R v Danny Barnes

For the purposes of section 244ZA of the Criminal Justice Act 2003, the availability of life imprisonment is assessed by reference to the offence as at the sentencing date. It does not depend on whether a life sentence was legally available for the particular offender because the offence pre-dated the increase in its maximum penalty. A qualifying prisoner must therefore serve two-thirds of the sentence before release on licence.

A change to early-release arrangements concerns the execution of a sentence, not the penalty imposed. It does not engage Article 7(1) of the Convention where the sentence itself remains within the maximum applicable when the offence was committed. Sentencing under the dangerous-driving guideline remains a holistic exercise; the number of high-culpability features is not determinative.

This was a conjoined judgment concerning the release-on-licence regime for offenders convicted of causing death by dangerous driving before 28 June 2022 but sentenced afterwards.

Danny Barnes was convicted at the Central Criminal Court of causing death by dangerous driving committed on 24 April 2022. He received nine years’ imprisonment and an 11-year driving disqualification. The extension element of the disqualification was calculated on the basis that he would be released after serving two-thirds of his sentence. He sought leave to appeal against sentence, contending that release should occur at the halfway point.

The court also determined Jordan Lill’s judicial-review claim and an Attorney-General’s reference concerning Youssef Berouain. The common issue was the proper construction of section 244ZA(4) of the Criminal Justice Act 2003.

1. Mr Barnes’ appeal against sentence was dismissed. The court also dismissed Mr Lill’s judicial-review claim. It allowed the Attorney-General’s reference concerning Mr Berouain, quashed his sentence on the count of causing death by dangerous driving, and substituted 11 years and 8 months’ imprisonment with a 10-year-and-nine-month disqualification.

2. Section 244ZA(4)(d) of the Criminal Justice Act 2003 identifies the type of offence to which the two-thirds release regime applies. The life-imprisonment criterion in section 244ZA(4)(d)(ii) asks whether the offence carried life imprisonment at the sentencing date, assessed by reference to an offender aged 21 or over. It does not ask whether life imprisonment could lawfully have been imposed on the particular offender. Since causing death by dangerous driving then carried life imprisonment, the two-thirds custodial period applied to all three offenders.

3. Article 7(1) of the Convention was not engaged. Following R (Uttley) v Secretary of State for the Home Department [2004] UKHL 38, release arrangements concern the execution or enforcement of the judicially imposed sentence. They do not increase the penalty, even if they require a prisoner to remain in custody for longer before conditional release.

4. The court agreed with R v Lomas [2023] EWCA Crim 1436 and held that the contrary views in R v Jeffries [2022] EWCA Crim 1503, R v Freeth [2023] EWCA Crim 1754 and R v Bates [2024] EWCA Crim 684 were wrong on this issue.

5. On the Attorney-General’s reference, the sentencing judge had misread R v Ahmed [2023] EWCA Crim 1537. A sentence within Category A requires a genuinely evaluative assessment of all the facts, rather than a tally of culpability factors. The grave concurrent injury offence, the failure to provide a specimen and the late guilty pleas required a substantially higher sentence and only 10 per cent credit for plea.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 1548, dismissed Barnes’ appeal against sentence and upheld the calculation of his driving disqualification by reference to release after two-thirds of the sentence.
• Central Criminal Court — HHJ Mayo KC convicted Barnes of causing death by dangerous driving and sentenced him to nine years’ imprisonment with an 11-year driving disqualification.