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The Supreme Court has lashed out at the “morass” of criminal justice legislation which left prosecutors, defence and the courts baffled by the sentence of a low-level offender.
Granting the prisoner’s appeal unanimously, the country’s highest court held that the then secretary of state’s policy for calculating a release date for consecutive sentences was unlawful.
Handing down the judgment today, Lord Judge said: “It is outrageous that so much intellectual effort, as well as public time and resources, have had to be expended in order to discover a route through the legislative morass to what should be, both for the prisoner herself, and for those responsible for her custody, the prison authorities, the simplest and most certain of questions – the prisoner’s release date.”
R (on the application of Noone) (FC) v The Governor of HMP Drake Hall [2010] UKSC 30 concerned the relationship between the Criminal Justice Acts of 1991 and 2003 and how the overlapping provisions applied to consecutive sentences of less than 12 months.
The appellant, Rebecca Noone, was sentenced in 2007 for five offences, ranging from one month to 22 months. Government policy held that her release date should be calculated by treating the longest sentence as subject to the 2003 Act and the shorter sentences as subject to the 1991 Act.
Noone’s counsel Peter Weatherby, instructed by the Prisoners’ Advice Service, argued that this produced a release date more than three months later than their calculation.
The High Court had originally deemed the policy unlawful, with the Court of Appeal overturning that decision.
Allowing Noone’s appeal, Lord Mance said that the transitional provisions bringing the 2003 Act into force in most respects, but keeping the 1991 Act in force in some other respects, achieved a result which “Parliament did not intend by either Act”.
Lord Phillips added: “The decision of the Court of Appeal opens the door to the possibility of capricious results, places a near intolerable burden on the sentencer and does not readily cater for the position where a series of sentences is imposed of which some are over and some are under 12 months.”
The judges’ criticism of the complex network of criminal justice legislation passed by the previous Labour government came on the same day the new justice secretary Kenneth Clarke QC announced similar frustrations with the system while unveiling his plans for reform.
In his introduction to the judgment, Lord Phillips writes: “The road to hell is paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short-term prisoners by coupling time spent in custody with a release period under licence.
“Hell is a fair description of the problem of statutory interpretation caused by transitional provisions introduced.”
The Prisoners’ Advice Service estimates that hundreds of sentences will now need to be recalculated following its successful appeal, but believes that not even the prison service knows how many people this judgment will affect.
Noone's solicitor, Deborah Russo from the Prisoners' Advice Service, said: “There is plainly a duty on the secretary of state to ensure that all such prisoners have their sentences recalculated as a matter of urgency. The numbers involved will certainly be in the hundreds, possibly more, and the ruling will have continuing effect.”