Minter v Hampshire Constabulary & Anor

An extended sentence under section 85(2) of the Powers of Criminal Courts (Sentencing) Act 2000 is a sentence of imprisonment for its aggregate term, comprising both the custodial term and the extension period. That aggregate term determines the notification period under section 82(1) of the Sexual Offences Act 2003.

The statutory language cannot be read under section 3 of the Human Rights Act 1998 so as to substitute the custodial term alone. Indefinite notification based on the aggregate term was neither arbitrary nor disproportionate, given the preventive purpose of the regime and the available review procedure.

The appellant received an extended sentence of four and a half years for sexual offences. It comprised an 18-month custodial term and a three-year extension period. The Chief Constable decided that the appellant was subject to indefinite notification requirements under Part 2 of the Sexual Offences Act 2003.

The Divisional Court dismissed his judicial-review claim: [2011] EWHC 1610 (Admin); [2011] WLR 1157. He appealed, contending that only the 18-month custodial term counted, producing a ten-year notification period. He also relied on articles 8 and 14 of the Convention.

The central issue was whether an extended sentence was imprisonment for its aggregate term, or only for its custodial component, when applying section 82(1).

Appeal dismissed. Laws LJ gave the only reasoned judgment, with which Moore-Bick and Beatson LJJ agreed.

1. Under sections 76(1) and 85(2) of the Powers of Criminal Courts (Sentencing) Act 2000, an extended sentence is a sentence of imprisonment whose term is the aggregate of the custodial term and the extension period. The appellant had therefore been sentenced to imprisonment for four and a half years. He fell within the indefinite-notification entry in section 82(1) of the Sexual Offences Act 2003.

2. The words limiting the definition of custodial sentence to the 2000 Act did not displace that conclusion. Parliament could be taken to have legislated consistently with the extended-sentence regime. The notification regime concerns risk, protection and prevention as well as offence seriousness.

3. R v S (Graham), [2001] 1 Cr App R 111, was wrongly decided. Its treatment of the notification period was not appealable in that criminal appeal and failed to consider the statutory definition of custodial sentence. R v Wiles, [2004] 2 Cr App R (S) 467, correctly held that the aggregate extended term is the term of imprisonment. The other authorities did not address the statutory relationship in issue or decide the contrary.

4. There was no Convention breach. Even a possible breach could not justify a construction doing violence to the statutory language under section 3 of the Human Rights Act 1998. The interference with article 8 was justified by the preventive purpose of notification and extended sentences, and by the later review procedure for indefinite notification. The court was bound by Clift v SSHD, [2007] 1 AC 484, on article 14, notwithstanding the subsequent Strasbourg decision concerning the same applicant. No exceptional basis existed for departing from the domestic binding authority.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the Chief Constable's decision that the notification period was indefinite: [2013] EWCA Civ 697.
• Divisional Court: Dismissed the appellant's judicial-review claim challenging that decision: [2011] EWHC 1610 (Admin); [2011] WLR 1157.