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

Article 7(1) of the European Convention on Human Rights compares the penalty actually imposed with the penalty which the law authorised when the offence was committed. It does not require a counterfactual assessment of the sentence then likely to have been imposed.

A determinate sentence subject to a later early-release and licensing regime does not infringe article 7(1) where it remains within the statutory maximum applicable at the time of the offence. The sentence must be assessed as a whole. A change in its essential character or quality may, however, engage article 7 even where its nominal duration remains within the former maximum.

The respondent received an effective sentence of 12 years’ imprisonment in 1995 for sexual offences committed before 1983. Under the former release regime, a prisoner behaving well would have been released unconditionally after two-thirds of that term. Under the Criminal Justice Act 1991, the respondent was released at the same point on licence, subject to restrictions and possible recall.

Moses J dismissed an application for a declaration that the new regime was incompatible with article 7(1) of the European Convention on Human Rights: [2003] EWHC 950 Admin. The Court of Appeal allowed the respondent’s appeal and made a declaration of incompatibility: [2003] EWCA Civ 1130; [2003] 1 WLR 2590.

The central issue was whether the licensing regime caused the respondent to receive a heavier penalty than the penalty applicable when he committed the offences.

1. The appeal was allowed unanimously. The declaration of incompatibility made by the Court of Appeal was displaced.

2. Per Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell, article 7(1) compares the penalty imposed with the penalty which the law authorised at the time of the offence. The word “applicable” refers to the available statutory penalty or range of penalties, including the prescribed maximum. It does not refer to the sentence which probably would have been imposed had the offender been tried promptly. Lord Steyn agreed with those opinions. Baroness Hale agreed that the article concerns penalties prescribed by law rather than a hypothetical contemporaneous sentence.

3. The respondent’s effective sentence of 12 years was within the penalties authorised when the offences were committed. Rape was then punishable with life imprisonment. The licensing and recall provisions therefore did not cause the punishment imposed to exceed the limits fixed by the law applicable at the time. Article 7(1) was not breached.

4. Per Lord Phillips, the sentence had to be considered as a whole. Release on licence was an integral part of the sentence rather than a discrete additional penalty. Although the licence imposed restrictions, release mitigated the severity of imprisonment which would otherwise have been served. Welch v United Kingdom (1995) 20 EHRR 247, concerning a separately imposed confiscation order, did not require the licence to be isolated from the custodial sentence.

5. Baroness Hale accepted that “penalty” is an autonomous Convention concept. Article 7 is not invariably confined to a comparison of nominal maximum terms. A later change in the essential quality or character of a sentence, such as the addition of a materially different form of punishment, may make the penalty more severe. The present complaint concerned duration and release arrangements, however, and a longer period of imprisonment had always been legally available.

6. Lord Phillips also considered that the sentencing court had been free to reduce the nominal term to compensate for more onerous release arrangements. A statutory scheme which permitted any necessary adjustment could not itself be incompatible with article 7(1). It was unnecessary to decide whether a 12-year sentence under the new regime was, in isolation, heavier than a 12-year sentence under the former regime. Lord Carswell likewise reserved that question.

1. House of Lords: The Secretary of State’s appeal was allowed unanimously. The declaration of incompatibility was displaced: [2004] UKHL 38 .
2. Court of Appeal: The respondent’s appeal was allowed and a declaration was made that specified licensing and recall provisions were incompatible with article 7(1): [2003] EWCA Civ 1130 ; [2003] 1 WLR 2590 .
3. High Court, Administrative Court: Moses J dismissed the application for judicial review, holding that the licensing provisions did not constitute a heavier penalty: [2003] EWHC 950 Admin.