Robinson, R (on the application of) v Secretary of State for Justice

For a determinate custodial sentence, the sentence imposed by the court is the full term of imprisonment. Statutory arrangements for early or conditional release, recall and re-release concern the administration or execution of that sentence. They do not form part of the judicial sentence.

A retrospective legislative change which removes an entitlement to automatic early release does not interfere with the sentencing court contrary to article 6 of the European Convention on Human Rights, provided that the term imposed remains unchanged. Sentencing courts should, as a matter of principle, leave early-release and licence arrangements out of account when fixing the appropriate sentence.

The appellant received a five-year sentence for robbery committed before 4 April 2005. He was released on licence after serving two-thirds of the term and was subsequently recalled. Section 50A of the Criminal Justice Act 1991, inserted before his recall, removed the former entitlement to automatic release after three-quarters of the sentence. Re-release thereafter depended upon a recommendation by the Parole Board or a decision by the Secretary of State.

Collins J dismissed the appellant's judicial review claim in [2009] EWHC 2251 (Admin). He held that the amended release provisions concerned the administration and execution of the sentence, which remained a five-year term.

The appeal asked whether the retrospective removal of automatic release altered the judicial sentence and thereby constituted legislative interference with an independent judicial decision contrary to article 6 of the European Convention on Human Rights.

1. Appeal dismissed unanimously. The appellant's five-year sentence remained unchanged. The legislative alteration of the conditions governing release and recall did not interfere with the sentence imposed by the Crown Court.

2. A determinate custodial sentence is the term fixed by the sentencing judge. Arrangements for release before expiry of that term concern its administration or execution. This distinction is established in domestic law and the jurisprudence of the European Court of Human Rights, and applies to rights under articles 5, 6 and 7 of the European Convention on Human Rights.

3. As a matter of sentencing principle, early-release, parole and licence arrangements should be left out of account when the court fixes the appropriate sentence. Radical statutory changes may occasionally require sentencing guidance to be adjusted, but that does not make the statutory release framework part of the sentence itself. The sentence represents the period which the court considers appropriate as punishment.

4. The Court of Appeal decision in R (Uttley) v Secretary of State for the Home Department [2003] 1 WLR 2590, which treated post-release licence conditions as part of the sentence, could not stand with Strasbourg jurisprudence. The later admissibility decision in Uttley v United Kingdom treated the judicially imposed term alone as the penalty and the early-release regime as part of the general regime applicable to prisoners.

5. M v Germany was materially different. There, legislation permitted detention beyond the maximum authorised when the original order was made, thereby breaking the connection between the conviction and the continuing deprivation of liberty. It nevertheless preserved the distinction between a measure which is substantively a penalty and one concerning execution or enforcement.

6. Section 50A of the Criminal Justice Act 1991 removed the appellant's entitlement to automatic release after three-quarters of his term. It did not extend the five-year term. Article 6 was therefore not infringed. Moses LJ delivered the judgment; Munby LJ and Lord Neuberger MR agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2010] EWCA Civ 848. The court agreed that the amended release arrangements concerned execution of the sentence and did not alter the five-year term.

2. High Court, Queen's Bench Division: Collins J dismissed the judicial review claim in [2009] EWHC 2251 (Admin). He held that section 50A of the Criminal Justice Act 1991 concerned administration and execution of the sentence.