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

1. MR JUSTICE MOSES: On 26 October 1995 the claimant pleaded guilty to certain counts of sexual assault and was convicted on three counts of rape. The offences took place before 1983. He was sentenced in total to a term of 12 years' imprisonment. On 24 October 2003 he will be released on licence at the two-thirds point of his sentence. He will then be subject to a period of one year's supervision by the probation service, taking him up to three-quarters of his sentence.

2. The offences were committed, as I have said, before 1983. At that time the Criminal Justice Act 1967 applied. He would therefore have been eligible for parole on licence conditions on 26 October 1999, and those licence conditions would have applied until his remission date. On 26 October 2003, after two-thirds of his sentence he would have been released, so long as he obtained full remission under the prison rules, and on discharge, pursuant to remission, his sentence would have expired (see section 25(1) of the Prison Act 1952). By virtue of the Criminal Justice Act 1991, which came into force on 1 October 1992, the claimant could only be released on licence once he had served two-thirds of his sentence. It can be seen, therefore, immediately that his release is not without condition, but is subject to a licence which imposes restrictions upon his liberty, contrary to what would have happened had he been convicted and released before 1 October 1992.

3. The Criminal Justice Act 1991 introduced a new scheme for the release of offenders sentenced to custodial sentences. By section 33(2) of the 1991 Act:

"As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."

By section 33(5):

"'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more."

By section 37(1) of the 1991 Act the claimant as a long-term prisoner, subject to any revocation under section 39(1) or (2), remains on licence until he has served three-quarters of his sentence. The claimant will remain on licence until the expiry of that three-quarters period unless his licence is revoked pursuant to section 39. By section 39(1):

"If recommended to do so by the Board in the case of a long-term ... prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison."

By section 39(2):

"The Secretary of State may revoke the licence of any such person and recall him to prison without a 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."

If he is recalled on revocation of his licence, this claimant will have to serve the remainder of his sentence of 12 years.

4. There is, as I have said, no doubt that the licence restricts the claimant's liberty. Mr Scrivener QC has helpfully provided me with an example of such a licence, which typically will require a prisoner released on licence to keep in touch with a supervising officer, receive visits from him, stay at an address approved by his supervising officer, and, typically in the case of those convicted of sexual offences will require them to have some treatment by, for example, a qualified psychiatrist. As I have said, a prisoner released on licence also runs the risk of loss of liberty.

5. The essential submission raised on behalf of the claimant is that to impose a penalty more severe than that imposed at a date when he committed the offences would be incompatible with Article 7 of the European Convention on Human Rights. Article 7 provides:

"(1) 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 the national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."

Thus it can be seen that Article 7 focuses on the time when the offence was committed. It is clear, submits Mr Scrivener QC, that a heavier penalty is being imposed by virtue of the operation of section 33(2) than would have been imposed had he been sentenced at the time he committed the offences in or around 1983.

6. It was further argued that the incompatibility with Article 7 was the result of an error in drafting the schedule. Under paragraph 8 of schedule 12 to the 1991 Act:

"'existing prisoner' means any person who, at that commencement [ie the commencement of the Act on 1 October 1992] is serving a custodial sentence."

Under subparagraph (6) of paragraph 8 of schedule 12:

"In relation to an existing prisoner ... whose sentence is for a term of more than twelve months-

"(a) ...

"(b) sections 33(3) and section 37(1) of this Act shall apply as if the reference to three-quarters of his sentence were a reference to two-thirds of that sentence."

Thus it is argued that, when a existing prisoner is due for release, his licence will also have expired, so that there can be no question of any imposition of a licence in respect of someone who had been sentenced before the coming into force of the 1991 Act but was still in prison when it commenced. It was argued that there can be have been no intention by the draftsman to create a third category; in other words, an additional category to those who committed offences and were sentenced before the coming into force of the Act as well as those who were sentenced after the coming into force of the Act, who committed offences before it.

7. I disagree. The provisions to which I have just referred are designed only to cover the case where a prisoner is serving a sentence at the time when the 1991 Act came into force on 1 October 1992. In such a case, he will be released after two-thirds of his sentence and no licence conditions will be imposed. But, since this claimant was sentenced after the Act came into force, he can only be released by operation of section 33(1) of the 1991 Act on licence.

8. The essential question is whether the statutory imposition of the licence constitutes the imposition of a penalty greater than that which would have been imposed at the time he committed the offences. The European Court of Human Rights has considered the meaning of "penalty" in the context of Article 7. From the decision of the court in Jamil v France [1996] 21 EHRR 65, which followed the Court's decision in Welch v UK [1995] 20 EHRR 247, the following principles can be derived:

(1) The concept of penalty is an autonomous concept.

(2) The court must look at the substance of that which has been imposed upon a prisoner and not the form.

(3) The starting point is whether the measure follows the conviction.

(4) The characterisation of the measure under domestic law must be considered.

(5) The nature and purpose of the measure must be considered.

(6) The court must consider the procedures involved.

(7) The court must consider the severity of the measures, so far as its effect upon the prisoner is concerned.

(8) The court must consider whether the measure could lead to a punitive loss of liberty.

9. In Jamil , in the context of the imposition of a financial penalty with imprisonment in default, the court concluded that that measure was intended to have a deterrent effect and could have led to the punitive loss of liberty.

10. In Welch the court considered the provisions in the United Kingdom law, under the Drug Trafficking Offences Act 1986, in relation to confiscation of that which the statute provided was a benefit of drug trafficking offences. The court took the view that the confiscation would result in a far more reaching detriment than that to which the defendant would have been exposed at the time and commission of the offence, taken into account the benefit in respect of which the confiscation order was made.

11. In the instant case the imposition of the licence condition followed the conviction in the sense that, but for the conviction, this claimant would not have been sentenced to twelve years' imprisonment and section 33(1) of the 1991 Act would never have been triggered on release after two-thirds of the sentence. But, unlike the cases of Jamil or Welch , the order was not imposed by the court, but rather was imposed by operation of statute.

12. True it is that this claimant might be regarded as being worse off than he would have been. Undoubtedly, his liberty will be curtailed and he runs the risk, if he breaches his licence, of recall to prison. But, although in one sense he is worse off, one has to bear in mind that, so long as he complies with the conditions of this licence, he may derive assistance and help in avoiding the commission of further offences in the future.

13. To my mind, the most significant features of the operation of section 33(1) are the nature and purpose of that measure. Of those there can be no doubt. Whether considering to make a recommendation under section 39(1) or on consideration on review, the parole board must have regard to the directions of the Secretary of State, which have as their paramount purpose protection and prevention. Section 32(6) of the Criminal Justice Act provides:

"The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part or in Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to-

"(a) the need to protect the public from serious harm from offenders; and

"(b) the desirability of preventing commission by them of further offences and of securing their rehabilitation."

It is plain from that provision that the parole board, in considering whether to recommend the revocation of a licence, must have regard to the all important factors of protection of the public and prevention of further crimes in assisting the rehabilitation of the offender. If they are the prime factors in considering revocation, so they must be the prime factors in considering the nature and the purpose of the imposition of a licence.

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 the 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 the 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.

16. My conclusion is consistent with the decision of the Court of Appeal in relation to a recall on licence under section 39. In R(on the application of West) v The Parole Board [2002] EWCA Civ 1641 the Court of Appeal considered the appropriate procedures which ought to be adopted by the parole board consistently with Article 6. The Court of Appeal, by a majority, concluded that Article 6 had no operation, since the consideration of recall was not the consideration of a criminal charge within the meaning of Article 6. At paragraph 17 Simon Brown LJ set out the factors which have to be considered in identifying the concept of a criminal charge under the Convention, citing Potter LJ in Han v and Commissioners of Customs and Excise [2001] 1 WLR 2253 at 2260:

"They are the classification of proceedings in domestic law; the nature of the offence; and the nature and degree of severity of the penalty that the person concerned risked incurring ... When coming to such decision in the course of the court's 'autonomous' approach, factors (b) and (c) carry substantially greater weight than factor (a)."

17. Simon Brown LJ then continued by considering whether the revocation of the parole licence is a punishment or designed to prevent risk and the protection of the public. He concluded at paragraph 23 that the purposes of such a revocation were indeed the prevention of risk and the protection of the public and not by way of punishment. At paragraph 25 he acknowledged the severity of the loss of liberty, but took the view that the further detention could not properly be characterised as a sanction or penalty. At paragraph 29 he referred again to the essentially preventative nature of the revocation of the licence. As I have said, the Court of Appeal was considering the meaning of the concept of a criminal charge under Article 6, but it can be seen that the factors which go to the identification of that concept bear an important and significant similarity with those under Article 7.

18. Mr Scrivener QC bravely contended that West was of no application, since it concerned the autonomous concept of a criminal charge under Article 6 and not the concept of penalty under Article 7. But it is plain that the characteristics of both share many common features, as the Court of Appeal Criminal Division acknowledged in the Crown v Field 12 December 2002 [2002] EWCA Crim 2913. In that case the court was concerned with the operation of Article 7(1) in connection with the disqualification provisions brought under the Criminal Justice and Court Services Act 2000, which came into operation on 11 January 2001. The sexual offences in that case had taken place before the coming into force of that Act, and yet the offender had been disqualified from pursuing the jobs to which the 2000 Act applied. The court noted at paragraph 20 how closely analogous the criteria under Article 7 were to those which applied under Article 6. It took the view that the nature and purpose of the disqualification provisions were overwhelmingly preventative and thus, although the impact was undoubtedly severe upon an offender, disqualification did not constitute a penalty (see paragraph 58).

19. In those circumstances, I reject the contention that no assistance is derived from West . In my view, it would be odd indeed if recall following a breach of a licence did not involve the concept of a criminal charge, whereas the logically prior concept of the imposition of a licence, without which there could be no question of a recall, involved the concept of a penalty within Article 7. In reality both licence and recall are equally preventative and protective in their nature and in their purpose. The imposition of a licence under section 33(1) of the 1991 Act is not the imposition of a penalty. Article 7 is not engaged. This application is dismissed.

20. Did it get better or not? No, it did not.

21. MR SCRIVENER: My Lord, can I ask for leave to appeal? Can I explain why? This is the first case there has been on this particular point. Secondly, you can put the matter very shortly: he was, prior to 1 October 1992, a man who was going to be released, having served his two-thirds, with no possibility of return to prison. He became, after that date, in a completely different category; putting that very simply.

22. The next point, I suppose, would be the reliance on the West case. The West case will be tested in Smith , although it may take a long time to catch up, but the reliance on the law under one of the Articles is, I would have thought, fairly novel. There is some reference to it in the House of Lords case your Lordship referred to. That also raises an interesting point. But, basically, it is the first time this matter has come up and we would ask for leave to appeal.

23. MR JUSTICE MOSES: What do you say?

24. MISS RICHARDS: My Lord, my Lord's judgment was that the answer was clear and plain. It is supported by Court of Appeal authority in West . The analogy between Articles 6 and 7 is supported by the Court of Appeal in Field and, in my respectful submission, the application for permission to appeal fails the criteria set down by the Court of Appeal.

25. MR JUSTICE MOSES: No, I am not going to give permission. It seems to me that the nature and purpose of the licence is so plain that it is difficult to think there is any prospect of success in arguing that it is a penalty, whether one regards Article 6 as analogous with Article 7 or not, and whatever the result in West , which raises, certainly in relation to procedure, slightly different questions. In those circumstances, you must ask their Lordships.

26. MISS RICHARDS: My Lord, there is no application for costs.

27. MR SCRIVENER: My Lord, I think I have to formally ask for a legal aid order for costs.

28. MR JUSTICE MOSES: Yes. Thank you all very much.