Alter prison law, but not Howard's way

The RECENT furore over the way prisoners' sentences are calculated at first appeared to be normal silly season fare. But on closer examination it raised issues that bemused many lawyers, as well as their clients in prison, revealing starkly the complexities of prison law.

Statutory provisions for calculating remand time are in CJA 1967 section 67. This provides that where a prisoner is detained pursuant to a court order and receives a prison sentence as a result, any time on remand shall be deducted from the length of that sentence. For prisoners sentenced for more than one offence, concurrently or consecutively, this section has to be read in conjunction with other statutory provisions requiring those sentences to be calculated into a single term.

The effect of these seemingly straightforward provisions is notoriously difficult to operate in practice. To give a detailed explanation of how it affects individuals, the prison service issued a sentence calculation manual of extraordinary complexity running to several thousand words. Interpretation of this manual has been the subject of much litigation, leading to innumerable revisions. The recent problems date back to a case heard in May 1995 by Lord Justice Simon Brown concerning calculation of concurrent sentences. Following previous authorities, he delivered a judgment that required each period on remand to be set against each sentence received. The length of time in custody was then calculated by reference to the longest concurrent sentence and as such, only the period of remand relating to that particular sentence fell to reduce the length of time to be served. It was an unfair situation for many prisoners who discovered that long remands may not count towards their eventual sentence. Lord Justice Brown acknowledged the unfairness, but felt compelled to reach this conclusion by the "unambiguous" words of the statute.

The prison service then began an internal review and applied the ratio of this judgment to consecutive sentences. The result, when applied to consecutive sentences, produced a surprising result. As these sentences are served one after another rather than at the same time, when a prisoner was remanded on several different charges this remand time could then fall to reduce each subsequent sentence imposed. On a common-sense view, this produced an "absurd" situation whereby a single period could be counted against subsequent sentences several times over.

When asked to consider this position in R v Secretary of State for the Home Department ex p Naughton (The Times 17 September, 1996), Lord Justice Brown was clearly troubled by his previous judgment. Reconsidering the wording of statute, he no longer found it unambiguous but accepted that it was unclear. He stopped short of criticising his own decision, but felt the original issue of concurrent sentences should be reconsidered by the Lord Chief Justice. A compromise route was found to end the "absurd" early releases that had taken place in which he distinguished consecutive sentences from those to be served concurrently.

A new application has been made by several prisoners serving concurrent prison sentences and a hearing before the Lord Chief Justice is expected soon. If successful, it could mean early release for many prisoners serving concurrent sentences.

What lessons can be learned from this case? The first is to scotch Michael Howard's criticisms of the Divisional Court for extending the rights of prisoners against both his wishes and public opinion. The High Court and the Court of Appeal have made several high-profile decisions in recent years which seemingly undercut powers exercised by the Home Secretary over prisoners.

On closer examination, it can be seen that these decisions have been almost exclusively concerned life sentences, an area of criminal law almost wholly outside the judiciary's jurisdiction. Their judgments have tended to increase the need for fairness in the administrative process, but have almost universally fallen short of overturning substantive decisions. On sentencing practice, the Divisional Court has performed gymnastics to find against prisoners in two cases where the rationale of the judgments seemed to be opposed.

The other lesson is the need for prison law to be formalised. Existing legislation is such that it confers seemingly endless discretionary powers on all levels of prison management, from the Home Secretary to prison governors. This means the courts are often called on to decide how these powers are to be exercised. Then, when a political agenda, such as the idea that "prison works" is imposed upon a system with few checks, it is not surprising that prisoners will seek redress. But in the absence of a written constitution or the incorporation of the European Convention on Human Rights, few fundamental rights are protected by law. The Prison Reform Trust recently called for an overhaul of legislation and commissioned the drafting of a prison act to simplify this complex area. It is time Parliament considered the need for new legislation.