GJD v Governor of HMP Wakefield Secretary of State for Justice, Court of Appeal - Administrative Court, February 25, 2016, [2016] EWHC 345 (Admin)

Resolution Date:February 25, 2016
Issuing Organization:Administrative Court
Actores:GJD v Governor of HMP Wakefield Secretary of State for Justice

Case No: CO/3569/2014

Neutral Citation Number: [2016] EWHC 345 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/02/2016

Before :


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Between :

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Philip Rule (instructed by EBR Attridge LLP) for the Claimant

David Lowe (instructed by Government Legal Department) for the Defendants

Hearing dates: 13th and 14th January 2016

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JudgmentMr. Justice Edis :

  1. This claim for Judicial Review is brought with permission granted by Kenneth Parker J on 23rd June 2015 after an oral hearing. Some of the history of this case is already in the public domain in the judgments of the Divisional Court and Court of Appeal Criminal Division handed down on 17th February 2015, [2015] EWHC 3501 (Admin) and [2015] EWCA Crim 599. The Sexual Offences Act 1992 applies to protect the victims in the two prosecutions of the claimant which are relevant to the sentencing which is the subject of this claim. No material may be published during their lifetimes which may lead to their identification as victims of sexual crime. This is why this judgment does not identify the claimant by name. He was named in the proceedings and the judgment is drafted in this way so that it can be published without a breach of the Act.

  2. The Secretary of State for Justice is the Second Defendant. He was joined as such in his capacity as the minister responsible for prisons. It has recently become apparent that the claimant advances a claim in relation to a judicial act, in addition to his claim about the way in which his prison sentence has been administered. By section 9(4) of the Human Rights Act 1998 the Lord Chancellor is a necessary defendant to such a claim. The Lord Chancellor and the Secretary of State for Justice are, of course, the same person. A procedural issue has arisen as to whether the Lord Chancellor should be formally joined. I propose to deal with the case on the basis that the Lord Chancellor is a defendant to the claim although not named as such in the title to the action. A formal amendment could be made to cure any technical defect but this would cost some money and achieve nothing. I also propose to deal with the claim without regard to any limitation defence. There are challenges here to decisions made long ago as well as to more recent ones. If I am persuaded that they have merit, I will grant any necessary extension of time. If not, they will fail on the merits. This is because the claim raises a question about whether the claimant was lawfully imprisoned and the true status of that sentence was only established in the proceedings described at paragraph 1 above.

    The history

  3. The essential chronology is that in 2006 the claimant was convicted of raping his daughter who was under the age of 13 at the time of the offence. On 2nd August 2006 he was sentenced to imprisonment for public protection (IPP) with a specified minimum term (tariff) of 6 years less 254 days served on remand. As will appear, that was not a lawful sentence. The tariff was fixed by the sentencing judge in the conventional way. This involved identifying a notional determinate sentence for the offence. That was fixed at 12 years. The tariff would not be subject to the early release provisions allowing release after ½ of the time specified, whereas the notional determinate sentence would be. The tariff was therefore reduced to 6 years so that it equated to the notional determinate sentence in its practical effect. The time served on remand prior to sentence also had to be deducted by order of the court.

  4. The tariff expired on 22nd November 2011 but the claimant was not released until after the order of the Court of Appeal in February 2015. This was because the Parole Board had not decided that it was no longer necessary in the public interest for him to be confined. IPP was a sentence which was available under the Criminal Justice Act 2003 for offences committed after the relevant provisions came into force on 4th April 2005 until it was abolished in December 2012 by the Legal Aid Sentencing and Punishment of Offenders Act 2012. The rape took place between 2nd August 204 and 31st January 2005. It was therefore committed before the 2003 Act came into force and this is why the IPP sentence was unlawful in the sense which I explore further below. The Court of Appeal expressed astonishment that no-one had noticed this until these proceedings came to be amended in December 2014 (a year after the letter before action). Even when these proceedings were first issued to challenge aspects of the sentence, it was not appreciated that the sentence had been unlawful from the start. No application for leave to appeal out of time to the Court of Appeal Criminal Division or any other relief was made by the claimant's new lawyers soon after they were instructed which was in 2013. They did not do this because they did not know the date of the relevant offence. It appears that it was not stated in the documents which they obtained when they were first instructed. They did not receive any document specifying the date of the offence until November 2014 when they obtained the Pre-Sentence Report. This judgment is not concerned to allocate blame, if there is any, for the fact that no proactive enquiry was made by the new lawyers into the facts of the offence for which the claimant had been sentenced. I have simply not considered the scope of their duty in that regard. If there is any blame it is shared. It is an unhappy fact that the legal error was made by the judge, and missed by the trial lawyers. The new lawyers no doubt assumed that the sentence must have been within the powers of the sentencing court because the system is designed to ensure that this is so. The Parole Board also considered the case on a number of occasions during the sentence but no-one appreciated the problem on those occasions either.

  5. The pre-action protocol letter submitted on behalf of the claimant was dated 30th December 2013 and made lengthy complaints about the courses he needed to go on before he could be released. In fact, his release ought not to have been conditional on any courses being completed and this was a diversion of effort.

  6. On 5th November 2014 His Honour Judge Anthony Thornton QC granted a stay of these proceedings to await the decision of the Supreme Court in R (Kaiyam) (Haney) (Massey) (Robinson) v. Secretary of State [2014] UKSC 66; [2015] AC 1344 which I shall deal with below and refer to as Kaiyam. By that date the claimant should have been at liberty already and Kaiyam had only a limited relevance to the issues in this case. Judge Thornton did this because he was asked to do so, and no-one had by then appreciated that the IPP sentence should not have been passed. The decision in Kaiyam was handed down on 10th December 2014 and the claimant filed amended grounds on 31st December 2014, finally raising the real point in the case. Instead of making an immediate application for leave to appeal out of time and bail to the Court of Appeal Criminal Division, the claimant issued an application for a Writ of Habeas Corpus. Mr. Philip Rule who appears for the claimant before me, told me that he had decided that this was the right procedure. He was concerned that an application for leave to appeal out of time would involve a long delay and felt that the application for habeas corpus was the quickest route to a solution. The Divisional Court held that although the sentence was beyond the powers of the sentencing judge, her order was lawful until set aside by the Court of Appeal Criminal Division. It declined an invitation to reconstitute itself as a Court of Appeal Criminal Division and adjourned the application so that a Notice of Appeal could be lodged to initiate the appeal formally. Mr. Rule had obtained a direction from the single judge in the Administrative Court that the case should be listed before a Divisional Court ``which can, if necessary, re-constitute itself as a Court of Appeal Criminal Division'' and had raised the issue in correspondence with the court. The Divisional Court did not proceed as Mr. Rule and the single judge thought it might. This was because the answer to the appeal was not straightforward. It was clear that the IPP sentence could not stand, but the order which should be made in its place required careful consideration by the Court of Appeal following its usual procedures. The appeal came on for hearing quickly and the court first sat as a Divisional Court and dismissed the habeas corpus claim. A hearing before the Court of Appeal then followed immediately and the appeal was decided as described above.

  7. The Court of Appeal (after a formal application was finally made to it on 30th January 2015) quashed the sentence and substituted a determinate sentence of 12 years' imprisonment (the equivalent of the minimum term imposed by the Judge) and an extended licence period under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 and a Sexual Offences Prevention Order. The terms of the licence and the Sexual Offences Prevention Order were designed to reflect the finding by the Court of Appeal that this claimant is a very serious sexual offender who is dangerous within the meaning of the 2003 Act.

  8. This does not mean that the Court of Appeal decided that the proper sentence in 2006 should have been that which it imposed. The claimant had a previous conviction for a very similar offence when he came to be sentenced in 2006 against another of his children. The court was careful not to express any view on whether a life sentence might have been imposed at the Crown Court in under the regime which applied before the 2003 Act came into...

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