Galiazia, R (On the Application Of) v Governer of HMP Hewell & Anor
2014
ADMINISTRATIVE COURT
UK
CORAM
- LORD JUSTICE ELIAS
- MR JUSTICE HICKINBOTTOM
Areas of Law
- Criminal Law and Procedure
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
In this case, the claimant who had served more time on remand than his 12-month sentence challenged the Secretary of State's decision to put him on licence and recalled him to prison. The court held that section 240ZA(3) of the Criminal Justice Act 2003 supports the Secretary of State’s view that time on remand can only be credited against custodial time, not the time spent on licence. The court also found no breach of Article 5 of the Convention in the recall procedures distinguishing automatic and standard recalls.
Judgment
Lord Justice Elias :
This case raises an important question concerning the way in which a defendant imprisoned for a criminal offence should be given credit for time served on remand. The argument originally advanced depended upon the proper construction of domestic legislation. Permission to apply for judicial review was granted by Mr Justice Green after an oral hearing. Of his own motion he amplified the grant of permission to allow Convention arguments to be run. The claimant has as a consequence raised an alternative argument based on Article 5.
The relevant facts can be summarised very briefly. The claimant was sentenced to a period of 12 months’ imprisonment by Cox J in the Crown Court at Warwick on the 10 April 2013. He had pleaded guilty to a charge of handling stolen goods. He had already been in custody on remand for 411 days, a period which thus exceeded the sentence. The understanding of the defendant (and apparently of the judge too) was that the effect of having served that period on remand was wholly to extinguish the sentence: there was no more of his sentence to serve. The Secretary of State disagreed. He considered that the effect of the relevant statutory provisions was that whilst the period on remand was, by virtue of section 240ZA of the Criminal Justice Act 2003 , to be set off against any time actually served in prison, it could not be set off against time spent on licence. Accordingly the claimant was put on licence. He refused to co-operate on the grounds that this was unjust and he was recalled to prison for breach of his licence on the 28 May. This was what is termed “fixed term recall” pursuant to section 255B of the Criminal Justice Act 2003 . He was then recalled again under that section for 28 days on the 8 October. The issue is whether he was lawfully detained when on recall or whether he ought never to have been on licence in which case he could not lawfully be recalled at all.
The relevant legislation
The relevant provisions are found in chapter 6, part 12 of the Criminal Justice Act 2003 . They have been subsequently amended in various ways and at various times, most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 .
Section 237 defines a fixed term prisoner as one serving a sentence of imprisonment for a determinate term. The claimant falls into that category.
Section 244 sets out the principles for determining when a fixed term prisoner must be released on licence. So far as is