Neutral Citation Number: [2010] EWCA Crim 371
Case No: 200903497 A9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
HIS HONOUR JUDGE BURKE QC
T2009 0072
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/03/2010
Before :

LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE MACKAY
and
MR JUSTICE LLOYD JONES
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Between :

	Jamie Costello	Appellant	
	- and -		
	The Queen    	Respondent	

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Mr K Molloy (instructed by Lawtons) for the Appellant 
Mr J De Burgos (instructed by Crown Prosecution Service) for the Crown

Hearing date : Thursday 4th February 2010
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Judgment

Lord Justice Hughes : 
The question 
1.	An habitual criminal is sentenced to 4 years imprisonment (“Sentence A”).  In accordance with the rule laid down by Parliament in s 244 Criminal Justice Act 2003 (“CJA 2003”) he is released after two years on licence, which will run for the remaining two years of sentence A.  Three months later, while on licence, he commits another offence which, on ordinary principles would call for a sentence of two years imprisonment.  He appears to be sentenced six months after his release on licence.  By now he has been recalled administratively by the Ministry of Justice and is back in prison again under Sentence A.  Sentence A still has 18 months to run. The sentencing court dealing with the new sentence wishes to be sure that its new sentence (“Sentence B”)  will add the appropriate period to the time the defendant serves in prison.  It is concerned that if sentence B is a two year sentence, it may add not a single day to the time he is in prison.  That is because the two year sentence B will attract mandatory release on licence after 12 months, and if he remains recalled for the whole of the rest of sentence A, that release will arrive before he has completed Sentence A.  Sentence B will then have added nothing at all.  In those circumstances is the Judge dealing with Sentence B obliged to pass the two year sentence, or may he pass a sentence increased in order to ensure that the defendant serves some additional time in prison for the new offence ?   That is the question raised by this appeal against sentence.  
2.	It might appear to any lay reader that the answer to this ought to be very simple.  Such, however, is the complexity of the present statutory provisions governing the sentencing of defendants that to answer this question requires detailed analysis of a large number of different rules, all enacted by Parliament.  The rule of law requires that we answer this question not with what we would like the law to be, but with what it is.  And moreover, the analysis will show that the question contains an assumption about recall which is not always made out.
Costello’s case
3.	Costello is only 22.  But he is a frequently offending criminal.  After earlier offences which included assault occasioning actual bodily harm, burglary and breaches of community orders, the relevant part of his criminal history is as follows:

19 June 2006	Battery on his girlfriend. Granted bail.	
		
9 Oct 2006	Fails to surrender to bail	
		
24 Nov 2006	Robbery on a bus in York, saying he has a gun.	
		
6 Feb 2007	Fails to surrender to bail	
		
15 Feb 2007	Sentenced to 6 months for the battery of June 2006	
		
11 May 2007	Sentenced to 30 months for the robbery this sentence was legitimately made consecutive to the six months for the battery, there having been no question of early release yet. The combined sentence of 3 years (6 months + 30 months) is thus sentence A.	
		
15 Aug 2008	Released from sentence A on licence, running it appears to January 2010.	
		
13 Oct 2008	Fresh offence (“B”) of assault occasioning actual bodily harm on the same girlfriend. She had, however, forgiven him and she attended court to plead persuasively on his behalf that they should not be separated any longer than was unavoidable; her stance appears to have been entirely voluntary.	
		
23 Mar 2009	Sentenced for the fresh offence (sentence B).	
4.	In passing sentence B the judge determined that the offence would ordinarily have called for a sentence of 12 months (no doubt much reduced by the fact that the victim genuinely wanted him back).  But the defendant had been recalled administratively to prison from the licence on sentence A, and there was still 9 months of sentence A unserved.  The judge reasoned that if he passed a 12 month sentence it would have no effect whatever on the time spent in prison.  The statutory rule for early release on licence under sentence B would operate after 6 months, at which time the defendant would still not have completed sentence A.  It appeared that the fresh offence B would attract no separate punishment at all.  Faced with that situation, the judge passed a sentence of 31 months, having calculated that that would add six months actually in custody to time still to be served under sentence A, thus achieving the net effect of an additional 12 month sentence.
5.	Costello appeals on the sole ground that the judge was not entitled to take this course.  
The statutes
6.	For convenience we shall discuss the relevant effect of the various statutory provisions without interrupting that discussion by setting them all out in extenso;  their exact text will be appended to the end of the judgment.  
7.	The first relevant statutory rule is contained in section 153(2) CJA 2003.  This stipulates that a custodial sentence imposed by the court shall be for the shortest term which in the opinion of the court is commensurate with the offence committed or the combination of that offence and one or more other offences associated with it.  
8.	The second group of statutory rules relate to the passing of consecutive sentences;  in particular we are concerned with s 265 CJA 2003.
9.	If a prisoner who is still serving sentence A, and has not yet been released from it on licence has to be sentenced for a further offence (B), there is no obstacle.  The judge dealing with sentence B will simply make his new sentence B consecutive to the existing sentence A.  That often happens if further offences are committed in prison, and may also occur if offence B was committed before the defendant received sentence A but came to light only afterwards.  
10.	Since 1998 it has been the statutory rule, established by Parliament, that this cannot be done if before sentence B is imposed the defendant has been released on licence under early release provisions laid down by statute.  Sentence B cannot, by statute, be made consecutive to any sentence from which the defendant has been released early on licence.  That rule is now contained in s 265 CJA 2003.  It is not new, although it is often thought that it is.  It derives from s 102 Crime and Disorder Act 1998.  It was reproduced in s 84 Powers of Criminal Courts (Sentencing) Act 2000 (“PCC(S)A 2000”). And now it appears in s 265 CJA 2003.  
11.	The original provision, s 102 Crime and Disorder Act, was introduced in a part of the Act headed: “Miscellaneous and Supplemental” together with some other provisions modifying the then prevailing early release, licence and recall rules (then principally contained in the Criminal Justice Act 1991).  Sections 99 and 100 introduced discretionary release on home detention curfew; s 102 is not related to those. S 100, however, does appear significant.  It dealt in some detail with the manner in which two or more sentences should be calculated, within the prison system, for the purposes of working out the early release provisions.  Among other provisions, it stipulated the circumstances when consecutive sentences were and were not to be aggregated. This appears to be the working out in statute of the practical implications of early release and licence.  It was obviously important, once there was either entitlement to release on licence or discretionary power to release, in each case triggered by the elapse of a particular proportion of the sentence, that there should be clear rules for which sentences had to be considered separately and which should be aggregated and treated as one.   It appears to us likely that section 102 was part of this process and was designed to avoid the complications in aggregating sentences and establishing the relevant dates for the purpose of licence where sentence B was not imposed until the prisoner had already been granted early release under sentence A.  That appears to be confirmed by Home Office Circular HOC 44/1998, issued to explain these changes. That circular contained at paragraph 4 of its summary:
“4.  These amendments aim to clarify the calculation of release dates and licence and ‘at risk’ periods where prisoners are subject to more than one sentence.  Generally they reflect the current sentencing practice of the courts and respond to judicial calls for clarity in this area of the law.”
Then at paragraphs 1.4, 1.5 and 1.8 the circular went on to say:
“1.4  However, two or more sentence will not be treated as a single term for the purpose of calculating release dates where the second sentence is imposed after the prisoner has been released from the initial custodial part of the first sentence under the early release provisions of the 1991 Act.
1.5 The second sentence will not be treated as a single term with the first sentence in such a case even if the prisoner has been recalled under section 38 or 39 of the 1991 Act following release, and is in custody for the breach of his licence in respect of the first sentence when the court imposes the second sentence.  To this extent the new provisions differ from the current sentencing practice.
1.8  However, this does not restrict the powers of the court under section 40 of the 1991 Act.  It will continue to be possible, where the order of return is made and the new sentence is passed on the same occasion, for a court to order than any new sentence for an imprisonable offence committed after release from, but before the expiry of an earlier sentence, should follow, and thus in effect run consecutively to, any order of return made under section 40. ”
		
12.	It follows that s 265 does not spring from some objection in principle to sentence B adding to sentence A but from real practical difficulties if the form of the order is to make B consecutive to A when there has already been early release from A.  
13.	Until the passing of the Criminal Justice Act 2003, the rule in s 265 did not carry any danger of creating the situation described in paragraph 1 above.  That was because the rule co-existed with a third statutory rule which enabled the court, in this situation, to order that the defendant be returned to prison to serve such remaining part of sentence A as the court judged to be appropriate AND to direct that this period of return should be served before the new sentence B.  In that way, in effect, sentence B could be made consecutive to the outstanding part of sentence A, or such portion of it as the court judged fair.  To that extent the court’s power to order return overrode any administrative recall which might have been undertaken, or be contemplated, by the Secretary of State.  This third statutory rule was longstanding – indeed much older than the second statutory rule.  It had begun life in s 40 Criminal Justice Act 1991 and was latterly contained in s 116 PCC(S)A 2000. The critical point about the introduction of what is now the rule in s 265 is that it was done in the context of the preservation of the court’s power to order a return to custody of a prisoner who commits a further offence on licence.  See paragraph 1.8 of the circular quoted in paragraph 11 above, which made this crystal clear.
14.	However, in 2003, Parliament repealed s 116:  s 332 and Schedule 37 CJA 2003.  Thenceforth the only power to recall a prisoner on licence is held by the Secretary of State.  As a matter of record, the effect of the repeal of s 116 has hitherto been masked to some extent by the rather partial manner in which the repeal has been brought into effect:  see R v D’Roy Williams [2009] EWCA Crim 2111.  That complication need not be explored here, except to observe that it has meant that the problem which we now face has been slow to materialise in the Crown Courts.  Now, however, it is unarguably present.  It arises because section 116 has been repealed whilst section 265 has been left in place.  
15.	These statutory provisions are all well known. What are probably less well known are the provisions of statute relating to what is to happen to a defendant after administrative recall for breach of licence.  They are complex indeed. They are now contained in s 255A to 255D and 256 (as amended) of the CJA 2003, which changes to the 2003 Act were made by ss 29 and 30 Criminal Justice and Immigration Act 2008 and came into force on 14 July 2008.  In very brief summary their broad effect is as follows:
i)	If offence A was not a ‘specified offence’ for the purposes of the dangerous prisoners provisions of the CJA 2003 (s 224 and Schedule 15) then ordinarily the prisoner’s recall will last only 28 days and re-release after that brief period will be automatic:  s 255A(2) and 255B;  the only exception is if the Secretary of State takes the view that the prisoner will present a risk of serious harm to the public if released (s 255A(4)) or that it is necessary for the protection of the public that he should not be released  (s 255B(3)).
ii)	In all other cases except those where sentence A was an extended sentence the recall may be followed by re-release at any time by the Secretary of State providing that he is satisfied that it is not necessary for the protection of the public for him to remain in custody:  s 255A(2)(b) and (c) and 255C.
iii)	In all cases a recalled prisoner, if he is not re-released by the Secretary of State, is entitled to apply to the Parole Board for re-release and the Board’s decision must be accepted by the Secretary of State.  
iv)	There are special rules for cases where sentence A was an extended sentence:  see s 255D.  Their cases must be referred to the Board, who again may in effect direct re-release.  
16.	What this means is that it cannot be assumed that if the defendant has committed a further offence on licence and has been recalled administratively for breach, his recall will then last until the end of sentence A.  Far from it.  Many repeat offenders will not be serving sentence A for specified offences.  They may well be re-released after 28 days.  Burglars and repeat drug suppliers are simple examples of offenders who may often commit further offences on licence, but whose offences are not specified.  They will be unlikely to present a danger to the public of serious harm, in the sense used in s 224 CJA 2003 and s 255A-D, for their offences are unlikely to carry a risk of death or serious personal injury.  Whether they will be refused re-release on the grounds that the risk of further offending brings them within the exception contained in s 255B(3) (‘necessary for the protection of the public’) is at best uncertain.  And where automatic re-release after 28 days is not the rule, all recalled prisoners may be re-released at any time providing they do not present this kind of danger, and they can, in effect, seek a ruling of the Parole Board that they should be re-released. Once again, the decision will certainly take into account any danger of serious harm, and may, as we understand it, take into account risk of further offending, but what will happen is uncertain.  In particular, as we understand it, re-release is not refused simply because the defendant ought to serve out the remainder of his licence as punishment, given that he has committed a further offence.  So a prisoner’s administrative recall may last for the remainder of sentence A, but equally it may not. 
17.	It follows that the assumption on which the problem stated in paragraph 1 is based – that a recalled prisoner will serve out the remainder of his licence – will in some cases be unlikely to be correct, and in others the judge cannot know whether it is correct or not. 
18.	It may well be, of course, that a prisoner on licence, who has committed a further offence and has been recalled, may decide that it is not worth applying for re-release because he is in any event remanded in custody for the new offence and he accepts the inevitability of a fresh custodial sentence.  But if the judge passing sentence B is able to increase it on the basis that otherwise it will add little, or less than it should add, such prisoners will be moved to make applications to the Secretary of State and/or the Board, in order to seek a notional re-release with a view to urging the judge not to inflate sentence B.  
The cases
19.	The problem set out in paragraph 1 of this judgment has been adverted to in a number of previous decisions of this court, but not fully argued in any case in which it was determinative of the outcome.  We set them out in chronological order. 
20.	In Drewett [2007] 2 Cr App R (S) 32  [2006] EWCA Crim 1140 the sentencing judge had increased what would otherwise have been a seven year sentence for offence B to 8 yrs & 26 days because at the time of sentence the defendant had been recalled and there was still 1 year & 26 days of sentence A outstanding.  This court determined that that course was wrong in principle.  It confined itself to saying that there was nothing in the then applicable Powers of Criminal Courts (Sentencing) Act 2000 which allowed such a course and that it knew of no authoritative decision permitting it.  That is a decision clearly against the course taken by the judge in Costello’s case.  But it has to be said that in Drewett the point was not crucial, because his was a case to which section 116 still applied. After adjusting the period to allow for time already spent in custody, this court was able to achieve the judge’s objective by making an order under s 116 for return to prison under sentence A and  ordering that the 7 year sentence B be served only after that period of return.   The court did not have to confront the case where sentence B adds nothing, or adds so much less than it ought to add that the ordinary man’s sense of justice is offended.
21.	In Jesson [2007] EWCA Crim 1399  [2008] 1 Cr App R(S) 36 at 195 sentence A had been 4 years for robbery, passed in September 2003.  The defendant, who was an habitual burglar, had committed a further burglary when on licence.  By the time of sentence he had been recalled.  The right additional period for offence B was 12 months.  The very experienced judge adjourned to give thought to how to achieve this and eventually decided to pass a sentence of 3 years and 357 days in order to achieve (net) his objective.  This court held that the right way to achieve it was by making a return to prison order under s 116, with a new sentence of 12 months to be served after that return.  There is no sign of the issue of the length of the administrative recall being addressed.  But giving the judgement of this court, Latham LJ expressly observed that where sentence A dates from after 4 April 2005, the s 116 solution will not be available, and the judgment appears to proceed on the basis that nor would it be permissible to increase sentence B.  The court expressed its sympathy for those who have to grapple with the “Byzantine complexity” of the sentencing provisions confronting courts.  
22.	In Booker [2009] EWCA Crim 311 sentence A had been one of six years.  Exactly on which date the defendant was released from it is not clear but plainly it would have been at half way.  Offence B was a single daytime burglary committed whilst still on licence.  By the time of sentence B the defendant had been recalled and there was still 20 months of sentence A outstanding.  The judge imposed a sentence of 4 years, after plea of guilty, observing that since that new sentence would bring release on licence after two years (24 months) and the defendant had 20 months of sentence A still to serve, sentence B would in fact add only 4 months.  It seems plain that sentence B was increased because of the absence of power to make it consecutive to sentence A – by how much the report does not disclose.  This court upheld the sentence.  Of the judge’s approach it said simply this:
“As Parliament has made it plain that the criminality has to be reflected in a single sentence imposed after the recall to licence and that sentence cannot be made consecutive, as might otherwise have been the case, then in order for any additional punishment to be imposed for a burglary then a longer than normal sentence, within the maximum range of course, has to be imposed….In all the circumstances of his very serious offending and the fact that the return to licence was because of the breach of his licence and not a substantive sentence for the burglary itself, we conclude that the judge was entitled to take the course that he did.”
Once again it is apparent that the point was not argued out.  In a busy list this is not surprising, but in fact the point did not need to arise. Sentence A had been imposed on 16 September 2004, so a return under s 116 was available and could have achieved exactly the same effect.  That alone was a plain justification for the judge’s sentence;  the defendant suffered nothing.  But no-one pointed this out. Next, sentence A had been for robbery, a specified offence.  It is possible that the defendant’s recall would indeed have lasted for the whole of the remainder of sentence A, but there is no sign that anyone alerted either the judge or this court to the uncertainty.  Nor was either court referred to Drewett.  The apparently accepted limitation that sentence B, even if inflated for the reason explained, had to be within the normal range, would leave the problem here confronted unsolved in many cases.  
23.	Whittles [2009] EWCA Crim 580 came before a two judge court about a fortnight after Booker.  The defendant was an habitual burglar, driven as many such are by drug addiction.  Sentence A had been one of 5 years for burglary imposed in March 2006.  He had been released on licence at half way in April 2008. In July and August 2008 he committed a further six similar daytime domestic burglaries.  By the time of sentence B on 1 October 2008 he had been recalled and about two years of sentence A remained outstanding.  The sentencing judge drew attention to section 265 and the repeal of section 116 and imposed a sentence of 4 years 8 months after plea of guilty, based upon a term after trial of 7 years.  That was, this court held, clearly increased because of the desire to ensure that it added something.  
24.	In Whittles, this court was referred to Drewett but not to Booker.  It treated it as axiomatic that the course taken by the judge was wrong in principle.  It also considered that it was contrary to the duty contained in section 153 to pass a commensurate sentence.  It determined that given the repetition of the burglaries and the presence of householders when some were committed, the right sentence, unaffected by considerations of licence, was 3 years and 4 months (40 months).   It is to be observed that since that substituted sentence ran from the date of sentence B, 1 October 2008, it would pass its half way mark of 20 months before sentence A was completed.  Accordingly this was an example of a case in which, if the court has no power to increase sentence B in the circumstances we are discussing, that sentence will add nothing at all to the time spent in prison if the recall is enforced for its full period.  Whether it would have been enforced for its full period was not a question addressed.  Nor did the court have the benefit of any argument against the appellant’s contention that the increased sentence was impermissible. 
25.	In Moloney [2009] EWCA Crim 2244, confronted with a similar problem, the judge had purported to make sentence B consecutive to sentence A, from which the defendant had been released early but recalled.  This court held in brief terms that s 265 CJA 2003 prevented him from doing that, but was able to substitute an order for return under s 116 of the 2000 Act.  Once again there was no detailed argument, and it cannot be seen from the transcript whether it was known how long the period of recall was.  It is of interest, however, that sentence A in that case was an extended sentence and still had over four years to run when sentence B was passed.  The appropriate term for sentence B was three years, which would attract entitlement to release after 18 months.  The nature of offence A is not clear, but it must have been a violent or sexual offence to attract an extended sentence under the 1998 Act, and offence B consisted of threatening someone with a broken glass or bottle.  It is therefore quite likely that in this case recall would indeed have lasted for much, and perhaps all, of the remaining licence period under sentence A.  If so, then if s 116 had not been available, sentence B would indeed have added nothing at all.  If the facts were now to recur and sentence A were after 4 April 2005, that is likely to happen.    
26.	In Pilkington [2010] EWCA Crim 192 sentence A was 40 months for burglary.  The defendant was released on licence.  Whilst on licence he committed a further offence of aggravated vehicle taking.  He was recalled, and in due course sentenced to three months for the vehicle offence.  Whilst in prison he struck another prisoner in retribution for some supposed grievance and killed him.  In due course he fell to be sentenced for manslaughter.  Sentence B, for the manslaughter was (after plea of guilty) five years and four months.  The judge inadvertently made it consecutive to sentence A, some few months of which were still outstanding.  That was contrary to s 265 and had to be corrected.    In that case the outstanding period of A was not long, but it might well have been.  This is an illustration of the fact that the problem which we are confronting in this case is quite likely to arise where the new offence (B) is a serious one and it is particularly important to the public, not to mention any victim, that sentence B be seen to be adding the appropriate amount of time in custody.  
27.	Clearly these cases were decided without reference to each other, and mostly without full argument.  They cannot all be correct.  The judge in this case, to whom no authority at all was cited, spotted Whittles subsequently and drew attention to it, for which we are grateful.  We consider that we must approach the issue as one of principle.  
Effect of the legislation
28.	Mr De Burgos for the Crown suggested to us that the course the judge took could not realistically be criticised as offending the requirement in s 153(2) CJA 2003 that the sentence be commensurate.  His submission was that a sentence which added either nothing or far too little for a fresh offence could scarcely be said to be commensurate.  If s 153(2) were the only statutory obstacle to the judge’s course, it might be that it could be permissible to read it in this way, albeit that would involve some little straining of the language and of the reasonably clear statutory purpose that each sentence for each offence should be measured by the seriousness of that offence and any others associated with it, ie those for which he is sentenced at the same time. The earlier offence A cannot be within the expression ‘associated with it’:  see s 305 CJA 2003 and s 161 PCC(S)A 2000.
29.	Next, the course taken by the judge in this case involves a conscious evasion of the bar in s 265 CJA 2003 on making sentence B consecutive to sentence A where the defendant has had early release from A.  That would be wholly impermissible if s 265 were based upon a principled objection to a defendant having sentence B add to sentence A.  But for the reasons which we have set out in paragraphs 11 and 12 above, s 265 is directed not to the effect of the sentence but to its form.  Accordingly, the imposition of a sentence such as that passed by the judge which avoids offending against the prohibited form is not by implication forbidden by s 265.
30.	Much more important, however, is the repeal of s 116 PCC(S)A.  This was clearly a deliberate repeal.  No public statement of the reasons for it has been made that we have been able to find.  It may be that it was thought that administrative recall would sufficiently deal with prisoners who re-offend on licence.  As we have shown, it is far from clear that it does in fact do so, but in addition, it creates the problem set out in paragraph 1 above.  It seems unlikely that it was Parliament’s objective that re-offending prisoners must have passed on them sentences which may add nothing to their time in custody. It is no doubt much more likely that this is an unintended consequence of the repeal.  But it is not open to courts to disobey a Parliamentary enactment (or, here, repeal) on the grounds that it has unwittingly led to unfortunate consequences.  To inflate sentence B, as the judge did here, is to attempt to avoid the repeal of s 116.  We are unable to see that a court can be entitled to do this, however laudable its aim.  
31.	Moreover, sentence B in this case was inflated without anyone directing their attention to the unknown quantity of the effect of Costello’s administrative recall.  The inflated sentence passed is premised on the assumption that the effect of recall would be that Costello would in any event serve out the remainder of sentence A.  But as we have shown, that is not what the statute says.  A judge who has to pass a sentence on a re-offending licensed prisoner cannot know for how long any administrative recall will last.  That means he cannot know by how much he would need to inflate sentence B (assuming this were otherwise permissible) to ensure that its net effect is what he wants it to be.  
Conclusion
32.	The combination of all these statutory provisions, and particularly (i) the repeal of s 116 (ii) the uncertainty of the effect of administrative recall and (iii) the rule in s 153(2) leads us to the clear, if unenthusiastic, conclusion that it was not open to the judge to take the course which he did and to inflate sentence B in an effort to ensure that the defendant does receive some additional punishment for the new offence. 
33.	Accordingly we must quash the sentence of 31 months.  We replace it with a sentence of 12 months, with effect from the date of sentence (25 March 2009), which is the sentence which the judge indicated he would otherwise have passed.  It is apparent that the defendant has by now served that sentence unless any misconduct in prison has affected his early release. 
Postscript
34.	We sympathise with the judge.  The problem he faced is the unintended result of heavily complex sentencing legislation.  Behind the myriad statutory provisions which must be understood, the essential problem is the result of the repeal of s 116 PCC(S)A 2000 whilst retaining the rule now contained in s 265 CJA 2003.  This problem is likely to become more, not less acute, as the unavailability of s 116 becomes the normal rule.  There is a real risk that cases will occur in which administrative recall will keep a re-offending prisoner in custody for the whole of the remainder of sentence A and as a result sentence B will either add nothing or will add so much less than would be commensurate with offence B that it offends the conscience of the ordinary lay observer.  That cannot be conducive to public confidence in the administration of justice.  
35.	The problem is not new, but it is becoming much more common.  At least one distinguished academic commentator has drawn attention to it on many occasions in the past.  He has suggested that a solution would be the repeal of s 265.  That might indeed help, but we can see that it might cause as many difficulties in calculation of sentences as it might solve in the imposition of sentence B.  In particular, if there ensued successive recalls and re-releases, it might prove difficult to know which sentence a prisoner was serving.  A much more effective solution would be to reinstate s 116 PCC(S)A 2000, so that the proper body, the sentencing court, can consider at the same time the closely related questions of return to prison under sentence A and the proper term for sentence B.  In that way there can be proper co-ordination of the two terms and their net effect can properly be considered.  This is a matter for Parliament, not for us.  But we would urge consideration of it, and a decision one way or the other, before the consequences we have mentioned in paragraph 34 become any more pressing than they at present are. 

Annexe:  Legislation

Section 153 Criminal Justice Act 2003

153 Length of discretionary custodial sentences: general provision 
(1)     This section applies where a court passes a custodial sentence other than one fixed by law or . . . imposed under section 225 or 226.
(2)     Subject to section 51A(2) of the Firearms Act 1968 (c 27), sections 110(2) and 111(2) of the Sentencing Act, section 29(4) or (6) of the Violent Crime Reduction Act and section 227(2) and 228(2) of this Act, the custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

S 265 Criminal Justice Act 2003

265 Restriction on consecutive sentences for released prisoners 
(1)     A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released—
(a)     under this Chapter; or
(b)     under Part 2 of the Criminal Justice Act 1991].
(1A)     Subsection (1) applies to a court sentencing a person to—
(a)     a term of imprisonment for an offence committed before 4 April 2005, or
(b)     a term of imprisonment of less than 12 months for an offence committed on or after that date,
as it applies to the imposition of any other term of imprisonment.
(1B)    [omitted;  intermittent custody;  not in force] 
(2)     In this section “sentence of imprisonment” includes a sentence of detention under section 91 of the Sentencing Act or section 228 of this Act or a sentence of detention in a young offender institution under section 96 of the Sentencing Act or under section 227 of this Act, and “term of imprisonment” is to be read accordingly.

Sections 255A to 256 Criminal Justice Act
(as amended by Criminal Justice and Immigration Act 2008 ss 29 -30)

255A Further release after recall: introductory 
(1)     This section applies for the purpose of identifying which of sections 255B to 255D governs the further release of a person who has been recalled under section 254 (“the prisoner”).
(2)     The prisoner is eligible to be considered for automatic release unless—
(a)     he is an extended sentence prisoner or a specified offence prisoner;
(b)     in a case where paragraph (a) does not apply, he was recalled under section 254 before the normal entitlement date (having been released before that date under section 246 or 248); or
(c)     in a case where neither of the preceding paragraphs applies, he has, during the same term of imprisonment, already been released under section 255B(1)(b) or (2) or section 255C(2).
(3)     If the prisoner is eligible to be considered for automatic release the Secretary of State must, on recalling him, consider whether he is suitable for automatic release.
(4)     For this purpose “automatic release” means release at the end of the period of 28 days beginning with the date on which the prisoner is returned to prison.
(5)     The person is suitable for automatic release only if the Secretary of State is satisfied that he will not present a risk of serious harm to members of the public if he is released at the end of that period.
(6)     The prisoner must be dealt with—
(a)     in accordance with section 255B if he is eligible to be considered for automatic release and is suitable for automatic release;
(b)     in accordance with section 255C if he is eligible to be considered for automatic release but was not considered to be suitable for it;
(c)     in accordance with section 255C if he is a specified offence prisoner or if he is not eligible to be considered for automatic release by virtue of subsection (2)(b) or (c);
(d)     in accordance with section 255D if he is an extended sentence prisoner.
(7)     The prisoner is an “extended sentence prisoner” if he is serving an extended sentence imposed under section 227 or 228 of this Act, section 58 of the Crime and Disorder Act 1998 or section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.
(8)     The prisoner is a “specified offence prisoner” if (not being an extended sentence prisoner) he is serving a sentence imposed for a specified offence within the meaning of section 224.
(9)     [provisions for service offenders;  omitted]
(11)     In subsection (2)(b) the “normal entitlement date” means the date on which the prisoner would (but for his earlier release) have been entitled to be released under section 244.
(12)     For the purposes of subsection (2)(c) terms of imprisonment which are consecutive and terms which are wholly or partly concurrent are to be treated as a single term if—
(a)     the sentences were passed on the same occasion, or
(b)     where they were passed on different occasions, the prisoner has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions.
(13)     In subsection (5) “serious harm” means death or serious personal injury, whether physical or psychological.
(14)     In this section, “term of imprisonment” includes a determinate sentence of detention under section 91 or 96 of the Sentencing Act or under section 227 or 228 of this Act.

255B Automatic release
(1)     A prisoner who is suitable for automatic release must—
(a)     on his return to prison, be informed that he will be released under this subsection, and
(b)     at the end of the 28 day period mentioned in section 255A(4) (or such other period as is specified for the purposes of that subsection), be released by the Secretary of State on licence under this Chapter (unless he has already been released under subsection (2)).
(2)     The Secretary of State may, at any time after a prisoner who is suitable for automatic release is returned to prison, release him again on licence under this Chapter.
(3)     The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison until the end of the period mentioned in subsection (1)(b).
(4)     If a prisoner who is suitable for automatic release makes representations under section 254(2) before the end of that period, the Secretary of State must refer his case to the Board on the making of those representations.
(5)     Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
(6)     [intermittent custody;  omitted]

255C Specified offence prisoners and those not suitable for automatic release
(1)     This section applies to a prisoner who—
(a)     is a specified offence prisoner,
(b)     is not eligible to be considered for automatic release by virtue of section 255A(2)(b) or (c), or
(c)     was eligible to be considered for automatic release but was not considered to be suitable for it.
(2)     The Secretary of State may, at any time after the person is returned to prison, release him again on licence under this Chapter.
(3)     The Secretary of State must not release a person under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that he should remain in prison.
(4)     The Secretary of State must refer to the Board the case of any person to whom this section applies—
(a)     if the person makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which he is returned to prison, on the making of those representations, or
(b)     if, at the end of that period, the person has not been released under subsection (2) and has not made such representations, at that time.
(5)     Where on a reference under subsection (4) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.
(6)     [intermittent custody;  omitted]

255D Extended sentence prisoners 
(1)     The Secretary of State must refer to the Board the case of any extended sentence prisoner.
(2)     Where on a reference under subsection (1) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

256 Review by the Board
(1)     Where on a reference under [section 255B(4), 255C(4) or 255D(1)] in relation to any person, the Board does not recommend his immediate release on licence under this Chapter, the Board must either—
(a)     fix a date for the person's release on licence, or
(b)     determine the reference by making no recommendation as to his release.
(2)     Any date fixed under subsection (1)(a) . . . must not be later than the first anniversary of the date on which the decision is taken.
(3)     . . .
(4)     Where the Board has fixed a date under subsection (1)(a), it is the duty of the Secretary of State to release him on licence on that date.
(5)     . . .

Section 116 Powers of Criminal Courts (Sentencing) Act 2000

Power to order return to prison etc. where offence committed during original sentence.
116
(1) This section applies to a person if— 
(a)  he has been serving a determinate sentence of imprisonment which he began serving on or after 1st October 1992;
(b)  he is released under Part II of the Criminal Justice Act 1991 (early release of prisoners);
(c)  before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment ( “the new offence”); and
(d)  whether before or after that date, he is convicted of the new offence.

(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which— 
(a)  begins with the date of the order; and
(b)  is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(c) above.

(3) A magistrates’ court— 
(a)  shall not have power to order a person to whom this section applies to be returned to prison for a period of more than six months; but
(b)  subject to section 25 of the Criminal Justice and Public Order Act 1994 (restrictions on granting bail), may commit him in custody or on bail to the Crown Court to be dealt with under subsection (4) below.

(4) Where a person is committed to the Crown Court under subsection (3) above, the Crown Court may order him to be returned to prison for the whole or any part of the period which— 
(a)  begins with the date of the order; and
(b)  is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1)(c) above.

(5) Subsection (3)(b) above shall not be taken to confer on the magistrates’ court a power to commit the person to the Crown Court for sentence for the new offence, but this is without prejudice to any such power conferred on the magistrates’ court by any other provision of this Act. 

(6) The period for which a person to whom this section applies is ordered under subsection (2) or (4) above to be returned to prison— 
(a)  shall be taken to be a sentence of imprisonment for the purposes of Part II of the Criminal Justice Act 1991 and this section;
(b)  shall, as the court may direct, either be served before and be followed by, or be served concurrently with, the sentence imposed for the new offence; and
(c)  in either case, shall be disregarded in determining the appropriate length of that sentence.

(7) As a consequence of subsection (6)(a) above, the court shall not be prevented by section 84 above from making any direction authorised by subsection (6)(b) above. 

(8) Where the new offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days. 

(9) For the purposes of sections 9 and 10 of the Criminal Appeal Act 1968 (rights of appeal), any order made in respect of a person by the Crown Court under subsection (2) or (4) above shall be treated as a sentence passed on him for the offence for which the sentence referred to in subsection (1) above was passed. 

(10) This section and section 117 below apply to persons serving— 
(a)  determinate sentences of detention under section 91 above, or
(b)  sentences of detention in a young offender institution,
as they apply to persons serving equivalent sentences of imprisonment; and references in this section and section 117 to imprisonment or prison shall be construed accordingly. 

(11) In this section “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence.