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

Release on licence under the Criminal Justice Act 1991 is not necessarily a heavier penalty for the purposes of article 7 of the European Convention on Human Rights. The court must examine the substance, nature and purpose of the measure. A licence imposed automatically by statute, whose dominant purposes are public protection, prevention of further offending and rehabilitation, is preventative rather than punitive. The restriction of liberty and risk of recall do not by themselves make it a penalty. The court also held that the transitional provisions of the 1991 Act did not remove the licence requirement for a prisoner sentenced after the Act came into force, even where the offences pre-dated it.

The claimant committed sexual offences before 1983 but was sentenced in 1995 to 12 years’ imprisonment. Because he was sentenced after the Criminal Justice Act 1991 came into force, he was liable to release on licence after serving two-thirds of his sentence and to remain on licence until three-quarters, subject to recall.

He sought judicial review, arguing that the licence was a heavier penalty than was applicable when the offences were committed and therefore breached article 7. He also argued that the transitional provisions in Schedule 12 placed him in the same position as a prisoner already serving sentence when the Act commenced. The central issue was whether the statutory licence constituted a penalty for article 7 purposes.

1. The application was dismissed. Permission to appeal was refused.

2. The transitional provisions in paragraph 8 of Schedule 12 to the Criminal Justice Act 1991 applied to prisoners already serving a custodial sentence when the Act commenced. They did not apply to the claimant, who was sentenced after commencement. He therefore fell within the ordinary operation of section 33 and was released on licence.

3. In deciding whether a measure is a penalty under article 7, the court must adopt the autonomous Convention concept and examine substance rather than form. Relevant considerations include whether the measure follows conviction, its domestic classification, nature and purpose, the procedures involved, its severity and whether it may lead to punitive loss of liberty. These principles were derived from Jamil v France [1996] 21 EHRR 65 and Welch v UK [1995] 20 EHRR 247.

4. The licence followed from the statutory scheme rather than a judicial order. Its dominant purpose was preventative and protective: to assist rehabilitation, prevent further offending and protect the public. Those purposes outweighed the fact that the licence restricted liberty and exposed the claimant to recall if it was breached.

5. The reasoning in R (on the application of West) v The Parole Board [2002] EWCA Civ 1641, concerning the preventative character of recall under article 6, provided relevant assistance. The analogous approach was also supported by Crown v Field [2002] EWCA Crim 2913. The imposition of the licence was not a penalty, so article 7 was not engaged.

This was a first-instance judicial review in the Administrative Court. The court dismissed the application and refused permission to appeal.