CARE2799							30  April 1999

	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

	_____

	IN THE MATTER OF AN APPLICATION BY WILLIAM FAULKNER FOR
	JUDICIAL REVIEW

	_____

CARSWELL LCJ

	The appellant was until 8 February 1999 a sentenced prisoner in HM Prison, Magilligan.  He was transferred to Northern Ireland from Scotland, where he had been serving a sentence of imprisonment imposed by a Scottish court.  On 20 October 1997 he was convicted by a governor of the prison of disciplinary offences in two adjudications.  The governor made an award in respect of one adjudication of seven days' loss of remission and in the other an award of fourteen days' loss of association. 
	 The appellant challenged the validity of these awards by means of an application for judicial review.  The application was heard on 18 February 1998 by Kerr J, following which the judge dismissed the application.  The application was mainly grounded on complaints that the governor had been in error in a number of respects in the conduct of the adjudications.  One of the grounds of the application was, however, that because of the terms of the Crime (Sentences) Act 1997 and its predecessor legislation the Criminal Justice Act 1961 the governor's award could not have the effect of deferring the date of the appellant's release beyond the date set by the Secretary of State for Scotland under the Crime and Punishment (Scotland) Act 1997.  The judge ruled against the appellant on all the grounds on which he relied.  When the appeal came on for hearing on 16 March 1999 Mr Larkin accepted that since the appellant had been released the proper date for his release was no longer a matter on which the decision of the court could have any effect.  He therefore did not address any arguments to us on the issue whether the governor had been in error in his conduct of the adjudications.  He submitted, however, that the question of the power of the governor to make an award of loss of remission in the case of a prisoner transferred on a restricted transfer was of general importance and asked us to rule on it notwithstanding the appellant's release, which we agreed to do.
	The transfer of the appellant from Scotland to Northern Ireland was not formally proved in the proceedings, but it was agreed by counsel that he had been duly sentenced by a court in Scotland to a term of imprisonment, which he commenced to serve there, and that he was subsequently transferred to Northern Ireland on a restricted transfer.  Transfers were formerly governed by Part III of the Criminal Justice Act 1961, but the provisions in that Part have been repealed by the Crime (Sentences) Act 1997 (the 1997 Act) and replaced by those contained in Schedule 1 to the latter Act, and accordingly we shall confine our consideration to the effect of the 1997 Act.
	Provision for the transfer of prisoners is made by paragraph 1(1) of Schedule 1 to the 1997 Act, which reads as follows:
		"1.-(1) The Secretary of State may, on the application of -
			(a) a person remanded in custody in any part of the United Kingdom in connection with an offence; or

			(b)  a person serving a sentence of imprisonment in any part of the United Kingdom,

		make an order for his transfer to another part of the United Kingdom or to any of the Channel Islands, there to be remanded in custody pending his trial for the offence or, as the case may be, to serve the whole or any part of the remainder of his sentence, and for his removal to an appropriate institution there".
		
Paragraph 6(1) and (2) define restricted transfers as follows:
		"6.-(1) For the purposes of this Part of this Schedule, a transfer under Part I of this Schedule -

			(a) is a restricted transfer if it is subject to a condition that the person to whom it relates is to be treated for the relevant purposes as if he were still subject to the provisions applicable for those purposes under the law of the place from which the transfer is made; and

			(b) is an unrestricted transfer if it is not so subject.

		(2) In this Part of this Schedule `the relevant purposes' means -

			(a) in relation to the transfer of a person under paragraph 1(1)(a) or (2)(a), 2(1)(a) or 2(a) or 3(1)(a) or (2)(a) above, the purposes of his remand in custody and, where applicable, the purposes of his detention under and release from any sentence of imprisonment that may be imposed;

			(b) in relation to the transfer of a person under paragraph 1(1)(b) or (2)(b), 2(1)(b) or (2)(b) or 3(1)(b) or (2)(b) above, the purposes of his detention under and release from his sentence and, where applicable, the purposes of his supervision and possible recall following his release;

			(c) in relation to the transfer of a person's supervision under paragraph 4(1) or (2) above, the purposes of his supervision and possible recall".

Paragraph 7(2) provides:
		"Where a person's transfer under paragraph 1 or 2 above is a restricted transfer, that person shall while in the country or territory to which he is transferred be kept in custody except in so far as the Secretary of State may in any case or class otherwise direct".
Paragraph 11(2) then makes specific provision for sentenced prisoners transferred from Scotland under restricted transfers:
		"11.-(2) Where a person's transfer under paragraph 1(1)(b), 2(1)(b) or 3(1)(b) from Scotland to Northern Ireland is a restricted transfer -
			(a) sections 15, 18 and 19 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (`the 1993 Act') and sections 33(5), 34, 37 and 39 of the Crime and Punishment (Scotland) Act 1997 (`the 1997 Act') or, as the case may require, sections 1(4), 2, 3, 11 to 13 and 17 of the 1993 Act shall apply to him in place of the corresponding provisions of the law of Northern Ireland; but

			(b) subject to that, to sub-paragraph (3) below and to any conditions to which the transfer is subject, he shall be treated for the relevant purposes as if his sentence had been an equivalent sentence passed by a court in Northern Ireland".
Paragraph 7(3) is not material to the present case.  Sections 15, 17, 18 and 19 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 deal with supervised release orders and power to revoke release on licence, and so are not material.  Section 33(5) of the Crime and Punishment (Scotland) Act 1997 is a definition provision.  Section 34, which we shall examine in more detail in a moment, makes provision for early release, the Scottish equivalent of remission.  Section 37 deals with the return to prison of prisoners released on early release and section 39 with fine defaulters and persons convicted of contempt of court.
	Section 34 is accordingly the material provision for present purposes, being in the following terms:
		"34.-(1) This section applies where a prisoner is serving a sentence of imprisonment for a term of more than two months.

		(2) For each initial assessment period, the prescribed person may award the prisoner such number of early release days, not exceeding twelve, as he may determine having regard to the extent to which the prisoner's behaviour during that period has attained the prescribed mimimum standard.

		(3) For each subsequent assessment period, the prescribed person may award the prisoner -

			(a) such number of early release days, not exceeding six, as he may determine having regard to the extent to which the prisoner's behaviour during that period has attained the prescribed minimum standard; and

			(b) such number of early release days, not exceeding six, as he may determine having regard to the extent to which the prisoner's behaviour during the period has exceeded that standard.

		(4) Where any early release days are awarded to a prisoner, any period which he must serve before becoming entitled to be released shall be reduced by the aggregate of those days.

		(5) No award of early release days under this section shall entitle a prisoner to be released earlier than the day after the day on which the award is made.

		(6) The Secretary of State may by order provide that subsections (2) and (3) above shall have effect subject to such amendments as may be specified in the order; but no amendment so specified shall reduce -

			(a) the number of days specified in subsection (2) or (3)(a) above; or

			(b) the total number of days specified in subsection (3) above.

		(7) The power to make an order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of        Parliament.

		(8) In this section, in relation to a prisoner -

		`assessment period' means -

			(a) the period of two months starting with the day on which his sentence begins; and

			(b) each successive period of two months ending before his release; and

		`initial assessment period' means an assessment period starting less than twelve months after the day on which his sentence begins and `subsequent assessment period' shall be construed accordingly".
It may be seen from this provision that early release in Scotland operates less favourably to prisoners than the remission scheme in Northern Ireland, and accordingly a prisoner detained in Scotland following conviction by a Scottish court will generally serve a longer period than one sentenced in Northern Ireland to the same term of imprisonment.
	Matters of prison discipline are governed by the Prison and Young Offenders Centre Rules (Northern Ireland) 1995, made by the Secretary of State in pursuance of section 13 of the Prison Act (Northern Ireland) 1953, which empowered the Ministry of Home Affairs (to whose powers the Secretary of State succeeded) to make rules for, inter alia, the discipline, punishment and control of persons required to be detained in prisons.  Rule 39(1)(b) empowers the governor to make an award of loss of remission for a period not exceeding 28 days for an offence against prison discipline.  This power is commonly exercised by governors by way of punishment for the more serious offences against discipline, and the sanction which it provides is generally reckoned to be an important means of keeping discipline among the prison population. Mr Larkin for the appellant did not dispute on the appeal before us that the governor had conducted the adjudication correctly and was entitled to find the offence proved against the appellant.  The point which he argued was that because the award of loss of remission had the effect of deferring his release date by seven days it was inconsistent with the provisions of the Crime (Sentences) Act 1997 and so its purported exercise was void.
	The burden of Mr Larkin's argument was that since the appellant was to be treated for the purpose of his release from his sentence as if he were still subject to the Scottish provisions applicable for that purpose, the date set for his release by the Secretary of State for Scotland was paramount.  To set the appellant's release back by seven days as the result of an adjudication was to interfere with the decision of the Secretary of State, who had sole jurisdiction over release.  The date set for his early release could therefore not be postponed by a governor's award of loss of remission.  
	In support of this proposition counsel relied upon the decision of this court in Re O'Dwyer's Application [1996] NIJB 64, in which we held that under the provisions of section 27(3) of the Criminal Justice Act 1961 jurisdiction to decide on the category of prisoners temporarily transferred from England to prison in Northern Ireland and their entitlement to home leave remained with the Home Secretary.  We do not consider that this decision, which turned upon the construction of an enactment most of whose provisions were drafted in quite different terms, assists us in reaching a conclusion in the present case.
	Mr McCloskey submitted on behalf of the respondent governor that on the true construction of paragraphs 6 and 11 of Schedule 1 to the 1997 Act the function of setting the release date was reserved to the transferor Secretary of State, but that in matters relating to discipline the appellant was subject to the jurisdiction of the prison system to which he was transferred.  This necessarily entailed that he might lose remission if he committed an offence in respect of which such an award was made by the governor.  The legislation contemplated that the release date set by the Secretary of State for Scotland might be put back as the result of such loss of remission.  The essential part of the reservation of matters relating to release to the Secretary of State was that the basic date was to be set by him and was to govern the time when the prisoner was to be set free, which could not be changed in either direction by the application of remission rules applying in Northern Ireland.  
	We consider that the respondent's argument is correct, and that it gives proper weight to the respective provisions of paragraphs 6 and 11 of Schedule 1 to the 1997 Act.  Paragraph 6 defines a restricted transfer as one subject to a condition whereby (in terms of the present case) the prisoner is to be treated for the purpose of his release from his sentence as if he were still subject to the Scottish provisions applicable for that purpose.  Paragraph 11 then proceeds to specify the Scottish provisions which are to apply to a transferred prisoner, among which is section 34 of the Crime and Punishment (Scotland) Act 1997.  Subject to that he is to be treated for the relevant purposes – which include the purpose of his release from his sentence -- as if his sentence had been passed in Northern Ireland.  Discipline is quite clearly to be governed by the Northern Ireland regimen.  If the effect of paragraphs 6 and 11 were to exclude the possibility of an award of loss of remission against a prisoner who had committed an offence against discipline, it would remove an effective sanction from the governor's permitted range of punishments and tend to undermine discipline. We do not consider that it could have been the intention of Parliament to bring about such a situation.  We accordingly are of opinion that the construction propounded on behalf of the respondent is correct and that while the release date is to be set by the Secretary of State for Scotland the Northern Ireland prison authorities may exercise the power of awarding loss of remission under their disciplinary jurisdiction, even though it may have the effect of postponing the ultimate release of a transferred prisoner.
	The governor's award was accordingly valid and effective.  The judge was in our opinion correct in his conclusion to that effect, and we dismiss the appeal.

CARE2799
	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
	_____

	IN THE MATTER OF AN APPLICATION BY WILLIAM FAULKNER FOR
	JUDICIAL REVIEW

	_____

	JUDGMENT 

	OF 

	CARSWELL LCJ

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