Uttley, R (on the application of) v v Secretary of State for the Home Department

For Article 7, a sentence is assessed by its practical effect, not merely its nominal term or the purpose of a post-release regime. Where legislation makes release on licence an integral and compulsory part of a determinate sentence, licence conditions and the risk of recall may form part of the penalty. A regime introduced after the offence which replaces expected unconditional release with release on licence can therefore impose a heavier penalty, even though the stated term of imprisonment is unchanged.

The appellant pleaded guilty in 1995 to serious sexual offences committed before the Criminal Justice Act 1991 came into force. He received a 12-year sentence. Under the statutory regime, he was entitled to release after serving two-thirds of the sentence, but would remain on licence until three-quarters and would be subject to licence conditions and recall powers.

Moses J dismissed his Administrative Court application on 8 April 2003. The appeal concerned whether the licence regime and its possible consequences constituted a heavier penalty under Article 7(1) than the regime applicable when the offences were committed.

1. Appeal allowed. The Court of Appeal held unanimously that the licence required by section 33(2) formed part of the sentence imposed by the sentencing judge. The sentence comprised detention followed by a period on licence, with the statute defining its practical effect.
2. For Article 7 purposes, the sentence had to be viewed comprehensively. Although the licence regime served preventive and rehabilitative purposes, its effect was onerous. Conditions impeded the released prisoner’s freedom and created potential liability to serve further custody on recall or following reconviction. Its preventive character did not remove its penal character.
3. The post-1991 regime was materially harsher than the previous remission system. Before the change, a prisoner in the appellant’s position could normally expect release after two-thirds without licence or recall risk. Under the new regime, release was on licence and the sentence remained operative for a further period. The unchanged nominal term could not obscure that practical difference.
4. The court distinguished the authorities concerning parole or obligations imposed separately from the original sentence. Hogben v The United Kingdom (Application No 11653/85) and Ibbotson v The United Kingdom (Application No 40146/98) did not govern a licence integral to the sentence. R (West) v The Parole Board [2003] 1 WLR 705 concerned whether recall proceedings involved determination of a criminal charge under Article 6 and did not determine the Article 7 question.
5. A declaration under section 4(2) of the Human Rights Acts 1998 was made that sections 33(2), 37(4)(a) and 39 of the Criminal Justice Act 1991 were incompatible with the appellant’s Article 7 rights to the extent stated in the agreed declaration. The respondent was ordered to pay the applicant’s costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal allowed and declaration made, reversing the judgment of Moses J in the Administrative Court.
• Administrative Court: application dismissed by Moses J on 8 April 2003.