Robinson, R (on the application of) v Secretary of State for Justice

On 19 October 2005 the appellant was sentenced to five years for robbery. The robbery was committed on 7 December 2004. He was released when he had served two-thirds of his sentence but was recalled on 6 August 2008, although, since he remained unlawfully at large, he did not return to prison until he was arrested on 4 September 2008.

Section 50A was inserted into the Criminal Justice Act 1991 on 14 July 2008 before the appellant was recalled. Had it not been introduced, the appellant would have been released after he had served three-quarters of his sentence on 2 January 2009. The effect of section 50A was that he was not entitled to be released at that date but was subject to detention until the expiry of his original sentence, unless he was released before then on the recommendation of the Parole Board or by the Secretary of State. In fact, I understand he was released on 26 February 2010.

The appellant contends that the removal of his entitlement to release amounted to a retrospective change of the sentence originally imposed on him by the legislation contrary to Article 6 of the Convention. Resolution of that contention turns on the question whether the provisions relating to the appellant's release relate to the administration or execution of the sentence rather than to the sentence originally imposed by the Crown Court.

Collins J in his judgment [2009] EWHC 2251 (Admin) concluded that the provisions of section 50A were part of the administration and execution of the sentence and were not part of the sentence imposed by the Crown Court. That sentence, he concluded, of five years remained the same unaltered throughout (see paragraph 45).

There is no dispute as to the effect of the relevant statutory provisions. Section 33(2) in Part II of the Criminal Justice Act 1991 imposes an obligation to release a long-term prisoner after three-quarters of his sentence even though that prisoner has been released on licence after two-thirds of his sentence by virtue of section 33(2) and recalled under section 39(2). The Act, though repealed, continued to apply to this appellant since his offence was committed before 4 April 2005.

Part II of the 1991 Act was repealed as from 4 April 2005, so that long term prisoners were generally entitled to release after half their sentence. But it was not repealed in relation to prisoners like the appellant who were sentenced for offences committed before 4 April 2005. Hence the relevance of the date of the robbery. But if, like the appellant, a prisoner was released on licence after that date, the power to revoke that licence was conferred by section 254 of the Criminal Justice Act 2003. That section replaced section 39 of the Criminal Justice Act 1991. On 25 July 2008 the appellant was recalled pursuant to the provisions of section 254 of the Criminal Justice Act 2003.

Section 32 of the Criminal Justice and Immigration Act 2008 inserted section 50A into the  Criminal Justice Act 1991, which, it will be remembered, had not been repealed in relation to those sentenced for offences before 4 April 2005. This section has the effect that a prisoner recalled under section 254 of the 2003 Act on or after 14 July 2008 was subject to rerelease provisions which permitted their release only on the recommendation of the Parole Board or by the decision of the Secretary of State and then only subject to licence until the expiry of the sentence. A prisoner in that situation, like the appellant, was no longer entitled to automatic release after three-quarters of the sentence because the application of section 33 of the Criminal Justice Act 1991 was explicitly removed. This result was achieved by virtue of section 50A:

“50A Prisoners recalled under section 254 of Criminal Justice Act 2003

(1)This section applies to a person who is—

(a)released on licence under any provision of this Part, and

(b)recalled to prison under section 254(1) of the 2003 Act (recall of prisoners while on licence).

(2)Nothing in the following provisions of this Part (which authorise or require the Secretary of State to release prisoners) applies in relation to the person—

(a)section 33;

(b)section 33A;

(c)section 34A;

(d)section 35;

(e)section 43(4).

3)Sections 254(2) and (6) and 255A to 256Aof the 2003 Act (which authorise release on licence etc) apply in relation to a person to whom this section applies with the modifications specified in subsection (4).

(4)Section 255A applies as if—

(a)the reference in subsection (2)(b) to section 246 or 248 of the 2003 Act were a reference to section 34A or 36 of this Act,

(b)the reference in subsection (11) to section 244 of the 2003 Act were a reference to section 33(1), (1A) or (2) of this Act,

(c)subsection (12) were omitted (provision to the same effect being made by section 51(2) of this Act, as it applies by virtue of subsection (9) below), and

(d)subsection (14) provided that “term of imprisonment” included any sentence of detention mentioned in section 43(1) of this Act.

(5)The provisions of Chapter 6 of Part 12 of the 2003 Act specified in subsection (6) apply in relation to—

(a)a licence under that Chapter granted to a person to whom this section applies, and

(b)a licence under section 36 of this Act granted to such a person.

(6)The provisions of the 2003 Act specified in this subsection are—

(a)section 249 (duration of licence), as modified by subsection (7) below;

(b)section 250(1), (4) and (8) (licence conditions), as modified by subsection (8) below;

(c)section 252 (duty to comply with licence conditions).

(7)Section 249 of the 2003 Act applies—

(a)as if the reference in subsection (1) to a fixed-term prisoner were a reference to a person to whom this section applies, and

(b)as if for subsection (3) there were substituted—

“(3)Subsection (1) has effect subject to section 51(2) to (2D) of the Criminal Justice Act 1991 (treatment of consecutive and concurrent terms etc.).”

(8)Section 250(4) of the 2003 Act applies as if the reference to a prisoner serving a sentence mentioned in that subsection were a reference to a person to whom this section applies.

(9)In relation to a person to whom this section applies, subsections (2) to (2D) of section 51 of this Act (treatment of consecutive and concurrent terms etc.) apply as if any reference in those subsections to this Part of this Act included the provisions of the 2003 Act mentioned in subsections (3) and (6).

(10)Except as provided by subsections (7)(b) and (9), nothing in this Part applies in relation to the duration and conditions of—

(a)a licence under Chapter 6 of Part 12 of the 2003 Act granted to a person to whom this section applies, or

(b)a licence under section 36 of this Act granted to such a person.

(11)In this section, “the 2003 Act” means the Criminal Justice Act 2003.”

It should be noted that the Criminal Justice and Immigration Act 2008 itself explicitly acknowledges its application to those like the appellant who are released on license pursuant to Part II of the Criminal Justice Act  1991. By paragraph 12 of Schedule 27 to the 2008 Act:

Article 6 of the European Convention on Human Rights provides:

“1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.

Everyone charged with a criminal offence has the following minimum rights:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)

to have adequate time and the facilities for the preparation of his defence;

(c)

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The appellant's essential contention is that the change to the provisions of release which led to him serving longer in prison than he would otherwise have done was an intervention by the legislature in the sentencing exercise. That interference with an independent judicial decision of the sentencing judge by the legislature constituted a violation of Article 6.

This submission turns on the question whether the appellant's sentence has been changed by the legislature. The solution to that question turns on the distinction between the sentence imposed by the sentencing court and the administration or execution of that sentence. It is a distinction well-established in the jurisprudence of the European Court of Human Rights.

Mr Southey QC's submission on behalf of the appellant is that the removal by the legislature of the appellant's entitlement to release after three-quarters of his sentence constitutes interference and is advanced on two bases. Firstly, that a sentencing court does have regard to the legislative framework which sets the parameters of early release before the expiry of his sentence as part of the sentencing process. That framework informs and is required to inform the level of sentencing. Thus, if the legislative framework is likely to lead to a prisoner spending longer in prison, the sentencing judge should take that into account when determining the appropriate sentence. Accordingly, he submits, to change the parameters set by that framework after the sentence has been passed amounts to interference with the sentence.

It is true that domestic jurisprudence acknowledges the reality that a sentence is, to use Lord Bingham's words in R (Smith and West) v The Parole Board [2005] 1 WLR 350, a “composite package”, the legal implications of which are in large measure governed by the sentence passed. In 1992, the radical changes with regard to sentences made by sections 32 to 40 of the Criminal Justice Act 1991, which included entitlement to release in the case of prisoners sentenced to less than four years, and an extended period for consideration of parole in the case of longer term prisoners, had the result that many prisoners would serve longer than hitherto. Accordingly, in the Practice Statement (Crime: Sentencing) 1992 1 WLR 948, Lord Taylor CJ, having consulted with the Lord Justices, promulgated a new sentencing policy which required regard to be had to the actual period likely to be served (see paragraph 9). The Practice Statement recognised that until a change was introduced by the 1991 Act it was an axiomatic principle of sentencing policy that the court should decide the appropriate sentence without reference to questions of permission or parole (see paragraph 7).

That practice statement is listed as not having been repealed in the Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 but its particular references to the consequence of the changes of the Criminal Justice Act  1991 do not appear and the provisions to which I have referred find no express place in the consolidation.

On changes being made in the Criminal Justice Act 2003, particularly as to the duration of the licence, which was to last for the whole length of a sentence, and as to conditions of licence, the Sentencing Guidance Council issued guidance as to how the sentencing judge should match new sentences to guidelines applicable before the changes had been made. In the light of the more stringent licensing regime it was suggested that there should be a reduction by 15 per cent.

This recommendation led Lord Phillips in his minority speech in R (Black) v SSJ [2009] 2 WLR 282 at paragraph 16 to observe that when a judge imposes a determinate sentence he does not do so on the basis that the seriousness of the offences requires that the prisoner should be detained for the full period of the sentence:

In R v Whittle [2007] 2 Cr. App. R(S) 88 Stanley Burnton J, as he then was, had regard to the recommendation of 15 per cent in reviewing the question whether a particular sentence was manifestly excessive, although he concluded that it was not.

There are in my view two difficulties with the appellant's reliance on domestic jurisprudence. Firstly, save where radical changes may falsify the utility of the guidelines as to the level of sentencing, the law is and remains, as the practice statement recognised back in 1991, that a court must decide the appropriate sentence for a crime without regard to the provisions of release or parole. Lord Bingham made it clear in R(Smith and West) that the predominant purpose of a sentence is punishment and the sentence the court imposes represents the period the court considers the defendant should spend in custody as punishment (see paragraph 22). The provisions relating to release or early release do not and should not influence the length of the sentence passed (see paragraph 23). In Black Lord Phillips was in the minority and, though none of their Lordships expressly referred to his views, the leading opinion given by Lord Brown echoes the approach of Lord Bingham.

In Black the House of Lords rejected the contention that prisoners have rights, under Article 5(4), to have the period of parole determined by a court when a determinate sentence has been passed. Lord Brown founded his conclusion on Strasbourg jurisprudence, which in the case of determinate sentences recognises that early or conditional release after a determinate term are part of the administrative implementation of the sentence of the court (see his speech at paragraph 83). Thus the Executive is entitled to take a parole decision without any infringement of Article 5(4) (see paragraph 81 of his speech, cited by Collins J at paragraph 38 of the judgment in this case).

That distinction between the sentence passed by the court and the administrative arrangements for early or conditional release is recognised in a firm and up-to-date admonition by the Vice-President of the Court of Appeal Criminal Division, Hughes LJ, namely that the early release and licence provisions should be left out of account as a matter of principle: see Round and Dunn v R [2009] EWCA Crim 2667, paragraphs 44 and 45. It is worth quoting from that judgment since it makes it clear that it was intended to be a deliberate exposition of a binding principle. At paragraph 44 Hughes LJ said:

“Our third reason is that the general principle that early release, licence and their various ramifications should be left out of account upon sentencing is, as it seems to us, a matter of principle of some importance.

45.

The wide possible range of regimes for early release and licence strongly reinforces the undesirability, never mind the impracticability, of courts being required to reflect the differences in their sentences.”

It seems clear in the light of Round that Stanley Burnton J in Whittle is not to be read as laying down any principle, still less undermining the principle which had applied when Lord Taylor promulgated the Practice Statement in 1991 and continues with equal force to apply now.

Accordingly, with one exception, the English courts have recognised that the provisions relating to the early or conditional release relate to the administration or execution of a determinate sentence. They are not part of the sentence passed by the sentencing judge. I acknowledge that the provisions relating to earlier conditional release are part of the context in which a sentence is passed and that from time to time the courts have, contrary to the up-to-date principle expressed by Hughes LJ, permitted that context to affect the level of sentencing but non sequitur that that legislative context or, as Mr Southey would put it, the legislative framework is part of the sentence passed by the court. For the purposes of the issue in the instant appeal Article 6 requires an answer to the question: what was the sentence passed by the court with which it is said the legislature has interfered? The answer under English jurisprudence is that it was a sentence of five years. The legislative changes have not affected or increased the level of that sentence.

The one exception to which I have just referred is to be found in the decision of the Court of Appeal in R(Uttley) v The Secretary of State for the Home Department [2003] 1 WLR 2590. The court in that case considered the imposition of licence conditions on the release of a prisoner who had committed offences before the 1991 Act came into effect. Had he been convicted before the provisions came into effect, there would have been no licence requirements and he would not, on release, have been subject to a period of licence. The Court of Appeal took the view that the imposition of a period of licence after release was part of the sentence passed. In reality, it is said, the effects of the licence were to impede his freedom of action; they were potentially more onerous and amounted to the retrospective imposition of a penalty heavier than that available at the time the offences were committed, since the offences were committed long before the 1991 Act came into force. Thus the imposition of a period of license was contrary to Article 17(1). See the judgment of Pill LJ at paragraph 15.

The House of Lords reversed that decision on the basis that the maximum sentence was life: see R(Uttley) v SSHD [2004] 1 WLR 2278. Since the maximum sentence was life, no heavier penalty was imposed following the introduction of the provisions of the 1991 Act. Their Lordships did not therefore consider it necessary to reach a conclusion as to whether the fact that the prisoner could only be released on licence amounted to a heavier penalty than the one that would have been imposed on him had he been entitled to release without the imposition of a license.

But the decision in the Court of Appeal in Uttley cannot stand with the jurisprudence of the Strasbourg court. It is that jurisprudence on which Mr Southey relies as the second basis for his submission. In the Commission decision on admissibility in Uttley v United Kingdom (Application No 3694/03), the Commission, in ruling that the application was manifestly inadmissible, concluded that for the purposes of Article 7 the penalty was and was only the sentence passed by the court in that case, namely 12 years.

The Commission concluded that the post-1991 regime for early release was not part of the penalty imposed by the court, but part of what it described as the general regime applicable to prisoners (see page 8 of the decision). That distinction has been expressed clearly in all the Convention cases heard in Strasbourg to which we have been referred. It is a distinction which is applied whether the right in issue is enshrined in Article 5 in Article 6 or in Article 7. In Csoszanski v Sweden Application (dec.) Application 22318/02 of 27 June 2006 the prisoner complained that after sentence in Sweden the Executive had decided that he should serve that sentence in Hungary where he would in fact spend longer in prison and be subjected to a harsher regime. The Commission acknowledged that he had a reasonable expectation that he would serve the sentence in Sweden although it is true that the Executive was entitled at any time to order that he should serve the sentence in Hungary. However, the Commission's statement of principle was clear. At paragraph 55 it is said:

The principle that a sentence of imprisonment is a sentence for the term passed by the sentencing judge and that questions of release before the expiration of the term are questions of administration or execution has been frequently repeated not just in Csoszanski but in other cases such as Dybeku v Albania [2007] ECHR 1109 at paragraph [57]. There is an important contrast to be drawn between cases such as Csoszanski and Dybeku and the case of M v Germany Application 19359/04 of 17 December 2009. The regime to which that case relates concerned preventative detention. The court which originally sentenced the applicant for attempted murder and robbery, the Marnbuk regional court, sentenced him to a sentence of imprisonment for five years and further ordered a period of preventative detention. A separate court, namely a Special Chamber of a Regional Court, was responsible for the execution of the sentence and was required to fix the period of preventative detention and carry out periodic reviews. It was open to the prisoner to apply from time to time for release on probation. But the relevant law set a maximum of a period of detention of ten years. After conviction and after M had been sentenced, the law was changed so as to permit an indefinite period of preventative detention. Thus, when a Regional Court considered further requests to suspend the preventative detention and permit his release on probation in April 2001, that Regional Court stated that he should not only remain in preventative detention for ten years, a period which was due to expire in September 2001, but he would have to remain in preventative detention for the foreseeable future.

According to the court, that change and the order that he should remain after ten years in preventative detention was not an order contained in the judgment of the sentencing court and broke the connection between the conviction by the sentencing court and his continuing deprivation of liberty (see paragraph 101).

It is important to appreciate how that connection came to be broken. The original sentence was in effect five years plus preventative detention to a maximum of ten years. The Regional Court had from time to time refused to allow the prisoner out on probation, but it was not until 1998 that the law was changed so as to permit the Regional Court to extend the period of detention beyond ten years. It was only then, as I have said, in 2001, that his maximum period of detention was extended.

That order of the Regional Court clearly amounted to a retrospective change which broke the connection between the sentence and the period of detention for the purposes of Article 5 and imposed a more heavy penalty pursuant to Article 7. It is of note that the court in M v Germany reiterated the principle that a distinction was to be drawn between a measure that constitutes "in substance" a penalty and a measure that concerns the execution or enforcement of a penalty. The court said so twice at paragraph 121 and again at paragraph 134.

M is a case where the court concluded that a more severe penalty had been applied under law enacted after the prisoner had committed the offence. Thus M preserved the distinction between a change in provisions relating to early release and the imposition of a longer period of custody. M is an additional authority preserving and supporting the distinction between release provisions and the imposition of a sentence of five years.

In this appeal the appellant was sentenced to a period of five years’ imprisonment. That sentence remains unchanged. The legislature changed the conditions relating to his release and recall on breach of licence but they did not interfere with the sentence that had been passed. For those reasons I agree with the judgment of Collins J and his reasoning and I would dismiss the appeal.

I agree and there is nothing I can usefully add.

I also agree and there is nothing I can add either.