R v S
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 19 December 2005 |
| Neutral Citation | [2005] EWCA Crim 3616 |
| Court | Court of Appeal (Criminal Division) |
| Date | 19 December 2005 |
| Docket Number | No: 200505446/A5200505077/A9200505077/A9200505226/A1200505153/A4200504926/A7200505452/A2200505710/A6200505030/A3 |
[2005] EWCA Crim 3616
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Vice President
(Lord Justice Rose)
Mr Justice Jack
Mr Justice Openshaw
No: 200505446/A5200505077/A9200505077/A9200505226/A1200505153/A4200504926/A7200505452/A2200505710/A6200505030/A3
MR M KHAMISA appeared on behalf of the CROWN in all cases
with MR A JACOBS in the case of PARSONS
MR S WOOD appeared on behalf of the APPLICANT S
MR M RUFFELL appeared on behalf of the APPLICANT BURT
MR S BAKER appeared on behalf of the APPLICANT PARSONS
MISS L JONES appeared on behalf of the APPLICANT CARR
MISS R SIMPSON appeared on behalf of the APPLICANT HARGREAVES
MR S NEWSHAM (SOL ADVOCATE) appeared on behalf of the APPLICANT DENTON
MR J LEONARD appeared on behalf of the APPLICANT TAYLOR
MR S PURDASY appeared on behalf of the APPLICANT COYNE
MR T CROWTHER appeared on behalf of the APPLICANT HOWELLS
We have heard these nine appeals together, although they are unrelated to each other. They provide further examples in addition to those considered in Lang & Ors [2005] EWCA Crim 2864 of the difficulties to which the sentencing provisions of the Criminal Justice Act 2003 give rise in relation to potentially dangerous offenders.
S is a child, Burt a young person and Parsons, Carr, Hargreaves and Denton are adults, all of whom were given an extended sentence for a specified violent offence. Taylor and Coyne are adults who were sentenced to imprisonment for public protection, for a serious violent offence, and Howells is an adult who was sentenced to imprisonment for public protection for a serious sexual offence. It is to be noted that sentence was passed in all these cases before the Court's judgment in Lang on 3rd November 2005 proffered guidance. What we say in this judgment should be regarded as merely supplementary to the guidance in Lang, which should continue to be sentencers' first port of call when seeking to apply these provisions.
We are grateful to Mr Khamisa who has responded on behalf of the Crown in all these cases and to counsel who have appeared for each of the defendants. Parsons had leave to appeal from the Single Judge. During the course of the hearing, we granted leave in the other cases, all of which were referred to the Full Court by the Registrar.
There is a matter which arises in relation to a number of these cases as to what is meant by "an extension period", for which an offender is subject to a licence imposed under sections 227 or 228 of the Criminal Justice Act 2003 and, in particular, when such a period begins.
This is an important question to which there ought to be a straightforward answer in the interests of the courts, defendants, the prison service and the Parole Board as well as the general public.
We have heard helpful submissions, particularly by Mr Russell on behalf of Burt, on this matter.
The Home Office must have a practice which it applies but we have not been told what it is. In consequence, the assistance which Mr Khamisa is able to give on this aspect, despite the enquiries which he and those instructing him have made, has been very limited.
What follows is our rehearsal of what seem to be the relevant statutory provisions and our provisional view, unassisted, as we have said, by argument on behalf of the Home Office or the Parole Board, as to what these provisions appear to mean.
The primary question is whether the extension period for which an offender is to be subject to a licence begins to run at the end of the custodial term, which is ordered under section 227 or 228, or when he is released from that term on licence. Another way of putting it is to ask whether the extension period is substituted for the licence period which would otherwise begin when the offender has served the appropriate part of his custodial term, or is it to be added to that period on licence, so that he is subject to licence for two periods, first, the normal period of licence under the custodial term and then secondly the extension term?
The Criminal Justice Act 1991, by section 44, enabled the court to order that an offender sentenced for a sexual offence should remain on licence until the end of his sentence: he would otherwise have been released unconditionally after he had served three-quarters of his sentence (see section 33(3)). The current problem did not arise under that legislation.
Section 58 of the Crime and Disorder Act 1998 introduced an extension of the concept in relation to sexual and violent offences. This was reproduced, with immaterial changes, in section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 which provides in subsection (2):
"Subject to subsections (3) to (5) below, the court may pass an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of -
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ("the custodial term"); and
(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above."
By subsection (8) "licence" meant "a licence under Part II of the Criminal Justice Act 1991 (early release of prisoners). Section 39 of the 1991 Act provided for the Secretary of State to revoke a licence with and without the recommendation of the Parole Board. Section 59 of the 1998 Act substituted a new provision as section 44 of the 1991 Act. The new section 44 applied to prisoners serving extended sentences under section 58 of the 1998 Act.
The new subsection 44(5) provided when the extension period was to be taken to begin. Where a prisoner was released on licence, the extension period was deemed to begin on the date on which he would have served three-quarters of his sentence —that is, the date on which he would have been entitled to unconditional release. This is the effect of section 44(5)(a), section 44(3) and section 37(1). Section 44(5)(b) made a like provision where a prisoner was not released on licence before the three-quarters date. Under these provisions the extension period was added to the potential licence period of the custodial term —namely the third quarter of the sentence. The offender had to serve three-quarters of his sentence, either wholly in custody, or in custody and then on licence, before the extension period began. Section 37(1) was subject to some complicated amendments by Schedule 8 of the 1998 Act, but they do not appear to be presently material.
Paragraph 141 of schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000 amended section 44 of the 1991 Act (as substituted by the 1998 Act) so that it referred to section 85 of the 2000 Act instead of section 58 of the 1998 Act. So the position remained unchanged for present purposes.
Earlier editions of Archbold, for example the 2004 edition, paragraph 5 —226 commenting on extended sentences under section 85, gave no assistance as to when the extension period begins. Dr Thomas in his Sentencing Referencer 2005/ 6, at page 119 states:
"The extension period is a period of licence beginning when the offender's normal period of licence expires, or when he is released from custody if he would not otherwise be on licence."
This is the effect of section 44 of the Crime and Disorder Act 1991 as substituted.
Sections 227 and 228 of the 2003 Act are expressed in identical terms and give rise to the same question as section 85. The 2003 Act repealed Part II of the 1991 Act —"Early release of prisoners', and so section 44 has gone. Section 244 requires the Secretary of State to release a fixed term prisoner on licence when he has served "the requisite custodial period" —which is normally one-half of his sentence. Section 247 is headed "Release on licence of prisoner serving extended sentence under section 227 or 228." By section 247(2) release on licence must occur once one-half of the custodial term determined by the court has been served and the Parole Board has directed his release. Section 247(4) provides that he must be released on licence once he has served that custodial term. Section 249(1) provides that any fixed term prisoner released on licence shall, subject to revocation of his licence, remain on licence for the remainder of his sentence.
In his Sentencing Referencer 2005/6 Dr Thomas states, in relation to sections 227 and 228, at pages 182 and 184 respectively:
"The licence period (the extension period) begins to run on the date of release, and will expire at the end of the period specified by the court. If the extension period is less than half of the appropriate custodial term, the offender's licence will expire at an earlier date than it would expire under a normal sentence of the same length as the appropriate custodial term."
To illustrate that: custodial term 5 years, extension period 2 years, release by Parole Board after two-and-a-half years; licence ends and sentence over after four-and-a-half years. Yet, a sentence under section 227 or, section 228, is, as we understand the matter, supposed to be tougher. In his article in Archbold News 2005 Issue No 4 page 6 at point 8, Dr Thomas said:
"There is nothing in the 2003 Act which suggests that the licence period is to be added on to the normal licence period, as is the case...
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