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

For transitional sentencing provisions, an offender is ordinarily treated as sentenced when the first-instance court imposes sentence after conviction. The Court of Appeal Criminal Division is ordinarily a court of review, even though it may quash and substitute a sentence under statute. A substituted appellate sentence does not make the offender newly sentenced for the purposes of a later statutory amendment. Transitional provisions therefore operate by reference to the original Crown Court sentence, unless their wording clearly provides otherwise.

Scott Smith and Daniel Modhej were sentenced in the Crown Court on 11 January 2008 under the dangerousness provisions of the Criminal Justice Act 2003. The Court of Appeal Criminal Division later quashed and substituted extended sentences: [2010] EWCA Crim 216.

An amendment to section 247 of the 2003 Act, brought into force on 14 July 2008, provided for automatic release at the halfway point. The transitional provision excluded persons sentenced under the relevant dangerousness provisions before that date. The claimants argued that the appellate substitution in January 2010 meant that they had been sentenced after the amendment came into force. The central issue was the meaning of sentenced in the transitional provision.

1. The claims were dismissed. Although permission had been granted to Modhej, both claims were dismissed at the conclusion of the hearing.
2. The Court of Appeal Criminal Division is ordinarily a court of review when dealing with an appeal against sentence. It reviews the sentence imposed by the Crown Court rather than conducting a sentencing exercise afresh. The court adopted the rationale stated by Lord Bingham CJ in R v A and B [1999] 1 Cr App R(S) 52.
3. Section 11(3) of the Criminal Appeal Act 1968 permits the Court of Appeal to quash the original sentence and pass an appropriate replacement sentence which the lower court had power to impose. The replacement remains a sentence substituted for the original sentence.
4. Section 29(4) of the 1968 Act, providing that an appellate sentence normally begins when the original sentence would have begun, confirms that the appellate court is substituting a sentence in the existing proceedings.
5. On the ordinary meaning of sentenced in paragraph 2 of Schedule 2 to the commencement order, the relevant date was the date of sentence in the Crown Court. The claimants were therefore sentenced on 11 January 2008, not when the Court of Appeal substituted sentences in January 2010. The amended section 247 did not apply to them.
6. The court also relied on the observations of Lord Judge CJ in AG Reference No. 55 of 2008 [2008] EWCA Crim 2790, [2009] 2 Cr App R(S) 22. Applying the transitional regime by reference to the original sentence made the statutory scheme clearer and reduced anomalies, including anomalies arising from the date of an appeal.

• Court of Appeal Criminal Division: The claimants' sentences were quashed and extended sentences substituted, while the findings of dangerousness were upheld: [2010] EWCA Crim 216.
• High Court (Administrative Court): The judicial review claims were dismissed.