R Abedin v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice William Davis |
| Judgment Date | 03 February 2015 |
| Neutral Citation | [2015] EWHC 782 (Admin) |
| Docket Number | CO/1855/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 February 2015 |
[2015] EWHC 782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice William Davis
CO/1855/2014
Mr H Southey QC and Mr J Bunting (instructed by Birnberg Peirce) appeared on behalf of the Claimant
Mr S Grodzinski (instructed by the Treasury Solicitors) appeared on behalf of the Defendant
This is an application for relief by way of judicial review following permission granted by Bean J (as he then was) on 17 June 2014. The claimant is a severing prisoner, having been sentenced to 20 years' imprisonment on 27 February 2002. He was released on licence in August 2012 but is said to have broken his licence conditions and was recalled to custody in February 2013. His complaint is as to the effect in these circumstances of section 50A of the Criminal Justice Act 1991 (which came into force on 14 July 2008) and subsequent provisions contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). Their effect is that the claimant's automatic release date is now at the end of the full term of his sentence whereas at the time he was sentenced in 2002 his automatic release date would have been upon the expiry of three quarters of his sentence, that is to say 5 years earlier. I shall say a little more about the legislative provisions shortly. This result, it is said, involves a violation of Articles 5 and 7 of the European Convention on Human Rights and cannot stand with the decision of the European Court of Human Rights in Del Rio Prada v Spain (2014) 58 EHRR 37.
The offence for which the claimant was sentenced at the Birmingham Crown Court on 27 February 2002 was doing an act with intent to cause explosions likely to endanger life, for which the maximum sentence is imprisonment for life prescribed by section 3 of the Explosive Substances Act 1883. He was released on licence on 14 August 2012. When on licence he is said to have used a laptop computer and then "forensically wiped" its contents. This is said to have been a breach of a condition of his licence which prohibited him from using a computer. His licence was revoked. He was recalled to prison under section 254 of the Criminal Justice Act 2003. He brought judicial review proceedings to challenge his recall but that application was dismissed by Collins J on 29 January 2014 (see [2014] EWHC 78 (Admin)). The claimant's recall was referred to the Parole Board pursuant to section 254 and on 31 October 2014, as I understand it after earlier hearings, the Parole Board decided that he was not suitable to be released again. His sentence and licence expiry date is in November 2020.
I turn to the legislation. The statutory picture is complex because there have been successive legislative changes. For the purposes of this application the following summary suffices. The claimant was sentenced under provisions contained in the Criminal Justice Act 1991 as amended by the Crime and Disorder Act 1998. By force of section 33(5) of the 1991 Act he was classed as a long-term prisoner. As such he might be released on licence at the discretion of the Secretary of State on the recommendation of the Parole Board at the halfway point in his licence (section 35(1)). He would be entitled to be released at the three-quarter point if he had been released earlier and then recalled to custody (see section 33(3)). That is the especially material provision in the circumstances of this case operative at the time he was sentenced.
On 4 April 2005 sections 33 and 35 of the Criminal Justice Act 1991 were repealed by Part 7 of Schedule 37 to the Criminal Justice Act 2003 subject to transitional and saving provisions. However, the earlier regime of section 33 continued in force as respects the claimant because his sentence had been imposed for an offence committed before 4 April 2005. Any recall of the claimant if he were released on licence after that date would be governed, as indeed it proved to be, by section 254 of the 2003 Act.
Section 33 of the Criminal Justice Act 1991 , which as I have said entitled the claimant on the face of it to be released at the three-quarter point in his sentence, ceased to apply to him on 14 July 2008 when the Criminal Justice and Immigration Act 2008 came into force. This act introduced section 50A into the Criminal Justice Act 1991. Its upshot was that if a prisoner in the claimant's position was recalled after being released on licence he would not be automatically released again at the three-quarter point, he was be detained until the end of his sentence unless released earlier by the Parole Board.
In 2012 LASPO pulled all the release and recall provisions together in one statute. Section 121 repealed Part 2 of the Criminal Justice Act 1991 including section 50A. However the 1991 Act regime, including section 50A, is retained for certain classes of prisoner including the claimant (see Schedule 20B to the Criminal Justice Act 2003 inserted by LASPO). Accordingly the claimant remains liable to be detained until the expiry of his sentence in November 2020 as he has been since 14 July 2008 when section 50A came into force.
The material provisions of the European Convention on Human Rights are very familiar. Article 5 provides so far as relevant:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
A. the lawful detention of a person after conviction by a competent court."
Article 7 provides so far as relevant:
"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
I will first address the claimant's claim under Article 7, to which Mr Southey QC has addressed the majority of his submissions this morning. The key argument is that the provisions regulating release on licence as they apply to the claimant (that is section 33(3) of the 1991 Act before 14 July 2008; section 50A thereafter) are or must be treated as integral to the meaning of "penalty" in Article 7 and therefore the change effected by section 50A constituted a "heavier penalty" within the meaning of the Article. Some English learning is prayed in aid but the primary arrow in Mr Southey's quiver is the Strasbourg case of Del Rio Prada v Spain. This submission on the face of it is contrary to a long line of Strasbourg authority which draws a distinction between the penalty imposed and the means of its enforcement or execution. Thus in Del Rio Prada itself the court said this at paragraph 83:
"Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a 'penalty' and a measure that concerns the 'execution' or 'enforcement' of the 'penalty'. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the 'penalty' within the meaning of Article 7."
A footnote in the text cites Strasbourg cases going back to 1986. It is right that it is also stated (paragraph 85) in Del Rio Prada that the distinction between penalty and enforcement is not always clear-cut. Mr Southey however places emphasis on paragraph 89, which in part reads as follows:
"In the light of the foregoing, the Court does not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the 'penalty' imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention. Otherwise, States would be free — by amending the law or reinterpreting the established regulations, for example — to adopt measures which retroactively redefined the scope of the penalty imposed, to the convicted person's detriment, when the latter could not have imagined such a development at the time when the offence was committed or the sentence was imposed."
This distinction between penalty and enforcement is also given in English authorities. In R (Robinson) v Secretary of State [2010] 1 WLR 2380 the Court of Appeal had to consider a judicial review claim by a prisoner who asserted that section 50A of the Criminal Justice Act 1991 was incompatible with his right under Article 6 of the Human Rights Convention. Like the claimant in the present case the appellant there had been sentenced for an offence committed before 14 July 2008. He was released on licence on 8 July 2008 and recalled some time after 14 July 2008 when section 50A came into force. His argument was that Article 6 was violated because section 50A involved a legislative rather than a judicial lengthening of his original sentence. Giving the first judgment in the Court of Appeal Moses LJ, after a detailed exposition of earlier authority, said this at paragraph 32:
"In this appeal the appellant was sentenced to a period of five years' imprisonment. That sentence remains unchanged. The legislature changed...
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