OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)
REASONS: 30 JULY 2004
The Appellate Committee comprised:
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)
 UKHL 38
- I have read the opinions of my noble and learned friends Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell. I agree with those opinions. I would also allow the appeal.
LORD PHILLIPS OF WORTH MATRAVERS
- Over a period prior to 1983 the respondent Mr Uttley committed a number of sexual offences, including three rapes. My noble and learned friend Lord Rodger of Earlsferry has described these in detail, together with the maximum sentence which, in 1983 could have been imposed for each offence. It suffices to note that rape carried a maximum sentence of life imprisonment.
- The respondent was not prosecuted for these offences until 1995. He pleaded guilty to some of the offences, was convicted of the others and was sentenced to a total of 12 years imprisonment. The practical consequences of that sentence differed significantly from those that would have followed had the respondent been sentenced to 12 years imprisonment in 1983, which has been treated for the purposes of this case as the date upon which he committed the offences in question. This was because the release regime applicable to prisoners had been changed by the Criminal Justice Act 1991 ('the 1991 Act') which had come into effect on 1 October 1992. I shall describe the post October 1992 regime as 'the new regime' and the regime that applied in 1983 as 'the old regime'.
- Had the respondent been sentenced to 12 years' imprisonment under the old regime he would, subject to good behaviour have been released on remission after serving two-thirds of his sentence, which would then have expired. That would have been the effect of section 25(1) of the Prison Act 1952 and rule 5 of the Prison Rules 1964 (SI 1964/388), which remained applicable up to the introduction of the 1991 Act. In accordance with the provisions of the 1991 Act the respondent was released on 24 October 2003 after serving two-thirds of his sentence, but he was released on licence, the terms of which will remain in force until he has served three-quarters of his sentence, that is for a year. Those terms place the respondent under supervision and impose certain restrictions on his freedom.
- While subject to the conditions of the licence the respondent is at risk of recall to serve the balance of his sentence, should he fail to comply with those conditions. Furthermore, should he commit a further imprisonable offence before the 12 year term of his sentence has expired, the court dealing with that offence will be entitled to add all or part of the outstanding period of his 12 year sentence to any new sentence imposed.
- In December 2002 the respondent made an application for judicial review. The remedy that he sought was a declaration that the provisions of the 1991 Act which would make his release subject to licence were incompatible with article 7 (1) of the European Convention on Human Rights.
- Article 7 (1) provides:
"No punishment without law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under 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."
- The respondent's case has never, so far as I can see, been fully formulated. On analysis it necessarily involves the following propositions:
i) The 1991 Act had the effect that the 12 year sentence imposed on the respondent under the new regime was a heavier penalty than a 12 year sentence would have been had it been imposed under the old regime;
ii) From this, it follows that article 7 (1) was infringed;
iii) From this, it follows that the 1991 Act is incompatible with article 7 (1).
- It appears to have been accepted by all before this case reached Your Lordship's House that, if proposition i) was established, propositions ii) and iii) followed as a matter of course. Thus the sole issue canvassed in the courts below was whether a 12 year sentence imposed under the new regime constituted a heavier penalty than a 12 year sentence imposed under the old regime.
- As to this issue, the argument before Moses J, who on 8 April 2003 gave judgment on the application for judicial review, appears to have concentrated exclusively on the restrictions imposed by the licence:  EWHC 950 Admin It was argued that these constituted an additional penalty, imposed during the one year period between release after two-thirds of the sentence had been served and the expiry of the licence after three-quarters of the sentence had been served. Under the old regime the respondent would not have been exposed to these restrictions.
- Moses J rejected the application for judicial review on the ground that the imposition of the licence restrictions did not constitute a penalty. He concluded that a sentence of 12 years imprisonment under the new regime was no heavier a penalty than a sentence of 12 years imprisonment under the old regime.
- Before the Court of Appeal the respondent took a further point. Not only did the licence impose restrictions on his freedom, while on licence he was subject to the risk of recall to serve the balance of his sentence. During that period his sentence had not expired but was, in effect, suspended. It followed that the sentence was a heavier penalty than a 12 year sentence under the old regime, which would have expired after service of two-thirds of the term.
- The Court of Appeal reversed the decision of Moses J:  1 WLR 2590. They concluded that the changes to the release regime affected by the 1991 Act had the effect that the 12 year sentence imposed on the respondent was a heavier penalty than a 12 year sentence imposed under the old regime would have been. As Longmore LJ put it, at p 2600:
"Any prisoner would regard the penalty of 12 years as harsher after 1992 than before. So, in my view, would the ordinary informed observer"
The court allowed the appeal and granted the respondent the declaration of incompatibility that he sought.
- Before this House Mr Pannick QC for the Secretary of State argued that the reasoning of the Moses J was correct and that of the Court of Appeal erroneous. He contended that the imposition of the licence conditions was designed to protect the public and to prevent further offending. It followed that the licence conditions did not constitute a "penalty" within the meaning of article 7 (1). He went on to advance two novel points, the latter of which was not even presaged in the Secretary of State's written case. I have found these new arguments conclusive. They render it unnecessary to decide whether a sentence of 12 years imprisonment under the new regime constitutes a heavier penalty than a 12 year sentence under the old regime. I do not propose to attempt to resolve that issue. To do so would be to encroach on issues raised in at least one other appeal that is pending before your Lordship's House.
- Argument in the lower courts proceeded on the premise that the sentence of 12 years imposed on the respondent was a sentence of the same term of years that would have been imposed on the respondent under the old regime. Before this House Mr Pannick challenged that premise. He drew attention to a Practice Statement, (Crime: Sentencing)  1 WLR 948, issued by Lord Taylor of Gosforth CJ on the day that the 1991 Act came into force. This provided as follows:
"1. Sections 32 to 40 of the Criminal Justice Act 1991 come into force on 1 October 1992. They make radical changes with regard to sentences.
2. Remission is abolished.
3. Parole will affect only those sentenced to four years' imprisonment and above.
4. Where the sentence of the court is less than four years the Secretary of State will be under a duty to release the prisoner after he has served one half of his sentence. Thus, where the sentence is three years, 18 months will be served. This is significantly longer than would normally have been served before the new provisions came into force. Furthermore, on release the prisoner will in effect be subject to a continuing suspended sentence. If between his release and the end of the period covered by the original sentence, he commits any offence punishable by imprisonment, he will be liable to serve the balance of the original sentence outstanding at the date of the fresh offence.
5. For determinate sentences of four years or longer the Secretary of State will have a continuing but reduced element of discretion on release. Prisoners will be released on licence after serving two thirds of the sentence. Whereas hitherto they became eligible for parole after serving one third of the sentence, they will not now become eligible until they have served half. The 'at risk' provisions following release will be the same for long term as for short term prisoners.
6. It is therefore vital for all sentencers in the Crown Court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto.
7. It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole.
8. I have consulted the Lords Justices presiding in the Court of Appeal (Criminal Division) and we have decided that a new approach is essential.
9. Accordingly, from 1 October 1992, it will be necessary, when passing a custodial sentence in the Crown Court, to have regard to the actually period likely to be served, and as far as practicable to the risk of offenders serving substantially longer under the new regime than would have been normal under the old.
10. Existing guideline judgments should be applied with these considerations in mind.
11. I stress however that, having taken the above considerations into account, sentencers must, of course, exercise their individual judgment as to the appropriate sentence to be passed and nothing in this statement is intended to restrict that independence."
- Mr Pannick submitted that, in accordance with this direction, the respondent's sentence must have been appropriately reduced from the term of years that would have been imposed under the old regime in order to reflect the fact that the conditions of release under the new regime were more onerous. Mr Scrivener QC for the respondent challenged this contention. He submitted that the thrust of the Practice Direction was directed at short term sentences where, under the new regime, defendants would serve 'significantly longer' than under the old regime. It was certainly not aimed at the punitive effect of the licence conditions themselves. In any event it was not possible to adjust the sentence so as precisely to compensate for the new release regime. In support of this last contention Mr Scrivener drew attention to the following passage from the judgment of Lord Taylor of Gosforth CJ in R v Cunningham  1 WLR 183, 186:
"The Practice Statement does not require an arithmetically precise calculation to be made. Its object was to give general guidance by alerting sentencers to the changed regime of early release and requiring them to have regard to the possible effects of passing sentences after October 1992 of the same length as those they would have passed before. Precise and calculated comparisons are not possible."
- I am persuaded that it is at least possible that the sentence imposed on the respondent was shorter, in terms of years, than the sentence that would have been imposed on him in 1983. It does not, however, seem to me that it is material to the issue before your Lordships, namely the compatibility of the 1991 Act with article 7 (1), whether or not the trial judge in fact reduced the sentence that he imposed on the respondent in order to reflect the extent to which the release conditions were more onerous under the new regime. The important question is whether it was open to him to do so. If it was necessary for him to do so in order to avoid infringing article 7 (1) and the 1991 Act left him free to do so, it cannot be said that the 1991 Act is incompatible with article 7 (1). At first blush it would seem evident that, by reducing the term of years imposed, it was possible for the trial judge to compensate, or certainly to over compensate, for the more onerous release conditions under the new regime. If so, then that in itself is reason to allow this appeal. Mr Scrivener argued, however, that because release under licence, introduced by the 1991 Act, was a novel constituent of any sentence of imprisonment imposed under the new regime, article 7 (1) was necessarily infringed where such a sentence was imposed in respect of offences committed before October 1992. This brings me to the point that in my opinion is determinative of this appeal.
- Article 7 (1) prohibits the imposition of a penalty which is heavier than the one that was "applicable" at the time that the offence was committed. No one in the hearings below appears to have focussed on the meaning of the word "applicable". There appears to have been an assumption that this meant "that which would have been applied" and that the sentence that "would have been applied" was one of 12 years imprisonment. I have already stated my conclusion that the latter assumption may have been unfounded. I now turn to consider the meaning of 'applicable' in article 7 (1).
- This question was recently considered by the Judicial Committee of the Privy Council in Flynn and others v Her Majesty's Advocate  UKPC D1. The issue in that case was whether changes made by Scottish legislation to the release regime applicable in the case of mandatory life sentences infringed article 7 (1). My noble and learned friend Lord Carswell, who was a member of the Committee, will in his speech, which I have had the privilege of reading in draft, describe the difference of opinion as to the meaning of 'applicable' expressed by members of the Committee.
- Had the Committee had cited to them, as we have had cited to us, the decision of the European Court of Human Rights in Coeme and others v Belgium (22 June 2000) their task might have been made the easier. Ours certainly is, for at para 145 the court said this in relation to article 7:
"The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that punishable, and that the punishment imposed did not exceed the limits fixed by that provision."
- This passage lends strong support to the opinions as to the meaning of 'applicable' expressed by my noble and learned friends Lord Rodger of Earlsferry and Lord Carswell in Flynn. I am persuaded that those opinions correctly state the law. It follows that article 7 (1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time that his offence was committed. I observe, in passing, that if statutory changes are made to the release regime of those serving mandatory life sentences those changes may affect the severity of the sentence that the law requires. That is not this case.
- The maximum sentence which could be imposed for rape at the time that the respondent committed the rapes for which he was convicted was life imprisonment. That was the 'applicable' penalty for the purposes of article 7 (1). The sentence of 12 years imprisonment imposed on the respondent would seem, manifestly, a less heavy penalty than life imprisonment. Mr Scrivener sought to challenge this conclusion. He submitted that, for the purposes of article 7 (1) a "penalty" was an autonomous concept. He further submitted that the fact that a sentence of imprisonment under the new regime included a new constituent, namely release on licence, it was a heavier penalty than one which could be imposed under the old regime.
- I accept that, for the purposes of article 7 (1), a penalty is an autonomous concept. I also accept that the addition of a new constituent to a sentence can have the effect of making the sentence a heavier penalty. It may be that had the trial judge imposed on the respondent a sentence of life imprisonment, this would have constituted a heavier penalty than life imprisonment under the old regime. This was not a matter that was explored before your Lordships. The suggestion, however, that a sentence of 12 years imprisonment under the new regime was a heavier penalty than life imprisonment under the old regime would seem manifestly unsound. Before dismissing it, however, it is necessary to consider the effect of the decision of the European Court of Human Rights in Welch v United Kingdom (1995) 20 EHRR 247.
- On 12 January 1987 the Drug Trafficking Offences Act 1986 came into force in the United Kingdom. This Act, for the first time, gave the court power, when a defendant was convicted of drug trafficking offences, to make, when sentencing him, a confiscation order. A confiscation order required the defendant to pay such sum as the court determined constituted the proceeds of drug trafficking received by the defendant, whether received before or after the 1986 Act came into force. The applicant Welch was convicted in August 1988 of drug trafficking offences committed in 1986. He was given an overall sentence of 22 years imprisonment. In addition the judge imposed a confiscation order pursuant to the 1986 Act in the sum of £66,914 in respect of the proceeds of drug trafficking received before the 1986 Act came into force. In default of payment of this sum he would be liable to serve a further two years imprisonment.
- The applicant claimed that the imposition of the confiscation order violated article 7 (1) as it could not have been imposed at the time that he committed the offences for which he was convicted. The Court agreed. The Court observed at para 26 that
"… the retrospective imposition of the confiscation order is not in dispute in the present case. The order was made following a conviction in respect of drugs offences which had been committed before the 1986 Act came into force. The only question to be determined therefore is whether the order constitutes a penalty within the meaning of Article 7(1), second sentence."
The Court went on to conclude that the confiscation order did constitute a penalty and that, in consequence, article 7 (1) had been infringed.
- In Welch the United Kingdom did not argue that the sentence of 22 years imprisonment, coupled with the confiscation order, was a less heavy penalty than that which could have been imposed for the offences for which Welch was convicted, namely life imprisonment. Nor does this point appear to have been considered by the Commission or by the Court. The confiscation order was considered in isolation as a discrete penalty.
- I do not believe that the decision in Welch requires your Lordships' House to consider the conditions of the respondent's licence as a discrete penalty, divorced from his sentence of imprisonment. One cannot properly consider in isolation that part of a sentence of imprisonment which will be spent released on licence. The remission regime is an integral feature of the sentence of imprisonment. When considering how heavy a penalty has been imposed by the sentence it is necessary to consider the overall effect of the sentence. That, indeed, has been the respondent's case throughout.
- The release of a prisoner on licence, albeit subject to onerous conditions, mitigates rather than augments the severity of the sentence of imprisonment which would otherwise be served. A sentence of 12 years imprisonment, with release on licence after serving two-thirds, is a less heavy penalty than a sentence of 12 years imprisonment, all of which has to be served. The sentence of 12 years imprisonment, with release on licence after serving 8 years, imposed on the respondent under the new regime, was a less heavy penalty than a sentence of 15 years, with unconditional release after ten years, which could have been imposed on him under the old regime, and manifestly less severe than the sentence of life imprisonment which could have been imposed on him under that regime.
- For these reasons I conclude that there has been no infringement of article 7 (1) and I would allow the appeal.
LORD RODGER OF EARLSFERRY
- I have had the privilege of reading in draft the speeches of my noble and learned friends, Lord Phillips of Worth Matravers and Lord Carswell. I agree with them and for the reasons they give I too would allow the appeal. Since your Lordships are differing from the Court of Appeal, however, I add some observations of my own on the first argument presented by Mr Pannick QC, which is dispositive of the appeal.
- Before 1983 the respondent, Mr Uttley, committed a large number of sexual offences: three rapes; six indecent assaults on a woman, contrary to section 14(1) of the Sexual Offences Act 1956; one act of sexual intercourse with a girl under sixteen, contrary to section 6(1) of the same Act; and four acts of gross indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. On one occasion he took an indecent photograph or pseudo-photograph of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978 ("the 1978 Act") and on two occasions he distributed a photograph or pseudo-photograph of a child, contrary to section 1(1)(b) of the same Act. Although all the offences are said to have been committed before 1983, both counsel argued the appeal on the basis of the penalties that applied in 1983.
- The respondent was not caught and tried for the offences until 1995. In October of that year, at the Crown Court at Leeds, the respondent either pleaded guilty to, or was convicted of, counts relating to all of these acts. On 24 October 1995 he was sentenced for the offences. In respect of the three rapes, he was sentenced to 11 years' imprisonment on one count and to two periods of 9 years, concurrently, on the two other counts. On each of the six counts of indecent assault on a woman, he was sentenced to two years' imprisonment, to run concurrently with one another and with the other sentences. On the count of sexual intercourse with a girl under sixteen, he was sentenced to one year's imprisonment, again concurrently with the other sentences. On three of the counts of committing gross indecency with a child, the respondent was sentenced to 18 months' imprisonment, and on the other to 12 months' imprisonment, all to run concurrently with the other sentences. On the count relating to the taking of the indecent photograph or pseudo-photograph of the child, he was sentenced to one year's imprisonment to run concurrently. On one of the two counts relating to distributing such a photograph or pseudo-photograph, he was sentenced to one year's imprisonment to run consecutively, on the other to one year's imprisonment to run concurrently. The overall practical effect was, accordingly, that the respondent was sentenced to a period of 11 years' imprisonment on one of the rapes plus a further one year's imprisonment consecutively in respect of one of the counts of distributing an indecent photograph. This made a total of 12 years' imprisonment. The respondent did not appeal against the sentences.
- At the time when he committed the acts, they all constituted offences under the various statutory provisions to which I have referred. Similarly, at that time, in terms of the relevant legislation, a court was entitled to impose periods of imprisonment for the offences which exceeded the periods actually imposed by the court for them in 1995. In particular, by reason of section 34(3) of, and para 1(a) of Schedule 2 to, the 1956 Act, the maximum sentence for rape was life imprisonment at the time of the offences. In 1995 rape remained punishable with life imprisonment under the same provisions of the 1956 Act. When the respondent distributed the indecent photograph or pseudo-photograph of the child, under section 6(2) of the 1978 Act the maximum penalty for that offence was a sentence of three years' imprisonment. That remained the position in October 1995.
- The respondent complains that his rights under article 7(1) of the European Convention on Human Rights have been violated. Article 7 is headed "No punishment without law" and article 7(1) provides:
"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."
As I have just explained, the provisions criminalising the offences in question and prescribing the punishments that could be imposed for them did not change in any relevant respect between 1983 and 1995. The only authority for the court's sentence of 11 years' imprisonment for rape was to be found in section 34(3) of, and para 1(a) of Schedule 2 to, the 1956 Act, while the court's only authority for imprisoning him for the offence of taking an indecent photograph or pseudo-photograph was to be found in section 6 of the 1978 Act. The provisions of these two Acts were not only the basis in law for the court imposing the total sentence which it did: they would have allowed the court to impose a heavier sentence. The provisions of the 1956 Act alone would have given the court power, in 1983 as in 1995, to impose any sentence of imprisonment for the rapes up to, and including, life imprisonment. Similarly, section 6(2) of the 1978 Act would have authorised the court to impose a consecutive sentence of up to three years' imprisonment for taking the indecent photograph or pseudo-photograph. None of these provisions prescribes a minimum sentence and the case therefore raises no issue of the kind considered by the Court of Appeal in R v Sullivan  EWCA Crim 1762.
- The respondent does not base his complaint on the provisions that I have just narrated, however. Which is presumably why the courts below make no mention of them. He says, rather, that there has been a violation of article 7(1) because, by virtue of the relevant provisions of the Criminal Justice Act 1991 ("the 1991 Act") which came into force in 1992, a heavier penalty was imposed on him than the one that was applicable at the time when the criminal offences in question were committed. The argument is based on a comparison of the effect of these provisions on the 12 year sentence imposed by the court in 1995 and the effect which section 25(1) of the Prison Act 1952, rule 5 of the Prison Rules 1964 and section 60 of the Criminal Justice Act 1967 would have had on any equivalent sentence imposed by a court in 1983.
- It is agreed that, if the pre-1991 Act provisions had remained in force, then, provided he had been of good behaviour, the respondent would have been entitled to be released when he had completed two-thirds of his sentence, on 24 October 2003. Thereupon his sentence would have expired under section 25(1) of the Prison Act 1952. Instead, by virtue of section 33 of the 1991 Act the respondent was released on the same day, 24 October 2003, when he had completed two-thirds of his 12 year sentence - but his release was on licence. The licence contains a number of conditions and remains in force until 24 October 2004. During that period, under section 39 of the 1991 Act, the respondent is liable to be recalled to prison if he fails to comply with the conditions. Even after the end of the licence period, if the respondent is convicted of an imprisonable offence, under section 40 the court dealing with the new offence has the power to require him to serve the whole, or part, of the remainder of his 12 year sentence. The argument for the respondent, which the Court of Appeal accepted, is that, because he remains subject to the licence period and liable to be required to serve the remainder of his twelve-year sentence, in terms of article 7(1) the sentence of 12 years imposed on him in 1995 is "heavier" than a sentence of 12 years would have been if it had been imposed on him in 1983, before the 1991 Act came into force.
- Since the alleged violation of the respondent's rights under article 7(1) would not have materialised until he was released in October 2003, Mr Pannick accepted that, if there was a violation, the Human Rights Act 1998 would apply even though the sentence had been imposed before 2 October 2001.
- The respondent's argument is misconceived. For the purposes of article 7(1) the proper comparison is between the penalties which the court imposed for the offences in 1995 and the penalties which the legislature prescribed for those offences when they were committed around 1983. As I have explained, the cumulative penalty of 12 years' imprisonment that the court imposed for all the offences in 1995 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 in 1983. There is accordingly no breach of article 7(1).
- In applying article 7(1) in this way, I interpret the word "applicable" as referring to the penalties which the law authorised a court to impose at the time of the offences. Section 20(1) of the Constitution of India expresses the same idea when it says that no person is to be subjected to a penalty "greater than that which might have been inflicted under the law in force" at the time of the commission of the offence. These and similar provisions embody a principle of comparatively modern origin: there can be no room for it in legal systems which do not use statutes to prescribe a particular punishment or range of punishments for individual offences, but rely instead on the court to choose the appropriate punishment for any given offender. That was once the case with most legal systems. Therefore, although traces of the doctrine can be found in the writings of Bartolus de Saxoferrato in the 14th century (Commentaria ad digestum vetus, de iustitia et iure, 1.9.49 - 51), it really came to prominence only towards the end of the 18th century when developments in constitutional thinking led to the idea that crimes and their punishments should be regulated by statutes passed by the legislature. Article 8 of the French Declaration of the Rights of Man 1791 famously proclaimed that "nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit et légalement appliquée." Ten years later, in his Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts, p 20, para 24, von Feuerbach gave the principle its familiar and enduring Latin form, nulla poena sine lege. From these beginnings the principle came to be generally recognised and eventually to take its place in many constitutions, as well as, for example, in article 7(1) of the European Convention on Human Rights and article 15 of the International Covenant on Civil and Political Rights. There is some discussion of the limits to the principle in English law in Glanville Williams, Criminal Law: The General Part 2nd ed, (1961), pp 606 - 608.
- The idea that one should not be punished for doing an act that was lawful at the time meets with ready acceptance. Leaving aside the general argument against retroactive legislation, it is perhaps less obvious why, if his conduct was criminal, a court should not be able to impose on the offender a sentence that is authorised by law and otherwise appropriate, simply because it is heavier than the sentence which the law authorised for that offence at the time when it was committed. Even if the perpetrator was aware of the penalty that the law prescribed for the offence at the time he committed it, in the case of a crime such as rape, at least, it will scarcely lie in his mouth to claim that he would not have carried out the rape if he had known that the new heavier penalty would be applied to him and that it is, accordingly, unfair to impose it. In practice, however, changes in the law which are designed to allow a heavier punishment for an offence that has already been committed may tend to be made for the purpose of unfairly penalising the past acts of particular individuals, for political or other reasons. Article 7(1) eliminates that risk.
- The wording of article 7(1) is indeed well adapted to counteract such dangers. The European Court of Human Rights has therefore been able to give proper effect to the article while interpreting its wording in a straightforward fashion. In Coëme v Belgium ECHR 2000-VII 75 the Court held, at para 145:
"The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision…."
One has to identify the legal provision which made the act punishable at the time it was committed and make sure that the punishment which the court imposes does not exceed the limits fixed by that provision. Although the decision of the European Court was not cited to the Privy Council in Flynn v HM Advocate  UKPC D1; 2004 SCCR 281, Lord Carswell encapsulated the same interpretation when he said, at pp 314G - 315A, para 109:
"It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was 'applicable' at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie the maximum sentence then prescribed by law for the particular offence…. The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower."
Putting the matter within the specific context of the Scottish system for mandatory life sentence prisoners, I adopted the same construction, at p 310D - F, para 85.
- Mr Scrivener QC reminded your Lordships that under section 2 of the Human Rights Act decisions of the European Court of Human Rights are not binding. It respectfully appears to me, however, that not only is no other interpretation required in order to give effect to article 7(1), but indeed no other interpretation is feasible in the present case. Mr Scrivener could not begin to paraphrase article 7(1) so as to specify which penalties were "applicable" at the time of the offences if they were not the penalties or range of penalties that the law permitted a court to impose at that time. As Lord Carswell shows, there are obvious difficulties in any attempt to interpret "applicable" as referring to the penalty that the court could in practice have been expected to impose for an offence at the time it was committed. The decision of the European Court demonstrates, however, that article 7(1) does not envisage such speculative excursions into the realm of the counter-factual. Its purpose is not to ensure that the offender is punished in exactly the same way as he would have been punished at the time of the offence, but to ensure that he is not punished more heavily than the relevant law passed by the legislature would have permitted at that time. So long as the court keeps within the range laid down by the legislature at the time of the offence, it can choose the sentence which it considers most appropriate. The principle of legality is respected.
- Here there was no change in the relevant penalties which the law permitted a court to impose. What changed between 1983 and 1995 were the arrangements that were to apply on the prisoner's early release from any sentence of imprisonment imposed by the court. In particular, since 1992 a prisoner such as the respondent has remained subject to his sentence for its entire duration of 12 years, whereas before 1992 an equivalent sentence would have expired when he was released after serving 8 years. The respondent says that, for this reason, the sentence of 12 years imposed on him in 1995 was "heavier" than a sentence of 12 years imposed at the time of the offences in 1983. Leaving aside all the other possible objections, this argument simply involves a misinterpretation of article 7(1). Of course, if legislation passed after the offences were to say, for instance, that a sentence of imprisonment was to become a sentence of imprisonment with hard labour, then issues would arise as to whether the article was engaged, even where the maximum sentence had been life imprisonment at the time of the offences. But in this case there is no suggestion that the actual conditions of the respondent's imprisonment changed. The very worst that could have happened to him under the 1991 Act was that he would have required to serve the whole of his 12 year sentence in gaol. Happily for him, that has not in fact happened. But, even if it had, he would still have spent only 12 years in prison - which is well within the limits of the penalty that was allowed by law for the three rapes and many other offences at the time when he committed them. There is no violation of article 7(1).
BARONESS HALE OF RICHMOND
- I too have reached the conclusion that the change from the remission and parole system to the licence system for early release of prisoners was not a 'heavier penalty . . . than the one that was applicable at the time' when these offences were committed. I believe that this conclusion is not incompatible with the views I expressed in Flynn and others v Her Majesty's Advocate  UKPC D1 at paragraphs 99 to 100, but I certainly owe the respondent an explanation.
- It is quite clear that the words 'penalty . . . applicable' in article 7(1) refer to the penalty or penalties prescribed by law for the offence in question at the time when it was committed. It does not refer to the actual penalty which would probably have been imposed upon the individual offender had he been caught and convicted shortly after he had committed the offence. The court does not have to make a comparison between the sentence he would have received then and the sentence which the court is minded to impose now. In Flynn, I did not accept the argument that it did. As I said at paragraph 100, '[My] conclusion does not cast doubt upon the validity of sentencing guidelines which may indicate that the existing applicable sentence is to be applied in a more severe way than had been the previous practice'. As the European Court of Human Rights said in Coeme and others v Belgium, Application nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, at paragraph 145,
"The court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision."
- However, it is clear from the Court's decision in Welch v United Kingdom (1995) 20 EHRR 247 that article 7 is not limited to the sentences prescribed by the law which creates the offence. It can also apply to additional penalties applied to that offence by other legislation. The concept of a penalty is an autonomous Convention concept. When considering what are the 'limits fixed' by the law, the maximum duration of any permitted sentence of imprisonment (or the maximum fine which may be payable) may not be the only relevant factor. There may be changes in the essential quality or character of such a sentence which make it unquestionably more severe than any sentence which might have been imposed at the time of the offence. Examples might be the reintroduction of hard labour with every sentence of imprisonment or the automatic conversion of a sentence of imprisonment into a sentence of transportation. These may seem fanciful today. Less fanciful might be the replacement, for certain juvenile offenders, of committal to the care of a local authority with determinate sentences of detention in prison department establishments. The care order was ostensibly a welfare disposal, rather than a penalty, although of indefinite duration up to the age of 18. The detention order was unquestionably punitive in intent and effect, although of definite duration. There must, at the very least, be an argument that article 7 is engaged by such a change.
- Flynn concerned a radical change in the legal effect of a mandatory life sentence, through the introduction of a fixed 'punishment part' into what had previously been in reality an indeterminate sentence. The nature of the sentence begged the question of what it was that the law prescribed, notional imprisonment for life or imprisonment for a term to be fixed. As there was only one penalty for murderers, it mattered what it meant. I readily acknowledge that, as with the care order example, there is room for argument about whether this change made that penalty in itself more severe than it had previously been. Some might think that it did and some might think that it did not. It was, after all, introduced to protect the human rights of offenders. Nevertheless, the equivalent legislation for England and Wales took the precaution of protecting those sentenced to life imprisonment for offences committed before the change from a longer tariff than that already fixed or likely to have been fixed under the previous regime: see Criminal Justice Act 2003, schedule 22. Without that protection, some offenders might do better than they might previously have done whereas others might do worse. But for the reasons given earlier, that is not the question. The question, as I believe all your lordships agree, is whether the penalty now legally applicable (and applied) to the offence is heavier than (or exceeds the limits of) the penalty which was legally applicable at the time it was committed.
- In this case we are concerned with a sentence of imprisonment which could have been of any duration up to life imprisonment. I am persuaded that a change in the arrangements for determining how much of that time is actually spent in prison and how much in the community does not make the penalty heavier than it previously was. A longer term of imprisonment was always available. It can be distinguished from a mandatory life sentence, which is the only penalty available, where the consequences prescribed by law might become heavier than those which previously obtained. (Whether I was right to consider that they had done is another matter.) Just as there might once have been some forms of death penalty which were heavier than others, there may be forms of incarceration which are heavier than others. But in this case the complaint is essentially about duration and a longer duration has always been available. I therefore agree article 7(1) is not breached.
- It follows that I too would allow this appeal.
- The respondent Brian Uttley was on 24 October 1995 sentenced to an effective total of 12 years' imprisonment for a series of sexual offences committed over a period prior to 1983. He had pleaded guilty to several counts of sexual assault and was convicted on three counts of rape and also on charges of taking indecent photographs.
- Upon sentence the respondent became subject to the provisions of the Criminal Justice Act 1991 (the 1991 Act), whereby he was entitled to release on licence after serving two-thirds of his term of imprisonment (having been eligible for consideration for parole after serving half of the term) and was then subject to a number of restrictions under the licence until the expiry of three-quarters of the term.
- In accordance with these statutory provisions he was released on licence on 24 October 1993, the date of expiry of two-thirds of his term of imprisonment, and will remain on licence until 24 October 1994, when three-quarters of the term will have expired. The conditions of the licence (with which he must comply, as provided by section 37(4) of the 1991 Act) impose a number of significant restrictions on his freedom and require him to place himself under the supervision of a probation officer, keep in touch with him and receive visits from him. Under section 39 of the 1991 Act where a prisoner is released on licence the Secretary of State may revoke his licence and recall him to prison, if so recommended by the Parole Board. By virtue of section 40 of the 1991 Act (now replaced by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000), if he is convicted of a new offence during the currency of the licence the sentencing court may, in addition to passing any other sentence, order him to be returned to prison to serve out the whole or any part of the original sentence unexpired at the date of commission of that offence.
- The respondent points to the fact that if he had been convicted and sentenced before the 1991 Act came into operation on 1 October 1992 he would, subject to good behaviour, have been unconditionally discharged after serving two-thirds of his sentence, which would then have expired by virtue of section 25(1) of the Prison Act 1952. He would have been eligible for parole after serving one third of his sentence. It is not necessary for present purposes to delve into the refinements of remission and prisoners' legitimate expectations, for it was not in dispute that the release provisions would have operated as I have outlined.
- The respondent maintains that the effect of subjecting him to the regime of the 1991 Act was to violate the provisions of article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the material part of which reads:
"Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
He brought an application for judicial review of the decision to release him on licence on 24 October 1993, claiming declarations that Schedule 12 to the Criminal Justice Act 1991 is incompatible with article 7 of the Convention and that the imposition of a period of licence and/or the imposition of conditions of licence under the provisions of the 1991 Act are incompatible with article 7. Moses J in the Administrative Court rejected the respondent's arguments and dismissed the application ( EWHC 950 Admin), but the Court of Appeal (Pill and Longmore LJJ and Maurice Kay J) allowed his appeal:  1 WLR 2590. The Secretary of State has appealed to your Lordships' House against the decision of the Court of Appeal.
- The decisions of the Administrative Court and the Court of Appeal centred round the issue whether the licence provisions constituted a heavier penalty for the purposes of article 7(1). Moses J held that they did not, concluding in para 15 of his judgment 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."
The Court of Appeal differed from Moses J in their classification of the licence provisions. They held that, whatever the purpose of those provisions, their effect was onerous as a part of the sentence imposed. Viewing the matter as a matter of substance rather than form, the sentence was thereby increased and the penalty imposed was heavier. The transitional provisions in the 1991 Act for release on licence of prisoners whose offences had been committed at a time before the introduction of such licences were accordingly incompatible with article 7(1) of the Convention. They made a declaration in the following terms:
"A declaration pursuant to section 4(2) of the Human Rights Act 1998 that section 33(2), section 37(4A) and section 39 of the Criminal Justice Act 1991 are incompatible with the applicant's rights under article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in so far as they provide that he will be released at the two-thirds point of his sentence on licence with conditions and be liable to be recalled to prison (he having committed the index offences before the Criminal Justice Act 1991 came into force), and at a time when he would have expected (subject to good behaviour) to be released at the two-thirds point of any sentence unconditionally, pursuant to the practice that had developed in implementing rule 5 of the Prison Rules 1964)."
- Mr Pannick QC on behalf of the Secretary of State advanced a new argument before your Lordships' House, based on the construction of the word "applicable" in article 7(1), in addition to those relied on in the courts below. He marshalled his arguments into four main contentions:
(i) The penalty imposed was well within the maximum allowed by law in 1983 and therefore did not violate the terms of article 7(1) of the Convention, when properly construed.
(ii) The respondent's complaints are about early release provisions, which concern the administration of sentences and are not covered by article 7.
(iii) The trial judge was required by the Practice Statement to take the changes in early release provisions into account when sentencing.
(iv) Licensing provisions are not a penalty, but are designed to assist the offender in his rehabilitation and protect the public against the risk of his re-offending.
- In the course of developing his first contention Mr Pannick argued that the word "applicable" in article 7(1) means the sentence which could have been imposed on the offender at the time when he committed the offence, ie the maximum sentence then fixed by law for that offence. The object of article 7(1) was to prevent persons from being subjected to penalties heavier than those which could have been imposed at the time of commission of the crime. An obvious example is the increase in the maximum sentence for indecent assault on a woman from two years to ten years by the Sexual Offences Act 1985: persons convicted after the date on which that Act came into operation of indecent assaults committed before that date could not be sentenced to a term of imprisonment longer than two years.
- The wording of article 7(1) of the Convention has its origins in the early constitutional documents of the human rights movement. It was purposely framed so as to follow closely the terms of article 11(2) of the Universal Declaration of Human Rights, approved by the General Assembly of the United Nations in 1948, save that in the English version of the Convention the phrase "penal offence" became "criminal offence". In the International Covenant on Civil and Political Rights (1966) the first two sentences of article 15.1 are identical in wording to article 7(1) of the Convention. A third sentence, however, was added which is of significance for present purposes:
"If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby."
This sentence gives support to the interpretation propounded on behalf of the appellant, that in the previous sentence in article 15.1 of the ICCPR, like the second sentence of article 7(1) of the Convention, the word "applicable" was intended to refer to the maximum sentence which could be imposed by law. That interpretation is also borne out by the references in the travaux préparatoires to a penalty "authorised by the law" and the "maximum penalty under the law in force at the time".
- Further support for the appellant's proposition may be derived from the decision of the European Court of Human Rights in Coëme and others v Belgium (Applications nos 32492/96 et al), which was cited on behalf of the appellant. The major issue with which the case was concerned was whether the defendants could properly have been tried in the Court of Cassation. Two of the applicants claimed that the extension of the limitation period for trial of criminal offences under Belgian law which was brought in after the commission of the offences with which they were charged was in breach of article 7(1) of the Convention. In paragraph 145 of its judgment the Court observed that offences and the relevant penalties must be clearly defined by law and went on:
"The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision ..." (my emphasis).
- This issue was considered by the Judicial Committee of the Privy Council in a devolution appeal from Scotland, Flynn and others v Her Majesty's Advocate  UKPC D1. The appeal concerned complaints from prisoners sentenced to imprisonment for life in Scotland prior to the passing of the Convention Rights (Compliance) (Scotland) Act 2001 that under the regime brought into operation by that Act - their complaint being directed specifically to paragraph 13 of the Schedule to the Act, which dealt with transitional provisions -- they would serve a longer period in prison than they would have expected to serve under the arrangements in force at the time when they were originally sentenced. It is not necessary for present purposes to go into details of the issues in the appeal and it is sufficient to say that the Judicial Committee rejected the appellants' claim. They were able to give an interpretation to paragraph 13 whereby the reviewing court would be entitled to avoid the necessity to impose a higher "sentence". It followed that no breach of article 7(1) could be involved and paragraph 13 was within the competence of the Scottish Parliament. It had been argued on behalf of the appellants that the "applicable" sentence in article 7(1) of the Convention is that which would have been imposed by a court if it had passed sentence under the law in force at the time of the commission of the offence. It followed from this reasoning that if the length of the punishment part of the life sentence (previously known in common parlance as the "tariff") exceeded that which they could realistically have expected under the previous arrangements for fixing that part, article 7(1) could be engaged.
- In the course of reaching our conclusions my noble and learned friend Lord Rodger of Earlsferry and I specifically rejected this construction of article 7(1). Lord Rodger of Earlsferry stated in his judgment at para 85 that he was not persuaded that article 7(1) was engaged in the circumstances of the appeals. Adopting the construction propounded on behalf of the appellant in the present appeal he said in that paragraph:
"Under paragraph 13 the appellants are liable to be required to serve a longer period than would have been likely, but not a longer period than would have been competent, before the first review under the previous system. That is not incompatible with article 7(1)."
- I adopted the same construction of article 7(1) as did Lord Rodger of Earlsferry. I stated in a passage in para 109 of my judgment which I venture to repeat:
"I am unable, however, to accept the construction of article 7(1) propounded by the appellants. It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was 'applicable' at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie the maximum sentence then prescribed by law for the particular offence. I may observe in passing that resort to the French text of article 7 is of little avail, since the word used is 'applicable', which does not throw any further light on the draftsman's intention. The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower."
- Mr Scrivener QC for the respondent supported the construction of article 7(1) which had been advanced on behalf of the appellants in Flynn v HM Advocate. He argued that the licensing provisions introduced a new component into the system, which did not exist at the time when the respondent committed the offences. This was in reality, as Longmore LJ indicated at para 36 of his judgment in the Court of Appeal, a lengthening of the sentence which would have been imposed before 1992. It accordingly violated the terms of article 7(1).
- Mr Scrivener reminded the House that article 7, like all provisions of the Convention, must be construed autonomously, purposively and giving primacy to substance. I have borne this in mind, but I still believe that the construction of article 7(1) which Lord Rodger of Earlsferry and I adopted in Flynn v HM Advocate is correct and I adhere to the views which I expressed in that case. As I there stated, in my opinion other interpretations fail to give due effect to the fact that article 7(1) refers to the time when the offence was committed, not the time when the sentence was passed. If the interpretation propounded on behalf of the respondent were correct, it would frequently be necessary to attempt to divine what sentence a court would have passed if sentencing at the time of commission of the offence, a quest fraught with obvious difficulties. For example, the guidelines for length of sentences appropriate for the offence may have changed and the general level of sentence may have been increased, as may be seen to have occurred in the case of such offences as dangerous driving causing death.
- When one applies this conclusion of law to the facts of the present case, the answer is entirely clear. The maximum sentence for rape, the most serious of the offences committed by the respondent, was imprisonment for life both before and after 1983 and so remains. A court sentencing the respondent before 1983 could if it thought fit have imposed imprisonment for life or for a term very much longer than 12 years. It is in my opinion impossible to regard a sentence of 12 years, even with the new element of a licence, as a heavier penalty than that which could have been imposed at the time when the offence was committed. Accordingly on this ground alone I consider that the judge was right to dismiss the application for judicial review.
- I do not find it necessary to express an opinion on the issue whether the effect of the 1991 Act was to impose a heavier penalty on the respondent, as the Court of Appeal held, and I should prefer not to do so.