McWilliams, R. v

Where the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 applies, a court fixing the minimum term for a discretionary life sentence under section 82A(3) must take account of the amended early-release provision in section 244(1) of the Criminal Justice Act 2003. For a relevant violent or sexual offence attracting a determinate sentence of seven years or more, the normal comparison is now release at the two-thirds point, rather than at one-half.

The former one-half approach reflected the statutory release regime then in force. A distinct early-release regime placed outside section 244(1) has different consequences because statutory language must be applied according to its terms.

The Attorney General referred, as unduly lenient, the discretionary life sentence imposed at the Crown Court at Woolwich on McWilliams for 40 child sexual offences committed against 23 children while he worked in positions of trust as an au pair, nanny and babysitter.

The sentencing judge assessed the notional determinate sentence, after mitigation and full credit for guilty pleas, at 18 years. He imposed a life sentence but fixed a nine-year minimum term by taking one-half of that term. Following a slip-rule application, he declined to alter it.

The principal issue was whether the 2020 Order required the judge, when applying section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000, to calculate the minimum term by reference to two-thirds of the notional determinate term.

1. The Attorney General’s reference was allowed. The life sentence remained in force, but the minimum term was increased from nine to 12 years.

2. Section 82A(3)(c) of the Powers of Criminal Courts (Sentencing) Act 2000 required the sentencing judge to take account of the early-release provisions in section 244(1) of the Criminal Justice Act 2003. The legislative text, read in context, was the primary means of ascertaining Parliament’s intention.

3. Article 3 of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 amended section 244 so that a prisoner serving a determinate sentence of seven years or more for a relevant violent or sexual offence became eligible for release only after serving two-thirds of the sentence. The Order therefore sufficiently manifested Parliament’s intention that this altered release point be taken into account when fixing the minimum term for a discretionary life sentence for such offending.

4. The one-half approach described as normal in R v Szczerba [2002] EWCA Crim 440 and Attorney General’s Reference (No 27 of 2013) (R v Burinskas) [2014] EWCA Crim 334 reflected the earlier version of section 244. It did not survive unchanged after the Order. By contrast, the separate regime created by section 247A for terrorism prisoners did not alter the construction of section 82A(3)(c), because it lay outside section 244(1).

5. The court did not need to decide whether the gravity of the offences independently justified departure from the former one-half approach. Nor was the notional determinate sentence independently unduly lenient, given the substantial sentences already served for related earlier convictions and the unchallenged mitigation. The error was the use of one-half instead of two-thirds of the 18-year notional determinate term.

• Court of Appeal (Criminal Division) — granted leave on the Attorney General’s reference and substituted a 12-year minimum term for the nine-year term: [2021] EWCA Crim 745.
• Crown Court at Woolwich — imposed a discretionary life sentence with a nine-year minimum term on 2 November 2020, and declined to alter that term on a subsequent slip-rule application.