BR, R v

An extended licence ordered under Powers of Criminal Courts (Sentencing) Act 2000, s 86 is a preventive measure. It concerns the execution of a custodial sentence and the machinery by which it is carried out. It is not a heavier retrospective penalty for the purposes of Article 7(1).

Whether a measure is a penalty requires a substantive assessment of the Welch factors. The court must consider its connection with conviction, purpose, domestic characterisation, procedure, severity and its practical substance. An earlier contrary decision on s 86, reached without material authorities and submissions, was per incuriam and was not followed.

The appellant pleaded guilty to four indecent assaults committed against his two stepdaughters between 1976 and 1982. The sentencing court imposed a total of two years’ imprisonment and ordered, under s 86 of the Powers of Criminal Courts (Sentencing) Act 2000, that his licence should continue to the end of the sentence.

On 8 May 2003 the Court of Appeal upheld the custodial term; its reasons on that aspect were given in [2003] EWCA Crim 1518. It adjourned the issue of the extended licence for assistance from an advocate to the court. The issue was whether applying s 86 to offences before 1 October 1992 imposed a heavier retrospective penalty contrary to Article 7(1) of the European Convention on Human Rights.

1. Appeal dismissed. The extended-licence order was lawful. The court had already upheld the two-year custodial term. It also rejected the submission that the statutory criteria were not met on the facts.

2. The court applied the criteria derived from Welch v UK (1995) 20 EHRR 247. The relevant matters were whether the measure followed conviction, its nature and purpose, its domestic classification, its procedures, its severity, and its substance rather than its form.

3. Although an order under s 86 can be made only following conviction and a breach of licence can lead to a fine or recall, its dominant purpose is protective and rehabilitative. It gives the authorities additional post-release control to protect the public, prevent further offending and assist rehabilitation. The order neither increases the maximum custodial sentence nor extends beyond the end of the notional sentence. Its restrictive effect was relevant but not conclusive.

4. The proper analysis was that the extended licence concerned the execution of the sentence, rather than a further penalty. Applying s 86 to offences committed before 1 October 1992 therefore did not impose a heavier penalty than that applicable when the offences were committed and did not breach Article 7(1).

5. The court held that J.T. [2003] EWCA Crim 1011, which had reached the contrary conclusion, was decided per incuriam. It had been a sentence appeal with only the appellant represented and without material authorities, including Hogben v UK and R v Hodgeon. Applying the guidance in R v Simpson [2003] EWCA Crim 1499, the court declined to follow it.

• Court of Appeal (Criminal Division): The court upheld the two-year custodial term on 8 May 2003, in [2003] EWCA Crim 1518, and adjourned the legality of the extended-licence order. In this judgment it held that the order under s 86 of the Powers of Criminal Courts (Sentencing) Act 2000 was lawful and dismissed the appeal.
• Sentencing court (not stated): The appellant was sentenced to a total of two years’ imprisonment for four indecent assaults and made subject to an extended licence.