Case No: C1/2005/2413
Neutral Citation Number: [2006] EWCA Civ 280
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DIVISIONAL COURT 
OF THE QUEEN’S BENCH DIVISION
Mr Justice Silber and Mr Justice Leveson
[2005] EWHC 2198 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 27th March 2006

Before :

THE PRESIDENT OF THE QUEENS BENCH DIVISION
LORD JUSTICE MAY
and
SIR PETER GIBSON
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Between :

	Benjamin Buddington	Appellant	
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	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Edward Fitzgerald QC and Mr Ian Wise (instructed by Irwin Mitchell of Sheffield) 
for the Appellant
Kristina Stern (instructed by the Treasury Solicitor) for the Respondent

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Judgment
The President of the Queen’s Bench Division: 
1.	On 9 January 2004 Benjamin Buddington (the appellant) was sentenced to two years five months imprisonment for offences of burglary.  He was released on licence on 1 December 2004.  The precise details of the dates and times he actually spent in custody are unclear, but for present purposes, they are not significant.  At the date of his release he was subject to the revocation and recall provisions contained in Part II of the Criminal Justice Act 1991, as amended by insertions made by the Crime and Disorder Act 1998 and repeals resulting from the Crime (Sentences) Act 1997 and the Powers of Criminal Courts (Sentencing) Act 2000.  For convenience, I shall refer to the cumulative effect of these statutes as the 1991 Act.
2.	On or about 24 May 2005 the appellant’s licence was revoked by the Secretary of State and he was recalled to prison.  It is not suggested that this order  was unjustified.  The contention is that the Secretary of State lacked the power to make it.  The correct answer to the question whether the Secretary of State was entitled to do what he did, at the time when he did it, ought to be readily ascertained.  Unfortunately, it is not: so much so, that on 29 July 2005, it was thought appropriate, “for the avoidance of doubt”, to introduce Supplementary Provisions to clarify the construction of paragraph 23 (1) of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (the 2005 Order),  the “unsupplemented” provision in force when the recall order was made. The problem was considered by the Divisional Court (Silber and Leveson JJ).  In a detailed judgment, after careful recitation and analysis of the competing arguments, in effect repeated before us, on 14 October 2005 the court concluded that the order on 24 May was lawfully made.
3.	When  complaint was first made on the appellant’s behalf, he was still in custody, following his recall.  His solicitors were notified that, by reference to the new provisions for release in the Criminal Justice Act 2003 (the 2003 Act), his release would be postponed until 2 March 2006.  Thereafter, on 27 July 2005, the Treasury Solicitor wrote to his solicitors, informing them that as he should have been released on 18 July in consequence of a decision by the Parole Board, the claimant had indeed been unlawfully detained.  His release then rapidly followed.  We are not concerned with any issues of law arising from these events, but although they do not directly impinge on the decision to be made in this appeal from the decision of the Divisional Court,  they do not dispel an uneasy impression of uncertainty and confusion.  
4.	My consideration begins with the 1991 Act.  I shall endeavour to summarise rather than reproduce the relevant provisions.  Dealing with it broadly, the  Act produced what Lord Taylor CJ, in the Practice Statement issued on 1 October 1992, the date when the 1991 Act came into force, described as “radical” changes in the arrangements for the release of serving prisoners through remission and parole by creating a scheme for their early release on licence.  
5.	Section 32 identified the functions of the Parole Board.  The new arrangements  were encapsulated in the duty imposed on the Secretary of State by section 33 to release on licence  short-term prisoners, sentenced to a term of twelve months imprisonment or more,  after they had served one half of the sentence.  This provision applied to the appellant who was a “short-term prisoner” for the purposes of the Act, and defined as “a person serving a sentence of imprisonment for a term of less than four years”.  As such, if he were released on licence, and later recalled under section 39(1) or (2), it was the duty of the Secretary of State to release him after three quarters of the sentence was served. Provision was also made for the release of what were described as special cases and on compassionate grounds. 
6.	Misleadingly headed, “recall of long-term prisoners while on licence”, section 39(1) gave the Secretary of State power to revoke the licence of short as well as long-term prisoners, and order their recall to prison on the recommendation of the Parole Board.  He was further entitled to make the order without a recommendation if, before it was practicable for such a recommendation to be made, he considered it “expedient in the public interest” to do so.   On revocation of the licence, the prisoner was deemed to be unlawfully at large, and he was liable to be detained.   
7.	These were the arrangements in force when the appellant was sentenced, and section 39 applied to him.  At that time, the appellant remained subject to recall until 17 July 2005. If the recall order was governed by and subject to section 39  the appellant could not legitimately have complained.   His complaint arises because his licence was revoked and recall ordered after the repeal of the 1991 Act, and section 39 in particular, when the 2003 Act came into force on 4 April 2005.   
8.	It was agreed before us that the 1991 Act provided that at the time when the appellant was released on licence he remained a person serving a sentence of imprisonment.  This represented a development of the position adopted before the Divisional Court.  More important,  it suggests that  Mr Edward Fitzgerald QC’s repeated invocation of the “liberty of the subject” should be approached with caution. As a person serving a sentence of imprisonment, the appellant’s rights were to be respected. Nevertheless that is what he was, and until the completion of his sentence, that is what he remained.  He was living in the community, on licence, and he remained subject to an obligation to comply with his licence requirements, and liable to recall to prison for non- compliance or in the public interest.  The liberty of the subject is not at stake in this appeal.   We are simply considering the arrangements for those who are serving sentences of imprisonment, and who have been released in accordance with the statutory regime.
9.	In essence, therefore, what we are being asked to accept is that the  2003 Act and the 2005 Order, either individually, or together, removed those constraints, and left the Secretary of State bereft of his former statutory authority in relation to the appellant.    If Mr Fitzgerald’s submission  is right,  these powers were lost when the provisions of the 1991 Act were repealed, and his submission brushes aside the simple fact that the principle of early release, subject to licence conditions, and allowing for the revocation of the licence and recall of the prisoner was maintained and repeated in Chapter 6 of the 2003 Act, which came into force on the same day that the equivalent provisions in the 1991 Act were repealed.
10.	Again, I shall endeavour to summarise rather than repeat the critical provisions of the 2003 Act.   Release on licence is governed by sections 244-253.  Section 244 itself distinguishes between the custodial period actually to be served by the prisoner, and the sentence of imprisonment which he is “serving”. Sections 254-256 provide the Secretary of State with power to recall prisoners who have been released.  The statutory regime is similar, but not identical, to its predecessor.  There is a duty to release prisoners after specified proportions of the sentence have been served in custody, with express power to release them on licence before the duty to do so arises.    The Parole Board is no longer vested with the direct function originally envisaged in the 1991 Act.  The Secretary of State alone is vested with the power to revoke the licence,  but, he may seek, and if so, the Parole Board must provide him with appropriate advice on matters relating to the early release or recall of prisoners.  Unlike section 256, which applies to prisoners released before the Secretary of State is obliged to release them, section 254, which will arise more frequently in practice, does not identify the specific circumstances in which the prisoner may be recalled.  That said, the Secretary of State cannot act on a whim.  The prisoner is entitled to be supplied with the reasons for the order, (such as, for example, non compliance, or the public interest) and when he is, he is further entitled to make representations in writing.  The Secretary of State refers the case of any such prisoner to the Parole Board, which may recommend the immediate further release of the prisoner on licence. If so, effect must be given to the recommendation.
11.	The powers of the Parole Board are set out in section 239 of the 2003 Act, to be exercised in respect of functions created or imposed under that Act.  For present purposes, I note, without suggesting that it is determinative, the obligation of the Parole Board under section 239(6) to “take into account”  directions issued by the Secretary of State.  Among current directions the Parole Board is required to “take into account the fact that prisoners who have been sentenced under the provisions of the Criminal Justice Act 1991 cannot be disadvantaged by the recall provisions of the Criminal Justice Act 2003”.   If it appeared to the Parole Board that such a prisoner were indeed being “disadvantaged”, it was required to reflect this direction, with a view to making appropriate recommendations relating to the individual prisoner, and if it did so, its recommendation would be binding on the Secretary of State.
12.	In summary, the system for early release,  subject to licence, is preserved: so is the power of the Secretary of State to revoke the licence, and order the recall of the prisoner to custody.  Nevertheless, it is critical to Mr Fitzgerald’s submissions that so far as the appellant is concerned, the system for revocation and recall was not merely modified by the new legislation, but that, unless saved by transitional provisions, the effect of legislation simultaneously repealing the 1991 Act  and bringing the equivalent provisions of the 2003 Act into force brought an immediate end to the power of the Secretary of State to revoke the appellant’s licence.   He contends that the transitional provisions were not effective for this purpose.  If they were, the appeal will fail.          
13.	The 2005 Order therefore requires close attention.  Paragraph 44 of Schedule 1 identified the provisions which, by virtue of schedule 37 of the 2003 Act, were repealed.  By paragraph 44 (1)(k) these included sections 32-51 as well as schedule 5 of the 1991 Act.  At the same time, paragraph 19 of Schedule 1 specified the provisions of the 2003 Act which came into force on 4 April 2005.  These included sections 237-224(1),(2) and (3)(a)(d), 246-250 (1) and (4)-(7), 252-257 (except 257 (2)(c)), 258-261, 263, 264(1)-(3), (6) and (7), 265, and 268 (release on licence), unless they were already in force.
14.	 Schedule 2 made Saving and Transitional Provisions, among others, relating to release on licence and recall orders made under Chapter 6 of Part 12 of the 2003 Act.  Paragraph 16 makes provision :
“Where the Parole Board is… 
(b) by virtue of paragraph 19 of the Schedule, dealing with a prisoner serving a term of imprisonment in respect of an offence committed before 4 April 2005, any reference in section 239 of the 2003 Act to Chapter 6 of that Act shall be treated as a reference to Part 2 of the 1991 Act”.
15.	Paragraph 19 of Schedule 2 provides:
“The coming into force of  
(a) sections 244 (duty to release prisoners), 246 (power to release prisoners before required to do so), 248 (power to release on compassionate grounds), 249 (duration of licence) and 250 (licence conditions);
(b)….
(c) The repeal of sections 33, 33A-38A, 40A-44 and 46-47 and 51 of the 1991 Act; and
(d)…
is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005”.
In brief, therefore, the repeals of some of the provisions relating to recall orders in the 1991 Act, and some of the new provisions in the 2003 Act, were not to take immediate effect.  
16.	A number of striking features follow.  For prisoners serving sentences imposed in respect of offences committed before 4 April 2005,  section 39 of the 1991 Act was not preserved.  The express saving of section 33 of the 1991 Act meant that on his release in December 2004, the appellant was, and  after 4 April 2005 he continued to be, a short-term prisoner on licence.  The saving of section 37, meant further that the duration of the period of his licence was maintained and he was obliged to “comply with the conditions specified in that licence”.  Finally, if curfew conditions had been imposed on the appellant under section 37(A), the power to revoke his licence for non-compliance with them was also saved when section 38(A) was preserved.     
17.	That is the context in which to consider the arrangements for recall set out in paragraph 23 of Schedule 2.  This paragraph is headed, “Transitional arrangements for recall after release”.  It provides:
“(1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4th April 2005 – 
(a) the reference to release on licence in section 254(1) of the 2003 Act (recall of prisoners while on licence) shall be taken to include release on licence under those provisions; and 
(b) the reference to section 37 (1) and 44 (3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act.
(2) Paragraph 12 (1) and (2) of Schedule 9 to the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act.
(3) The repeal of section 39 of the 1991 Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4th April 2005.”
18.	Paragraph 23 (2) has no direct bearing on the structure or meaning of paragraph 23 as a whole. It may however suffer from what I suspect was Homeric exhaustion on the part of the draftsman, who, as May LJ pointed out in argument, used the word “sentence” when he meant “offence”, and whose reference to the “Crime and Disorder Act 1988” anticipated its enactment by ten years.  Paragraph 23 (3) was intended to protect any procedure for recall started before 4th April 2005, and made a specific exception for section 39 to continue in relation to prisoners released before that date. They therefore remained subject to recall after 4 April 2005 under the 1991 Act. The preserved arrangements produced by section 37(1) and 44(3) and (4) of the 1991 Act were also linked to the process of revocation but they were removed from the former regime under section 39 of the 1991 Act to the new regime under section 254 of the 2003 Act.   Indeed, apart from the specific exception in relation to cases falling under paragraph 23(3) the arrangements for enforcing compliance with licence conditions were to be governed by this section.
19.	Paragraph 23(1) itself has no application to prisoners convicted of  offences committed after 4 April 2005. It is directed to the arrangements for prisoners serving  sentences of imprisonment in respect of an offence committed before 4 April 2005, and the power to recall them after release on licence.   Mr Fitzgerald focused close attention on the words “falls to be released”.  He argued that it relates to future release.  Therefore paragraph 23 (1) had no application to the appellant, whose release had taken place before that date.  In brief, he no longer “fell” to be released.  
20.	In my view, this paragraph is concerned with the continuing and preserved duty of the Secretary of State to release prisoners after they have served a specified proportion of their sentences.  When his duty to release arises,  the prisoner “falls” to be released.  Paragraph 23(1) should therefore be read as “is entitled to be released”, or “is released”.  Be that as it may, the consequence of Mr Fitzgerald’s argument is that a special group of prisoners sentenced for an offence committed before April 2005, who happened to be released on licence before, but not after that date, were unexpectedly provided with the bonus that the power to order their recall had somehow vanished without a single word to suggest that it had been expressly, or indeed impliedly, removed. The result in practical terms would be that  prisoners within this special group, serving their sentence on licence, but subject to the conditions, were suddenly free of the conditions governing their release, or at any rate, were merely subject to conditions which lacked any sanctions against non-compliance.  This plainly was not intentional.  The regime produced by the legislative process was intended to be seamless. 
21.	 Mr Fitzgerald argued that even if the results of his submission might appear strange, that was simply the inevitable consequence of the fact that the appellant was released before 4 April 2005, and represented the inevitable meaning of the words actually used in paragraph 23 (1).
22.	Mr Fitzgerald called attention to Black-Clawson Limited -v- Papierwerke (1975) AC 591 to emphasise that the search was for the “true meaning” of the words of a statutory provision, and that if it was “only capable of having one meaning, that was an end of the matter and no further inquiry is permissible” (per Lord Reid at p613).  If there were any ambiguity in the language, the provision, affecting as it did the liberty of the subject,  exposing the appellant to a change of regime and the risk of an increased interference with his liberty, lacked the necessary clarity, (R -v- Hallstrom, ex parte W (No 2)  (1986) QB 1096).  He robustly maintained the court should not legislate, or seek to legislate, or add words (or punctuation) to provisions of this kind.  The purposive approach to legislation had its importance, but not to provisions of this kind, affecting the liberty of the subject.  Such cases like this fell outwith R (Quintavalle) -v- Secretary of State for Health (2003) 2AC 687 or Inco Europe -v- First Choice Distribution (2000) 1WLR 586.  The provisions under consideration were neither liberal nor permissive in their operation, and the overall context was penal legislation.  In addition to Mr Fitzgerald’s oral and written submissions, I have  reconsidered the detailed submissions on behalf of the appellant by Mr Hugh Southey as recorded by the Divisional Court, together with his written submissions in support of the appeal.
23.	The difficulty I have with the argument for the appellant is that it produces an absurdity.  Nothing in the Act or the Order suggests that the constraint of revocation and recall was intended to be removed by the legislation for individuals like the appellant who happened to be released on licence before 4 April 2005.  From the moment of his discharge from prison in December 2004 until 4 April 2005, it is not in dispute that the appellant was subject to that constraint.   After that date, in accordance with the legislative purpose, he remained subject to that licence until the term of his sentence of imprisonment was completed.  If Mr Fitzgerald is right, he suddenly became free of the constraints of his licence, at any rate in the sense that no sanction was available for non-compliance, not even if the public interest required his recall. Yet, throughout, his status as a serving prisoner was unaltered.  He remained a prisoner on licence, and subject to that licence. If the argument is right, he became effectively free of his sentence in the sense that his release became unconditional, on 4 April 2005, long before the sentence was “served”.  After that date, if Mr Fitzgerald were right, he would in law simultaneously be subject to the licence, but for practical purposes free of it.
24.	The advantage for which Mr Fitzgerald contends benefited prisoners who happened to be released on licence in the period leading up to 4 April 2005, but not those sentenced under exactly the same regime as the appellant, but whose entitlement to release occurred after that date.  In other words, two groups of prisoners, sentenced and released in accordance with the same statutory arrangements became subject to different release provisions.  In fact, there was yet another group, that is, prisoners  released on licence, but subject to curfew conditions who remained liable for recall to prison for curfew breaches whether they  occurred  before or after 4 April 2004.  Such inconsistencies in a system of penal justice designed to produce consistent arrangements for prisoners sentenced under the same statutory regime would be wholly unexpected. 
25.	Notwithstanding Mr Fitzgerald’s sustained argument, the only realistic approach to paragraph 23 (1) is to construe it so that the words “after 4 April 2005” govern both sub-paragraphs 23 (1)(a) and (b) (as the Divisional Court concluded) and to regard the words “falls to be released under the provisions of Part 2 of the 1991 Act” as applying to all prisoners released in accordance with the provisions of that Act, whether the release took place before or after 4 April.  If so, section 254 of the 2003 Act would apply to the appellant, and the Secretary of State was entitled to recall him notwithstanding his release on licence under Part 2 of the 1991 before 4 April.  
26.	This interpretation would do justice to the purpose of the legislation.  It would maintain a coherent system of release of prisoners on licence.  It would safeguard the public interest by providing sanctions against non-compliance by the appellant with his licence conditions, or in the public interest generally.  I am quite unpersuaded that this interpretation can reasonably be thought to create any injustice for the appellant.  He was only released subject to licence, and when he was released he was subject to recall where recall was justified.  When he was recalled, it was indeed justified, and without the power to recall him, he would have continued at liberty when he should not have done so, and when he could have enjoyed no reasonable expectation that he would.  Mr Fitzgerald suggested that this interpretation would require the introduction of a comma in paragraph 23 (1) before the words “after 4th April 2005”.  If so, I should supply the comma.  Its omission almost certainly resulted from a third Homeric nod by the draftsman, in fairness to him, probably the result of pressure from the legislative caldron.  That comma would have made the hearings before the Divisional Court and the Court of Appeal, and these lengthy judgments unnecessary.
27.	In my judgment this appeal should be dismissed.
28.	May LJ
I agree
29.	Sir Peter Gibson: 
I agree