A short explanation of the practical consequences of the Stellato judgment

The House of Lords decision in Stellato, upholding the judgment of the Court of Appeal, has clarified the position in relation to the transitional arrangements for the recall of prisoners sentenced under the Criminal Justice Act 1991 but recalled since the Criminal Justice Act 2003 was enacted on 4 April 2005.  However, due to the complexities of the legislative scheme, the precise implications of the judgment have not been easy for prisoners to digest.

At the outset, it is important to note that the CJA 1991 had two separate schemes in place governing the length of prisoners’ licences.  The original version of the Act provided for prisoners’ licences to remain in force until they had served three-quarters of their sentence.  Any prisoner who was released either on parole or at the non-parole date, would remain subject to their licence conditions until they had reached the three-quarter point.  After that time, the prisoner was effectively free from the effects of the sentence.  The only exception would be prisoners who had their licence extended to their SED by the sentencing court at the time the sentence was imposed.

The 1991 Act was amended by the Crime and Disorder Act 1998.  The relevant changes related only to people convicted of offences committed after 30 September 1998.  The key change was that if a prisoner on licence was recalled and remained in custody until the three-quarter point of the sentence, the prisoner had to be re-released but would remain on licence until the SED.  In effect, in those circumstances the LED was automatically extended.  However, any prisoner who was recalled and re-released before the three-quarter point (eg: if the recall was not upheld or re-release was ordered at a subsequent periodic review), the licence would still expire at the three-quarter point. 

The CJA 2003 created a more efficient and streamlined recall procedure than had existed under the CJA 1991.  It also introduced automatic release on parole halfway through the sentence, the trade off being that the licence always remains in force until SED.  In Stellato the Secretary of State tried to argue that the intention behind the CJA 2003 was not just to change the procedures for recall, but also to retrospectively change the length of the licence for prisoners sentenced under the CJA 1991 once they had been recalled, providing the recall took place after 4 April 2005.  It was this argument that was emphatically rejected by the House of Lords (and the Court of Appeal).

The result of the judgment is that there is no change to the length of the licences imposed upon prisoners pursuant to the CJA 1991, s.37(1).  Prisoners who received sentences for offences committed before 30 September 1998 can only be on licence until the three-quarter point and must be unconditionally released after that point in their sentence.  Those convicted of offences committed after that date can potentially be on licence right up until SED, but only if they have been recalled and remain in custody up until the three-quarter point of the sentence.  Contrary to some responses made by prisons to inquiries made about the judgment, the question of whether it is a first or subsequent recall is totally irrelevant.

There remains one question that was not directly answered by this case, and that relates to the entitlement to be released at the three-quarter point of the sentence.  CJA 1991, s.33(3) provides for all prisoners sentenced under that Act to be re-released at the three-quarter point of the sentence (either on licence or unconditionally).  As the Secretary of State made it his policy to release all 1991 Act prisoners at that point, the question of whether this is a ‘right’ or not has not yet been addressed.  However, it does have implications for prisoners who were detained beyond the three-quarter point whilst the Stellato case was under consideration by the courts. The question is whether these prisoners are entitled to compensation for false imprisonment (which is a tort of strict liability) or whether they have only a prospect of obtaining compensation if they can establish negligence on the part of the prison or the Parole Board for failing to carry out the Secretary of State’s directions.  The logic of the Lords’ judgment would tend to the view that CJA 1991, s.33(3) was also preserved for existing prisoners, but this has not been addressed head on. 

Simon Crighton Bhatt Murphy Solictors