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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barnes, R. v [2024] EWCA Crim 1548 (13 December 2024) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2024/1548.html Cite as: [2024] EWCA Crim 1548, [2025] 1 WLR 1981, [2024] WLR(D) 569, [2025] WLR 1981 |
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Case No. 202402457 A5 Case No. 202403068 A3 AC-2024-LON-000849 |
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ MAYO KC; T20237129
AND
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HHJ HEHIR; CP 01MP1214423
AND
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE SWIFT
MRS JUSTICE FARBEY DBE
____________________
REX |
Case No. 202402457 A5 Respondent |
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- v - |
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DANNY BARNES |
Appellant |
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-and- |
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SECRETARY OF STATE FOR JUSTICE |
Intervener |
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And Between: |
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REX |
Case No. 202403068 A3 |
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- v - |
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YOUSSEF BEROUAIN |
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-and- |
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SECRETARY OF STATE FOR JUSTICE |
Intervener |
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ATTORNEY-GENERAL'S REFERENCE UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988 |
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And Between: |
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THE KING on the application of JORDAN LILL |
AC-2024-LON-000849 Claimant |
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-and- |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
for Danny Barnes
John Price KC (instructed by the CPS) for the Crown in Barnes
Catherine Pattison appeared on behalf of the Attorney-General in Berouain
Nathaniel Wade (instructed by Mians Solicitors) for Youssef Berouain
Jyoti Wood (instructed by Patterson Solicitors) for Jordan Lill
Iain Steele (instructed by GLD) for Secretary of State for Justice
Hearing date: 11 November 2024
____________________
Crown Copyright ©
Dame Victoria Sharp P.,
Introduction
The facts of the cases so far as they concern the section 244ZA issue
Jordan Lill
"In short, you were both showing off. You'd had been doing wheelspins and you, one of you, accelerating with such force that it pushed your passenger back into her seat as you accelerated away. It was night time. You were driving at massive speeds; competing; racing; showing off. And during the course of those one of your two vehicles killed Carl Queen."
Mr Lill was sentenced to 7½ years' imprisonment.
Danny Barnes
"5. On Sunday 24 April 2022, at 3:46pm, you were driving a high-performance BMW motorcycle. You stopped at a set of lights at a pedestrian crossing near the junction of Brixton Hill and Acre Lane. Members of the public said they heard you "rev" the engine of your motorcycle loudly as you waited for the lights to change from red to green.
6. When the lights changed you accelerated quickly from that junction at high speed. From a standing start, you quickly reached a speed of at least 37 mph (and possibly higher) as you travelled along Acre Lane. That section of Acre Lane along which you were driving is lined with commercial and residential premises; there is a large church and Lambeth Town Hall is also located on that part of Acre Lane. As one might expect on such a busy south London street, the speed limit is 20 mph. It follows that you were travelling at nearly twice the speed limit.
7. Further up Acre Lane, an 87-year-old gentleman named Harry Bent and his niece, Enid Aldred, were crossing Acre Lane. A matter of seconds later, your motorbike, now travelling at 31 mph, struck Mr Bent and knocked him to the ground.
8. At the point at which you collided with Mr Bent, the forensic collision investigator estimated that Mr Bent was only a short distance from the pavement and would have successfully reached safely on the pavement in less than 2 seconds. The collision investigator said that the collision was completely avoidable if you had been travelling at or even near the speed limit.
9. We also heard evidence about the width of the lane in which you were driving on Acre Lane. That was relevant because you claimed there was insufficient room for you to drive around Mr Bent and Mrs Aldred without trespassing into the oncoming lane. I am satisfied on the evidence heard at trial that was simply not correct. There was sufficient room to pass within the lane and therefore avoid the collision. As Mrs Aldred (Harry Bent's niece) said in her witness statement: 'I can't understand how he knocked Uncle Harry. Even if we were close, he could have easily swerved or he could have even stopped." He had to have seen us. It wasn't as if there was loads of people blocking us. The road was very clear.'
10. For some reason, perhaps only known to you, you drove far too close to Mr Bent and your motorbike struck him with force and knocked him to the ground.
11. In evidence, you tried to put the blame on Mr Bent and Ms Aldred by suggesting that they had caused or contributed to the collision by signalling to you that you should proceed. The jury clearly rejected that suggestion – they were right to do so.
12. Mr Bent was taken by ambulance to hospital where he was to suffer a heart attack and die at 6.07 pm that evening."
The Attorney-General's Reference (Youssef Berouain)
The section 244ZA issue
Legal framework
"244ZA Release on licence of certain violent or sexual offenders
(1) As soon as a fixed-term prisoner to whom this section applies has served the requisite custodial period for the purposes of this section, it is the duty of the Secretary of State to release the prisoner on licence under this section.
(2) This section applies to a prisoner who—
(a) is serving a fixed-term sentence within subsection (4), (5) or (6),
(b) is not a prisoner to whom section 244A, 246A or 247A applies, and
(c) has not been released on licence (provision for the release of persons recalled under section 254 being made by sections 255B and 255C).
(3) Subsection (1) does not apply if—
(a) the prisoner's case has been referred to the Board under section 244ZB, or
(b) a notice given to the prisoner under subsection (4) of that section is in force.
(4) A fixed-term sentence is within this subsection if it—
(a) is a sentence of—
(i) imprisonment, or
(ii) detention under section 96 of the PCC(S)A 2000 or section 262 of the Sentencing Code,
(b) is for a term of 7 years or more,
(c) was imposed on or after 1 April 2020, and
(d) was imposed in respect of an offence—
(i) that is specified in Part 1 or 2 of Schedule 15, and
(ii) for which a sentence of life imprisonment could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed.
(5) A fixed-term sentence is within this subsection if it—
(a) is a sentence of imprisonment or a sentence of detention under section 262 of the Sentencing Code,
(b) is for a term of at least 4 years but less than 7 years,
(c) was imposed on or after the day on which section 130 of the Police, Crime, Sentencing and Courts Act 2022 came into force, and
(d) was imposed in respect of an offence within subsection (7).
(6) A fixed-term sentence is within this subsection if it—
(a) is a sentence of detention under section 250 of the Sentencing Code,
(b) is for a term of 7 years or more,
(c) was imposed on or after the day on which section 130 of the Police, Crime, Sentencing and Courts Act 2022 came into force, and
(d) was imposed in respect of an offence within subsection (7).
(7) An offence is within this subsection if—
(a) it is specified in any of the following paragraphs of Part 1 of Schedule 15—
(i) paragraph 1 (manslaughter);
(ii) paragraph 4 (soliciting murder);
(iii) paragraph 6 (wounding with intent to cause grievous bodily harm);
(iv) paragraph 64 (ancillary offences), so far as it relates to an offence listed in paragraph 1, 4 or 6;
(v) paragraph 65 (inchoate offences in relation to murder), or
(b) it is an offence—
(i) that is specified in Part 2 of that Schedule (sexual offences), and
(ii) for which a sentence of life imprisonment could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed.
(8) For the purposes of this section 'the requisite custodial period' means—
(a) in relation to a prisoner serving one sentence, two-thirds of the prisoner's sentence, and
(b) in relation to a prisoner serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2B) or (2E)."
"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 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" (emphasis added).
The formulation of the section 244ZA issue
Previous case law
"21. At the time of this offending the maximum sentence for causing death by dangerous driving was 14 years. Accordingly, although the offence is listed in Schedule 15 to the Criminal Justice Act 2003 at paragraph 48, the release provisions under section 244ZA of the Criminal Justice Act 2003 (increasing to two-thirds the time to be served in respect of sentences of 7 years or more for certain offences) did not apply to sentences of 7 years or more passed in respect of this offence. But the position is now changed for offences of causing death by dangerous driving committed on or after 28 June 2022, in respect of which the maximum sentence has now increased from 14 years to life. The change to a maximum sentence of life imprisonment means that the provisions of section 244ZA will now apply to sentences of 7 years or more passed for an offence of causing death by dangerous driving."
This is consistent with a conclusion that section 244ZA of the 2003 Act does not apply if the offence was committed before 28 June 2022 regardless of the date the sentencing hearing takes place. However, the section 244ZA issue was not formally an issue in Jeffries and the judgment does not suggest the court heard argument on the matter.
"11. At the time of the collision the maximum sentence for causing death by dangerous driving was 14 years' imprisonment, although it has since been increased to life imprisonment. That increase was not retrospective and therefore the maximum sentence available to the judge on count 1 was one of 14 years. However, the change in the law which came into effect in June 2022 (thus between the date of the collision and the sentence in this case) had the effect that the time to be served for this offence was two-thirds of the sentence imposed whereas previously it had been one-half. That change in the law applies to sentences imposed after that date, with the effect, therefore, that the sentence imposed on the appellant in this case is one of which he will have to serve two-thirds rather than one-half."
Thus, and although once again the issue does not appear to have been argued, the clear view of the court on that occasion was that, regardless of the date of offending, if the defendant was sentenced after 28 June 2022, section 244ZA of the 2003 Act applied and the requisite custodial period would be two-thirds of the sentence imposed by the court.
"6. The second matter was that the extension period for disqualification assumed that the applicant would have to serve two-thirds of his sentence before release. That assumption was incorrect because the maximum sentence at the relevant time was 14 years. Thus, the applicant in fact will be eligible for release at the halfway point of his sentence. A matter subsidiary to that in relation to disqualification is that at the time of the offence the minimum obligatory disqualification was two years, whereas now it is five years. There was some thought that it may be the judge's period of disqualification of eight years might have been affected by a misapprehension as to what the minimum obligatory disqualification was.
7. Both parties have provided skeleton arguments dealing with the matters raised by the Registrar. There is no issue as to the error made in respect of the period of disqualification calculated by reference to the release date. Thus, we will give leave to appeal in order to allow that error to be corrected. …
…
26. We allow the appeal in relation to the extension period. That will be reduced to four years eight months. To that very limited extent, the appeal is allowed" (emphasis added).
Thus, the court accepted that even when sentencing took place after 28 June 2022, section 244ZA of the 2003 Act would not apply in cases where the offending had occurred before 28 June 2022 and life imprisonment was not the maximum penalty that could be imposed. As recorded in the judgment, both parties agreed that section 244ZA did not apply so that the court did not need to provide a reasoned judgment on the section 244ZA issue.
"15. The offence of causing death by dangerous driving is listed in Part 2 of Schedule 15, but at the time that the appellant committed the offence it was punishable with a maximum sentence of 14 years. The sentence for this offence was increased to life imprisonment with effect from 28 June 2022, but only for offences committed after that date (see section 86(9) of the Police Crime Sentencing and Courts Act 2022). The index offence was committed on 2 October 2021. The judge was, therefore, right to proceed, as he evidently did, on the basis that the extension required by section 35A was of a period equivalent to half the sentence of imprisonment. That would be 42.5 months.
16. However, the judge appears to have rounded this up to 43 months. There is no power under section 35A to round up in this way. Accordingly, the length of the disqualification needs to be reduced by half a month, so that it becomes a total period of nine years six and a half months, rather than nine years seven months. The nine years six and a half months comprises a discretionary period of six years and an extended period of forty-two and a half months. To that extent, and only to that extent, the appeal is allowed."
Thus, the court's assumption in Bates that section 244ZA(4) did not apply was the same as the court's decision in Freeth. One point that can be made in respect to this small group of cases is that in each, the court gave judgment apparently without having been referred to any of the other judgments. The hearing in the cases before us is the first opportunity for the court to consider the section 244ZA issue with the benefit of all these judgments.
The parties' submissions
Article 7 ECHR
"38. For the purposes of Art.7(1), the proper comparison is between the penalties which the court imposed for the offences… and the penalties which the legislature prescribed for those offences when they were committed... As I have explained, the cumulative penalty of 12 years' imprisonment that the court imposed for all the offences… was not heavier than the maximum sentence which the law would have permitted it to pass for the same offences at the time they were committed... There is accordingly no breach of Art. 7(1) …
43. Here there was no change in the relevant penalties which the law permitted a court to impose. What changed between [the commission of the offences and the sentence] were the arrangements that were to apply on the prisoner's early release from any sentence of imprisonment imposed by the court… There is no violation of Art.7(1)."
The release of a prisoner on licence – albeit subject to conditions – was held to mitigate rather than increase the severity of the sentence of imprisonment (paragraph 28 per Lord Phillips).
"Although, as the Court of Appeal found in the present case, the licence conditions imposed on the applicant on his release after eight years can be considered as 'onerous' in the sense that they inevitably limited his freedom of action, they did not form part of the 'penalty' within the meaning of Article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed.
Accordingly, the application to the applicant of the post-1991 Act regime for early release was not part of the 'penalty' imposed on him, with the result that no comparison is necessary between the early release regime before 1983 and that after 1991. As the sole penalties applied were those imposed by the sentencing judge, no 'heavier' penalty was applied than the one applicable when the offences were committed."
For these reasons, Mr Uttley's application was manifestly ill-founded and inadmissible.
"83. Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a 'penalty' and a measure that concerns the 'execution' or 'enforcement' of the 'penalty'. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the 'penalty' within the meaning of art.7."
"105. In the present case the changes wrought by [the relevant statutory provisions] were changes in the arrangements for early release; they were not changes to the sentence imposed by the sentencing judge."
On that basis, the arrangements did not amount to the imposition of a heavier penalty and did not breach Article 7(1). We agree with the approach in Khan which concerned the law in England and Wales.
"114. … The purpose [of the new measures] was to protect the public from terrorist prisoners by confining them for a longer period under their determinate custodial sentences and then only releasing them on licence after the Parole Commissioners directed their release being satisfied that it was no longer necessary for the protection of the public that they should be confined. The nature of the measures was to change the manner of execution of the determinate custodial sentences by restricting the eligibility for release on licence of terrorist prisoners. The nature and purpose of the changes… was not to lengthen the determinate custodial sentences imposed on the respondents. The length of those sentences was not increased in any sense …
116. I consider that there has been no retroactive increase in the penalties imposed by the [judge]. Section 30 of the 2021 Act and article 20A of the 2008 Order [i.e. the new measures] concern exclusively the way in which the lawfully prescribed determinate custodial sentence imposed on the respondents are to be executed."
Policy considerations
The language of the statute
"46. The language…speaks of a life sentence which the court is able to impose in the case of a hypothetical 21 year old defendant at the date of sentence. Had Parliament intended to anchor these conditions to the sentence that was available in the particular offender's case, the provision would have been drafted differently…
47. The provisions in sub-paragraph (4) provide two proxies of seriousness for the offence: the length of the determinate sentence (seven years +) and the availability of a life sentence for an offender aged 21 years or older. The first proxy of seriousness relates to the seriousness of the particular offending (such as to require a sentence of seven years or more) but the second proxy relates to the seriousness of the offence itself. The interpretation of those provisions in that way would appear to be consistent with the policy which underpins this legislation."
Parliamentary materials
"(d) was imposed in respect of an offence—
(i) that is specified in Part 1 or 2 of Schedule 15, and
(ii) for which a sentence of life imprisonment may be imposed" (emphasis added).
Conclusion
Decision on the Attorney-General's Reference
The facts
Proceedings in the Crown Court
"… And I am sure you will have explained the position to [Mr Berouain], but I spell this out. If he does – this Goodyear indication is given against the obvious factual backdrop that the offence of causing death by dangerous driving, is an offence towards the unduly lenient sentence scheme applies. And therefore, the fact that if I give a Goodyear indication and I sentence him on foot of that indication, that is no guarantee that the prosecution would not, if they thought the sentence unduly lenient, seek to appeal it".
Sentencing
"The one specific separate aggravating factor in your case, is your culpable failure to provide any evidential sample to the police. I have viewed the CCTV footage of your behaviour in the custody suite at the police station after your release from hospital, where you had been taken as a precaution. I have also viewed the police body worn footage of your behaviour at the roadside immediately after the crash. Even making allowance for any shock you may have been experiencing as a result of the collision, none of it does you any credit. I stress however, that I cannot and do not sentence you on the basis that you were actually impaired through alcohol or drugs at the time of the collision."
"The reason Mr Saied's manoeuvre was followed by disaster was, to put it bluntly, because you had decided to drive like an idiot. Driving at over twice the speed limit in a busy road in London with plenty of side turnings, made you to use a cliched, but in this case, highly appropriate expression, an accident waiting to happen, and it did happen."
"In arriving at the appropriate sentence in your case I have, as I say, been greatly assisted by the case of Saeed Ahmed. The judgment of the Court of Appeal Criminal Division was given by Lord Justice William Davis. He pointed out that in cases like yours, where only one or two Category A features are present, sentence after trial may well be located at or near the bottom of the wide category range, spanning as it does, sentences between 8- and 18-years' custody, with a starting point of 12 years. I do place your offending towards the bottom of the range. But the sentence that would have followed after trial cannot be at the very bottom in particular because of the uplift to reflect count 4.
…
Balancing the aggravating and mitigating features in your case, my conclusion is that the least total sentence I could have imposed had you contested these matters and been convicted by a jury, would have been 10 year's imprisonment. Allowing credit for 15per cent for your guilty pleas that reduces to 8½ years, which is the sentence I impose on count 1. There will be a concurrent sentence of 3 years' imprisonment on count 4, making a total of 8½ year's imprisonment. You will serve up to half that time in custody and will be on licence and liable to recall for the balance of the sentence.
The total term of disqualification from driving for the reasons I have already explained will be 7 years and 3 months."
Discussion
"32. The Sentencing Council spent many months considering the guidelines for driving offences introduced on 1 July 2023. The levels of sentence for cases involving a death were particularly anxiously considered. They were the subject of significant consultation, as described by Hughes LJ in Healey. Although one factor which was relevant to the Council's work was the increase in the maximum penalty for causing death by dangerous driving, the guideline was not predicated simply on that increase."
"36. In this case, we consider that the judge would have been entitled to put the case towards, if not at the bottom, of the category range, namely, 8 years. There were only two high culpability factors. Each factor reflected the same behaviour, namely driving much too fast for the prevailing road conditions. There were relevant aggravating factors. Mr Kristiansen was a vulnerable road user as a cyclist. The offender failed to stop after the accident. Indeed, his behaviour after the accident was reprehensible. There was mitigation. He had a good driving record, he had positive good character, there was an element of remorse and there was the impact of a first prison sentence on a man with some health issues."
Conclusion