R (Uttley) v Secretary of State for the Home Department

This is an appeal against a judgment of Moses J given in the Administrative Court on 8 April 2003 in which he dismissed an application by Mr Brian Uttley ("the appellant") whereby the appellant sought declarations in relation to provisions in the Criminal Justice Act 1991 ("the 1991 Act"). The appellant claimed that provisions under which he will from 24 October 2003 be subject to licence under section 33 of the 1991 Act are contrary to Article 7 of the European Convention on Human Rights.

On 24 October 1995, the appellant pleaded guilty to serious sexual offences which he had committed many years before the 1991 Act came into force. He was sentenced to a term of 12 years imprisonment. He is entitled to be released on 24 October 2003 when he has completed two-thirds of that sentence but he will thereafter remain on licence until he has served three-quarters of his sentence.

Section 33 of the 1991 Act provides, in subsection (2):

"As soon as a long-term prisoner [a prisoner serving a sentence of imprisonment for a term of four years or more] has served two-thirds of his sentence it shall be the duty of the Secretary of State to release him on licence."

Section 37(1), insofar as is material, provides:

"… where a … long-term prisoner is released on licence, the licence shall … remain in force until the date on which he would [but for his release], have served three-quarters of his sentence."

By amendment, the statute now provides (s37(1A)) that in some circumstances section 37(1) "shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence". That provision is not claimed to apply to the appellant.

Section 39 of the Act provides, insofar as is material:

"(1) If recommended to do so by the Board [the Parole Board] in the case of a … long-term … prisoner who has been released on licence under this Part [Part II, which includes section 33], the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable."

Safeguards are provided in the section for offenders in relation to whom those powers are exercised and subsection (6) provides:

"On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."

A recalled prisoner is liable to serve the remainder of the sentence which had been imposed.

It is common ground that the terms of a licence under section 33 will commonly include placing the offender under the supervision of a supervising officer, will require the offender to keep in touch with the officer and to live where reasonably approved by the officer. There may also be restrictions, for example, upon travel without obtaining the permission of the officer and for attendance for medical treatment. Section 40 of the 1991 Act, (now replaced by Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000) ("the 2000 Act") provides that the offender is also liable to be returned to custody if convicted of a further imprisonable offence while the licence is in force. The Court dealing with the new offence may add all or part of the outstanding period of the original sentence to any new sentence imposed.

The submission on behalf of the appellant is that this statutory scheme is, in his case, in breach of that part of Article 7(1) of the Convention which provides:

"Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

It is also common ground that, prior to the 1991 Act, the regime under the Criminal Justice Act 1967, the Prison Act 1952, and orders made thereunder, had the effect that an offender in the appellant's position was entitled to be released without licence having served two-thirds of his sentence. The reduction from the full term imposed by way of sentence was achieved by a system of remissions. Its operation was summarised by the European Court of Human Rights in its statement of the position of the United Kingdom Government in a judgment dated 15 July 2002 in Ezeh and Connors v the United Kingdom (Applications Nos 39665/98 and 40086/98):

"The Government maintained that there was no useful distinction to be drawn, for Convention purposes, between the pre-and post-1991 Act system of remission of sentence or between the previous disciplinary sanction of loss of remission and that of the award of additional days introduced by that Act. Prior to the 1991 Act, remission was, as a technical matter, characterised as a privilege. But the rules for calculating remission were standardised and were invariably applied and, if remission were granted, the prisoner had a legal right to be released before he had served the full term of his sentence on the basis of his legitimate expectation that the remission system would be correctly applied. In the event of the commission of a disciplinary offence a prison Governor could order a reduction in the period of remission and such reductions would postpone the date when the prisoner would be released and thereby operate as an award of additional days to be served before release. By the 1991 Act the previous remission system was replaced by a clear statutory code governing remission of sentence. The change in the law [was] affected by the Act, in the interests of accessibility and transparency … ."

Mr Crow did faintly argue that an offender was better off under the new system than the old because he now has a statutory right but the submission cannot survive that clear statement of how the former system operated, one which accords with the experience of members of the Court.

Transitional provisions were included in Schedule 12 to the 1991 Act the effect of which, as stated by the judge, was that while those whose offences predated 1 October 1992 and began serving a custodial sentence before that date did not come within the new regime, those, such as the appellant, whose offences predated 1 October 1992 and were convicted only after that date, did come within the new regime. As expressed by the parties, the issue is whether the offender's liability to the conditions of a licence, and the possible consequences of that liability, constitute a "heavier penalty" within the meaning of Article 7, no such liability having arisen at the time the criminal offence was committed.

For the appellant, Mr Scrivener QC submits that there can be no logical distinction for Convention purposes between persons convicted before and after the relevant date because Article 7 is concerned with the date "a criminal offence was committed" and not with the date of conviction or sentence. It is likely that the draftsman of the 1991 Act did not have Article 7 in mind, he submits. To illustrate how the system could work, Mr Scrivener refers to the transitional provisions in Schedule 11 to the 2000 Act, in which it is the date of the "offence" which is identified, and correctly identified, he submits, as the relevant date.

The apparent anomaly in the 1991 Act does not determine the issue but suggests that Parliament may have intended that the 1991 regime should not have retrospective effect but failed, when attempting to give effect to that intention, to recognise the category of offender to which the appellant belongs and failed thereby to identify the relevant date as the date of the offence, as required by Article 7, rather than the date of the conviction.

The submissions of Mr Scrivener were expressed, and can be summarised, succinctly. The liability to licence conditions is an integral part of the sentence imposed following conviction for a criminal offence. The sentence as a whole undoubtedly constitutes a penalty within the meaning of Article 7. Liability to licence conditions makes that penalty heavier than it would otherwise have been. Conditions imposed with the licence will inevitably impose impediments on the freedom of action of the released prisoner, though it is not suggested that in themselves they involve a breach of Article 5. Moreover, the prisoner on licence is liable to be recalled to serve the remainder of the sentence and, secondly, is liable, upon conviction of a further offence during the licence period, to be subject to a Court order requiring him to serve the outstanding period of the original sentence.

For the Secretary of State, Mr Crow submits that the penalty with which Article 7 is concerned is the 12 year custodial sentence. Provisions for early release from the imposed sentence of 12 years do not engage the concept of penalty. The provisions as to licence introduced by the 1991 Act are not integral to the sentencing process but to the execution of the sentence. The licence is completely separate from the sentencing process...