Law Report: Consecutive sentences passed separately aggregated

LAW REPORT v 17 April 1997

Regina v Governor of Swaledale Prison, ex parte Francois; Queen's Bench Divisional Court (Lord Justice Simon Brown, Mr Justice Curtis) 26 March 1997

Consecutive sentences imposed by different courts on different occasions were to be aggregated for the purpose of calculating a prisoner's non- parole release date under the provisions of section 33 of the Criminal Justice Act 1991.

The Queen's Bench Divisional Court refused an application for judicial review, challenging the prison authorities' calculation of the applicant's non-parole release date.

The applicant had been sentenced on 5 August 1993 to consecutive terms of imprisonment totalling nineteen months' imprisonment. On 7 January 1994, at a different court, he was sentenced to two terms of four years' imprisonment, concurrent inter se but consecutive to the sentence of 19 months.

Section 33(1) of the Criminal Justice Act 1991 provided that it was the duty of the Home Secretary to release on licence a short-term prisoner, sentenced to a term of twelve months or more, as soon as he had served half his sentence, and to release on licence a long-term prisoner as soon as he had served two-thirds of his sentence. Section 33(5) provided that a long-term prisoner was one serving a sentence of four years or more, and a short-term prisoner was one serving a sentence of less than four years.

Section 51(2) of the Act provided that for the purposes of any reference to a term of imprisonment, consecutive terms and terms which were wholly or partly concurrent should be treated as a single term.

Robin Allen QC and Martin Soorjoo (Breeze Benton & Co) for the applicant; Stephen Richards and Steven Kovats (Treasury Solicitor) for the respondents.

Lord Justice Simon Brown said that the critical question was whether the passing of the consecutive four year term in January 1994 operated to increase the time to be served under the original sentence. Did the applicant remain a short-term prisoner with regard to the original sentence so that he only had to serve one half of it, or did the sentence, by virtue of section 51(2) of the 1991 Act, become part of a long-term sentence so that he must serve two-thirds of the cumulative sentence?

The applicant's first difficulty was that the point appeared to have been decided against him in R v Governor of Brockhill Prison, ex p Evans ( Law Report 22 November 1996; [1997] 2 WLR 236). It was clearly spelled out in a passage on p 250 that the effect of section 51(2) on section 33(1) and (5) was that even where a consecutive sentence had been imposed on a different occasion, it gave rise to a single term.

Counsel for the applicant had submitted that that passage was obiter and ought not to be followed in the particular and different context in which the point now arose. Section 51(2) should not be read as retrospectively affecting the character of a previous sentence.

The root question arising under section 33 was whether, at the date when a prisoner's release was under consideration, he was a short-term or a long-term prisoner. That in turn required one to ask whether he was serving a sentence of imprisonment for a term of four years or more. In answering that crucial question, section 51(2) required that "consecutive terms . . . shall be treated as a single term".

The applicant's argument necessarily involved reading into section 51(2) words of restriction such as "provided always that they were imposed on the same occasion". There was no warrant for introducing any such major qualification into the section.

His Lordship had not the least doubt that R v Governor of Brockhill, ex parte Evans did indeed decide the present case. Not merely was it the carefully considered decision of a very strong Divisional Court specially constituted to resolve all the difficulties thrown up by earlier authorities, but the passage referred to above could be shown on analysis to constitute part of the ratio decidendi.

That said, the present case had plainly exposed certain traps against which sentencers must be on their guard. When sentencing a serving prisoner they must recognise the possible impact of the previous sentence upon the fresh one and vice versa.

Kate O'Hanlon, Barrister