Abedin, R (On the Application Of) v Secretary of State for the Home Department

Changes to early-release provisions may concern the administration and execution of a sentence rather than increase the penalty for the purposes of Article 7 ECHR. Foreseeability alone does not establish that the penalty has been redefined. A sentence is not heavier than the penalty that could have been imposed under the law in force when the offence was committed. Detention after the three-quarters point remains lawful under Article 5 where it is pursuant to a lawful sentence. A prior decision may remain relevant despite addressing a different Convention article, and the court will not depart from it without a compelling basis.

The applicant renewed an application for permission to appeal against the dismissal by the Divisional Court of his claim concerning changes to early-release provisions. He relied particularly on Del Rio Prada v Spain and argued that an unforeseeable change at the time of sentencing had altered the penalty, engaging Article 7 ECHR. The court also considered Articles 5 and 6 ECHR and the authorities of Uttley and Robinson. Permission had previously been refused on the papers by Lloyd Jones LJ. The central issue was whether the claim disclosed an arguable infringement or another compelling reason for permission.

Lord Justice Gross dismissed the renewed application for permission to appeal. He agreed entirely with the reasons given by the Divisional Court and adopted the reasons for refusing permission given by Lloyd Jones LJ.

1. The change in early-release provisions did not increase the penalty within Article 7 ECHR. It concerned the administration and execution of the sentence. Detention after the three-quarters point would be pursuant to a lawful sentence and therefore would not infringe Article 5 ECHR.
2. The argument based on foreseeability was not persuasive. Del Rio Prada v Spain [2014] 58 EHRR 37 did not erode the established distinction between sentence and penalty, and the execution or administration of that penalty. It was distinguishable because the change there redefined the scope of the penalty imposed. The penalty in the present case had not been redefined.
3. The general thrust of Uttley [2004] 1 WLR 2278 remained applicable, even though that decision did not concern an unforeseeable change. The sentence was not a heavier penalty than could have been imposed under the law in force when the offence was committed.
4. Robinson was correctly decided and remained materially relevant, although it dealt strictly with Article 6 rather than Articles 5 and 7. Even assuming that the Court of Appeal could depart from it, the practical considerations identified below made departure unattractive.
5. The claim faced substantial difficulties and disclosed no other compelling reason to grant permission. The renewed application was therefore dismissed.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed, [2016] EWCA Civ 296.
• High Court (Divisional Court): claim dismissed for the cogent reasons given by Laws LJ and William Davis J.
• Court of Appeal on the papers: Lloyd Jones LJ refused permission to appeal.