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

On 26 October 1995 the claimant pleaded guilty to certain counts of sexual assault and was convicted on three counts of rape. The offences took place before 1983. He was sentenced in total to a term of 12 years' imprisonment. On 24 October 2003 he will be released on licence at the two-thirds point of his sentence. He will then be subject to a period of one year's supervision by the probation service, taking him up to three-quarters of his sentence.

The offences were committed, as I have said, before 1983. At that time the Criminal Justice Act 1967 applied. He would therefore have been eligible for parole on licence conditions on 26 October 1999, and those licence conditions would have applied until his remission date. On 26 October 2003, after two-thirds of his sentence he would have been released, so long as he obtained full remission under the prison rules, and on discharge, pursuant to remission, his sentence would have expired (see section 25(1) of the Prison Act 1952). By virtue of the Criminal Justice Act 1991, which came into force on 1 October 1992, the claimant could only be released on licence once he had served two-thirds of his sentence. It can be seen, therefore, immediately that his release is not without condition, but is subject to a licence which imposes restrictions upon his liberty, contrary to what would have happened had he been convicted and released before 1 October 1992.

The Criminal Justice Act 1991 introduced a new scheme for the release of offenders sentenced to custodial sentences. By section 33(2) of the 1991 Act:

"As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."

By section 33(5):

"'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more."

By section 37(1) of the 1991 Act the claimant as a long-term prisoner, subject to any revocation under section 39( 1) or (2), remains on licence until he has served three-quarters of his sentence. The claimant will remain on licence until the expiry of that three-quarters period unless his licence is revoked pursuant to section 39. By section 39(1):

"If recommended to do so by the Board in the case of a long-term … prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison."

By section 39(2):

"The Secretary of State may revoke the licence of any such person and recall him to prison without a 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."

If he is recalled on revocation of his licence, this claimant will have to serve the remainder of his sentence of 12 years.

There is, as I have said, no doubt that the licence restricts the claimant's liberty. Mr Scrivener QC has helpfully provided me with an example of such a licence, which typically will require a prisoner released on licence to keep in touch with a supervising officer, receive visits from him, stay at an address approved by his supervising officer, and, typically in the case of those convicted of sexual offences will require them to have some treatment by, for example, a qualified psychiatrist. As I have said, a prisoner released on licence also runs the risk of loss of liberty.

The essential submission raised on behalf of the claimant is that to impose a penalty more severe than that imposed at a date when he committed the offences would be incompatible with Article 7 of the European Convention on Human Rights. Article 7 provides:

"(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 the 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."

Thus it can be seen that Article 7 focuses on the time when the offence was committed. It is clear, submits Mr Scrivener QC, that a heavier penalty is being imposed by virtue of the operation of section 33(2) than would have been imposed had he been sentenced at the time he committed the offences in or around 1983.

It was further argued that the incompatibility with Article 7 was the result of an error in drafting the schedule. Under paragraph 8 of schedule 12 to the 1991 Act:

"'existing prisoner' means any person who, at that commencement [ie the commencement of the Act on 1 October 1992] is serving a custodial sentence."

Under subparagraph (6) of paragraph 8 of schedule 12:

"In relation to an existing prisoner … whose sentence is for a term of more than twelve months-

"(a) …

"(b) sections 33(3) and section 37(1) of this Act shall apply as if the reference to three-quarters of his sentence were a reference to two-thirds of that sentence."

Thus it is argued that, when a existing prisoner is due for release, his licence will also have expired, so that there can be no question of any imposition of a licence in respect of someone who had been sentenced before the coming into force of the 1991 Act but was still in prison when it commenced. It was argued that there can be have been no intention by the draftsman to create a third category; in other words, an additional category to those who committed offences and were sentenced before the coming into force of the Act as well as those who were sentenced after the coming into force of the Act, who committed offences before it.

I disagree. The provisions to which I have just referred are designed only to cover the case where a prisoner is serving a sentence at the time when the 1991 Act came into force on 1 October 1992. In such a case, he will be released after two-thirds of his sentence and no licence conditions will be imposed. But, since this claimant was sentenced after the Act came into force, he can only be released by operation of section 33(1) of the 1991 Act on licence.

The essential question is whether the statutory imposition of the licence constitutes the imposition of a penalty greater than that which would have been imposed at the time he committed the offences. The European Court of Human Rights has considered the meaning of "penalty" in the context of Article 7. From the decision of the court in Jamil v France [1996] 21 EHRR 65, which followed the Court's decision in Welch v UK [1995] 20 EHRR 247, the following principles can be derived:

(1) The concept of penalty is an autonomous concept.

(2) The court must look at the substance of that which has been imposed upon a prisoner and not the form.

(3) The starting point is whether the measure follows the conviction.

(4) The characterisation of the measure under domestic law must be considered.

(5) The nature and purpose of the measure must be considered.

(6) The court must consider the procedures involved.

(7) The court must consider the severity of the measures, so far as its effect upon the prisoner is concerned.

(8) The court must consider whether the measure could lead to a punitive loss of liberty.

In Jamil, in the context of the imposition of a financial penalty with imprisonment in default, the court concluded that that measure was intended to have a deterrent effect and could have led to the punitive loss of liberty.

In Welch the court considered the provisions in the United Kingdom law, under the Drug Trafficking Offences Act 1986, in relation to confiscation of that which the statute provided was a benefit of drug trafficking offences. The court took the view that the confiscation would result in a far more reaching detriment than that to which the defendant would have been exposed at the time and commission of the offence, taken into account the benefit in respect of which the confiscation order was made.

In the instant case the imposition of the licence condition followed the conviction in the sense that, but for the conviction, this claimant would not have been sentenced to twelve years' imprisonment and section 33(1) of the 1991 Act would never have been triggered on release after two-thirds of the sentence. But, unlike the cases of Jamil or Welch, the order was not imposed by the court, but rather was imposed by operation of statute.