The Queen (on The Application of Martyn Minter) (Claimant) Chief Constable of Hampshire Constabulary Secretary of State for The Home Department (Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Mr Justice Eady,Mr Justice Treacy |
| Judgment Date | 28 June 2011 |
| Neutral Citation | [2011] EWHC 1610 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13127/2010 |
| Date | 28 June 2011 |
[2011] EWHC 1610 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Mr Justice Eady
And
Mr Justice Treacy
Case No: CO/13127/2010
Philip Rule (instructed by Mark Williams Associates, Solicitors) for the Claimant
Dijen Basu (instructed by The Solicitor to Hampshire Constabulary) for the Defendant
Jeremy Johnson QC (instructed by The Treasury Solicitor) for the Interested Party
Hearing date: 27 May 2011
Introduction
On 16 August 2006 the claimant pleaded guilty at Reading Crown Court to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. On 17 November 2006 he was sentenced in respect of the most serious of those offences to an extended sentence of 4 1/2 years, comprising a custodial term of 18 months and an extension period of 3 years, pursuant to s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the PCC(S)A 2000"). Lesser sentences under the same Act or under the Criminal Justice Act 2003 ("the CJA 2003") were imposed for the other offences. The reason why some of the sentences were under the PCC(S)A 2000 and others under the CJA 2003 was that the various offences straddled the date when the CJA 2003 came into force.
The claimant's conviction of those offences had the consequence, pursuant to s.80(1) of the Sexual Offences Act 2003 ("the SOA 2003"), that he became subject to the notification requirements of Part 2 of that Act, requiring him to notify certain information to the police for inclusion in the sex offenders register. The period for which he remains subject to the notification requirements is laid down by s.82(1):
"82(1) The notification period for a person within s.80(1)…is the period in the second column of the following Table opposite the description that applies to him."
The material entries in the table are these:
Description of relevant offender
Notification period
A person who, in respect of the offence, is or has been sentenced…to imprisonment for a term of 30 months or more
An indefinite period beginning with the relevant date [i.e. the date of conviction]
A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of more than 6 months but less than 30 months
10 years beginning with that date
The issue before the court is whether, by reason of the extended sentence of 4 1/2 years with a custodial term of 18 months, the claimant was "sentenced to imprisonment for a term of 30 months or more", so as to be subject to the notification requirements for an indefinite period, or was "sentenced to imprisonment for a term of more than 6 months but less than 30 months", so as to be subject to the requirements for a period of 10 years. The court record following sentence referred to a period of 10 years, as did the notice originally issued to the claimant by the prison. The defendant Chief Constable decided, however, that the claimant was subject to the requirements for an indefinite period, based on the 4 1/2 year term of the extended sentence. That decision, formally communicated by letter of 22 September 2010, is the subject of challenge in these proceedings for judicial review. The claimant contends that the decision is based on a mistaken construction of the statute and that the true notification period is one of 10 years, based on the 18 month custodial term comprised within the extended sentence.
At the outset of the hearing we rejected an application that the claimant should be accorded anonymity pursuant to CPR 39.2(4) in order to protect his interests. The application was based on various personal concerns of the claimant for himself and his family and on the absence of any real public interest in his identification, given that the case is concerned purely with a matter of law. The fact is, however, that his conviction and sentence are already a matter of public record; the case is concerned with the statutory consequences of that sentence as regards the notification period under the SOA 2003, itself a matter of public interest; and it did not seem to us that publication of his name as claimant in these proceedings would result in any infringement of his or his family's rights under article 8 ECHR or that the matters put forward on his behalf provided a sufficient reason for departure from the general principle of open justice.
Extended sentences under the PCC(S)A 2000
Section 85 of the PCC(S)A 2000 provides:
"85(1) This section applies where a court –
(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30 th September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
(2) Subject to subsections (3) to (5) below, the court may pass on the offender 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.…"
Those provisions refer to an extended sentence as a "custodial sentence". By s.76(1) of the same Act, "custodial sentence" is defined as "(a) a sentence of imprisonment…; (b) a sentence of detention under section 90 or 91 below; (c) a sentence of custody for life under section 93 or 94 below; (d) a sentence of detention in a young offender institution…; or (e) a detention and training order…". The only part of that definition capable of applying on the facts of this case is (a); and it is plain that the extended sentence imposed on the claimant is treated by the legislation as a sentence of imprisonment.
As the wording of s.85(2) of the PCC(S)A 2000 makes clear, the term of that sentence of imprisonment is the aggregate of the "custodial term" and the "extension period". The custodial term is not the term of the sentence of imprisonment actually imposed but the term that the court would have imposed if it had passed a custodial sentence otherwise than under s.85; and where the court passes an extended sentence under s.85 instead, the custodial term becomes one of the two elements in the calculation of the term of the sentence actually imposed.
On the face of it, therefore, the effect of the statutory provisions is that a person sentenced to an extended sentence of 4 1/2 years is sentenced to imprisonment for a term of 4 1/2 years and is therefore "sentenced to…imprisonment for a term of 30 months or more" within the meaning of s.82(1) of the SOA 2003, so as to be subject to the notification requirements for an indefinite period.
That view derives further support from other provisions of the sentencing legislation concerning the calculation of the term of imprisonment where an extended sentence is imposed. In a number of instances, express provision is made for the extension period to be left out of account, suggesting that in the absence of such provision the extension period would be included in the calculation of the term.
One example of this is to be found in s.85 of the PCC(S)A 2000 itself, which provides in subs.(6):
"(6) Subsection (2) of section 80 (length of discretionary custodial sentences) shall apply as if the term of an extended sentence did not include the extension period."
A similar provision is to be found in s.44 of the Criminal Justice Act 1991 ("the CJA 1991"), as amended, which makes special provision for extended sentences in the context of the early release provisions in Part 2 of that Act:
"44(1) This section applies to a person serving an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.
(2) Subject to the provisions of this section and section 51(2D) below, this Part, except section 40A, shall have effect as if the term of the extended sentence did not include the extension period."
Thus, for example, when determining whether a person serving an extended sentence is a long-term prisoner as defined by s.33(5) of the CJA 1991 (a person "serving a sentence of imprisonment for a term of 4 years or more"), the term of the extended sentence is deemed not to include the extension period.
The inference to be drawn from such deeming provisions is weakened by the terms of s.51(2D) of the CJA 1991, to which s.44(2) of that Act refers. Section 51 is an interpretation section for Part 2. It includes, in subs.(2B), provision for the situation where a person has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term; and, in subs.(2C), provision for the situation where a person has been sentenced to one or more terms of imprisonment and to one or more life sentences. Subs.(2D) provides:
"Subsections (2B) and (2C) above shall have effect as if the term of an extended sentence (within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000) included the extension period (within the meaning of that...
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