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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> B, R v [2009] EWCA Crim 906 (07 May 2009) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2009/906.html Cite as: [2009] EWCA Crim 906, [2009] Crim LR 894, [2010] 1 Cr App Rep (S) 19, [2010] 1 Cr App R (S) 19 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
Judge Griffiths
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE BEATSON
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R G B |
Appellant |
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- and - |
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Regina |
Respondent |
____________________
Simon Edwards (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 2 April 2009
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Crown Copyright ©
Lord Justice Scott Baker :
Facts
The conventional ground of appeal
The extended licence
"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)."
"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 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.
"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.
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".
"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."
"(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 theHuman 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."
Conclusion