Modhej & Anor, R (On the Applications) v Secretary of State for Justice

A sentence varied on a defendant’s appeal is substituted for the Crown Court sentence. It remains, in effect, the sentence of the court below and does not amount to a fresh sentencing exercise by the Court of Appeal. Accordingly, where a transitional provision excludes persons sentenced under the relevant provisions before a specified date, a successful appeal against sentence after that date does not remove that exclusion. The original sentence continues to govern detention until it is replaced. The subsequent sentence does not retrospectively engage more favourable release provisions in Criminal Justice and Immigration Act 2008.

The appellants were convicted of serious sexual and associated offences and received detention or imprisonment for public protection under the dangerous-offender regime in Criminal Justice Act 2003. Their original minimum terms were four years.

In January 2010, the Criminal Division allowed their sentence appeals. It substituted extended sentences with an eight-year custodial term and a four-year extension period. The appellants contended that, because that substitution occurred after 14 July 2008, the automatic-release amendments in Criminal Justice and Immigration Act 2008 applied to them.

The Divisional Court dismissed their judicial-review claim. The central issue on this appeal was whether the appellants had been sentenced under the 2003 Act before the transitional date despite the later appellate substitution of their sentences.

1. Appeals dismissed. The appellants had been sentenced under the relevant dangerous-offender provisions of Criminal Justice Act 2003 before 14 July 2008. The transitional provision in the Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions (Order) 2008) therefore kept the amendments, including those made by section 25, without effect in relation to them.

2. Section 11(3) of Criminal Appeal Act 1968 permits the Court of Appeal to quash a challenged sentence and pass an appropriate sentence in its place. That mechanism is a review of the Crown Court’s sentencing decision. It is not a fresh sentencing exercise in which every option originally available to the Crown Court is reopened. The statutory prohibition on imposing a more severe overall outcome, and section 29(4), which ordinarily dates the substituted sentence from when the original sentence would have begun, confirmed its substitutive character.

3. The successful sentence appeals did not nullify the original indeterminate sentences. Those sentences remained in force and governed the appellants’ detention until they were replaced by the extended sentences. The appellants were consequently within the class of persons already sentenced before the commencement date.

4. The beneficial purpose of the 2008 amendments could not override the express transitional exclusion. The contrary construction would also produce unjustified disparities between similarly sentenced offenders based solely on the timing and outcome of appellate listings.

5. The court endorsed the Divisional Court’s reasoning, subject to a reservation that sentencing-council material did not assist statutory construction. It also stated that the earlier Criminal Division observations that the appellants would become entitled to release after four years were incorrect, since the release issue had not arisen for decision in that appeal.

• Court of Appeal (Civil Division) — dismissed the appellants’ appeal in [2012] EWCA Civ 957.
• Divisional Court (Administrative Court) — on 16 August 2011, dismissed the appellants’ judicial-review claim that their continued detention after their asserted automatic-release dates would be unlawful.
• Court of Appeal (Criminal Division) — on 14 January 2010, allowed the appellants’ sentence appeals and substituted extended sentences for detention or imprisonment for public protection.
• Inner London Crown Court — on 11 January 2008, imposed detention or imprisonment for public protection with four-year minimum terms.