Uttley, R (on the application of) v v Secretary of State for the Home Department

This is an appeal against a judgment of Moses J given in the Administrative Court on 8 April 2003 in which he dismissed an application by Mr Brian Uttley (“the appellant”) whereby the appellant sought declarations in relation to provisions in the Criminal Justice Act 1991 (“the 1991 Act”). The appellant claimed that provisions under which he will from 24 October 2003 be subject to licence under section 33 of the 1991 Act are contrary to Article 7 of the European Convention on Human Rights.

On 24 October 1995, the appellant pleaded guilty to serious sexual offences which he had committed many years before the 1991 Act came into force. He was sentenced to a term of 12 years imprisonment. He is entitled to be released on 24 October 2003 when he has completed two-thirds of that sentence but he will thereafter remain on licence until he has served three-quarters of his sentence.

Section 33 of the 1991 Act provides, in subsection (2):

“As soon as a long-term prisoner [a prisoner serving a sentence of imprisonment for a term of four years or more] has served two-thirds of his sentence it shall be the duty of the Secretary of State to release him on licence.”

Section 37(1), insofar as is material, provides:

“… where a … long-term prisoner is released on licence, the licence shall … remain in force until the date on which he would [but for his release], have served three-quarters of his sentence.”

By amendment, the statute now provides (s37(1A)) that in some circumstances section 37(1) “shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence”. That provision is not claimed to apply to the appellant.

Section 39 of the Act provides, insofar as is material:

“(1)

If recommended to do so by the Board [the Parole Board] in the case of a ... long-term … prisoner who has been released on licence under this Part [Part II, which includes section 33], the Secretary of State may revoke his licence and recall him to prison.

(2)

The Secretary of State may revoke the licence of any such person and recall him to prison without recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.”

Safeguards are provided in the section for offenders in relation to whom those powers are exercised and subsection (6) provides:

“On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.”

A recalled prisoner is liable to serve the remainder of the sentence which had been imposed.

It is common ground that the terms of a licence under section 33 will commonly include placing the offender under the supervision of a supervising officer, will require the offender to keep in touch with the officer and to live where reasonably approved by the officer. There may also be restrictions, for example, upon travel without obtaining the permission of the officer and for attendance for medical treatment. Section 40 of the 1991 Act, (now replaced by Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000) (“the 2000 Act”) provides that the offender is also liable to be returned to custody if convicted of a further imprisonable offence while the licence is in force. The Court dealing with the new offence may add all or part of the outstanding period of the original sentence to any new sentence imposed.

The submission on behalf of the appellant is that this statutory scheme is, in his case, in breach of that part of Article 7(1) of the Convention which provides:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

It is also common ground that, prior to the 1991 Act, the regime under the Criminal Justice Act 1967, the Prison Act 1952, and orders made thereunder, had the effect that an offender in the appellant’s position was entitled to be released without licence having served two-thirds of his sentence. The reduction from the full term imposed by way of sentence was achieved by a system of remissions. Its operation was summarised by the European Court of Human Rights in its statement of the position of the United Kingdom Government in a judgment dated 15 July 2002 in Ezeh and Connors v the United Kingdom (Applications Nos 39665/98 and 40086/98):

“The Government maintained that there was no useful distinction to be drawn, for Convention purposes, between the pre-and post-1991 Act system of remission of sentence or between the previous disciplinary sanction of loss of remission and that of the award of additional days introduced by that Act. Prior to the 1991 Act, remission was, as a technical matter, characterised as a privilege. But the rules for calculating remission were standardised and were invariably applied and, if remission were granted, the prisoner had a legal right to be released before he had served the full term of his sentence on the basis of his legitimate expectation that the remission system would be correctly applied. In the event of the commission of a disciplinary offence a prison Governor could order a reduction in the period of remission and such reductions would postpone the date when the prisoner would be released and thereby operate as an award of additional days to be served before release. By the 1991 Act the previous remission system was replaced by a clear statutory code governing remission of sentence. The change in the law [was] affected by the Act, in the interests of accessibility and transparency … .”

Mr Crow did faintly argue that an offender was better off under the new system than the old because he now has a statutory right but the submission cannot survive that clear statement of how the former system operated, one which accords with the experience of members of the Court.

Transitional provisions were included in Schedule 12 to the 1991 Act the effect of which, as stated by the judge, was that while those whose offences predated 1 October 1992 and began serving a custodial sentence before that date did not come within the new regime, those, such as the appellant, whose offences predated 1 October 1992 and were convicted only after that date, did come within the new regime. As expressed by the parties, the issue is whether the offender’s liability to the conditions of a licence, and the possible consequences of that liability, constitute a “heavier penalty” within the meaning of Article 7, no such liability having arisen at the time the criminal offence was committed.

For the appellant, Mr Scrivener QC submits that there can be no logical distinction for Convention purposes between persons convicted before and after the relevant date because Article 7 is concerned with the date “a criminal offence was committed” and not with the date of conviction or sentence. It is likely that the draftsman of the 1991 Act did not have Article 7 in mind, he submits. To illustrate how the system could work, Mr Scrivener refers to the transitional provisions in Schedule 11 to the 2000 Act, in which it is the date of the “offence” which is identified, and correctly identified, he submits, as the relevant date.

The apparent anomaly in the 1991 Act does not determine the issue but suggests that Parliament may have intended that the 1991 regime should not have retrospective effect but failed, when attempting to give effect to that intention, to recognise the category of offender to which the appellant belongs and failed thereby to identify the relevant date as the date of the offence, as required by Article 7, rather than the date of the conviction.

The submissions of Mr Scrivener were expressed, and can be summarised, succinctly. The liability to licence conditions is an integral part of the sentence imposed following conviction for a criminal offence. The sentence as a whole undoubtedly constitutes a penalty within the meaning of Article 7. Liability to licence conditions makes that penalty heavier than it would otherwise have been. Conditions imposed with the licence will inevitably impose impediments on the freedom of action of the released prisoner, though it is not suggested that in themselves they involve a breach of Article 5. Moreover, the prisoner on licence is liable to be recalled to serve the remainder of the sentence and, secondly, is liable, upon conviction of a further offence during the licence period, to be subject to a Court order requiring him to serve the outstanding period of the original sentence.

For the Secretary of State, Mr Crow submits that the penalty with which Article 7 is concerned is the 12 year custodial sentence. Provisions for early release from the imposed sentence of 12 years do not engage the concept of penalty. The provisions as to licence introduced by the 1991 Act are not integral to the sentencing process but to the execution of the sentence. The licence is completely separate from the sentencing process and a part of the procedure for release and rehabilitation. It is preventative rather than punitive. The licence has been imposed not by a sentence of the Court but by virtue of the statute and is separate from the sentence. Moreover, the fact that a breach of licence conditions may have penal consequences does not make the licence conditions themselves penal.

The Court has been referred to cases in which the frequently litigated question was considered as to whether a proceeding was in relation to a “criminal offence” within the meaning of Article 6(2) of the Convention, and to cases in which the definition of “penalty” in Article 7(1), has been considered. Propositions enunciated in decisions upon one Article of the Convention may legitimately be used to test the soundness of propositions advanced under other Articles. The questions posed are separate ones but are associated in that the starting point in any assessment in the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence” (Welch v The United Kingdom [1995] 20 EHRR 247). If Mr Crow were to be correct in his submission that the licence is separate from the sentencing process, it would be necessary to consider in detail the relevant criteria, set out in Welch and other cases, for determining whether a particular provision represents a penalty and as such is covered by Article 7. However, the sentence imposed upon the applicant in 1995, whatever it included, was plainly a penalty. If the licence and its conditions are an integral part of that penalty, the complexities of categorisation, which have arisen with respect to distinct procedures such as banning orders (Gough v Chief Constable of Derbyshire [2002] QB 459) sex offender orders, (B v Chief Constable of Avon and Somerset [2001] 1 WLR 340), disqualification orders (R v Field [2003] 1 WLR 882) and anti-social offender orders (R. (McCann) v Crown Court of Manchester [2003] AC 787), do not arise.

In my judgment, the licence is plainly a part of the sentence originally imposed by the sentencing judge. Under section 33(2) of the 1991 Act, the Secretary of State is required on a specific date following the imposition of the sentence not only to release the prisoner but to release him on licence. The sentence imposed by the judge thus comprised a period of detention followed by a period on licence. The statute, and the previous requirements of the Prison Rules, specify the effect of the order made by the judge. The judge pronounces a 12 year sentence but, by virtue of the statutory provisions, that is a fiction to the extent that there are detailed provisions as to what, in terms of punishment, it actually means.

Approached in that way, a sentence which includes a period of licence inevitably extending beyond two-thirds of the term imposed is in my judgment a heavier penalty than a sentence without that requirement. The fiction that in each case the penalty is one of 12 years in custody must not be allowed to obscure the reality of the effects of the licence. While licence conditions vary, and in some cases will be more onerous than in others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments upon the offender’s freedom of action. Moreover, the conditions create a potential liability to serve a further substantial period in custody, as do the provisions dealing with the effects of re-conviction. Arguments that the purpose of the licence procedures is rehabilitative and preventative, as undoubtedly in part they are, do not detract from their onerous nature viewed as a part of the sentence. Whatever the purpose, the effect is onerous. In my judgment, the judge fell into error in deciding the case on a consideration of the purpose of a licence as such rather than its effect as a part of the sentence.

The approach I have adopted is supported by the directions relating to the recall of determinate sentence prisoners subject to licence issued by the Parole Board in 2002. They provide that “where an offender is subject to a custodial sentence, the licence period is an integral part of the sentence, and compliance with licence conditions is required”.

The cases cited by Mr Crow do not in my judgment support the submission that, in the statutory scheme, the licence is separate from the sentence. In R (West) v The Parole Board [2003] 1 WLR 705, the Secretary of State had exercised his power under section 39(2) of the 1991 Act to revoke the offender’s licence and recall him to prison. The Parole Board declined to give the offender an oral hearing when deciding not to order his re-release under section 39(5) of the Act. It was claimed that the Board’s decision involved the determination of a “criminal charge” within the meaning of Article 6(1) of the Convention and the offender was therefore entitled to an oral hearing. By a majority, the Court held that, in exercising their powers, the Board were not determining a criminal charge and were not seeking to impose punishment.

Those were the issues before the Court and on those issues, which are different from the present issue, the fact that the revocation was solely with a view to the prevention of risk and the protection of the public, and not by way of punishment, were important considerations. The nature of the powers exercised by the Board were analysed in relation to Article 6(1) but that does not determine the question whether the original sentence is more onerous by reason of the presence of the licence condition. The nature of the procedures to be followed upon an alleged breach of licence, and the purposes for which those procedures exist, are not determinative of the question as to what, as a penalty, is included in the original sentence.

Mr Crow relies on the decision of the Commission in Hogben v The United Kingdom (1986) (Application No 11653/85). The applicant had been sentenced to life imprisonment for murder. After 13 years in custody, he was transferred to an open prison and told that he would be recommended for parole. In the event he was transferred back to a closed prison, a new parole policy having been introduced. A breach of Article 7 was alleged. In the House of Lords, Lord Scarman stated:

“The sentence of the court is in law the punishment. The disappointment of the expectation which prisoners may have that under the parole system they will not have to serve the whole of sentence in prison may be distressing but is not a punishment or penalty which goes beyond the sentence of the court.”

The Commission concluded:

“3.

The Commission recalls that the applicant was sentenced to life imprisonment in 1969 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Article 7 arises in this respect.

4.

Furthermore, in the opinion of the Commission, the ‘penalty’ for purposes of Article 7 para 1, must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years’ imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher that if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the ‘penalty’ which remains that of life imprisonment. Accordingly, it cannot be said that the ‘penalty’ imposed is a heavier one that that imposed by the trial judge.”

Reliance on the Commission’s use of the expression “the execution of the sentence” is in my judgment misplaced. The Commission held, as had Lord Scarman, that the penalty was that of life imprisonment, that is, the sentence of the court. Subsequent procedures did not impose a heavier penalty than the indeterminate sentence imposed by the trial judge and did not go beyond the sentence of the court. Indeed it is the comprehensiveness of the original sentence which is stressed and that is not affected by increased custody within that sentence. In the present case, the sentence of the court must also be viewed comprehensively. It includes, by statute, a period on licence to which the applicant would not have been subject under the law as it was at the time he committed the offence.

Reliance is also placed on the decision of the Commission in Ibbotson v The United Kingdom (Application No 40146/98). While a sentence of imprisonment for possession of obscene and indecent material was still in force, the Sex Offenders Act 1997, under which the offender was required to register with the police under the reporting provisions in the Act, came into operation. It was argued that the passing of the Act and its impact on the offender involved a “penalty” within the meaning of Article 7.

The registration requirements applied automatically to an offender in the applicant’s position in that case and the judge had no role in the imposition of the Act’s requirements. The Commission held:

“Overall the Commission considers that, given in particular the way in which the measures imposed by the Act operate completely separately from the ordinary sentencing procedures, and the fact that the measures do not, ultimately, require more than mere registration, it cannot be said that the measures imposed on the applicant amounted to a ‘penalty’ within the meaning of Article 7 of the Convention.”

While the 1997 Act did impose an additional obligation and one which would not have arisen but for the earlier conviction and sentence, it arose “completely separately from the ordinary sentencing procedures”. That factor may assist in deciding whether an additional and separate obligation should be categorised as a penalty within the meaning of Article 7(1). It does not bear upon the effect of an obligation which is integral to the sentence imposed by the Court.

In other cases cited, the requirements imposed are in my judgment separate from the original sentence imposed and not a part of it as was the requirement in the present case. At the time the appellant was sentenced, there was a statutory requirement that, upon a sentence for a term of years, the appellant serve a specific period in custody followed by a specific period on licence. That is the “clear statutory code” to which the Government referred in its submission to the ECHR in Ezeh and Connors. The conditions of sentence are, inevitably, though to a variable degree, onerous. The sentence of twelve years imprisonment the judge imposed was a penalty within the meaning of Article 7(1) of the Convention and had a more onerous effect than the same nominal sentence would have had at the time the offence was committed.

The appellant is in my judgment entitled to the declaration sought. The parties have helpfully drafted and agreed a form of declaration (amended when judgment was handed down) appropriate on the basis of the above findings.

“A Declaration pursuant to section 4(2) of the Human Rights Acts 1998 that section 33(2) section 37(4)(a) and section 39 of the Criminal Justice Act 1991 is incompatible with the Claimant’s rights under Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in so far as it provides that he will be released at the two-thirds point of his sentence “ on licence with conditions and be liable to be recalled to prison” (he having committed the index offences before the Criminal Justice Act 1991 came into force, and at a time when he would have expected (subject to good behaviour) to be released at the two-thirds point of any sentence unconditionally, pursuant to the practice that had developed in implementing rule 5 of the Prison Rules 1964, SI 1964/388).”

I would allow this appeal and make that declaration.

Before sections 32-40 of the Criminal Justice Act 1991 came into force on 1^st October 1992, any convicted defendant who was sentenced to a lengthy determinate sentence and was of good behaviour could legitimately expect that one third of his sentence would be remitted and that he would be released after he had served two-thirds of his sentence. This was, initially, at any rate, because rule 5(1) of the Prison Rules (SI 1964 no 388) provided:-

A prisoner serving a sentence of imprisonment of more than one month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of the Rule.”

Although the rule is phrased in discretionary terms, it is accepted that by 1992, remission of one third of the sentence was a settled expectation, see Ezeh and Connors v UK, cited by my Lord. Section 25(1) of the Prison Act 1952 provided that, on release, the sentence expired.

As from 1^st October 1992, sections 32-40 of the 1991 Act made “radical changes with regard to sentences” as stated by Lord Taylor CJ in his Practice Direction (Crime Sentencing) [1992] 1 WLR 948. Remission was abolished. Parole would only affect criminals sentenced to 4 or more years of imprisonment (long term prisoners), but, apart from earlier parole, such prisoners would be entitled to be released after serving two-thirds of their sentence. To that extent, their date of release could be expected to be the same before and after 1^st October 1992. But one of the “radical changes” was that when such prisoners were released they would be released “on licence” (section 33(2)) which the Lord Chief Justice described as “in effect … a continuing suspended sentence”. Section 37(1) then provided that the licence was to remain in force:-

“until the date on which he would (but for his release) have served three-quarters of his sentence.”

This has now been changed by section 104 and Schedule 9 paragraph 17 of the Criminal Disorder Act 1998 to “the whole of his sentence”. But this provision is not said to apply to the appellant.

The reason why the Lord Chief Justice described the licence as “in effect … a continuing suspended sentence” was that, by virtue of section 39 of the 1991 Act, the Secretary of State was entitled to revoke the licence and recall the convicted defendant to prison on the recommendation of the Parole Board, or, even, without such recommendation:-

“where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.”

The recommendation of the Parole Board or the exercise of discretion by the Secretary of State is statutorily unfettered. Moreover if the offender is convicted of a further imprisonable offence while on licence, he is liable to be returned to custody.

The difference between the effect of a sentence of 12 years imposed on the appellant, Uttley, before 1992 from the effect of the sentence actually imposed, as it was in 1995, can be stated in this way. Given a sentence of 12 years before 1992, he could have expected to be released after the passage of 8 years without risk of recall. Given the sentence that he was, he must be released after 8 years but remains at risk of recall for one further year, as well as being required to comply with whatever licence conditions the Home Secretary may choose to impose for that further one year period.

The question for the court is whether the post 1992 regime constitutes a “heavier penalty” than the penalty applicable at the time Uttley committed his offence for the purposes of Article 7(1) of the ECHR Convention which provides:-

“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 which was applicable at the time the criminal offence was committed.”

Mr Crow, counsel for the Home Secretary, submitted that Uttley was sentenced to twelve years; that penalty was applicable both before and after 1992. Matters of remission or release on licence were irrelevant to the question of penalty since they were not “imposed” in any rational sense of the word; still less were they imposed on conviction and it was only penalties imposed on conviction that came within the scope of Article 7(1).

Mr Scrivener QC for Uttley submitted that that approach was far too formalistic. The Convention did not look to the nominal penalty only. Any informed reader of the Convention knows that any convicted prisoner will not serve the whole of the sentence pronounced by the judge on or after conviction. The reality is and has been for many years that he is released well before the end of the sentence pronounced. For that reason judges have been required to inform not merely the defendant but also the public as a whole in the course of their sentencing reasons how much time the defendant will actually serve in custody, see Practice Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278. If, since 1992, the terms of a prisoner’s release are harsher than they were before 1992, a heavier penalty will have been imposed than the one applicable at the time when the offence was committed.

Moses J decided that the Home Secretary was right because the licence was not part of the penalty at all; it is imposed for the benefit of the defendant not to punish him and it is also for the benefit of the community since it is part of the rehabilitation process. He also accepted the argument that the licence is not imposed on conviction. It is merely statutory consequence of the imposition of the penalty.

Although I have not found this case entirely easy I have come to the conclusion that Mr Crow’s submission cannot be accepted. It is tempting to treat the matter as one of form and say that the sentence of twelve years, which remains the same both before and after 1992, is all that the court can look at. But that would be the triumph of form over substance. The reality is that before 1992, in normal circumstances, the sentence expired after two-thirds of it had elapsed. After 1992 the sentence only expires at the conclusion of three-quarters of that sentence. Indeed, now it only expires at the end of the sentence; meanwhile the prisoner is subject to recall. 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 judge is, of course, not incorrect to observe that the licence provisions are a benefit to the defendant and to the community. In that sense they are preventive. But they are also penal inasmuch as the licence period operates as part of the sentence and the defendant can be recalled during that part. That is different from (and harsher than) the position that operated pre-1992. The preventive aspect of the licence regime cannot annul the penal aspect.

Moreover if, as the judge observed, the licence is a statutory consequence of the imposition of the penalty, it is part of the penalty. The fact that it does not come into operation until two-thirds of the sentence have elapsed does not mean it is not part of the penalty. It only comes into existence when it does as a result of the pronouncement of the sentence. It is thus different from Ibbotson v UK (Application No 40146/98) relied on by Mr Crow, where a post-conviction statute required the registration of a sex offender. That was not and could not be any part of the penalty imposed on conviction. Here the licence is part of the penalty imposed on conviction.

I have thought it right to express my conclusion in my own words since we are differing from the judge. But they are effectively the same as Pill LJ with whom I entirely agree. I would allow the appeal and make the declaration set out in paragraph 26 of his judgment.

I also agree and would allow the appeal and make the declaration in the agreed form.