Sentencing; Licence Conditions: Compatibility with Article 7 of the European Convention on Human Rights

AuthorChristopher Gale
DOI10.1350/jcla.69.1.39.58958
Published date01 February 2005
Date01 February 2005
Subject MatterHouse of Lords
House of Lords
Sentencing; Licence Conditions: Compatibility with
Article 7 of the European Convention on Human Rights
R (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 had
committed before the coming into force of the Criminal Justice Act 1991.
He was apprehended after the 1991 Act had come into force and sen-
tenced under its terms to 12 years imprisonment. He was entitled to be
released on completion of two-thirds of that time. Until completion of
three-quarters of the sentence, he would remain on licence. Prior to the
enactment of the 1991 Act, the regime under the Criminal Justice Act
1967, the Prison Act 1952 and the orders made thereunder (which were
in force at the time the offences were committed) entitled an offender in
the same circumstances as the claimant to release without licence when
two-thirds of the sentence had been served. An application by the claim-
ant for declarations that the provisions of the 1991 Act were incompat-
ible with Article 7 of the European Convention on Human Rights, which
provided that a heavier penalty could not be imposed than the one
applicable at the time of the offence, was dismissed. On appeal, the Court
of Appeal reversed the decision of the judge, concluding that the changes
to the release regime had the effect that the 12-year sentence imposed on
the claimant was a heavier penalty than a 12-year sentence imposed
under the old regime. The Secretary of State appealed.
H
ELD
,
ALLOWING THE APPEAL
,the word applicable in Article 7(1)
referred to penalties which the law authorised the court to impose at the
time of the offences. Thus Article 7(1) would only be infringed if a
sentence was imposed on a defendant which constituted a heavier
penalty than that which could have been imposed on the defendant at the
time that the offence was committed.
The release of a prisoner on licence, albeit subject to onerous condi-
tions, mitigated rather than augmented the severity of the sentence of
imprisonment which would otherwise be served. A sentence of 12 years
imprisonment, with release on licence after serving eight years, imposed
on the claimant under the new regime, was a less heavy penalty than a
sentence of 15 years imprisonment, with unconditional release after 10
years, which could have been imposed on him under the old regime,
and manifestly less severe than the sentence of life imprisonment which
could have been imposed under that regime.
It followed that there was no infringement of Article 7(1).
C
OMMENTARY
The maximum sentence in respect of the crimes for which the claimant
was sentenced was life imprisonment, both at the time of their
39

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