Practice and Procedure


PUBLISHED January 30, 2003

The prisoners' assessment for a release date was not required to take into account the time spent in custody under recall.Appeal by an appellant ('S') against a sentence imposed under s.116 Powers of the Criminal Court (Sentencing) Act 2000. On 4 October 1999, S had been sentenced to 33 months' imprisonment for dangerous driving and driving whilst disqualified. The sentence included the imposition of a period for breach of licence in respect of a previously ordered term of imprisonment. Whilst on licence, S committed various driving offences and was convicted on 12 July 2001. S was sentenced to 21 months' imprisonment for dangerous driving. S was disqualified for two years and ordered to take an extended re-test combined with a further six months' imprisonment. The sentences were all to run consecutively for a period of 351 days imposed on S for breach of licence on the original sentence imposed on 4 October 1999. The sentence was imposed under s.116 of the 2000 Act. However, it had been overlooked that S had been recalled to prison by the secretary of state under s.39 Criminal Justice Act 1991 and that between the dates of 30 January and 4 July 2001 (the licence expiry date) had already served 156 days. S contended that an allowance should have been made for that in assessing the appropriate term under s.116 of the 2000 Act and his application for leave to appeal against the sentence should have been directed to the full court.HELD:(1) In accordance with R v (1) Secretary of State for the Home Department (2) Govenor of HM Prison Winchester, ex parte Morris (2001) EWHC Admin 276 when assessing the release date following sentence, time spent on remand should automatically be taken into account, but time spent in custody under recall pursuant to s.39 of the 1991 Act should not since it was served under the original sentence. In this case, the appropriate release date should have been 29 November 2002, rather than 11 March 2003 taking into account the time S spent on remand and the 156 days served on recall. (2) On the basis of R v Governor of Brockhill Prison, ex parte Evans (1997) 2 WLR 236 an important feature of the criminal justice system is that sentencing provisions ought to be assessable and comprehensible. Therefore, a prisoner's release date ought to be beyond dispute and the provisions governing it ought to be easy to apply for reasons both of fairness and good administration.Appeal allowed.

[2003] EWCA Crim 121