B, R v

On 2 April 2009 we allowed the appeal of R G B against his sentence of 15 years of imprisonment and reduced it to 10 years imprisonment. We dismissed his appeal against the extension of the licence period which was ordered under s.86 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) to run until the end of his sentence. We now give our reasons.

The appellant is 65 and pleaded guilty in the Crown Court at Winchester on 22 August 2008 to two counts of rape, three counts of indecent assault on a female under the age of 13, two counts of buggery and one count of inciting a child to commit an act of gross indecency. On 12 September 2008 Judge Griffiths sentenced him as follows. For the two rapes five years, concurrent with each other; for the indecent assaults four years, concurrent with each other but consecutive to the five years; for the buggeries six years, again concurrent with each other but consecutive to the five and four year sentences; and for the gross indecency 18 months concurrent with the other sentences, making a total of 15 years. He was disqualified from working with children and required to keep the police notified of his address indefinitely. An extended licence was imposed under s.86 of the 2000 Act. Six other counts were ordered to lie on the file following his pleas of not guilty. His appeal against sentence was with the leave of the single judge.

There are two grounds of appeal. First, a conventional ground that the sentence was manifestly excessive in the light of the appellant’s pleas of guilty and mitigation and second that the licence extension was wrong in law.

First, we state briefly the facts of the case. The appellant married his first wife E in 1963. They had four children together including JD who was born on 1 March 1964 and SB who was born on 4 April 1965. In 1975 E left the appellant. He has not seen his ex-wife or any of their children since 1976. On 11 January 2008 JD gave a tape recorded account to the police that her father had indecently assaulted her as a child. On two separate occasions he inserted his finger into her vagina using vaseline when she was aged around nine or ten and when she was aged around ten or eleven. On another occasion he inserted a candle into her vagina. These were the indecent assaults.

On 31 January 2008 E’s younger sister JG, who was born on 5 September 1954, also gave an account to the police that the appellant had raped her on two occasions, at her mother’s home when she was aged between sixteen and eighteen and at her home when she was aged between 22 and 24 and married to a Mr J. These were the two rape counts.

On 19 February 2008 SB gave a tape recorded account to the police. He described how his father had sexually assaulted him. He was forced to suck the appellant’s penis when he was aged around ten or eleven. The appellant had anal intercourse with him on two separate occasions when he was aged eleven or twelve, once at home and once in the car. These were the two buggery counts and the indecency count.

On 20 February 2008 the appellant was interviewed. He accepted the sexual assaults against JD and SB. He described consensual sexual intercourse with JG but, when his understanding of consent was explored, it was apparent that he was reckless as to whether she consented or not and it was on this basis that he pleaded guilty.

The appellant was a man of, for practical purposes, previous good character. There was no evidence that he had committed any other offences of this nature and the most recent offence was committed over 30 years ago. The pleas of guilty were based on the admissions he made in interview and the judge accepted that there was another side to the appellant’s character and that he had been a hard working man all his life and that he could be caring and compassionate. A written basis of plea was submitted and accepted. It was clear to all that he was not pleading guilty on the basis that these were specimen counts.

There was a pre-sentence report in which the author identified a significant degree of denial on the appellant’s part. This, and the victim impact statements no doubt caused the judge to conclude, as he said in passing sentence, that he was not convinced the appellant yet fully appreciated the seriousness of what he had done and the consequences to the three victims of his behaviour.

These were, as the judge said, offences of the utmost gravity. Two of the victims were his children and the third was his sister-in-law. His children were under 13 at the time he assaulted them and the first offence against his sister-in-law was when she was between 16 and 18. A substantial sentence was called for. We were referred to the Sentencing Council Guidelines and a number of authorities, in particular R v Milbery and others [2003] 2 Cr App R (S) 31 in which 15 years was identified as the starting point for a campaign of rape involving the same victim over a period of time or multiple victims. Here there were three victims but the counts to which the appellant pleaded were specific. The 15 year starting point is after a trial. With full discount, to which the appellant was entitled, the judge must have envisaged a sentence after a trial for these offences of around 23 years. In our judgment the total sentence imposed was manifestly excessive. The appropriate sentence was one of 10 years imprisonment. We allowed the appeal to that extent. All the individual sentences stand as imposed but the five year sentences for the rapes were made concurrent with the other sentences. We would add that there can be no complaint about the individual sentences in this case, the only point being totality after pleas of guilty and the mitigation.

The point taken by Mr Philip Brunt for the appellant is that applying s.86 of the 2000 Act to the facts of this case and imposing an extended licence period offends Article 7 of the European Convention on Human Rights and Fundamental Freedom. Article 7 prohibits holding a person guilty for an act or an omission that was not a criminal offence at the time of the act or omission. More significantly for present purposes it continues:

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

Section 86 of the 2000 Act is headed:

“Sexual offences committed before 30 September 1998.”

It provides:

“(1)

Where, in the case of a long-term or short-term prisoner –

(a)

the whole or any part of his sentence was imposed for a sexual offence committed before 30 September 1998, and

(b)

the court by which was sentenced for that offence, having had regard to the matters mentioned in s.32(6)(a) and (b) of the Criminal Justice Act 1991, ordered that this section should apply,

sections 33(3) and 37(1) of that Act shall each have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.

(2)

Expressions used in this section shall be construed as if they were contained in Part II of the Criminal Justice Act 1991.

(3)

The reference in subsection (1) above to section 33(3) of the Criminal Justice Act 1991 is to s.33(3) as it has effect without the amendment made by s.104(1) of the Crime and Disorder Act 1998 (which substituted the words “on licence” for the words “unconditionally” and does not apply in relation to a prisoner whose sentence or any part of whose sentence was imposed for an offence committed before 30 September 1998).”

The matters mentioned in s.32(6)(a) and (b) are “the need to protect the public from serious harm from offenders” and “the desirability of preventing the commission by them of further offences and of securing their rehabilitation.” The origin of s.86 is to be found in s.44 of the Criminal Justice Act 1991 which came into force on 1 October 1992. Section 85 of the 2000 Act, which is not in play in the present case, relates to sexual or violent offences committed on or after 30 September 1998.

The appellant, being the subject of a sentence of four years or more, falls into the category of a long term prisoner and the way s.86 operates is that a prisoner is eligible for release on parole after he has served one half of his sentence and must be released after two thirds. He will ordinarily remain on licence until the three quarter point of his sentence. Where, in a sexual case, the judge makes an order under s.86 the licence continues not until the prisoner would (but for his release) have served three quarters of his sentence but until the end of his sentence.

Now the point at issue is that the appellant’s offences were committed long ago in the 1970s and he submits that by imposing this extended licence period the judge was subjecting him to a heavier penalty than that which was applicable at the time he committed the offences. The power to impose an extended licence period did not exist until 1 October 1992.

In our view the point of law raised in the present case can be summarily disposed of. In short it has already been decided by this court in R v BR [2004] 1WLR 490. The court there held that an order for an extended licence under s.86 is preventive and not punitive and accordingly does not violate Article 7.

R v BR was the considered decision of a court presided over by Kennedy L.J, who had adjourned the appeal so that counsel might be instructed as an advocate to the court. Admittedly the court was a two judge court, but the point was fully argued. The court considered argument that it was bound by the earlier decision of this court in R v JT [2003] 4 All ER 877 in which the court had come to the opposite conclusion. There is no doubt Fulford J had said in that case at paragraph 19:

“There is not doubt, in our judgment, that these provisions are punitive and are properly to be contrasted with purely preventative measures that do not invoke any principle against retrospective penalty: see Ibbotson v United Kingdom Crim LR 153, where, by contrast the European Commission held that the registration requirements of the Sex Offenders Act 1997, which have a partially retrospective operation were preventative, rather than punitive in character, and did not therefore constitute a penalty for the purposes of Article 7.”

Fulford J. however, cited no other authorities and the respondent was unrepresented but the court nevertheless concluded that s.86 could not be read as applying to offences committed before 1 October 1992.

The court in R v BR was bound by the decision in JT unless it was decided per incuriam. Pitchers J. giving the judgment of the court referred to Bennionon Statutory Interpretation fourth edition at page 134 which says:

“The basis of the per incuriam doctrine is that a decision given in the absence of relevant information cannot be safely relied on. This applies whenever it is at least probable that if information had been known the decision would have been affected by it.”

He went on to point out that there were two significant factors in the case falling into the category of information referred to in Bennion. The first was that it was a sentence appeal in which only the appellant was represented. Therefore the court did not have the benefit of the submissions from counsel that they had had. Secondly they were not referred to any authorities other than Ibbotson, in particular the important cases of Hogben v United Kingdom (application 11653/85) and R v Hodgeon [1997] 1 CAR (S) 399.

It seems to us, therefore, that we are bound by the decision in R v BR unless it was decided per incuriam. Mr Brunt, for the appellant, found it impossible to advance any argument on this basis. In reality his argument was that the court in R v BR decided the case wrongly.

In our view, far from deciding the case per incuriam the court in R v BR referred to all the relevant authorities and conducted a careful analysis of the legal position. Silber J said in giving leave to appeal in the present case that he found the reasoning in R v BR convincing but gave leave to appeal because of the uncertainty about the law expressed in Archbold (2009 Edn) para 5 – 290. We too find the reasoning convincing and we shall summarise it shortly. But first it should be said that the court R v BR certified two points of law. These were:

“1.

Whether section 86 of the Powers of Criminal Courts (Sentencing) Act 2000, if applied to the defendant whose offences predate the coming into force of section 44 of the Criminal Justice Act 1991, is incompatible with the defendant’s rights under Article 7(1) of the European Convention for the Protection of Human Right and Fundamental Freedoms which, inter alia, prohibits the imposition of a heavier penalty than was applicable at the time the criminal offence was committed in so far as the defendant subject to a period of licence after release until the expiry of the whole of his sentence whereas he would have been unconditionally released at the two thirds points of his sentence, including any period of licence, at the time of having committed the offences.

2.

Whether a two judge court has the power to determine that an earlier judgment by a three judge court before which only one party was represented can be regarded as per incuriam, when such a determination is to the detriment of the defendant.”

The House of Lords refused to grant leave to appeal on 12 October 2004.

The editors of Archbold refer not only to R v JT but also to R v Massie [2003] 1 CrAppR (S) 80 and the decision of the Court of Appeal (Civil Division) in R (Uttley) v Secretary of State for the Home Department [2003] 1 WLR 2590. Neither of these authorities overcomes the point that R v BR is binding on us. Massie was concerned with an extended sentence under s.85 rather then s.86, but the court pointed out that both sections derived from s.44 of the Criminal Justice Act 1991. The court referred to Article 7 and took the same view as the court in R v JT, albeit no authorities at all were referred to and again the Crown was unrepresented. This court’s decision in Uttley was later reversed by the House of Lords on a different point to the point on which it had been decided below. The Court of Appeal decision in Uttley postdates that in R v BR, albeit only by a few days, and R v BR was not referred to. In any event Uttley was not concerned directly with sections 85 and 86 of the 2000 Act and the editors of Archbold go no further then saying that it does not follow from the House of Lords decision that R v BR was correctly decided. Be that as it may, the House of Lords declined to grant leave to appeal on the certified questions a year later. It is also to be noted that this court in R v BR cited the decision of Moses J at first instance in Uttley in support of its conclusions and the House of Lords declined to rule on whether the view of Moses J or the contrary view expressed by the Court of Appeal (Civil Division) reversing him was correct.

We return therefore to the reasoning in R v BR and why in our view the law is there correctly stated. The starting point is the decision of the European Court of Human Rights in Welch v U.K (1995) 20 EHRR 247. The complaint was that a confiscation order made under the Drug Trafficking Offences Act 1986 amounted to the imposition of a retrospective penalty contrary to Article 7. The court held that it did, concluding (see para 33) that there were several aspects of the making of an order under the 1986 Act that are in keeping with the idea of a penalty as it is commonly understood even though they may be considered as essential to the preventive scheme inherent in the 1986 Act.

Pitchers J identified the criteria for determining whether an order is a penalty as set out in R v Field and Young [2002] EWCA Crim 2913 and distilled from Welch. They are:

i)

The starting point is whether the measure is imposed following a criminal conviction.

ii)

The nature and purpose of the measure are also relevant.

iii)

Its characterisation under national law is relevant.

iv)

The procedures involved in the making and implementation of the measure are relevant.

v)

Its severity is relevant;

vi)

The court will look at the substance, rather than the form, in determining whether the measure forms part of a “regime of punishment”.

Pitchers J observed that the courts had been called on to apply the Welch criteria in a number of cases to determine whether or not a particular measure was a penalty. He noted that the cases fell into two broad categories; those that involved a measure that stood on its own and those where the court was considering early release from a custodial sentence. It is the latter ground that is most closely analogous to the present case.

The former group is helpful in showing the approach of the courts and includes such cases as R v Taylor [1996] 2 Cr App R 64 – see also Taylor v UK [1998] EHRLR 90; Ibbotson and Field and Young.

In the latter group is Hogben v U.K (Appn 11653/85) where the Commission rejected the argument that the tariff system introduced by the Home Secretary in 1983 breached Article 7 in which they said:

“Although [the change in parole policy] may give rise to the result that his imprisonment is effectively harsher then if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as apposed to the “penalty” which remains that of life imprisonment. Accordingly it cannot be said that the “penalty” imposed is a heavier one than that imposed by the trial judge.”

In Uttley at first instance [2003] EWHC 950 (Admin) Moses J said:

“14.

It is plain that the purpose of a licence is to enable the long – term prisoner to stay out of trouble, both for his own benefit and for the benefit of the community, and so that thereby he does not lose his liberty. True it is that, if he breaches his licence, he is at risk of recall, but the licence itself is designed to avoid the risk of further offences and a return to prison. Nor in any real sense can it be said that the imposition of the licence follows conviction. The judge makes no order. The licence follows by virtue of the operation of section 33 on release and is plainly part of the rehabilitation process.

15.

I conclude that the nature and purpose of the licence are such that they dominate the factors which go to the conclusion as to whether the imposition of the licence is a penalty or not. The imposition of the licence is designed to protect the public once a prisoner is released, and assist in preventing the prisoner from committing further offences.”

The point in Uttley was that the effect of the 1991 Act made the claimant eligible for release on licence at a later point than had he been sentenced in 1983. His offences were committed before 1983.

The court in R v BR approved those observations of Moses J as to the purpose and effect of licence provisions. As we have already mentioned, Moses J’s decision was reversed by the Court of Appeal but restored by the House of Lords on a different basis. The Court of Appeal was not referred to this court’s judgment in R v BR.

The next case is McFetrich v Secretary of State for the Home Department [2003] EWHC 1542 (Admin). That case was concerned with the tariff period of a life sentence. The two points emerging from the case are that “penalty” under Article 7 is concerned with the whole penalty rather than its constituent elements and there is a distinction between the penalty itself and the machinery for carrying it out or its execution (see also Hogben).

In R v BR Pitchers J then went through the six criteria, that he identified as having emerged from Welch, in these terms:

“(i)

Measure made following a criminal conviction.

Clearly the order can only be made when there is a conviction.

(ii)

The nature and purpose of the measure.

The statutory criteria for the making of an order are “the need to protect the public from serious harm from offenders” and “the desirability of preventing the commission by them of further offences and of securing their rehabilitation”. Although these criteria are expressed in words suggesting a preventive measure and are in the context of a section dealing with the basis for release on parole, it should be noted that the words of the first are the same as one of the pre-conditions for passing a custodial sentence in violent or sexual offences (s1(2)(b)).

We have set out above our view of the correct way of looking at licence provisions in the context of Art. 7 generally. Strong support for the proposition that this is the proper view of section 86 is contained in the judgment of this court given by Lord Bingham CJ in R v Hodgeon [1997] 1 CAR(S) 399:

“[s44] is a section which gives the authorities additional control over an offender in relation to whom such an order is made. It affects both the period which an offender will serve if recalled to prison after release on licence and the period for which a prisoner will be supervised after release on licence. In making such an order the primary considerations to be borne in mind are the need to protect the public from serious harm from offenders, the desirability of preventing the commission by them of further offences and the rehabilitation of offenders.”

(iii)

Its characterisation under national law.

Although the forerunner of section 86 was passed before the incorporation of the Human Rights Act 1998, there is no doubt that Parliament intended that the measure should apply to all offences committed before 30 September 1998 regardless of whether they predated the coming into force of the Criminal Justice Act 1991. It is also true that the section was applied retrospectively after the passing of the 1991 Act both at first instance and in this court. That has continued since the implementation of the Human Rights Act 1998 and, with the exception of J.T. to which we will return, has not been questioned in this court.

(iv)

The procedures involved in the making and implementation of the measure.

An order under section 86 can only be made as part of a custodial sentence. The maximum length of that sentence remains unchanged by the 1991 Act. It will only be implemented in the event of a breach by the released prisoner. The licence terminates at the end of the notional sentence and cannot exceed it.

(v)

The severity of the measure.

There is no doubt that the extended licence is itself involves a restriction of the liberty of the released prisoner even if he does not commit a breach of it. A breach may lead to a penalty of up to six months imprisonment. That, however, is not conclusive. Breaches of a number of orders held not to be penalties may similarly lead to loss of liberty or other sanction if breached.

(vi)

The substance, rather than the form.

It is the exercise of looking at the substance rather than the form that we have been carrying out in our review of the statutory provisions and relevant case law.”

He then concluded that the true analyses of the relevant statutory provisions and the way in which they have been interpreted in our domestic law and by the European Court of Human Rights demonstrated that an order for an extended licence is preventative not punitive. We agree. Adding such an order to a sentence of imprisonment for an offence committed before 1 October 1991 is not to impose a heavier penalty than was available when the offence was committed and accordingly there is no violation of Article 7

The extended licence stands but the sentence of imprisonment is reduced from 15 years to 10 years as indicated in paragraph 10.