JT, R v

An order extending a determinate prisoner’s licence, supervision and recall period to the end of the whole sentence is punitive for the purposes of Article 7 of the European Convention on Human Rights. It cannot therefore be imposed for an offence committed before the power first became available.

Section 3 of the Human Rights Act 1988 requires section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 to be read compatibly with that protection. The section has no effect in relation to a sentence for an offence committed before 1 October 1992. The same result follows from the strong presumption against construing penal legislation retrospectively without clear words or necessary implication.

The appellant was convicted at the Crown Court at Maidstone of indecent assaults and gross indecency with children committed between 1981 and 1988. He received concurrent sentences totalling two and a half years’ imprisonment.

The sentencing judge purported to apply section 86 of the Powers of Criminal Courts (Sentencing) Act 2000, so that the appellant would remain subject to licence, supervision and recall for the whole sentence. The appellant appealed only that part of the sentence. The central issue was whether the provision could lawfully apply to offences committed before the comparable power came into force on 1 October 1992.

1. Appeal allowed. The court quashed the purported extension of the licence period under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000. The concurrent custodial sentences, totalling two and a half years, remained unchanged.

2. The section 86 regime was punitive. Its effect was to expose a released prisoner to supervision and recall until the end of the whole determinate sentence, rather than merely to provide a preventative regulatory measure. That consequence was properly contrasted with the registration requirements considered in Ibbotson v United Kingdom [1999] Crim LR 153, which were described there as preventative.

3. Article 7 of the European Convention on Human Rights prohibited a heavier penalty than that applicable when the offences were committed. Before 1 October 1992, there was no power to impose supervision and recall throughout the entire determinate sentence. Applying section 3 of the Human Rights Act 1988, the court therefore read section 86 as ineffective for a sentence imposed for an offence committed before that date.

4. The court also held that the same construction followed independently from the established presumption against retrospective penal legislation. The relevant enactments contained no clear words, or necessary and distinct implication, authorising the increased penal consequence for earlier offences.

• Court of Appeal (Criminal Division): Allowed the sentencing appeal and quashed the purported section 86 extension of the licence period: [2003] EWCA Crim 1011.
• Crown Court at Maidstone: On 8 November 2001, convicted the appellant of indecent assaults and gross indecency with children. On 30 November 2001, imposed concurrent sentences totalling two and a half years’ imprisonment and purported to extend the licence period under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000.