Minter, R (on the application of) v Chief Constable of Hampshire Constabulary & Anor

On 16 August 2006 the claimant pleaded guilty at Reading Crown Court to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. On 17 November 2006 he was sentenced in respect of the most serious of those offences to an extended sentence of 4½ years, comprising a custodial term of 18 months and an extension period of 3 years, pursuant to s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the PCC(S)A 2000”). Lesser sentences under the same Act or under the Criminal Justice Act 2003 (“the CJA 2003”) were imposed for the other offences. The reason why some of the sentences were under the PCC(S)A 2000 and others under the CJA 2003 was that the various offences straddled the date when the CJA 2003 came into force.

The claimant’s conviction of those offences had the consequence, pursuant to s.80(1) of the Sexual Offences Act 2003 (“the SOA 2003”), that he became subject to the notification requirements of Part 2 of that Act, requiring him to notify certain information to the police for inclusion in the sex offenders register. The period for which he remains subject to the notification requirements is laid down by s.82(1):

“82(1) The notification period for a person within s.80(1) … is the period in the second column of the following Table opposite the description that applies to him.”

The material entries in the table are these:

The issue before the court is whether, by reason of the extended sentence of 4½ years with a custodial term of 18 months, the claimant was “sentenced to imprisonment for a term of 30 months or more”, so as to be subject to the notification requirements for an indefinite period, or was “sentenced to imprisonment for a term of more than 6 months but less than 30 months”, so as to be subject to the requirements for a period of 10 years. The court record following sentence referred to a period of 10 years, as did the notice originally issued to the claimant by the prison. The defendant Chief Constable decided, however, that the claimant was subject to the requirements for an indefinite period, based on the 4½ year term of the extended sentence. That decision, formally communicated by letter of 22 September 2010, is the subject of challenge in these proceedings for judicial review. The claimant contends that the decision is based on a mistaken construction of the statute and that the true notification period is one of 10 years, based on the 18 month custodial term comprised within the extended sentence.

At the outset of the hearing we rejected an application that the claimant should be accorded anonymity pursuant to CPR 39.2(4) in order to protect his interests. The application was based on various personal concerns of the claimant for himself and his family and on the absence of any real public interest in his identification, given that the case is concerned purely with a matter of law. The fact is, however, that his conviction and sentence are already a matter of public record; the case is concerned with the statutory consequences of that sentence as regards the notification period under the SOA 2003, itself a matter of public interest; and it did not seem to us that publication of his name as claimant in these proceedings would result in any infringement of his or his family’s rights under article 8 ECHR or that the matters put forward on his behalf provided a sufficient reason for departure from the general principle of open justice.

Section 85 of the PCC(S)A 2000 provides:

“85(1) This section applies where a court –

(a)

proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30^th September 1998; and

(b)

considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2)

Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of –

(a)

the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (‘the custodial term’); and

(b)

a further period (‘the extension period’) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above. …”

Those provisions refer to an extended sentence as a “custodial sentence”. By s.76(1) of the same Act, “custodial sentence” is defined as “(a) a sentence of imprisonment …; (b) a sentence of detention under section 90 or 91 below; (c) a sentence of custody for life under section 93 or 94 below; (d) a sentence of detention in a young offender institution …; or (e) a detention and training order …”. The only part of that definition capable of applying on the facts of this case is (a); and it is plain that the extended sentence imposed on the claimant is treated by the legislation as a sentence of imprisonment.

As the wording of s.85(2) of the PCC(S)A 2000 makes clear, the term of that sentence of imprisonment is the aggregate of the “custodial term” and the “extension period”. The custodial term is not the term of the sentence of imprisonment actually imposed but the term that the court would have imposed if it had passed a custodial sentence otherwise than under s.85; and where the court passes an extended sentence under s.85 instead, the custodial term becomes one of the two elements in the calculation of the term of the sentence actually imposed.

On the face of it, therefore, the effect of the statutory provisions is that a person sentenced to an extended sentence of 4½ years is sentenced to imprisonment for a term of 4½ years and is therefore “sentenced to … imprisonment for a term of 30 months or more” within the meaning of s.82(1) of the SOA 2003, so as to be subject to the notification requirements for an indefinite period.

That view derives further support from other provisions of the sentencing legislation concerning the calculation of the term of imprisonment where an extended sentence is imposed. In a number of instances, express provision is made for the extension period to be left out of account, suggesting that in the absence of such provision the extension period would be included in the calculation of the term.

One example of this is to be found in s.85 of the PCC(S)A 2000 itself, which provides in subs.(6):

“(6)

Subsection (2) of section 80 (length of discretionary custodial sentences) shall apply as if the term of an extended sentence did not include the extension period.”

A similar provision is to be found in s.44 of the Criminal Justice Act 1991 (“the CJA 1991”), as amended, which makes special provision for extended sentences in the context of the early release provisions in Part 2 of that Act:

“44(1) This section applies to a person serving an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.

(2)

Subject to the provisions of this section and section 51(2D) below, this Part, except section 40A, shall have effect as if the term of the extended sentence did not include the extension period.”

Thus, for example, when determining whether a person serving an extended sentence is a long-term prisoner as defined by s.33(5) of the CJA 1991 (a person “serving a sentence of imprisonment for a term of 4 years or more”), the term of the extended sentence is deemed not to include the extension period.

The inference to be drawn from such deeming provisions is weakened by the terms of s.51(2D) of the CJA 1991, to which s.44(2) of that Act refers. Section 51 is an interpretation section for Part 2. It includes, in subs.(2B), provision for the situation where a person has been sentenced to two or more terms of imprisonment which are wholly or partly concurrent and do not fall to be treated as a single term; and, in subs.(2C), provision for the situation where a person has been sentenced to one or more terms of imprisonment and to one or more life sentences. Subs.(2D) provides:

“Subsections (2B) and (2C) above shall have effect as if the term of an extended sentence (within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000) included the extension period (within the meaning of that section).”

In that specific instance, therefore, the “as if” provision operates in the other direction, albeit in a context where the purpose is to reverse the effect that the general deeming provision of s.44(2), discussed above, would otherwise have.

Taking the statutory provisions as a whole, however, there is a strong case for reading them in such a way that, in the case of an extended sentence under s.85 of the PCC(S)A 2000, the term for which a person is sentenced to imprisonment for the purpose of determining the notification period under s.82(1) of the SOA 2003 is the term of the extended sentence as laid down by s.85(2) itself (comprising the custodial term and the extension period), not just the custodial term comprised within the extended sentence.

Before I consider Mr Rule’s arguments to the contrary, it is convenient to complete the overall framework within which those arguments arise, by referring to the provisions of the CJA 2003 governing extended sentences, to the statutory history, and to a number of relevant authorities.

This case is governed by the extended sentence regime of the PCC(S)A 2000, not the successor regime of the CJA 2003, but it is helpful to look at the provisions of the CJA 2003 for any bearing they may have on the analysis of the earlier legislation. Section 227 of the CJA 2003 makes provision for extended sentences for certain violent or sexual offences in the case of persons aged 18 or over. As originally enacted it reads:

“227(1) This section applies where –

(a)

a person aged 18 or over is convicted of a specified offence, other than a serious offence, committed after the commencement of this section; and

(b)

the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.

(2)

The court must impose on the offender an extended sentence of imprisonment the term of which is equal to the aggregate of –

(a)

the appropriate custodial term, and

(b)

a further period (‘the extension period’) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.

(3)

In subsection (2) ‘the appropriate custodial term’ means a term of imprisonment (not exceeding the maximum term permitted for the offence) which –

(a)

is the term that would (apart from this section) be imposed in compliance with section 153(2), or

(b)

where the term that would be so imposed is a term of less than 12 months, is a term of 12 months.”

Although there are some obvious differences between this and the predecessor legislation, the structure of s.227(2) is materially the same as that of s.85(2) of the PCC(S)A 2000. It may be noted that s.227(2) spells out in terms that an extended sentence is a “sentence of imprisonment” the term of which is equal to the aggregate of the “appropriate custodial term” and the “extension period” as defined.

Section 227 was amended by the Criminal Justice and Immigration Act 2008, so as to introduce further limitations on the circumstances in which an extended sentence may be imposed. Of particular relevance to one of the arguments advanced by Mr Rule on behalf of the claimant is the condition in subs.(2B) of the section as amended, “that, if the court were to impose an extended sentence of imprisonment, the term that it would specify as the appropriate custodial term would be at least 4 years”.

The notification requirements were introduced with effect from 1 September 1997 by s.1 of the Sex Offenders Act 1997 (“the SOA 1997”), the provisions of which were materially the same as those subsequently enacted in the SOA 2003. At the time of introduction of the notification requirements the power to impose extended sentences did not exist.

Extended sentences were brought in with effect from 30 September 1998 by s.58 of the Crime and Disorder Act 1998, the provisions of which were materially the same as those subsequently enacted in s.85 of the PCC(S)A 2000.

The Criminal Justice and Courts Services Act 2000 made some changes of detail to the notification requirements but they do not affect the issues that arise in the present case.

The PCC(S)A 2000, which inter alia repealed and re-enacted the extended sentence provisions of the Crime and Disorder Act 1998, received Royal Assent on 25 May 2000, before the decision in R v Graham S [2001] 1 Cr App R 7 referred to below, though the relevant provisions did not come into force until 25 August 2000. Section 85 applies only to offences committed between 30 September 1998 and 3 April 2005.

The SOA 2003, repealing and re-enacting the relevant provisions of the SOA 1997, received Royal Assent on 20 November 2003 and came into force on 1 May 2004, just after the decision in R v Wiles [2004] 2 Cr App R (S) 88 referred to below.

The CJA 2003 also received Royal Assent on 20 November 2003. The provisions of the Act relating to extended sentences have effect in relation to offences committed on or after 4 April 2005. The amendments to s.227 made by the Criminal Justice and Immigration Act 2008 apply to sentences passed on or after 14 July 2008.

In R v Graham S [2001] 1 Cr App R 7 a constitution of the Court of Appeal (Criminal Division) presided over by Lord Woolf CJ dismissed an appeal against an extended sentence, comprising a custodial term of 2 years and an extension period of 2 years, imposed under s.58 of the Crime and Disorder Act 1998. But the court went on to make observations about the Crown Court judge’s “order” that the notification period under s.1 of the SOA 1997 was to be an indefinite period. The judgment of the court, given by Rougier J, set out the wording of s.58 which, like s.85 of the PCC(S)A 2000, referred to an extended sentence as “a custodial sentence, the term of which is equal to the aggregate of” (a) the custodial term and (b) the extension period. The judgment continued:

“6.

It is to be noted that although the word ‘custodial’ is used in relation to sub-paragraph (b) quoted above, this does not necessarily imply a period of imprisonment. It merely denotes a period during which any offender is liable to be imprisoned if he is discovered to be in breach of the licence.

7.

That must be compared with section 1 of the Sex Offenders Act 1997, which sets out in tabular form the applicable period for which any person convicted of a sexual offence is required to register and to notify the appropriate authorities. In relation to the sentence of imprisonment which is passed, the appropriate wording of the table is:

‘A person who, in respect of the offence, is or has been sentenced to imprisonment for a term or more than six months, but less than 30 months.’

8.

We note the difference between the phrase ‘custodial sentence’ and the phrase ‘a term of imprisonment’. It seems to us that, on the plain construction of the latter Act, ‘a term of imprisonment’ connotes actual and immediate imprisonment and does not include a sentence of extended licence during which he is liable to be imprisoned but will not necessarily be so.

9.

Accordingly, we take the view that the requirement of registering for an indefinite period was incorrectly imposed and that the correct period should be 10 years, beginning with the relevant date in accordance with the section ….”

Those observations must be regarded as obiter. The point was not raised by the grounds of appeal. More fundamentally, since the notification requirements do not form part of the sentence of the court but are a statutory consequence of the sentence, it fell outside the powers of the Crown Court judge to make any “order” at all as to the notification period, and the Court of Appeal should have limited itself to setting aside such an order as being beyond the judge’s powers (see R v Longworth [2006] 1 WLR 313 at [20]).

Further, in R v Wiles [2004] 2 Cr App R (S) 88, a constitution of the Court of Appeal (Criminal Division) presided over by the Vice-President, Rose LJ, held that R v. Graham S had been decided in this respect per incuriam and was wrong. In that case an extended sentence of 24 months, comprising a custodial term of 6 months and an extension period of 18 months, had been imposed under s.85 of the PCC(S)A 2000 and an order had been made under s.28 of the Criminal Justice and Court Services Act 2000 disqualifying the appellant from working with children. The first issue in the appeal was whether the order under s.28 was unlawful. By s.28(2)(b), one of the conditions for the making of an order was that a “qualifying sentence” was imposed on the appellant. A “qualifying sentence” was defined by s.30 as “a sentence of imprisonment for a term of 12 months or more” or a corresponding sentence of detention or like order. The appellant’s counsel relied on R v Graham S in support of a submission that the extended sentence was not a qualifying sentence because its custodial term was less than 12 months. The court rejected that submission.

The judgment of the court, given by Mitting J, referred to the definition of “custodial sentence” in s.76 of the PCC(S)A 2000 as “a sentence of imprisonment” or a sentence of detention of various kinds. It pointed to the fact that “sentence of imprisonment” is not itself defined, except by s.163(1) so as to exclude committal in default of payment of a sum of money, or want of distress, or failure to do or abstain from doing an act. The judgment then set out the terms of s.85 and continued:

“14.

By reason of the definition of ‘custodial sentence’ under s.76, s.85(1) must therefore read:

‘This section applies where a court proposes to impose a sentence of imprisonment or detention.’

Section 85(2) must read:

‘… the court may pass on the offender an extended sentence, that is to say a term of imprisonment or detention which is equal to the aggregate of –

(a)

the term of imprisonment or detention that the court would have imposed …

(b)

a further period … for which the offender is to be subject to a licence.’

Thus read, it is clear that the term of imprisonment or detention includes the extension period and is not confined to the custodial term. That reading is mandated by the definition of custodial sentence in s.76.

15.

It is also consistent with the nature of a modern determinate sentence of imprisonment or detention. It is not, as the phrase might in ordinary language suggest, an order for a period of incarceration of defined length: it is an order for a period of restriction on the freedom of the offender, which begins with a period of incarceration and then may include a period of release on licence and will end with a period during which the offender is liable to be ordered to serve the unexpired term if he reoffends during the currency of the term. All that an extended sentence does is adjust the length of the second (licence) period. Therefore, for the purposes of s.28, the whole length of the extended sentence is to be taken into account in determining the length of the qualifying sentence. The qualifying sentence here was two years ….”

The court went on to acknowledge that this interpretation of the statute was inconsistent with R v Graham S. It stated, however, that the attention of the court in R v Graham S did not appear to have been drawn to the definition of “custodial sentence” which, by s.117 of the Crime and Disorder Act 1998 and s.31 of the CJA 1991, was materially the same as that in s.76 of the PCC(S)A 2000, namely “(a) in relation to an offender over the age of 21 years a sentence of imprisonment; (b) in relation to an offender under that age, a sentence of detention”. The judgment continued, at the end of [16]:

“Thus, contrary to the Court’s view, ‘custodial sentence’ did mean a term of imprisonment. The decision that it did not was made per incuriam.”

R v Wiles was followed in R v Broad [2007] EWCA Crim 2146 at [11] in relation specifically to the notification period under s.82(1) of the SOA 2003. A challenge to it was mounted in the same context in H v The Queen [2007] EWCA Crim 2622, but the court in that case found it unnecessary to rule on the point. The judgment of the court, given by Leveson LJ, referred to counsel’s submission that the calculation of the notification period should be based on the custodial term alone, and continued:

“In that regard, he relies on the reasoning of this court in Regina v Graham S …, arguing that the subsequent decision in Regina v Wiles … which concluded that Graham S was decided per incuriam was itself wrong and based on a flawed analysis of the precise language of the section. Based on that analysis, and bearing in mind that at the time that the notification provisions were introduced, the concept of an extended term had not been devised, we see considerable force in this submission but do not feel that it is necessary to decide the matter, even if were appropriate for us to do so.”

In addition to those authorities, we should refer to the decision of the Court of Appeal in R (Sim) v Parole Board [2004] QB 1288. The case concerned a person who had been given an extended sentence under s.58 of the Crime and Disorder Act 1998, had been released from prison after serving one half of the custodial term, but had had his licence revoked for breach and had been recalled to prison. By the time the Parole Board came to give a decision refusing to direct release, the normal licence period had expired and the extension period had commenced. One of the issues before the court was whether article 5(4) ECHR required an offender’s detention to be supervised by a judicial body when he was recalled to prison during the extension period. In ruling that it did, the court made observations on the nature of an extended sentence (as then provided for by s.85 of the PCC(S)A 2000) for the purposes of the ECHR.

Keene LJ, with whom the other members of the court agreed, said at [28] that the crucial question was whether the subsequent detention after recall could be said to be justified under article 5(1)(a) because of the original sentence imposed by the court. He referred to the discussion in R (Giles) v Parole Board [2004] 1 AC 1, a case concerning a normal determinate sentence, and pointed to the fact that an extended sentence is “a novel creature” differing both from a classic indeterminate sentence and from the normal determinate sentence under consideration in Giles. He continued:

“30.

Lord Hope [in Giles] emphasised that the European court’s approach was to look beyond the appearances and the language used and concentrate on the realities of the situation …. That suggests that no great weight is to be attached in the present case to the fact that section 85(2) refers to the aggregate of the custodial term and the extension period as ‘a custodial sentence’. More attention needs to be focused on what actually happens in reality when such a sentence is passed.

…

33.

One can readily understand the outcome of both R (Giles) v Parole Board [2004] 1 AC 1 and R (Smith) v Parole Board (No 2) [2004] 1 WLR 421. In both cases the original court had passed a determinate sentence of imprisonment for a term of years which it clearly thought appropriate, albeit that in Giles's case it was longer than a commensurate term. The issues which arose about article 5(4) all related to decisions being made about the offender during that term of years for which the court had sentenced him to imprisonment. The same position does not obtain with an extended sentence under section 85, once the custodial term has passed. At that stage no court has sentenced the offender to imprisonment. It has of course ‘authorised’ him to be imprisoned if his licence is properly revoked but that authorisation was a feature which existed in the Van Droogenbroeck case (1982) 4 EHRR 443. The European Court of Human Rights in that case expressly distinguished between the situation with which it was dealing there and a system of early release of prisoners from a sentence of imprisonment imposed by a court (my emphasis). The court under section 85 also fixes the ultimate duration of the whole sentence, but that too was a characteristic present in the Van Droogenbroeck case, where the power of the Minister of Justice to release or detain the offender was limited to ten years.

34.

The purpose of an extended sentence is also of relevance. Section 85(1) indicates that the court may in effect add an extension period on licence where that is required ‘for the purpose of preventing the commission by him of further offences and securing his rehabilitation’. The punitive aspect of the sentence has clearly been dealt with in such cases by the custodial term ….

35.

This very much puts the extension period into the category of cases in which there is a substantial period in the sentence for the protection of the public, during which period there may need to be further assessments of the degree of risk which the offender still represents. That factor has led the European Court of Human Rights … to conclude that new issues may arise during such a period which mean that the continuing or fresh detention of the offender must be subject to continuing supervision as required by article 5(4) ….

36 In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period …. In cases of extended sentences under section 85, it is the executive which decides upon an offender's recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body ….”

It was held by the Supreme Court in R (F (A Child)) v Secretary of State for the Home Department [2011] 1 AC 331 that the indefinite notification requirements under the SOA 2003 constitute a disproportionate interference with the article 8 rights of offenders because they make no provision for individual review of the requirements. The court upheld declarations of incompatibility made by the Divisional Court.

The Government has recently laid before Parliament a draft remedial order which would introduce provision for review of indefinite requirements in an individual case. Whilst this may be of potential benefit to the claimant if he is found to be subject to an indefinite notification period, it does not affect the issue of construction raised by his claim or substantially reduce the significance of the issue for him.

For the reasons given earlier in this judgment, there seems to me to be a strong case, based on the clear wording of the legislation, that the whole of the term of an extended sentence constitutes the term for which a person is “sentenced to imprisonment” for the purpose of determining the notification period under s.82(1) of the SOA 2003. I turn to consider the contrary submissions made on behalf of the claimant.

Mr Rule conceded that an extended sentence under s.85 is a sentence of imprisonment but he contended that the term of that sentence, for the purposes of determining the notification period, is the custodial term and not the aggregate of the custodial term and the extension period.

In support of that contention he relied on the decision in R v Graham S and submitted that this court is bound by that decision. For my part, I do not see how we can be bound by R v Graham S or indeed how we can sensibly place any real weight on it. As I have already explained, the decision was obiter and was subsequently disapproved, as having been decided per incuriam, by the court in R v Wiles. In my judgment, it is the decision in R v Wiles by which we are bound. Although that case was concerned with a different set of statutory provisions, the issue was in my view materially the same as that arising under s.82(1) of the SOA 2003 and s.85 of the PCC(S)A 2000 (I reject a contrary submission by Mr Rule based on the distinction between the prohibitory order under consideration in R v Wiles and the positive obligations imposed by notification requirements under the SOA 2003), and the court’s conclusion that the term of imprisonment under an extended sentence includes the extension period is equally applicable in this context. Despite the suggestion in H v The Queen that R v Wiles may itself have been wrongly decided, the point did not fall for decision and nothing said by the court in that case affects the authority to be accorded to R v Wiles.

One of the features of the argument presented to the court in H v The Queen was that the concept of an extended term had not been devised at the time when the notification requirements were introduced. That is true but, as it seems to me, of no real assistance to the claimant’s case. When the concept of an extended sentence was introduced in the following year, it was done in terms which, as I have explained, treated the extended sentence as a sentence of imprisonment and provided that the term of that sentence of imprisonment was the aggregate of the custodial term and the extension period. That meshed neatly with the references in s.1(4) of the SOA 1997 (the predecessor of s.82(1) of the SOA 2003) to the term of imprisonment on which the notification period was based. Had the legislative intention been to exclude the extension period when determining the notification period, one would have expected the draftsman to use the same “as if” device for that purpose as he did in s.85(6) of the PCC(S)A 2000 and s.44(2) of the CJA 1991 (see [10]-[11] above). The later statutes did not effect any material change in the position.

Mr Rule sought to develop an additional point on the statutory history, going so far as to submit that in enacting the PCC(S)A 2000 and the SOA 2003 Parliament did nothing to change the law as interpreted in R v Graham S and as applied in practice following the decision in that case, and that the court in R v Wiles therefore subverted the intention of Parliament in adopting a contrary construction. As a matter of fact, that argument cannot run for the PCC(S)A 2000, since Royal Assent preceded the decision in R v Graham S. More generally, the point seems to me to be one of little weight, especially in circumstances where there is no suggestion that the meaning of the legislative provisions or the effect of the decision in R v Graham S were the subject of specific Parliamentary debate. I do not think that the point is capable of displacing the otherwise clear meaning of the statutory provisions.

A lot of weight was placed in the claimant’s arguments on the different purposes served by the custodial term and the extension period. It was submitted that the custodial term is essentially punitive and reflects the seriousness of the offence, in accordance with the general approach in s.80(2) of the PCC(S)A 2000 (and now in part in s.153(2) of the CJA 2003); whereas the essential purpose of the extension period is to promote rehabilitation; and since the seriousness of the offence is the driving force behind the notification requirements, the term of imprisonment in the case of an extended sentence should be taken for the purposes of the notification period to be the custodial term alone and not to include the additional licence period required for rehabilitation. That line of argument faces serious difficulties. The extension period, like the normal licence period, is directed in part towards the management and reduction of the risk of reoffending: in the words of s.85(1)(b) of the PCC(S)A 2000, one of the conditions for the imposition of an extended sentence is that the normal licence period “would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation”. That fits squarely with the aims of the notification requirements: in R (F (A Child)) v Secretary of State for the Home Department it was common ground that the requirements had “the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others” (see per Lord Phillips of Worth Matravers at [41]), and the relevance of the requirements to managing and reducing the risk of reoffending ran through the court’s analysis. So there is no obvious reason why, as a matter of policy, the extension period should be left out of account when determining the notification period, or why the extension period should be so sharply distinguished in this respect from the normal licence period (which, as Mr Rule conceded, falls on any view to be taken into account). In any event, this broad argument of policy again carries little weight when set against the clear terms of the statutory language.

Mr Rule had a related submission to the effect that in the case of an extended sentence the term of imprisonment “in respect of the offence”, within s.82(1) of the SOA 2003, can only be the custodial term since the extension period is rehabilitative, rather than punitive, in purpose. I have no hesitation in rejecting that submission as well. I think it plain that the entirety of the extended sentence is a sentence of imprisonment “in respect of the offence” for which it is imposed.

Reliance was placed by Mr Rule on the observations in R (Sim) v Parole Board about the nature of an extended sentence, and in particular the distinction drawn between the custodial term and the extension period (see the passage quoted at [31] above). In my view, however, those observations give the claimant no assistance. They were important for the analysis under article 5(4) ECHR but tell one nothing about the “term” of the extended sentence for the purposes of determination of the notification period under the SOA 2003. When Keene LJ said at para [30] of his judgment that “no great weight” was to be attached to the fact that s.85(2) refers to the aggregate of the custodial term and the extension period as ‘a custodial sentence’, and that more attention needed to be focused on what actually happens in reality when such a sentence is passed, he was plainly referring to the particular ECHR context and was not intending to pass any judgment on the construction of the relevant provisions. Thus, although he went on to say that at the stage of the extension period “no court has sentenced the offender to imprisonment”, he did not mean that the extension period was not to be taken to form part of the sentence of imprisonment as a matter of statutory construction. He was looking in broader terms at the reality of the position for the purposes of the Convention.

There remain for consideration a number of arguments advanced by Mr Rule under articles 8 and 14 ECHR, all directed towards persuading the court that the claimant’s construction of the relevant statutory provisions should be preferred in order to avoid an incompatibility with the Convention.

As to article 8, I can put on one side the point established by R (F (A Child)) v Secretary of State for the Home Department,that the absence of any provision for individual review of the indefinite notification requirements once they have been engaged constitutes a breach of the article (see [32] above). The issue in this case is whether it is a breach of article 8 for the indefinite notification requirements to be engaged in the first place by reason of an extended sentence of the length and make-up of that imposed on the claimant. Mr Rule submitted in effect that where the seriousness of the offence itself does not justify a custodial term of 30 months or more (i.e. leaving out of account the extension period), it is a disproportionate interference with article 8 rights for the offender to be made subject to the notification requirements for an indefinite period. I cannot accept that submission. I do not see why the threshold for engaging the indefinite notification requirements should be determined by the seriousness of the offence alone. This comes back to the point considered at [39] above, that there is a link between the purposes of an extended licence and the aims of the notification requirements. Thus the extension period is relevant in principle to the determination of the notification period and it cannot in my view be said that its inclusion in the term that determines the notification period is inherently objectionable for article 8 purposes. Nor can it be said, in my view, that the fixing of the threshold for indefinite notification requirements at 30 months, including the extension period, rather than at some lower figure, constitutes an unlawful striking of the balance by the legislature. I do not think that the claimant is assisted in this respect by the fact that the effect of an extended sentence on the threshold for indefinite notification requirements has not been the subject of specific Parliamentary debate. The balance struck by the legislature is to be found in the statutory provisions themselves, the meaning and effect of which I have already covered.

A further submission on article 8 was that the legislation lacks the degree of clarity and certainty required for an interference to be “in accordance with the law” within article 8(2). I disagree. The relevant provisions are contained in primary legislation and have been the subject of interpretation by the courts. The legal framework is sufficiently clear. As was submitted by Mr Johnson QC on behalf of the Secretary of State, the fact that there is scope for argument about their correct interpretation does not mean that the legal framework fails to satisfy the principle of legality: see Sunday Times v United Kingdom (1979) 2 EHRR 245 at [49].

I turn to article 14, which provides that the enjoyment of the rights and freedoms set forth in the Convention “shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. The claimant’s case is that it constitutes unlawful and arbitrary discrimination in breach of article 14 (in conjunction with article 5 and/or article 8) for the indefinite notification requirements to be engaged by an extended sentence with a custodial term of only 18 months. The alleged discrimination relates, to quote from Mr Rule’s skeleton argument, “to the different treatment given to those (1) who were released from custody having been subjected to identical or comparable sentences of imprisonment and of an extended licence period under section 85 of the PCC(S)A 2000 prior to 1 April 2005, when the Home Office began to apply the case of Wiles (it has stated); and/or (2) who have been or are to be sentenced post-14 July 2008 to a term of 18 months’ imprisonment and consequently cannot in law be given an extended sentence at all (as a four-year sentence is required to justify any extended sentence being imposed, and they like the Claimant do not have an exceptional record with Schedule 15A CJA 2003 offences recorded)”. I am not sure about the fine detail of the intended comparison or comparisons, but the main point appears to be the difference of treatment as regards the notification period between those, such as the claimant, who were given an extended sentence with a custodial term of 18 months under the PCC(S)A 2000 and those who are sentenced on or after 14 July 2008 under the CJA 2003 as amended, in relation to whom an extended sentence is not available at all unless the appropriate custodial term is at least 4 years (see [18] above).

The argument depends on there being discrimination on the ground of “other status” within article 14. I find it difficult to see how the changes in the legislative regime referred to, affecting those sentenced at different dates, could give rise to such discrimination. In any event, however, in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 the House of Lords decided that differential treatment of prisoners based on differences in length of sentence was not discrimination on the ground of “other status”. Mr Rule appeared to accept that that decision stood in his way, but he pointed to the fact that it was a decision reached with hesitation and because their Lordships considered that to decide otherwise would go beyond the existing Strasbourg jurisprudence; whereas in its subsequent decision in Clift v United Kingdom (Application no. 7205/07, judgment of 13 July 2010) the Strasbourg court held that the same applicant did enjoy “other status” within article 14 in relation to the differential treatment about which complaint was made. Mr Rule submitted that we should therefore hold that the differential treatment complained of in the present case falls within article 14, and he further contended that there is no objective justification for subjecting the claimant to indefinite notification requirements by reason of his extended sentence when no such sentence could be passed, and the indefinite notification period would therefore not be engaged, in the case of those sentenced on a comparable basis on or after 14 July 2008.

Mr Basu for the Chief Constable, and Mr Johnson for the Secretary of State, met that line of argument by the submission that the decision of the House of Lords in Clift remains binding on this court notwithstanding the subsequent approach of the Strasbourg court towards the interpretation of the Convention. The need for adherence to the domestic rules of precedent in such circumstances was stressed by the House of Lords in Kay v Lambeth London Borough Council [2006] 2 AC 465 at [40]-[45]: this was subject to a partial exception, but only where the facts were of an extreme character. I accept that submission. In my view this court is bound by the decision of the House of Lords in Clift, which provides a sufficient basis for dismissing the claimant’s case under article 14 without further consideration of it. The present case is far from being an exceptional case of the kind that might justify a departure from the normal rules of precedent.

Accordingly, I am not persuaded by any of the arguments advanced on behalf of the claimant that the relevant provisions are to be read in a different way from that indicated earlier in this judgment. In my view, the extended sentence of 4½ years imposed on the claimant under s.85 of the PCC(S)A 2000 is a sentence of imprisonment the term of which is 4½ years and the claimant is therefore a person “sentenced … to imprisonment for a term of 30 months or more” within the meaning of s.82(1) of the SOA 2003, so as to be subject to the notification requirements for an indefinite period. That is the conclusion I would reach independently of authority but it is also the conclusion required by the decision in R v Wiles, by which this court is bound.

Since the court has been made aware of the existence of other proceedings raising a similar issue under the CJA 2003, I should make clear that relatively little reference was made in argument before us to the extended sentence provisions of the 2003 Act and there was no suggestion that they cast a materially different light on the analysis under the PCC(S)A 2000 or that they would themselves be susceptible to a materially different analysis. For my part, I do not see any obvious basis for a materially different analysis of them, but we are not called upon to decide the point.

For the reasons given, I would dismiss the claim.

I agree.

I also agree.