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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Niblett v Secretary of State for Justice & Anor [2009] EWHC 2851 (Admin) (11 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2851.html Cite as: [2009] EWHC 2851 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/11/2009

The Hon Mr. Justice Blake :

1. On the 5^th November 2009, solicitors then acting on behalf of the claimant, Silversmith issued a claim form out of the Manchester District Registry seeking the writ of habeas corpus in respect of the claimant's continued detention in custody pursuant to a sentence passed by HHJ Boulton in Liverpool Crown Court on the 7^th September. The relief sought included orders that I quash the sentence and substitute for it a different sentence that would allow his immediate release. Paragraph 6 of these grounds states that an application for permission to appeal out of time to the Court of Appeal Criminal Division had been lodged at the Liverpool Crown Court on the 3^rd November 2009.
2. When the papers were placed before me on the afternoon I drafted a short note that I directed be transmitted to the solicitors to the effect that in my opinion the claimant should be pursuing the route of an appeal to the CACD and an application for bail.
3. Subsequently on the 9^th November papers were placed before me, indicating that on the 6^th November the claimant had faxed the office to the effect that he had terminated the instructions of his solicitors and was maintaining his application for a writ of habeas corpus but was seeking a fee waiver to issue a new claim form directed at the Home Office/National Offender Management Service, complaining of his continued detention at HMP Liverpool pursuant to the sentence of HHJ Boulton. I directed that further inquiries be made by the court office as to whether an application for permission to appeal to the Court of Appeal Criminal Division had been made. I was informed on the 10^th November that such an application had been lodged with the CACD on the 9^th November with a reference 2009/05880A6.
4. There is no permission stage in an application for a writ of habeas corpus under RSC 54, but the rules contemplated that an application will be made to the court and in an appropriate case adjourned for representation by the detaining authority to justify the detention in question. As the claimant is detained in prison and has dispensed with his legal representative there is unlikely to be an oral hearing. I have decided that the appropriate course in this case is to set out my reasons why I conclude that the relief sought by way of habeas corpus or a quashing order is inappropriate and why the claimant's remedy is to pursue a bail application in the CACD in furtherance of his application for permission to appeal out of time against what appears to be an unlawful sentence imposed on him.
5. The starting point in this matter is that on the 7^th July 2003 at the Preston Crown Court the claimant was sentenced to an extended sentence comprising five years imprisonment and an extended licence term of three years for an on offence of indecent assault and concurrent terms of custody for other offences.
6. The claimant was released on licence on the 2^nd June 2006 after serving two thirds of the custodial term but his release was revoked and he was returned to custody on the 15^th November 2006 because of the commission of further offences on the 13^th November. He was thus detained and serving the sentence of the 7^th July 2003 when he was brought before the Crown Court at Liverpool to face trial on two offences of indecent exposure. The inference on the papers was that this was a trial on indictment rather than by way of a re-hearing of an appeal against conviction. On the 7^th September 2007 HHJ Judge Boulton indicated that he was not going to activate the sentence of 2003; had been contemplating making a mental health order, but in the end had decided to impose a sentence of twelve months imprisonment for the indecent exposure offences committed on the 13^th November 2006 but was making the sentences consecutive to the sentence now being served. The order for imprisonment drawn up by the officer of the court on that date makes plain that that was the sentence of the court.
7. In subsequent judicial review proceedings brought in respect of his recall on licence the claimant sought clarification of when the release date would occur for the extended sentence of July 2003. Those proceedings were compromised by an agreed declaration that the period of recall under licence would end on the 4^th November 2009.
8. The claimant expected he would be released on that date but there was correspondence in the summer of 2009, and the claimant made contact with his solicitors Silversmiths. Silversmiths appear to have written to the Liverpool Crown Court on the 10^th September 2009. This elicited a response that i) the court was functus officio and ii) the only remedy appeared to be to challenge the actions of the Home Office in the High Court. The first observation was undoubtedly correct but the second was not for reasons canvassed below. Correspondence then ensued with the HM Prison Service, part of NOMS and now supervised by the Ministry of Justice rather than the Home Office.
9. NOMS replied in a letter of the 29^th October 2009 that it was satisfied that the release date had been correctly calculated. The sentence of the 7^th September 2007 was said to be consecutive to the sentence that the claimant was then serving, and so on the face of the Crown Court's order he had a further twelve months imprisonment to serve starting from 4^th November 2009. However as the letter from NOMS also pointed out the sentence passed in September 2007 may have been an unlawful one. S.265 of the Criminal Justice Act 2003 precluded the courts from imposing a custodial sentence consecutive to a sentence that had been imposed earlier from which there had been a release and recall on licence. That point is emphasised in the case law of the court under the predecessor provision (see for example R v Cawthorn [2000] 1 Cr App R (S) 136; see also R v Jesson [2007] EWCA Crim 1399 [2008] I C r App R (S) 36.)
10. Assuming without deciding that the Crown Court passed an unlawful sentence in making the twelve months consecutive to the custodial period being served by recall on licence, what can be done about it? In my judgment, it is clear that a sentence passed by a Crown Court following trial on indictment is immune from judicial review pursuant to s.29(3) Supreme Court Act 1981 precisely because it relates to a trial on indictment. It cannot therefore be quashed as the claimant's original relief sought. Neither is the Prison Service acting unreasonably or unlawfully in obeying an order of the court even if it believed the sentence to be unlawful.
11. An order of a court of competent jurisdiction must be obeyed unless and until it is set aside on appeal. It cannot be ignored as a suspected nullity. The problem of unlawful sentences that are not caught by the slip rule was considered in the case of R v Reynolds [2007] EWCA Crim 538 where Latham LJ said (at 23)

" For these reasons, we are satisfied that section 11(3) of the 1968 Act precludes this court from interfering with any sentence, even if the provisions of Chapter 5 mandate a different, ex-hypothesi more severe, sentence. Although this means that there will be sentences which will be "unlawful" in the sense that the court has failed to apply the mandatory sentence, that does not seem to us to create difficulty or absurdity. If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R –v- Cain [1985] 1AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. Further, unlike, for example, a detention and training order for three years, which is beyond the powers of the court, an extended sentence is within the powers of the court. In that sense, also, it is not an "unlawful" sentence."

12. If the court's order is a not a nullity, it is a complete answer to the writ of habeas corpus. This is not a case like Evans v Governor Brockhill Prison where the debate is about the true effect of an order of the court, and where there were conflicting judicial decisions about computation of time. Here a consecutive sentence justifies the continued detention of the claimant. It is unfortunate that the illegality of the sentence was not noticed by the court, prosecuting or defence counsel in September 2007 when it might have been corrected under the slip rule. As it has not, then the only remedy available to set aside the sentence and vary it, is by way of appeal by the claimant to the Court of Appeal Criminal Division for an appeal out of time.
13. The proceedings have now been commenced that are capable of giving the claimant the remedy that he seeks. He is able to make an urgent application for bail where the CPS can consider whether there is a strong likelihood that the sentence of the Crown Court was unlawful as appears to be the case. If so, the claimant can be released on bail pending the decision of the court. Whilst I can well understand his frustration with his previous representatives in not pursuing the appropriate action until very recently, he would be well advised to instruct solicitors to promote that bail application speedily so that the position can be explained to the judge conducting it. I will direct that a copy of this ruling be sent to the Registrar of Criminal Appeals to be placed with the papers before the single judge.
14. However this application for habeas corpus, judicial review or any other relief that the Administrative Court might otherwise have power to give is refused. Although the claimant has attempted to re-issue the proceedings in a fresh claim form against NOMS there is no need for that course. The original proceedings are not defective because they were issued against the wrong party, they were doomed to failure because this jurisdiction cannot set aside or amend a sentence of the Crown Court.