R (Uttley) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD PHILLIPS OF WORTH MATRAVERS,LORD STEYN,BARONESS HALE OF RICHMOND |
| Judgment Date | 30 July 2004 |
| Neutral Citation | [2004] UKHL 38 |
| Court | House of Lords |
| Date | 30 July 2004 |
[2004] UKHL 38
The Appellate Committee comprised:
Lord Steyn
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
My Lords,
I have read the opinions of my noble and learned friends Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell. I agree with those opinions. I would also allow the appeal.
My Lords,
Over a period prior to 1983 the respondent Mr Uttley committed a number of sexual offences, including three rapes. My noble and learned friend Lord Rodger of Earlsferry has described these in detail, together with the maximum sentence which, in 1983 could have been imposed for each offence. It suffices to note that rape carried a maximum sentence of life imprisonment.
The respondent was not prosecuted for these offences until 1995. He pleaded guilty to some of the offences, was convicted of the others and was sentenced to a total of 12 years imprisonment. The practical consequences of that sentence differed significantly from those that would have followed had the respondent been sentenced to 12 years imprisonment in 1983, which has been treated for the purposes of this case as the date upon which he committed the offences in question. This was because the release regime applicable to prisoners had been changed by the Criminal Justice Act 1991 ('the 1991 Act') which had come into effect on 1 October 1992. I shall describe the post October 1992 regime as 'the new regime' and the regime that applied in 1983 as 'the old regime'.
Had the respondent been sentenced to 12 years' imprisonment under the old regime he would, subject to good behaviour have been released on remission after serving two-thirds of his sentence, which would then have expired. That would have been the effect of section 25(1) of the Prison Act 1952 and rule 5 of the Prison Rules 1964 ( SI 1964/388), which remained applicable up to the introduction of the 1991 Act. In accordance with the provisions of the 1991 Act the respondent was released on 24 October 2003 after serving two-thirds of his sentence, but he was released on licence, the terms of which will remain in force until he has served three-quarters of his sentence, that is for a year. Those terms place the respondent under supervision and impose certain restrictions on his freedom.
While subject to the conditions of the licence the respondent is at risk of recall to serve the balance of his sentence, should he fail to comply with those conditions. Furthermore, should he commit a further imprisonable offence before the 12 year term of his sentence has expired, the court dealing with that offence will be entitled to add all or part of the outstanding period of his 12 year sentence to any new sentence imposed.
In December 2002 the respondent made an application for judicial review. The remedy that he sought was a declaration that the provisions of the 1991 Act which would make his release subject to licence were incompatible with article 7 (1) of the European Convention on Human Rights.
Article 7 (1) provides:
"No punishment without law
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 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."
The respondent's case has never, so far as I can see, been fully formulated. On analysis it necessarily involves the following propositions:
i)The 1991 Act had the effect that the 12 year sentence imposed on the respondent under the new regime was a heavier penalty than a 12 year sentence would have been had it been imposed under the old regime;
ii)From this, it follows that article 7 (1) was infringed;
iii)From this, it follows that the 1991 Act is incompatible with article 7 (1).
It appears to have been accepted by all before this case reached Your Lordship's House that, if proposition i) was established, propositions ii) and iii) followed as a matter of course. Thus the sole issue canvassed in the courts below was whether a 12 year sentence imposed under the new regime constituted a heavier penalty than a 12 year sentence imposed under the old regime.
As to this issue, the argument before Moses J, who on 8 April 2003 gave judgment on the application for judicial review, appears to have concentrated exclusively on the restrictions imposed by the licence: [2003] EWHC 950 Admin. It was argued that these constituted an additional penalty, imposed during the one year period between release after two-thirds of the sentence had been served and the expiry of the licence after three-quarters of the sentence had been served. Under the old regime the respondent would not have been exposed to these restrictions.
Moses J rejected the application for judicial review on the ground that the imposition of the licence restrictions did not constitute a penalty. He concluded that a sentence of 12 years imprisonment under the new regime was no heavier a penalty than a sentence of 12 years imprisonment under the old regime.
Before the Court of Appeal the respondent took a further point. Not only did the licence impose restrictions on his freedom, while on licence he was subject to the risk of recall to serve the balance of his sentence. During that period his sentence had not expired but was, in effect, suspended. It followed that the sentence was a heavier penalty than a 12 year sentence under the old regime, which would have expired after service of two-thirds of the term.
The Court of Appeal reversed the decision of Moses J: [2003] 1 WLR 2590. They concluded that the changes to the release regime affected by the 1991 Act had the effect that the 12 year sentence imposed on the respondent was a heavier penalty than a 12 year sentence imposed under the old regime would have been. As Longmore LJ put it, at p 2600:
"Any prisoner would regard the penalty of 12 years as harsher after 1992 than before. So, in my view, would the ordinary informed observer"
The court allowed the appeal and granted the respondent the declaration of incompatibility that he sought.
Before this House Mr Pannick QC for the Secretary of State argued that the reasoning of the Moses J was correct and that of the Court of Appeal erroneous. He contended that the imposition of the licence conditions was designed to protect the public and to prevent further offending. It followed that the licence conditions did not constitute a "penalty" within the meaning of article 7 (1). He went on to advance two novel points, the latter of which was not even presaged in the Secretary of State's written case. I have found these new arguments conclusive. They render it unnecessary to decide whether a sentence of 12 years imprisonment under the new regime constitutes a heavier penalty than a 12 year sentence under the old regime. I do not propose to attempt to resolve that issue. To do so would be to encroach on issues raised in at least one other appeal that is pending before your Lordship's House.
Argument in the lower courts proceeded on the premise that the sentence of 12 years imposed on the respondent was a sentence of the same term of years that would have been imposed on the respondent under the old regime. Before this House Mr Pannick challenged that premise. He drew attention to a Practice Statement, (Crime: Sentencing) [1992] 1 WLR 948, issued by Lord Taylor of Gosforth CJ on the day that the 1991 Act came into force. This provided as follows:
"1. Sections 32 to 40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences.
2. Remission is abolished.
3. Parole will affect only those sentenced to four years' imprisonment and above.
4. Where the sentence of the court is less than four years the Secretary of State will be under a duty to release the prisoner after he has served one half of his sentence. Thus, where the sentence is three years, 18 months will be served. This is significantly longer than would normally have been served before the new provisions came into force. Furthermore, on release the prisoner will in effect be subject to a continuing suspended sentence. If between his release and the end of the period covered by the original sentence, he commits any offence punishable by imprisonment, he will be liable to serve the balance of the original sentence outstanding at the date of the fresh offence.
5. For determinate sentences of four years or longer the Secretary of State will have a continuing but reduced element of discretion on release. Prisoners will be released on licence after serving two thirds of the sentence. Whereas hitherto they became eligible for parole after serving one third of the sentence, they will not now become eligible until they have served half. The 'at risk' provisions following release will be the same for long term as for short term prisoners.
6. It is therefore vital for all sentencers in the Crown Court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto.
7. It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole.
8. I have consulted the Lords Justices presiding in the Court of Appeal (Criminal Division) and we have decided that a new approach is essential.
9. Accordingly, from 1 October 1992, it will be necessary, when...
To continue reading
Request your trial
-
Ebanks (AG) v R
...Secy., [2001] Q.B. 1067; [2001] A.C.D. 18; (2000), 97 (47) L.S. Gaz. 39, dicta of Laws, L.J. followed. (22) R. (Uttley) v. Home Secy., [2004] 1 W.L.R. 2278; [2004] 4 All E.R. 1; (2004), 1 Cr. App. R. 15; [2004] H.R.L.R. 42; [2004] UKHL 38, dicta of Lord Rodger of Earlsferry followed. (23) R......
-
R v Natenale Lakew
......On the way home they encountered the applicant, who abused them. He then ... The applicant was in a grossly abnormal state at the time of the killing. A diagnosis of paranoid ...The case was reviewed by the Secretary of State and in 2012 a decision to proceed was made. Thus, ... 17 and 18 of H, and following the decision in R (Uttley) v Secretary of State for the Home Department [2005] 1 Cr ......
-
Harding v Wealands
...are matters of procedure and are thus governed by English law (see Base Metals Trading Ltd v Shamurin [2004] EWCA Civ 1316 at [68]; [2004] 4 All ER 1). (An interesting question may arise whether, in the event of a breach of duty by a director of a foreign company, which is governed by the......
-
Tobacco manufacturers: investigation into anti-competitive practices
...Objections, which was issued in March 2004, when the 2000 version of the 2000 Order was still in force. 1538 R(Uttley) v Home Secretary [2004] UKHL 38, [2004] 1 WLR In any event, the OFT considers that by choosing the last business year prior to the decision for the purposes of calculating ......
-
Cases: Parts 1, 2, 3, 4
...the HomeDepartment (intervening) [2004]EWHC 2229 (Admin) 97R (on the application of Uttley) vSecretary of State for the HomeDepartment [2004] UKHL 38, [2004]All ER (D) 05 (Aug) 39R v B and G [2004] EWCA Crim1368 113R v Barnes [2005] EWCA Crim 3246, TheTimes (10 January 2005) 201R v Beckles ......
-
Sentencing; Licence Conditions: Compatibility with Article 7 of the European Convention on Human Rights
...withArticle 7 of the European Convention on Human RightsR (on the application of Uttley) v Secretary of State for the Home Department[2004] UKHL 38, [2004] All ER (D) 05 (Aug)The claimant pleaded guilty to serious sexual offences which he hadcommitted before the coming into force of the Cri......
-
Cases: Parts 1, 2
...the HomeDepartment (intervening) [2004]EWHC 2229 (Admin) 97R (on the application of Uttley) vSecretary of State for the HomeDepartment [2004] UKHL 38, [2004]All ER (D) 05 (Aug) 39R v B and G [2004] EWCA Crim1368 113R v Beckles [2004] EWCA Crim2766 119R v E [2004] EWCA Crim 1243, [2004] 2Cr ......
-
Cases: Part 1
...of Police forthe Metropolis and Another [2004]EWCA Civ 1067 25R (on the application of Uttley) vSecretary of State for the HomeDepartment [2004] UKHL 38, [2004]All ER (D) 05 (Aug) 39R v O’Flaherty and Others [2004] EWCACrim 526, [2004] Crim LR 751 19R v Sion Jenkins [2004] EWCA Crim2047...