R v BR (Sentencing: Extended Licences
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchers |
| Judgment Date | 25 July 2003 |
| Neutral Citation | [2003] EWCA Crim 2199 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2003/0423/Y1 |
| Date | 25 July 2003 |
[2003] EWCA Crim 2199
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy and
Mr Justice Pitchers
Case No: 2003/0423/Y1
Mr J Goodman appeared for the appellant
Mr T Owen QC and Ms A Macdonald appeared as advocates to the Court
Introduction.
On 8 May last, we heard the appeal of this appellant against his sentence of two years imposed for four offences of indecent assault. We dismissed the appeal against the custodial term but adjourned consideration of the legality of the order that his licence be extended under s86 of the Powers of the Criminal Courts (Sentencing) Act 2000 (PCC(S)A) so that counsel might be instructed as an advocate to the Court to assist the court on what is a matter of law of some importance. As will become clear in this judgment, we have been greatly assisted by Mr Tim Owen QC who was so instructed.
For the full details of the facts of the case and our reasons for dismissing that part of the appeal, reference should be made to the judgment delivered on 8 May [2003] EWCA Crim 1518. For the purposes of this part of the judgment, the only relevant facts are these:
i) The appellant pleaded guilty to four offences of indecent assault for which he was sentenced to a total of two years, which custodial term we upheld;
ii) the charges represented a course of conduct of indecency against his two stepdaughters who at the time of the offences were 10 and 8;
iii) The offences were committed between 1976 and 1979 and 1976 and 1982 respectively.
The judge wished to include as part of his order an extension to the licence period to which the appellant would normally have been subject. The power to do so under s85 of PCC(S)A was not available because that section expressly applies only to offences were committed after 30 September 1998. The judge therefore purported to exercise his power under s86 which applies to sexual offences committed before 30 September 1998. The question raised in this part of the appeal is whether there was power to extend the licence in the way that the judge did or whether that was unlawful as being a retrospective penalty and as such in breach of Art 7 (1) of the ECHR.
Before dealing with the major point in the appeal, we should dispose of a subsidiary argument advanced by Mr. Goodman in his written submissions but not elaborated orally. He argues that, if the order was lawful, it should not have been made on the facts of this case. We disagree. The necessary criteria, which we set out in full below, were satisfied and it was not wrong in principle for the judge to make the order that he did.
The statutory framework
PCC(S)A 1986: Sexual offences committed before 30th September 1998
(1) Where, in the case of a long-term or short-term prisoner
(a) the whole or any part of his sentence was imposed for a sexual offence committed before 30th September 1998, and
(b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) of the Criminal Justice Act 1991, ordered that this section should apply,
sections 33(3) and 37(1) of that Act shall each have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.
(2) Expressions used in this section shall be construed as if they were contained in Part II of the Criminal Justice Act 1991.
(3) The reference in subsection (1) above to section 33(3) of the Criminal Justice Act 1991 is to section 33(3) as it has effect without the amendment made by section 104(1) of the Crime and Disorder Act 1998 (which substituted the words "on licence" for the word "unconditionally" and does not apply in relation to a prisoner whose sentence or any part of whose sentence was imposed for an offence committed before 30th September 1998).
The matters mentioned in section 32(6)(a) and (b) are "the need to protect the public from serious harm from offenders" and "the desirability of preventing the commission by them of further offences and of securing their rehabilitation". That section was originally contained in s44 of the Criminal Justice Act 1991 which came into force on 1 October 1992. That section was itself amended by s 58 of the Crime and Disorder Act 1998.
The effect of the interplay of these sections is this. In an ordinary case, if the sentence is at least twelve months but less than four years ("a short term prisoner"), the prisoner is released after one half of his sentence and remains on licence until he would have served three quarters of his sentence had he not been released. If his sentence is four years or more ("a long term prisoner"), he is eligible for release on parole after one half of his sentence, he must be released after two-thirds and also remains on licence until three quarters of his sentence would have been served. If, in a sexual case, the judge passing sentence has made an order under PCC(S)A s86, the licence continues not until the prisoner would (but for his release) have served three-quarters of his sentence but until the end of the total sentence.
The consequences of any breach of licence were set out in section 38 of the 1991 Act:
38. —(1)A short-term prisoner—
(a) who is released on licence under this Part; and
(b) who fails to comply with such conditions as may for the time being be specified in the licence, shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) The magistrates' court by which a person is convicted of an offence under subsection (1) above may, whether or not it passes any other sentence on him—
(a) suspend the licence for a period not exceeding six months; and
(b) order him to be recalled to prison for the period during which the licence is so suspended.
(3) On the suspension 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.
This section applies to any prisoner who is serving a sentence for an offence committed before 30 September 1998 although it has been repealed for all other purposes.
The potential consequences for a defendant in respect of whom an order under s86 of the 2000 Act is made are thus that he may, if in breach of his licence, be fined or recalled to prison for up to six months.
It is those potential consequences that lead counsel for the appellant in the present case to argue that a sentence passed under s 86 for an offence committed before 1 October 1992 (the commencement date of the 1991 Act) violates Article 7(1) of the European Convention on Human Rights as being a heavier retrospective penalty. Consistent with the Court's duty under section 3 of the Human Rights Act 1998 to give effect to legislation in a way that is compatible with Convention rights so far as is possible, counsel argues that this provision should be interpreted as not applying to cases involving offences committed before 1 October 1992. This argument is not advanced in relation to sentences for offences committed after 1 October 1992 but before 30 September 1998.
Had the appellant been sentenced for these offences at the time he committed them, his release would have been governed by the Criminal Justice Act 1967. Under section 60 of that Act, a prisoner serving a two year sentence was eligible to apply for parole after twelve months of his sentence and would have remained on licence until the two thirds point.
The test under the Convention
Article 7 (1) reads as follows:
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.
Certain matters are not in dispute between the parties. First, "penalty" is an autonomous concept under the Convention. Secondly, the relevant leading case in the European Court of Human Rights is Welch v UK (1995) 20 EHRR 247. The criteria for determining whether an order is a penalty, distilled from that case, were set out by this court in R v Field and Young [2002] EWCA Crim 2913.
i) The starting point is whether the measure is imposed following a criminal conviction (see paragraphs 28 and 29 of the judgment of the ECtHR);
ii) The nature and purpose of the measure are also relevant (see paragraphs 28 and 30);
iii) Its characterisation under national law is relevant (see paragraphs 28 and 31);
iv) The procedures involved in the making and implementation of the measure are relevant (see paragraph 28);
v) Its severity is relevant (see paragraphs 28 and 32);
vi) The court will look at the substance, rather than the form, in determining whether the measure forms part of a "regime of punishment" (see paragraphs 27, 33 and 34)
Relevant case law.
The courts have been called upon to determine whether a measure is a penalty and to apply the Welch criteria in a number of recent cases. For present purposes they can be divided into two broad categories: those where the court had to consider a measure which stood on its own and those where the court was considering early release from a custodial sentence. The first group of cases is helpful in showing the approach of the Courts to this issue but it is the second group which is most closely analogous to the present case.
Cases involving stand-alone measures
The case of Welch itself concerned a confiscation order made under the Drug...
To continue reading
Request your trial
-
R v B (RG)
...In our view the point of law raised in the present case can be summarily disposed of. In short it has already been decided by this court in R v BR [2004] 1WLR 490. The court there held that an order for an extended licence under s.86 is preventive and not punitive and accordingly does not v......
-
Minter v Chief Constable of Hampshire Constabulary Secretary of State for the Home Department (Interested Party)
...28 EHRR CD 209Bah v United Kingdom (2011) 54 EHRR 773O v Comr of Police of the Metropolis [2011] EWHC 1246 (QB); [2011] HRLR 29R v R [2003] EWCA Crim 2199; [2004] 1 WLR 490; [2003] 4 All ER 882, CAR v Sekhon [2002] EWCA Crim 2954; [2003] 1 WLR 1655; [2003] 3 All ER 508; [2003] 1 Cr App R 57......
-
R (Uttley) v Secretary of State for the Home Department
...Hogben v United Kingdom (1986) 46 DR 231 Ibbotson v United Kingdom (1998) 27 EHRR CD 332 Jamil v France (1995) 21 EHRR 65 R v R [2003] EWCA Crim 2199; [2004] 1 WLR 490; [2003] 4 All ER 882, R v Sharkey [2000] 1 WLR 160; [2000] 1 All ER 15, CA R v T [2003] EWCA Crim 1011; [2003] 4 All ER 877......
-
AT (Pakistan) and Another v Secretary of State for the Home Department
...following conviction have been held to be preventive rather than punitive and therefore not within Article 7. 20 For example, in BR [2003] EWCA Crim 2199, [2004] 1 Cr App R(S) 59 it was held that a court order made pursuant to the Criminal Justice Act 1991 requiring a defendant convicted of......
-
ENLARGED PANELS IN THE COURT OF APPEAL OF SINGAPORE
...(overruling R v Wheat [1921] 2 KB 119); Hanning v Maitland (No 2) [1970] 1 QB 580 (not following Nowotnik v Nowotnik [1967] P 83); R v R [2004] 1 WLR 490 (not following R v T [2003] 4 All ER 877); contra R v Felstead (1914) 9 Cr App R 227. In Malaysia, see, for instance, Mohd Amin bin Mohd ......
-
Anti-Social Behaviour Orders: Their Legal and Jurisprudential Significance
...Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI2004 No. 1679); Local Government Act 1972, s. 222.26 Rv R[2003] EWCA Crim 2199, [2004] 1 WLR 490, CA, on appeal to the House ofLords.27 See Crime and Disorder Act 1998, ss 11E, 4–7; Police Reform Act 2002, ss 61–66;Powers......