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

The facts

On 17 June 2007 the claimants, Scott Smith and Daniel Modhej, violently raped NT, falsely imprisoned her, made threats to kill her and then robbed her. They were convicted of these offences at the Crown Court at Inner London on 3 December 2007. On 11 January 2008 each was found to be dangerous within the meaning of ss.224-229 of the Criminal Justice Act 2003 (CJA 2003). Smith was sentenced to detention for public protection with a minimum term of four years less time on remand and Modhej sentenced to imprisonment for public protection with a similar minimum term; the difference in the form of their sentence was due to their age at the time.

Both appealed to the Court of Appeal Criminal Division. On 14 January 2010 the Court of Appeal Criminal Division (in a judgment reported at [2010] EWCA Crim 216) upheld the finding of dangerousness but considered that the appropriate course the judge should have followed was to impose an extended sentence of imprisonment rather than detention or imprisonment for public protection. The court concluded at paragraph 18:

“We entirely agree with the learned judge that it is appropriate for these two young men to receive the same sentence, very much for the reasons that he gave. Accordingly, what we propose to do is that in each case we shall quash the sentences of detention for public protection in relation to the counts of rape and we shall substitute for them extended sentences of detention in a young offenders institution. In each case we fix the appropriate custodial term at eight years, with an extension period of four years, which we consider to be necessary for the purpose of protecting members of the public from serious harm occasioned by the commission of further specified offences. What that means is that in each case they will be entitled to release when they have served four years, including the time spent on remand, whereupon the licence period will commence, but it will continue for a period in all of eight years. As we have just indicated, time on remand will count towards the custodial elements. To the extent that we have there set out, these appeals against sentence are allowed.”

The order of the court in respect of each appellant:

“1.

Allowed the appeal and quashed the sentence on Count 2/1 imposed in the Court below;

2.

Substituted therefore, on that Count, an extended sentence of 12 years comprising a total custodial term of 8 years detention in a Young Offender Institution and an extended licence period of 4 years;

3.

Affirmed the remainder.”

The halfway point in the custodial terms imposed on each is about to be reached.

The amendment to the release on licence provisions of the CJA 2003

Under the provisions of s.247(2) of the CJA 2003 as originally enacted the claimants would only be entitled to release if the Parole Board directs their release after the halfway point in the custodial term has been reached. Subsections (2) and (3) provide as follows:

“(2)

As soon as –

(a)

a prisoner to whom this section applies has served one-half of the appropriate custodial term, and

(b)

the Parole board has directed his release under this section,

it is the duty of the Secretary of State to release him on licence.

(3)

The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

S.247 was amended by s.25 of the Criminal Justice and Immigration Act 2008 (the 2008 Act) so that there reads in place of subsections (2) and (3) a new subsection (2):

“(2)

As soon as –

(a)

a prisoner to whom this section applies has served one-half of the appropriate custodial term, it is the duty of the Secretary of State to release him on licence.”

The effect of the amendment is that a person sentenced to an extended sentence is entitled to release automatically at the halfway point without reference to the Parole Board.

The amendment to s.247 was brought into force by the Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions) Order 2008 (the Commencement Order). Although the Commencement Order provided that the amended section came into force on 14 July 2008, it was provided by paragraph 2 of Schedule 2 as follows:

“2.

The coming into force of sections 13 to 18 and 25 of, Schedule 5 and paragraph 71 of Schedule 26 to, the 2008 Act (and the related entries in Schedule 28 (Repeals) to that Act) is of no effect in relation to any person sentenced under any of sections 225, 226, 227 or 228 of the 2003 Act before 14 July 2008.”

The contentions of the claimants

It is contended on behalf of both claimants that the substitution of extended sentences by the Court of Appeal Criminal Division in January 2010 had the effect that they were persons sentenced in January 2010. Therefore the amended s.247(2) applies to them. They are therefore entitled to release automatically at the halfway point without reference to the Parole Board. The complainants advanced that contention to the Secretary of State who rejected it. In consequence each commenced judicial review proceedings. In view of the imminent approach of their halfway point, it was ordered that their claims be heard before us on 16 August 2011; one proceeds as a result of permission being granted; the other as a “rolled up” hearing.

The argument presented on behalf of the claimants was elegantly advanced by Mr Southey QC. He submitted that the task of the Court of Appeal on an appeal against sentence proceeds in two stages. First the court considers whether the sentence was one which it should uphold or quash. If the court decides that the sentence should be quashed, then it proceeds to the second stage which involves passing a new sentence. That two stage process is, he submitted, reflected in the provisions of the Criminal Appeal Act 1968; we refer to those provisions at paragraph 12 below. He illustrated what he characterised as the two stage process by reference to the decision of the Court of Appeal Criminal Division in R v Malook [2011] EWCA Crim 254, [2011] 3 All ER 373. In that case, an appeal against sentence, the Court of Appeal heard fresh evidence in relation to findings made at a Newton hearing. The court concluded at paragraph 60 that, if the judge could not have made the findings he made at the Newton hearing if the fresh evidence before the court had been before the judge, the court would itself have to hear the Newton hearing afresh, as there was no power for the court to remit the matter to the Crown Court. The fact that the Court of Appeal Criminal Division could conduct a Newton hearing, it was submitted, was an indication that it was acting as a sentencing court and therefore sentencing.

Mr Southey QC accepted that, if his contention was correct and a person was therefore “sentenced” by the Court of Appeal for the purposes of the Commencement Order, then the effect in relation to the amendment made to the CJA 2003 was extensive in relation to the powers of the Court of Appeal Criminal Division. It was not confined to the narrow point in issue on these claims. It would have the consequence that, if the Court of Appeal Criminal Division found on an appeal from a sentence imposed under the dangerousness provisions of the CJA 2003 between the commencement of the provisions in April 2005 and the commencement of the amendments on 14 July 2008 that the sentence was in error, in any case heard by it after 14 July 2008, the sentencing powers of the Court of Appeal Criminal Division would be limited to those under the amendments brought in under the 2008 Act. For example, therefore, though the Crown Court which passed the sentence prior to 14 July 2008 could have imposed a sentence under the dangerousness provisions without the qualifying minimum term of two years, the Court of Appeal’s powers in hearing any appeal after 14 July 2008 would be restricted by the qualifying minimum term.

The role of the Court of Appeal Criminal Division

It is well established that the Court of Appeal Criminal Division, when it considers an appeal on sentencing, is reviewing decisions of the Crown Court. It is not in the ordinary sense of the term a “sentencing court”. This was made clear by Lord Bingham CJ in R v A and B [1999] 1 Cr App R(S) 52 at page 56 when considering whether a court should take into account help offered by a convicted offender after sentence. He explained the rationale:

“If a defendant denies guilt but is convicted and sentenced following a contested trial without supplying valuable information to the authorities before sentence or expressing willingness to do so, the Court of Appeal Criminal Division will not ordinarily reduce a sentence to take account of information supplied to the authorities by the defendant after sentence. So much is made clear by Waddingham (1983) 5 Cr.App.R.(S.) 66, 68–69, and see the commentary in [1983] Crim.L.R. 492; Debbag and Izzet (1991) 12 Cr.App.R.(S.) 733, 736–737 ; and X (1994) 15 Cr.App.R.(S.) 750, 753, and see the commentary in [1994] Crim.L.R. 469. The reason for this general rule is clear: the Court of Appeal Criminal Division is a court of review; its function is to review sentences imposed by courts at first instance, not to conduct a sentencing exercise of its own from the beginning.”

Its powers are all statutory. S.11(3) of the Criminal Appeal Act 1968, the provision governing its powers when it reaches a decision to quash the sentence of the Crown Court, provides:

“On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may –

(a)

quash any sentence or order which is the subject of the appeal; and

(b)

in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”

It is important to note that although the subsection refers to the court passing sentence, it is passing a sentence in place of the original sentence. That is reflected in the order made by the Court of Appeal Criminal Division in the appeal made by the claimants as we have set out at paragraph 2 above. What the court does is to quash and substitute a different sentence. The powers are further clarified by s.29(4) which provides:

“The term of any sentence passed by the Court of Appeal under section 3, 4, 5, 11 or 13(4) of this Act shall, unless the Court otherwise direct, begin to run from the time when it would have begun to run if passed in the proceedings from which the appeal lies.”

This section simply provides that the sentence imposed by the Court of Appeal Criminal Division begins to run from the time it would have begun to run if passed in the proceedings from which the appeal lies. All this provision does, in our view, is to confirm the position that what the Court of Appeal is doing is substituting a sentence because the term of that sentence will normally run from the date of the original sentence.

The effect of the Commencement Order

Turning to apply this analysis to paragraph 2 of Schedule 2 to the Commencement Order, we consider that its meaning is clear. What the provision refers to is the date of the sentence in the Crown Court, not the review and the substitution of a sentence in the Court of Appeal. Although both s.11(3) and s.29(4) refer to the Court of Appeal Criminal Division passing a sentence, the question for us is whether, in the terms of the Commencement Order, the claimants were persons “sentenced” by the Court of Appeal Criminal Division on 14 January 2010. The ordinary and usual meaning of “sentenced” is a reference to the occasion when a first instance court, after a plea or after the conclusion of a trial resulting in a conviction, determines the sentence to be imposed on the defendant, by reference to facts relating to the offence, the mitigating and aggravating factors and the circumstances of the defendant. A defendant would in these circumstances be ordinarily referred to as a person “sentenced”. A person appealing from a sentence who has his sentence reduced or increased on appeal would not in the ordinary sense of the word be a person “sentenced” on the occasion of the appeal. The fact that technically what the Court of Appeal Criminal Division does is to quash the original sentence and pass by way of substitution a fresh sentence does not mean that the person is “sentenced” by the Court of Appeal Criminal Division, for the purposes of the Commencement Order. Both claimants were therefore for the purposes of the Commencement Order “sentenced” on the 11^th January 2008.

The fact that this was the ordinary meaning of the word “sentenced” for this purpose can be seen by consideration of the Guidelines issued both by the Sentencing Guidelines Council and the Sentencing Council. The Guidelines contain phrases such as the Guideline applies “to the sentencing of offenders …. who are sentenced on or after [ ]” or “to all offenders …. who are sentenced on or after [ ], regardless of the date of the offence”. This type of phrase was used in the Guideline for “dangerous offenders” applicable to the amendments to the CJA 2003 effected by the 2008 Act. It has, so far as we are aware, never been suggested that where a Guideline has been amended, the Court of Appeal must follow the Guideline in force at the time of the appeal, as opposed to the Guideline applicable at the time the defendant was sentenced in the Crown Court. It would create extraordinary anomalies if that were to be the case.

Our view accords with the observations made Lord Judge, Chief Justice, in AG Reference No. 55 of 2008 [2008] EWCA Crim 2790, [2009] 2 Cr App R(S) 22, where he expressed in a broader context the operation of the transitional provisions:

“The relevant provisions of the 2003 Act and the 2008 Act amendments were brought into force on 4 April 2005 and 14 July 2008 respectively. These far reaching amendments were expressly declared, by paragraph 2 of Schedule 2 of the Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Saving Provisions) Order 2008 (SI 2008 No. 1586) not to have effect in relation to any person sentenced under any of the provisions of sections 225-228 of the 2003 Act before 14 July 2008. The date when an offender is brought before the court and sentenced is largely accidental and depends on the needs and business, and the overall interests of victims and witnesses, as well as defendants, in each Crown Court. The effect of the transitional provisions is that an offender sentenced before 14 July 2008 (and any appeal by him to this court) is governed by sections 225-228 of the 2003 Act (provided the offences were committed after 4 April 2005) and that after 14 July 2008 the amended sentencing regime found in sections 13-18 of the 2008 Act applies.”

Although we accept the argument advanced by Mr Southey QC that transitional provisions are bound to create anomalies, we consider that this interpretation makes matters clearer and reduces the scope for anomalies. First it is clear to everyone that the change in the sentencing regime occurs by reference to the date of the sentence in the Crown Court and not to what happens subsequently on appeal. Secondly, there are fewer anomalies if the transitional provisions operate by reference to the date of the original sentence and not to the time at which the appeal occurs.

Conclusion

Although we granted permission to Modhej, we dismissed both the claims at the conclusion of the hearing.