Noone, R (on the application of) v Governor of HMP Drake Hall & Anor

Factual and Procedural Background

The Appellant was sentenced on 23 May 2007 at The Crown Court to an aggregate custodial term of 27 months, composed of:

• 22 months for theft;
• Three further theft counts: 4 months each, ordered concurrent with one another but consecutive to the 22-month term;
• 1 month for contempt, consecutive to all other sentences.

Under the Criminal Justice Act 1991 (“the 1991 Act”) the Appellant initially received a prison notification indicating Home Detention Curfew (“HDC”) eligibility on 15 January 2008 and conditional release on 28 May 2008. A revised notification dated 18 July 2007 postponed HDC to 20 April 2008 and altered the licence/sentence expiry date, reflecting the prison service’s reliance on the Criminal Justice Act 2003 (“the 2003 Act”) and its transitional order.

The Appellant sought judicial review, arguing that the second notification was unlawful. Judge Mitting in the Administrative Court ordered reconsideration, leading to provisional HDC release on 8 February 2008. The Court of Appeal later upheld the Secretary of State’s underlying policy, but the present appeal (to the Supreme Court) followed, culminating in the instant judgment.

Legal Issues Presented

1. How paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 should be construed, particularly the bracketed words referring to sentences “whether or not … run concurrently or consecutively with another such sentence”.
2. Whether consecutive sentences comprising terms both under and over 12 months should be administered under a single statutory regime or split between the 1991 Act and the 2003 Act.
3. Consequently, how to calculate:
   • the requisite custodial period,
   • eligibility for HDC, and
   • the duration of any licence period
   for prisoners serving mixed consecutive sentences.

Arguments of the Parties

Appellant's Arguments

• The Court of Appeal’s construction contradicts legislative intention by abandoning the uniform “single-term/aggregate” approach found in both Acts.
• It creates a statutory lacuna for mixed consecutive sentences, producing arbitrary and capricious outcomes dependent solely on sentence order.
• Inferring that a consecutive sentence starts at the custodial mid-point of the preceding term lacks legal foundation and effectively renders part of the sentence concurrent.

Respondent's Arguments

• The literal wording of paragraph 14 compels separate treatment: every sub-12-month sentence must stay within the 1991 Act, while sentences of 12 months or more fall under the 2003 Act.
• Although anomalous results arise, they are a consequence of Parliament’s drafting, which the courts cannot re-write.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Phillips, delivering the principal opinion, identified that the bracketed words in paragraph 14 implicitly distinguish between:

• Sentences all under 12 months (to remain solely under the 1991 Act), and
• Any under-12-month sentence that is concurrent or consecutive with a 12-month-plus sentence (which should fall within the 2003 Act framework).

Key analytical steps were:

1. Reading paragraph 14 purposively to avoid nullifying sections 263 and 264 of the 2003 Act, which expressly handle mixed sentence scenarios.
2. Treating the failure to commence sections 181 and 244(3)(b) as a drafting gap that can be filled by importing the “half-sentence” custodial rule from section 33(1) of the 1991 Act when calculating custodial periods for sub-12-month terms within the 2003 Act scheme.
3. Applying section 264(2) to aggregate the custodial halves of all consecutive sentences, ensuring a single Conditional Release Date and a uniform maximum HDC window of up to 135 days under section 246.
4. Ensuring that, once any term of 12 months or more is in play, the licence end date is the expiry of the aggregate nominal sentence under section 264(3)(a), thereby preventing the partial, concurrent-licence anomalies highlighted by lower courts.
5. Confirming that the first prison notification (24 May 2007) matched this interpretation, whereas the second did not.

Judge Mance reached the same outcome by a parallel route, utilising established principles on correcting obvious drafting errors (Inco Europe) and stressing that delegated legislation warrants corrective interpretation where literal meaning produces irrationality. Judges Saville, Brown and Judge concurred, each emphasising the need to avoid “irrational and indefensible” results and lamenting the legislative complexity that necessitated judicial rescue.

Holding and Implications

Appeal Allowed. The Appellant’s release dates calculated on 24 May 2007 are declared lawful; the later, revised dates are quashed.

Implications: The judgment restores a consistent, aggregate approach to consecutive sentences that mix sub-12-month and longer terms. It eliminates anomalies where HDC eligibility and licence duration depended arbitrarily on the order in which sentences were pronounced, and provides authoritative guidance for prison administrators and sentencing courts without creating new precedent beyond clarifying existing statutory interpretation.