Minter v Chief Constable of Hampshire Constabulary Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Moore-Bick,Lord Justice Beatson |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] EWCA Civ 697 |
| Docket Number | Case No: C1/2011/2370 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 2013 |
[2013] EWCA Civ 697
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(LORD JUSTICE RICHARDS, MR JUSTICE EADY,
MR JUSTICE TREACY)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Lord Justice Moore-Bick
and
Lord Justice Beatson
Case No: C1/2011/2370
Mr Hugh Southey QC and Mr Philip Rule (instructed by Mark Williams Associates) appeared on behalf of the Appellant
Mr Dijen Basu (instructed by Force Solicitors) appeared on behalf of the Respondent
Mr Martin Chamberlain QC (instructed by the Treasury Solicitor) appeared on behalf of the Interested Party
This is an appeal, with permission granted by Sedley LJ on 24 July 2012, against a judgment of the Divisional Court (Richards LJ, Eady J and Treacy J), [2011] WLR 1157, [2011] EWHC 1610 (Admin), given on 28 June 2011. The Divisional Court dismissed the appellant's claims for judicial review by which it was sought to challenge the decision of the respondent Chief Constable to the effect that the appellant was required to comply with the notification requirements prescribed by the Sexual Offences Act 2003 for an indefinite period pursuant to section 82 of that Act.
Before the grant of permission by Sedley LJ there had been a debate whether the judicial review application and therefore the prospective appeal was or was not "a criminal cause or matter". If it was, then appeal would lie only to the Supreme Court and not to this court. However, at a hearing on 21 November 2011 in this court, Maurice Kay LJ and Sullivan LJ concluded that it was not a criminal cause or matter so that the Court of Appeal had jurisdiction to hear the appeal. In fact the parties were agreed that that was so, but of course their consent could not confer jurisdiction on the court.
To introduce the case, I can do no better than set out paragraphs 1 to 3 of Richards LJ's judgment, with which Eady J and Treacy J agreed:
"1. On 16 August 2006 the claimant pleaded guilty at Reading Crown Court to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. On 17 November 2006 he was sentenced in respect of the most serious of those offences to an extended sentence of 4 1/2 years, comprising a custodial term of 18 months and an extension period of 3 years, pursuant to s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 ('the PCC(S)A 2000'). Lesser sentences under the same Act or under the Criminal Justice Act 2003 ('the CJA 2003') were imposed for the other offences. The reason why some of the sentences were under the PCC(S)A 2000 and others under the CJA 2003 was that the various offences straddled the date when the CJA 2003 came into force.
2. The claimant's conviction of those offences had the consequence, pursuant to s.80(1) of the Sexual Offences Act 2003 ('the SOA 2003'), that he became subject to the notification requirements of Part 2 of that Act, requiring him to notify certain information to the police for inclusion in the sex offenders register. The period for which he remains subject to the notification requirements is laid down by s.82(1):
'82(1) The notification period for a person within s.80(1) is the period in the second column of the following Table opposite the description that applies to him'
The material entries in the table are these:
| Description of relevant offender | Notification period |
| A person who, in respect of the offence, is or has been sentenced … to imprisonment for a term of 30 months or more | An indefinite period beginning with the relevant date [i.e. the date of conviction] |
| A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of more than 6 months but less than 30 months | 10 years beginning with that date |
The issue before the court is whether, by reason of the extended sentence of 412 years with a custodial term of 18 months, the claimant was 'sentenced to imprisonment for a term of 30 months or more', so as to be subject to the notification requirements for an indefinite period, or was 'sentenced to imprisonment for a term of more than 6 months but less than 30 months', so as to be subject to the requirements for a period of 10 years. The court record following sentence referred to a period of 10 years, as did the notice originally issued to the claimant by the prison. The defendant Chief Constable decided, however, that the claimant was subject to the requirements for an indefinite period, based on the 412 year term of the extended sentence. That decision, formally communicated by letter of 22 September 2010, is the subject of challenge in these proceedings for judicial review. The claimant contends that the decision is based on a mistaken construction of the statute and that the true notification period is one of 10 years, based on the 18 month custodial term comprised within the extended sentence."
The "indefinite period" referred to in the table in section 82(1) must now be read subject to the provisions of sections 91A-91F, which introduces a procedure by which in an individual case the requirement for indefinite notification may be tested. These sections were inserted by remedial order made under the Human Rights Act 1998, section 10, following a declaration of incompatibility made by the Supreme Court in R(F (a child)) v the Secretary of State [2011] 1 AC 331. Given the dates of the appellant's offending, his case is governed by the extended sentence regime provided for in the PCC(S)A 2000 rather than the successor provisions contained in the Criminal Justice Act 2003. The 2000 Act re-enacted the extended sentence provisions set out in section 58 of the Crime and Disorder Act 1998.
Section 85 of the 2000 Act provides in part:
"(1) This section applies where a court—
(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of—
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ('the custodial term'); and
(b) a further period ('the extension period') for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above.
…
(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence."
The term "custodial sentence" is defined by section 76(1) of the 2000 Act. Mr Southey QC for the appellant emphasised this morning the fact that section 76 opens with the words "In this Act". A number of meanings are given to "custodial sentence" but the only relevant one in context is the first, which is "a sentence of imprisonment". It will appear therefore that the "custodial sentence" in section 85(2), which is by that subsection the aggregate of "the custodial term" and "the extension period", constitutes by statutory reference "a sentence of imprisonment". In that case a criminal who has received such a sentence of imprisonment where the aggregate within the meaning of section 85(2) is more than 30 months would on the face of it plainly appear to be "a person who has been sentenced to imprisonment for a term of 30 months or more" for the purpose of and within the meaning of section 82(2) of the Sexual Offences Act 2003. That is what the Divisional Court found.
The provisions which replaced section 85 of the 2000 Act, section 227 and, from 3 December 2012, section 226A of the Criminal Justice Act 2003, are structurally similar. An extended sentence remains "a sentence of imprisonment" and its term is equal to the aggregate of "the appropriate custodial term" and "the extension period".
The Divisional Court considered that certain other provisions support the conclusion that, in an extended sentence case, the term of a prison sentence for the purpose of determining the notification period under section 82(1) of the Sexual Offences Act is the aggregate term of the extended sentence. These are, first, section 85(6) of the 2000 Act, which provides:
"Subsection (2) of section 80 above (length of discretionary custodial sentences) shall apply as if the term of an extended sentence did not include the extension period."
The second such provision is section 44 of the Criminal Justice Act 1991 in its present form, which makes special provision for extended sentences in the context of the early release provisions in Part II of that Act. It provides as follows:
"(1) This section applies to a prisoner serving an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.
(2) Subject to the provisions of this section and section 51(2D) below, this Part, except section 40A, shall have effect as if the term of the extended sentence did not include the extension period."
There is another provision, section 51(2D) of the Criminal Justice Act 1991, which, in Richards LJ's view, taken on its own rather goes the other...
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