About this case:

• Citation:
  [2022] NICA 18
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Michael Humphreys

The court rejected the argument that the calculation of a release date for one offence must take into consideration any period of time served as a sentenced prisoner in respect of another offence.

Background

This was an appeal from a decision of Mr Justice Adrian Colton, delivered on 14 December 2021, where he dismissed the appellant’s application for judicial review. The initial application centred around the calculation of the appellant’s custody expiry date (CED) by the Northern Ireland Prison Service (NIPS), the respondent.

The appellant had previously received four separate sentences of imprisonment. These were imposed on the appellant between 5 November 2020 and 19 March 2021, and were variously issued by Crown and Magistrates courts.

The sentences had custody periods ranging from 3 to 14 months, and had custody expiration dates ranging from 8 January 2021 to 15 October 2021. Each of these sentences was concurrent with the others.

The appellant took no issue with the calculations save for the CED in relation to the longest custody period, which expired in October. His case was that since this sentence was concurrent with his other sentences, the CED should instead have been 1 July 2021, as the time he spent in custody between 5 November 2020 and 19 March 2021 ought to have been taken into the calculations.

On 30 June 2021, by way of interim relief, the appellant was released from custody, subject to the undertaking that should his application for judicial review fail, he was liable to serve the remainder of his sentence and would present himself to Maghaberry Prison within 24 hours of the judgment of the court dismissing his application.

When Colton J dismissed the application on 14 December 2021, he stayed the requirement to serve the remaining part of the sentence pending an appeal to the Court of Appeal.

The Grounds of Challenge

The appellant’s Order 53 statement sought to challenge the PSNI’s calculation of the CED on the grounds that it erred in law in failing to treat concurrent sentences as one single sentence and by distinguishing between time spent on remand and time served as a sentenced prisoner.

Essentially, this question was a matter of statutory interpretation. Mr Justice Colton held that a proper interpretation of the legislative provisions resulted in the period spent in custody between 5 November 2020 and 19 March 2021 being excluded from the calculation of the CED as, during this period, the appellant was a sentenced prisoner.

This followed the reasoning in the case of R v Governor of Brockhill Prison ex p. Evans [1997] QB 443, where Lord Bingham LCJ concluded that the effect of the statutory provisions was:

“If concurrent sentences are imposed on the same occasion, the single term will in effect be the longest of the concurrent terms because that will be the last sentence to expire.

Where concurrent sentences are imposed on different occasions they must still be treated as a single term, but the terminal date of the sentence pronounced by the court will not necessarily be that of the longest of the concurrent terms; it will, however, be the terminal date of the last sentence to expire, which may or may not be the longest of all the sentences.”

Therefore, in order to succeed here, the applicant had to satisfy to the court that Lord Bingham’s conclusion was wrong. To do this, the appellant argued that the custody expiry date will always be calculated with reference to the longest concurrent sentence, rather than the last sentence to expire.

The appellant relied on the decision of Re McConville [2018] NIQB 98, another case concerning remand time and concurrent sentences, where Morgan LCJ noted that

”Where a defendant spends time in custody awaiting trial for more than one offence, and is, on conviction, sentenced to concurrent or overlapping terms of imprisonment, the resultant sentence was to be treated as a single term and the total period of the time spent on remand in relation to any of the offences could be set off against the single term.”

Consideration

Despite the arguments raised above, the court concluded that there was no merit in the appellant’s argument.

They found that the legislature defines the ‘relevant period’ for calculating custody expiry dates in such a way as to exclude periods spent in custody as a sentenced prisoner for another offence.

Had the legislature wished to include within that part of the definition of ‘relevant period’ any period of time served as a sentenced prisoner in respect of another offence, it could have done so.

The effect, therefore, is that a prisoner who is serving two or more concurrent sentences has them treated as a ‘single term.’

From 19 March 2021 the appellant was serving two separate concurrent sentences of imprisonment but these are treated as a single term. There was, therefore, no basis to find an entitlement to the reduction of any sentence by reason of time spent as a sentenced prisoner.

Conclusion

The appeal was dismissed and the order of Mr Justice Colton was affirmed.

The appellant was ordered to present himself to Maghaberry Prison in order to serve the remainder of his sentence.