R v C, Bartley, Baldrey, Price and Broad
Jurisdiction | England & Wales |
Judge | Lord Justice Latham,C |
Judgment Date | 23 March 2007 |
Neutral Citation | [2007] EWCA Crim 680 |
Date | 23 March 2007 |
Court | Court of Appeal (Criminal Division) |
Docket Number | Case No: A8/2006/4622, A6/2006/2831 A2/ 2006/4561, A2/2006/4503 A8/2006/2436 |
[2007] EWCA Crim 680
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Mr Justice Forbes and
Mr Justice Tugendhat
Case No: A8/2006/4622, A6/2006/2831 A2/ 2006/4561, A2/2006/4503 A8/2006/2436
STEVEN KOVATS appeared on behalf of the Secretary of State for the Home Department
LAUREEN FLEISCHMANN appeared on behalf of the Crown in All the Cases ANTHONY J MORRIS appeared on behalf of the Applicant Bartley
JAMAS HODIVALA appeared on behalf of the Applicant Baldrey
NICHOLA BLEANEY appeared on behalf of the Applicant Price
TIMOTHY SHORTER appeared on behalf of the Applicant “C”
Hearing dates: 24 th January 2007
Judgment Approved by the court for handing down
These cases have been listed together so that this court can consider, once again, practical difficulties presented to judges considering imposing extended sentences under both the Criminal Justice Act 2003, and its predecessor regime introduced by section 58 of the Crime & Disorder Act 1998 and ultimately set out in section 86 of the Criminal Powers of Courts (Sentencing) Act 2000. The latter provisions remain operative in relation to offences committed after the 29 th September 1998 and before the 4 th April 2005. They remain relevant because of the significant number of historic sexual offences which come before the courts. These provisions were in turn the successors to section 44 of the Criminal Justice Act 1991 which provided a very limited power to extend the licence period in sexual cases to the end of the nominal sentence.
The provisions of the 1998 and the 2000 Acts simply grafted on to the ordinary operation of release and licence provisions a power in relation to sexual and violent offences to extend the licence period beyond the end of the nominal sentence period. Sections 227 and 228 of the 2003 Act, however create a new form of extended sentence with different criteria relating, in particular, to the date of release from custody.
The particular problems which these cases exemplify relate to the power of the court to order consecutive sentences, either consecutive extended sentences, or a mix of extended and ordinary determinate sentences. This court has commented on numerous occasions in the past on the extraordinary complexity of the provisions in question. As a result it has consistently advised sentencing courts that in relation to offences committed before April 2005, it is not good practice to impose consecutive extended sentences ( R v Nelson [200] 1 Cr App R(S) 565 [2001] EWCA Crim 2264) or consecutive sentences including an extended sentence (See R v Cridge [2000] 2Cr App(R) 477 and R v Pepper [2005] EWCA Crim 1181)
In R v Lang [2006] 1WLR 2509, [2005] EWCA Crim 2864) at paragraph 20, the Vice President suggested that the same principle should be applied to extended sentences imposed under the 2003 Act. This has been echoed in R v Alam and Watson [2006] EWCA Crim 1680. And in R v O'Brien et al [2006] EWCA Crim 1741, Hooper LJ cited Lang as some support for the court's conclusion in that case that consecutive indeterminate sentences should not be imposed, nor should indeterminate sentences be made consecutive to a determinate sentence, or an extended sentence.
However, in R v Brown and Butterworth [2006] EWCA Crim 1996, this court, presided over by Gage LJ, gave more detailed consideration to the problem. Before setting out the court's conclusions, we should say something further about the differences between extended sentences under the 1998 and 2000 Acts, and extended sentences under the 2003 Act.
We have already given a general description of the two forms of extended sentence. But the important point is that extended sentences under the 2003 Act are clearly intended to be a new species of sentence. Sections 227 and 228 of the 2003 Act make it plain that the sentence is a single sentence of imprisonment comprising the aggregate of the custodial term, and the extension period: see section 227(2) and section 228 (2). The custodial term, pursuant to section 227(3) is the term of imprisonment appropriate for the offence determined in accordance with the provisions of section 153 of the 2003 Act, namely the shortest term that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it. In other words, it is the appropriate determinate sentence if the court had not been required by sections 227 or 228 to impose an extended sentence.
The provisions for release on licence of a prisoner serving an extended sentence under sections 227 or 228 are quite different from the provisions for release of prisoners serving determinate sentences or extended sentences under the 1998 and 2000 Acts, and are contained in section 247 of the 2003 Act. By sub-sections (2) and (4), the Secretary of State must release the prisoner if he has served one half of the appropriate custodial period – and the Parole Board has directed his release on the grounds under sub-section (3) that it is no longer necessary for the protection of the public that he should be confined; alternatively, the prisoner must be released if he has served the whole of the appropriate custodial period. It follows that the period which the prisoner serving an extended sentence imposed under the 2003 Act will spend in custody will depend on whether and when the Parole Board has directed his release.
In this context it is also important to bear in mind the provisions of section 264 of the 2003 Act, which deal with the treatment of consecutive sentences where such sentences are imposed on the same occasion. Sub-section (2) provides that the period before which the Secretary of State is not required to release a prisoner is the aggregate of the length of custodial periods ordered to be served consecutively; by sub-section (6)(a)(i) this means the appropriate custodial term in relation to an extended sentence under section 227 or 228 and one half, in most cases, of the term in determinate sentences. Further, by sub-section (3) the licence period is the period after release until the time at which he would have served a term equal in length to the aggregate length of the terms of imprisonment but for his release. As far as extended sentences are concerned, as we have said above, the important point is that the length of the sentence of imprisonment (as opposed to the “custodial term”) is the combined period of the custodial term and the extended licence period.
Returning to Brown & Butterworth, the court concluded as follows:
“23. It will be apparent from the above that whereas an offender, the subject of an extended sentence, may not be released after serving half of the custodial term until the Parole Board is satisfied it is no longer necessary for the protection of the public to confine him, an offender serving a fixed term or determinate custodial sentence of 12 months or more will be released after serving half of his sentence, see Section 244(3)(a). It follows that if a consecutive determinate sentence is passed to an extended sentence it may be difficult to determine when the custodial element of the extended term ends and the determinate sentence begins.
In our judgment these difficulties do not arise if an extended sentence is made consecutive to a determinate sentence. Mr Close, on behalf of Brown, argued that section 264(2) may be interpreted as permitting the Secretary of State to refrain from releasing an offender where a consecutive extended sentence is passed and until such time as the aggregate length of the determinate sentence, and the custodial term of the extended sentence, has expired. We do not believe that this is so. It seems to us that this will be inconsistent with the clear terms of section 247(2)….
…….
26. At the outset we feel it may be helpful to make some short points of general application. First we conclude that the court has the power to pass consecutive extended sentences. We have no doubt that the court has power to pass an extended sentence consecutive to a determinate custodial sentence. It may very well be that the court has power to pass a determinate sentence consecutive to an extended sentence. As Mr Bassano points out, nothing in the statutory provisions seems to forbid any of these combinations of sentence and section 264 would appear to contemplate such sentences.
27. However, when the release provisions of section 247 are factored in difficulties may well arise in respect of the calculation of dates for release and the start of the period on licence. In those circumstances in our judgment the following points should be observed. First, consecutive extended sentences appear to provide considerable problems in determining the application of the appropriate licence period once the custodial element has been served. Secondly, similar problems will arise if a determinate sentence is made consecutive to an extended sentence. Accordingly we take the view that consecutive extended sentences and a determinate sentence consecutive to an extended sentence are, in general terms, not appropriate and should be avoided. However, we see no reason to suggest that such problems will arise if the extended sentence is made consecutive to the determinate sentences.
28. There is no reason to suppose that concurrent extended sentences raise any of the above problems, nor that an extended sentence concurrent with a determinate sentence...
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