The Court of Appeal directed Jake Freeman to serve the unserved balance of a four-month prison sentence, even though the sentence’s original four-month period had passed while he was free following a High Court release order.
In a judgment delivered by Mr Justice Mahon on 16 November 2016, the court held that the balance remained live after it had reversed the High Court decision. It directed that the original warrant be reissued and amended, with full credit for the part of the sentence already served.
Freeman had been convicted in the District Court (the Children’s Court) on 28 September 2015 of an offence under section 15 of the Misuse of Drugs Act 1997, as amended, and sentenced to four months in prison. His committal warrant did not state that the Director of Public Prosecutions had elected for the case to be tried summarily.
Freeman challenged his detention under Article 40.4.2 of the Constitution. On 9 October 2015, the High Court found the return to its inquiry insufficient to justify his detention and ordered his immediate release. He had served close to two weeks. The Governor of Wheatfield appealed, and the Court of Appeal allowed that appeal on 15 June 2016, holding that the warrant’s omission was technical and did not invalidate it.
The case then returned to the Court of Appeal to decide whether the remaining time could be served after the original sentence period had elapsed. The Governor argued that Freeman should not benefit from time spent free after the release order was later reversed. Freeman submitted that the sentence had continued to run after his release and had expired. He also argued that a new warrant would be impractical because he was already in prison serving a separate sentence due to run until January 2017.
The court held that it had power to direct a warrant for a person already in prison, and that the unserved portion of Freeman’s sentence remained live in these circumstances. It directed that the amended warrant be addressed to the governor of the prison where he was then held. The remaining balance was to run concurrently with the sentence or sentences he was already serving. The judgment says the original four-month term had not been ordered to run consecutively.
The court’s ruling addressed Freeman’s case and the circumstances set out in the judgment; it did not state a general rule for every sentence interrupted by an Article 40 release order.