Noone, Regina (on the Application of) v HMP Drake Hall and Another: CA 17 Oct 2008

The prisoner disputed the calculation of the date when she would become entitled to consideration for early release under a Home Detention Curfew. The Secretary of State appealed against a decision that his policy guidance was unlawful.
Held: The appeal succeeded. Where several offences were imposed at the same time, those sentences under one year should be governed by the provisions of the 1991 Act, and those for longer periods by the 2003 Act.
Though the Secretary of State had had no jurisdiction to issue such a guidance, in fact the guidance did reflect the position at law.
Scott Baker LJ set out the calculation method: ‘Assuming the judge has said no more than that one sentence is to be consecutive to another, it is necessary to construe in a common sense way what section 154 direction the judge is to be taken to have given as to when the second sentence should commence. It seems to me obvious that the second sentence starts at the point at which release from the first sentence would otherwise occur as of right ie the conditional release date of the first sentence. The other theoretical options are unrealistic. The judge could not intend the second sentence to start when there is merely the possibility of release on a discretionary basis from the first sentence and the direction might or might not be exercised in the prisoner’s favour. Nor could the judge intend the second sentence to start only at the sentence expiry date of the first sentence because the consequences would be that the prisoner would be released on licence from the first sentence and later recalled to start serving the second sentence. Accordingly, the second sentence begins, by virtue of the section 154 direction, at the conditional release date of the first sentence and the prisoner is to be treated as eligible for release on HDC and/or release on licence in accordance with the statutory provisions applicable to the second sentence. Those provisions will be those of the 1991 Act where the second sentence is less than 12 months and those of the 2003 Act where the second sentence is 12 months or more.’
Clarke MR, Scott Barker LJ, Wall LJ
[2008] EWCA Civ 1097, [2009] 1 WLR 1321, [2009] 1 All ER 494
Bailii, Times
Criminal Justice Act 1991, Criminal Justice Act 2003, Criminal Justice Act 2003 (Commencement Order Number 8 and Transitional and Savings Provisions) Order 2005 (SI 2005 No 950)
England and Wales
Citing:
Appeal FromNoone, Regina (on the Application of) v HMP Drake Hall and Another Admn 31-Jan-2008
The court considered the complications created when the schemes for providing early release of short term prisoners had not been implemented, but the new Act impacted in the previous arrangements anyway as regards those sentenced to consecutive . .

Cited by:
CitedRound and Dunn v Regina CACD 16-Dec-2009
Non-consolidation of sentence to debar home curfew
Each defendant had been sentenced to consecutive terms of imprisonment under the 1991 and 2003 Acts. One was above and one below twelve months. They complained that the result of trying to reconcile the statutory provisions was that they had . .
Appeal fromNoone, Regina (on The Application of) v Governor of HMP Drake Hall and Another SC 30-Jun-2010
The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of . .

These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.276975