|Judgments - Regina v. Secretary of State for the Home Department Ex Parte A
I turn next to a consideration of the history of section 67 of the 1967 Act. In its original form it dealt simply with custody, requiring the length of a sentence of imprisonment imposed on an offender to be treated as reduced by any period in which he had been in custody having been committed to custody by a court order in connection with particular proceedings. Section 10 of the Criminal Justice Act 1982 extended application of the provision to detention centre orders and youth custody sentences, by adding a subsection (5) to section 67. Significantly, however, it also added a subsection (6) providing that the reference in subsection (1) of section 67 to an offender being committed to custody was to include a reference to his committal to a remand centre or to prison under section 23 of the Act of 1969 (which was at that stage permitted under section 23 in the case of unruly children) "but does not include a reference to his being committed to the care of a local authority under the said section 23." The distinction being made between custody in its various forms and a committal to the care of a local authority is clearly evident. Subsection (1A), extending to paragraphs (a) and (b), was introduced by section 49(2) of the Police and Criminal Evidence Act 1984. Thereafter by section 130 of the Criminal Justice Act 1988 there was added the paragraph (c) in subsection (1A) with which this appeal is concerned. Subsections (5) and (6) were amended by section 100 and Schedule 11 of the Criminal Justice Act 1991 but the essence of the distinction which I have already noted was preserved. The new subsection (5) related to sentences of detention in a young offender institution and to determinate sentences passed under section 53(2) of the Children and Young Persons Act 1933 for serious indictable offences.
From the history the policy behind section 67 becomes clear, namely that periods of sentences to custody should be automatically discounted in respect of periods which the offender has spent in custody or in conditions equivalent to custody pending trial or sentence in the case. If that is a correct understanding of the policy and purpose of the provision then it would be consistent with such policy that a discount should be automatically made in respect of a period spent in secure accommodation, but that a remand to accommodation which is not equivalent to custody should not attract the discount. The point at issue is one of the proper construction of section 67(1A)(c). The critical words are "and in accommodation provided for the purpose of restricting liberty." One argument favouring the respondent's construction is that the word "liberty" is not defined and that it should be given a generous construction in favour of freedom. But even the language which has been used provides an answer to that suggestion. The use of the expression "accommodation provided" in the statutory phraseology is to my mind significant. The word "accommodation" refers to the place where the person is to be accommodated. The phrase designates a particular class or kind of accommodation. It is accommodation which has been provided for the particular purpose. The phrase does not refer to any accommodation where the liberty of a person may be restricted. The reference intended by the language used is in my view not simply to a regime of some kind whereby the person's liberty is restricted, but to the nature of the accommodation itself. The phrase is looking to a category of accommodation, namely accommodation which has been provided for the stated purpose. The obvious category of accommodation which can be identified as having been provided for the purpose of restricting liberty is that which came to be referred to as "secure accommodation." The same point can be taken from the repeated use of the word "in" which appears in relation to police detention in paragraph (a), to custody in paragraph (b) and to accommodation in paragraph (b). It is the place in which the person is situated, and in particular its nature, rather than any controls over his movements, to which the subsection is looking
The respondent argued that if it was secure accommodation that had been intended in section 67(1A)(c), Parliament could have used the expression "secure accommodation." This was a point which plainly weighed with the court in Reg. v Collins. No doubt if that course had been adopted, with a suitable definition, the present problem would not have arisen. But when subsection (1A)(c) was introduced in 1988, section 23 of the Act of 1969 did not yet have the reference to secure accommodation. As I have already mentioned, an amended version of section 23 was enacted by section 108(4) and schedule 12, para. 26 of the Children Act 1989, but the reference to "secure accommodation" was introduced later when section 60(1) of the Criminal Justice Act 1991 substituted a new section 23 using the phrase in subsection (4) and defining it in subsection (12). The phrase had appeared in the regulations to which I have already referred, but not yet in section 23 of the Act of 1969. The critical phrase at the end of section 67(1A)(c) comes almost immediately after a reference to section 23 of the Act of 1969. The expression which had been used in section 43(2)(c) of the Act of 1969 and more particularly in the subsequent statutes to which I have referred was "accommodation provided for the purpose of restricting liberty." In 1988 it seems to me perfectly appropriate that the phrase already established in the legislation was used. It then seems that when the section was redrawn in the Act of 1991 with the definition of "secure accommodation" in subsection (12) it was not considered necessary to alter the language used in section 67(1A)(c). The language which had been used in section 67(1A)(c) was after all the very same language as that which later appeared in the definition of "secure accommodation."
The history of section 23 shows the continuing distinction which I have already drawn between the two methods of disposal where the person is not released on bail. That distinction can be found in the language of section 67(1A) and this gives further support to the construction which I favour. In subsection (1A)(c) there is a twofold qualification which has to be satisfied: the offender must not only have been remanded to local authority accommodation under section 23, but the remand must also have been to accommodation provided for the purpose of restricting liberty. It is not every remand which will suffice. Nor does it seem as if a remand under conditions would suffice. In addition to the making of the remand, it must be to the particular kind of accommodation.
Counsel for the appellant referred to paragraphs (a) and (b) with a view to finding a common characteristic which could throw light on the character of what is to be included in (c). The earlier provisions are concerned expressly with detention and custody. But since paragraph (c) was added at a later stage than the two earlier paragraphs it may be difficult to be confident that there is necessarily an association of a common character between the groups. But it may be significant that the category with which the present appeal is concerned was added to what was plainly a grouping of cases of detention and custody.
Further assistance can be found by comparing the present case with a case where bail has been granted. That course is a possibility open to the court and if taken then the two courses of remand or remand with a security requirement do not arise. Bail may be granted subject to conditions; and the conditions which were imposed in the present case could well have been added to a bail order. Indeed in terms of section 23(7) the conditions which may be imposed on a remand to local authority accommodation without the imposition of a security requirement are "any such conditions as could be imposed under section 3(6) of the Bail Act 1976 if he were then being granted bail." But it cannot be suggested that a period spent on bail subject to conditions which in a general way might be seen in some sense as restricting liberty could ever be allowed as a discount under section 67. If the conditions imposed in the present case had been imposed in a bail order instead of the remand it could hardly be maintained that the case fell under section 67(1A)(c).
I am also persuaded for practical reasons that the construction for which the appellant has contended is sound and should be preferred. It provides a test for the application of section 67 which is at once clear and certain. Whether the offender has been in the qualifying accommodation can be readily ascertained by discovering whether it is approved by the Secretary of State as secure accommodation under the legislation. Regulation 17 of the Children (Secure Accommodation) Regulations 1991 requires records to be kept whereby the period spent in secure accommodation can readily be ascertained and provision is made for a maximum period by regulation 13. Thus an easy check is available on the length of the period to be discounted. The alternative approach requires an investigation of the precise conditions under which over the period in question the offender has been living. While not unworkable, because it evidently has in practice been worked, it plainly can give rise to difficult and delicate decisions. In a passage quoted by Collins J. from the judgment in In re K, (unreported), 6 March 1995, the Divisional Court observed that the decision in Reg. v. Collins raised a great deal of difficulty for the prison authorities, "because they will not necessarily know in any given case what is the nature of the regime at the local authority institution in which a young offender has previously been resident." The certainty of the solution proposed by the appellant seems to me obviously preferable.
Allied with that consideration is the desirability of entrusting to a court rather than to an administrative officer a decision of such a kind. It has to be remembered that the consequence of the appellant's approach is that consideration of the length of time which a person has spent on remand and not in secure accommodation does not necessarily fall out of account altogether. The issue is whether it should be automatically allowed under section 67 or taken into account by the court in determining the length of sentence. While the automatic deduction required by the statute can properly be managed by the administration, the assessment of the weight to be given to the offender's experience on remand is properly a responsibility for the sentencing court. It is properly a judicial function to evaluate that experience and to decide to what extent if at all it ought to be reflected in the sentence eventually imposed.
In this context it is convenient to make a brief reference to Reg. v. Fairhurst (1986) 8 Cr. App. R. (S.) 346. That case among other matters drew attention to an anomalous situation which existed with regard to sentences passed under section 53(2) of the Children and Young Persons Act 1933, an anomaly which was later remedied by Section 100 and Schedule 11, paragraph 3 of the Criminal Justice Act 1991. In the context of that problem Lord Lane C.J., at p. 351, stated that in the determination of sentences allowance should be made by a judge for time spent on remand in care "where the offender is held under a regime comparable to a remand in custody, for example he is placed in secure accommodation . . . or where is held under highly structured and closely supervised conditions." Counsel for the respondent sought to use this passage to support his contention that a highly structured and closely supervised condition should fall within the scope of section 67(1A)(c). But in Fairhurst the court was not concerned with the issue which arises in the present appeal but with the different, but related, problem of the extent to which, if at all, account may be taken by a sentencing judge in respect of the situation of the offender during the period before sentence. No doubt there may be various considerations relating to the period between charge and sentence which a sentencing judge may take into account, but we are not required in the present case to touch at all upon that problem and I am not persuaded that the observations in Fairhurst are of assistance in the present appeal. In the context of this appeal it has to be noticed that committal to secure accommodation now, on the view which I have taken, falls within the automatic deduction provided in section 67. Beyond that it may be of significance to notice that in drafting subsection (1A)(c) the language used was that of the definition of "secure accommodation" and not the language used in Fairhurst.
If the appeal is to be allowed it would have to be held that Reg. v Collins, 16 Cr. App. R. (S.) 156 was wrongly decided. Waller J. in that case stated that the statutory provisions were difficult to follow and it appears that the court was not given the benefit of the more thorough review of the history of the legislation which has been presented to us. I have already commented upon the failure to use the expression "secure accommodation" in the drafting of subsection (1A)(c). It appears that the reported view of the Home Office on the point weighed significantly with the court, but, as Mr. Sales frankly pointed out, the view now taken is the reverse of the view which was then held and which the court considered to be correct. The court observed at the end of the judgment, at p. 163 "It is certainly difficult, as we see it, to conceive of a situation in which it can be said on the one hand: 'my liberty was restricted while I was held in local authority accommodation, so I am entitled to credit,' but at the same time say 'the accommodation where I have been detained was not provided for the purpose of restricting my liberty.'" But that apparent contradiction does not arise once it is recognised that it is the accommodation rather than the restrictions on which the subsection focuses attention. For these reasons I have the less difficulty in holding that Reg. v Collins was wrongly decided. In the present case Collins J. referred also to In re K which was an unreported case. It appears there the court felt itself bound to follow the decision in Reg. v Collins, and, like Collins J. in the present case, did so. It would follow from what I have said that the decision In re K should also be over-ruled.