Henry Blaxland KC, Emma Fenn and Will Hanson, of the Garden Court Chambers Criminal Defence Team, were instructed in a special court, convened by the Court of Appeal, to resolve a matter of statutory construction and an apparent conflict in case law.
They are instructed by Will Russell and Kevin Williams of GT Stewart.
The defendant had been convicted of death by dangerous driving but the offence occurred before the increase in the maximum sentence had taken effect (from 14 years to life imprisonment). When it came to sentencing, an issue arose regarding whether the defendant would serve half or two thirds of his sentence.
This was relevant to the mandatory extension that the judge must impose in relation to the driving disqualification. Detailed argument was presented and the judge ruled that the correct interpretation of section 240ZA of the Criminal Justice Act 2003 was that the defendant’s disqualification (and by extension the period of time he should serve) was two thirds of his sentence. As part of this argument, counsel and the judge referred to a number of cases in the Court of Appeal where this had been ruled upon, but no argument appeared to have been had on the statutory construction. The Court of Appeal had ruled in different ways on different occasions (in cases called Bates, Ahmed, Freeth and Lomas).
After the sentence was imposed, an appeal was therefore lodged on this issue. A claimant (convicted of the same offence before the change in maximum sentence) also submitted an application for judicial review after the prison had calculated his release date to be two thirds rather than one half.
The Court of Appeal therefore convened a special court, chaired by the President of the King’s Bench Division, to rule on this issue of statutory construction. The defendant’s case was picked as the criminal case to be considered. An Attorney General’s reference on the same issue and the judicial review were then joined to the criminal appeal and the Court of Appeal unusually also sat as a Divisional Court. The Ministry of Justice intervened in the appeals. The court heard detailed legal argument on the proper statutory construction and judgment has been reserved. A large number of cases are awaiting this important clarification in statutory construction.
