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

The House of Lords allowed the Secretary of State's appeal and held that the transitional effect of the Criminal Justice Act 1991 (release on licence and recall) did not violate article 7(1) of the European Convention on Human Rights. The court interpreted the word "applicable" in article 7(1) as referring to the penalty or range of penalties authorised by law at the time the offence was committed (for example, the maximum sentence then permitted), not to the particular sentence which an offender would probably have received at that earlier time.

The Lords concluded that a determinate sentence of 12 years, even coupled with licence conditions under the 1991 Act, was not heavier than the penalty that the law authorised at the time of the offences (rape being punishable by life). The licence regime was treated as an integral part of the sentence but, overall, release on licence mitigated rather than augmented the severity of a sentence of imprisonment. Because the 12 year sentence fell within the limits fixed by the law in force when the offences were committed, article 7(1) was not infringed.

Background and facts:

• The respondent committed a series of sexual offences before 1983. He was prosecuted in 1995, convicted or pleaded guilty to various counts and sentenced to an effective total of 12 years' imprisonment on 24 October 1995.
• By virtue of the Criminal Justice Act 1991 (in force from 1 October 1992) determinate prisoners were to be released on licence after serving two-thirds of their sentence and remained liable to recall and subject to supervision until three-quarters; under the earlier regime (Prison Act 1952 and Prison Rules 1964) a prisoner released after two-thirds would, subject to good behaviour, have been unconditionally discharged and the sentence expired.

Nature of the claim and procedural posture:

• In December 2002 the respondent applied for judicial review seeking a declaration that the relevant provisions of the 1991 Act (as to release on licence and recall) were incompatible with article 7(1) ECHR (no heavier penalty than the one applicable at the time of the offence). Moses J (Administrative Court) dismissed the application ([2003] EWHC 950 (Admin)). The Court of Appeal allowed the respondent's appeal and granted a declaration of incompatibility ([2003] 1 WLR 2590). The Secretary of State appealed to the House of Lords.

Issues framed by the court:

• Whether a 12 year determinate sentence imposed after the 1991 Act came into force is a "heavier penalty" for the purposes of article 7(1) than a 12 year sentence would have been under the old regime at the time the offences were committed.
• What is the meaning of the word "applicable" in article 7(1) — whether it denotes the penalty a court could have imposed under the law in force at the time of the offence or the sentence the offender would in practice have received at that time.
• Whether the licence conditions and risk of recall constitute an additional penalty in the convention sense.

Court's reasoning:

• The Lords concluded that "applicable" in article 7(1) means the penalty authorised by law at the time of the offence — i.e. the maximum or range of penalties then prescribed — not the counterfactual sentence an individual would probably have received then.
• Because the maximum authorised penalty for rape at the time of the offences was life imprisonment, a determinate sentence of 12 years (even with licence conditions under the 1991 Act) did not exceed the limits fixed by the law in force when the offences were committed.
• The court rejected the proposition that the licence conditions should be treated in isolation as a separate retrospective penalty analogous to the confiscation order in Welch v United Kingdom; the remission/release regime is an integral feature of the sentence and, on balance, release on licence mitigates rather than increases the severity of the sentence.
• The Lords accepted that sentencers, under the Practice Statement (Crime: Sentencing), could and should take the new release arrangements into account when passing sentence after October 1992, but it was unnecessary to determine in this case whether the trial judge did so.

Conclusion:

• The House of Lords allowed the appeal and held there was no breach of article 7(1).

Appeal allowed. The court held that article 7(1) is concerned with the penalty authorised by law at the time the offence was committed (the maximum or range of penalties then prescribed), and a determinate sentence of 12 years imposed after the 1991 Act (with release on licence and risk of recall) did not exceed those limits. Licence conditions do not amount to a heavier retrospective penalty in this case, and therefore the 1991 Act was not incompatible with article 7(1) in respect of the respondent.

Application for judicial review to the Administrative Court (Moses J) dismissed [2003] EWHC 950 (Admin); appeal to the Court of Appeal allowed, which granted a declaration of incompatibility [2003] 1 WLR 2590 (from [2003] EWCA Civ 1130); appeal to the House of Lords allowed [2004] UKHL 38.