B, R v

An extended licence imposed under section 86 for historic sexual offences is a preventive, rather than punitive, measure. Its application does not impose a heavier penalty contrary to Article 7, even where the offending pre-dated the statutory power. The measure forms part of the execution of the custodial sentence and serves public protection, prevention of further offending and rehabilitation.

On sentence, the total term must reflect totality, guilty pleas and mitigation. Individual sentences may be proper, yet their consecutive effect may make the overall sentence manifestly excessive.

The appellant pleaded guilty in the Crown Court at Winchester to two rapes, three indecent assaults on a girl under 13, two offences of buggery and inciting a child to commit an act of gross indecency. The offences were committed in the 1970s against his children and his former sister-in-law.

He received consecutive custodial terms totalling 15 years, together with an extended licence under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000. He appealed on the grounds that the total sentence was manifestly excessive and that the extended licence contravened Article 7 because the statutory power post-dated the offences.

1. The appeal was allowed in part. The total custodial sentence of 15 years was manifestly excessive after allowing for the guilty pleas, mitigation and totality. A term of 10 years was appropriate. The individual sentences remained undisturbed, but the five-year sentences for rape were ordered to run concurrently with the other sentences.

2. The court rejected the challenge to the extended licence. It was bound by R v BR [2004] 1WLR 490, which had decided that an order under section 86 was preventive and did not infringe Article 7. The appellant advanced no basis for treating that authority as decided per incuriam; disagreement with its reasoning was insufficient.

3. The court agreed with the analysis in R v BR. Whether a measure is a penalty for Article 7 purposes depends on its substance, assessed by reference to its connection with conviction, nature and purpose, domestic characterisation, procedure and implementation, severity, and whether it forms part of a regime of punishment. Although an extended licence restricts liberty and breach may lead to imprisonment, its dominant purposes are public protection, prevention of further offending and rehabilitation.

4. Section 86 affects supervision after release and the consequences of recall, but neither increases the maximum custodial sentence nor extends the licence beyond the notional end of that sentence. It concerns the execution of the sentence, not the penalty imposed. Applying it to these historic offences therefore did not impose a heavier penalty contrary to Article 7. The extended licence stood.

• Court of Appeal (Criminal Division): Allowed the appeal against the total custodial sentence and substituted 10 years' imprisonment. Dismissed the appeal against the extended licence under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000.
• Crown Court at Winchester: On 12 September 2008, imposed consecutive sentences totalling 15 years and an extended licence.