sentences to be dealt with as the applicant submitted, then his Lordship would unhesitatingly conclude that the Gaffney approach was wrong.

But his Lordship preferred to adopt the respondent's contention that regard should be had to section 104(2) in this context, so that one looked at the total sentence rather than its individual elements when computing the appropriate reduction for time spent in custody on remand.