England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(LORD JUSTICE RICHARDS, MR JUSTICE EADY,
MR JUSTICE TREACY)

		Royal Courts of Justice Strand London WC2A 2LL
		1 May 2013

Lord Justice Laws:

1. This is an appeal, with permission granted by Sedley LJ on 24 July 2012, against a judgment of the Divisional Court (Richards LJ, Eady J and Treacy J), [2011] WLR 1157, [2011] EWHC 1610 (Admin), given on 28 June 2011. The Divisional Court dismissed the appellant's claims for judicial review by which it was sought to challenge the decision of the respondent Chief Constable to the effect that the appellant was required to comply with the notification requirements prescribed by the Sexual Offences Act 2003 for an indefinite period pursuant to section 82 of that Act.
2. Before the grant of permission by Sedley LJ there had been a debate whether the judicial review application and therefore the prospective appeal was or was not "a criminal cause or matter". If it was, then appeal would lie only to the Supreme Court and not to this court. However, at a hearing on 21 November 2011 in this court, Maurice Kay LJ and Sullivan LJ concluded that it was not a criminal cause or matter so that the Court of Appeal had jurisdiction to hear the appeal. In fact the parties were agreed that that was so, but of course their consent could not confer jurisdiction on the court.
3. To introduce the case, I can do no better than set out paragraphs 1 to 3 of Richards LJ's judgment, with which Eady J and Treacy J agreed:

"1. On 16 August 2006 the claimant pleaded guilty at Reading Crown Court to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. On 17 November 2006 he was sentenced in respect of the most serious of those offences to an extended sentence of 4½ years, comprising a custodial term of 18 months and an extension period of 3 years, pursuant to s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 ('the PCC(S)A 2000'). Lesser sentences under the same Act or under the Criminal Justice Act 2003 ('the CJA 2003') were imposed for the other offences. The reason why some of the sentences were under the PCC(S)A 2000 and others under the CJA 2003 was that the various offences straddled the date when the CJA 2003 came into force.

2. The claimant's conviction of those offences had the consequence, pursuant to s.80(1) of the Sexual Offences Act 2003 ('the SOA 2003'), that he became subject to the notification requirements of Part 2 of that Act, requiring him to notify certain information to the police for inclusion in the sex offenders register. The period for which he remains subject to the notification requirements is laid down by s.82(1):

'82(1) The notification period for a person within s.80(1) is the period in the second column of the following Table opposite the description that applies to him'

The material entries in the table are these:

Description of relevant offender	Notification period
A person who, in respect of the offence, is or has been sentenced … to imprisonment for a term of 30 months or more	An indefinite period beginning with the relevant date [i.e. the date of conviction]
A person who, in respect of the offence, is or has been sentenced to imprisonment for a term of more than 6 months but less than 30 months	10 years beginning with that date

#

4. The issue before the court is whether, by reason of the extended sentence of 4½ years with a custodial term of 18 months, the claimant was 'sentenced to imprisonment for a term of 30 months or more', so as to be subject to the notification requirements for an indefinite period, or was 'sentenced to imprisonment for a term of more than 6 months but less than 30 months', so as to be subject to the requirements for a period of 10 years. The court record following sentence referred to a period of 10 years, as did the notice originally issued to the claimant by the prison. The defendant Chief Constable decided, however, that the claimant was subject to the requirements for an indefinite period, based on the 4½ year term of the extended sentence. That decision, formally communicated by letter of 22 September 2010, is the subject of challenge in these proceedings for judicial review. The claimant contends that the decision is based on a mistaken construction of the statute and that the true notification period is one of 10 years, based on the 18 month custodial term comprised within the extended sentence."
5. The "indefinite period" referred to in the table in section 82(1) must now be read subject to the provisions of sections 91A-91F, which introduces a procedure by which in an individual case the requirement for indefinite notification may be tested. These sections were inserted by remedial order made under the Human Rights Act 1998, section 10, following a declaration of incompatibility made by the Supreme Court in R(F (a child)) v the Secretary of State [2011] 1 AC 331. Given the dates of the appellant's offending, his case is governed by the extended sentence regime provided for in the PCC(S)A 2000 rather than the successor provisions contained in the Criminal Justice Act 2003. The 2000 Act re-enacted the extended sentence provisions set out in section 58 of the Crime and Disorder Act 1998.
6. Section 85 of the 2000 Act provides in part:

"(1) This section applies where a court—

(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and

(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of—

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section ('the custodial term'); and

(b) a further period ('the extension period') for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above.

...

(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence."

7. The term "custodial sentence" is defined by section 76(1) of the 2000 Act. Mr Southey QC for the appellant emphasised this morning the fact that section 76 opens with the words "In this Act". A number of meanings are given to "custodial sentence" but the only relevant one in context is the first, which is "a sentence of imprisonment". It will appear therefore that the "custodial sentence" in section 85(2), which is by that subsection the aggregate of "the custodial term" and "the extension period", constitutes by statutory reference "a sentence of imprisonment". In that case a criminal who has received such a sentence of imprisonment where the aggregate within the meaning of section 85(2) is more than 30 months would on the face of it plainly appear to be "a person who has been sentenced to imprisonment for a term of 30 months or more" for the purpose of and within the meaning of section 82(2) of the Sexual Offences Act 2003. That is what the Divisional Court found.
8. The provisions which replaced section 85 of the 2000 Act, section 227 and, from 3 December 2012, section 226A of the Criminal Justice Act 2003, are structurally similar. An extended sentence remains "a sentence of imprisonment" and its term is equal to the aggregate of "the appropriate custodial term" and "the extension period".
9. The Divisional Court considered that certain other provisions support the conclusion that, in an extended sentence case, the term of a prison sentence for the purpose of determining the notification period under section 82(1) of the Sexual Offences Act is the aggregate term of the extended sentence. These are, first, section 85(6) of the 2000 Act, which provides:

"Subsection (2) of section 80 above (length of discretionary custodial sentences) shall apply as if the term of an extended sentence did not include the extension period."

10. The second such provision is section 44 of the Criminal Justice Act 1991 in its present form, which makes special provision for extended sentences in the context of the early release provisions in Part II of that Act. It provides as follows:

"(1) This section applies to a prisoner serving an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.

(2) Subject to the provisions of this section and section 51(2D) below, this Part, except section 40A, shall have effect as if the term of the extended sentence did not include the extension period."

11. There is another provision, section 51(2D) of the Criminal Justice Act 1991, which, in Richards LJ's view, taken on its own rather goes the other way. It provides:

"Subsections (2B) and (2C) above shall have effect as if the term of an extended sentence (within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000) included the extension period (within the meaning of that section)."

12. Overall, however, Richards LJ considered (paragraph 13) that there was a strong case for concluding that the prison term for the purpose of ascertaining the notification period was the aggregate term of the extended sentence, and it is clear that the definition in section 76(1) is central to this reasoning.
13. In my judgment the Divisional Court was, with respect, plainly right on the short ground that the statutory language permits no other sensible conclusion. In an extended sentence case the aggregate of the custodial term under the extension period is a sentence of imprisonment (sections 76(1) and 85(2) of the 2000 Act). A criminal on whom such a sentence of imprisonment has been passed (in this case of 4½ years) is to my mind plainly a person who "has been sentenced to imprisonment" for 4½ years (Sexual Offences Act 2003, section 82 (1)).
14. But Mr Southey submits that the section 76(1) definition, though it applies to a custodial sentence within the meaning of section 85 of the 2000 Act, casts no light on the terms of the Sexual Offences Act 2003. He urged differences in language between the Sexual Offences Act and the 2000 Act; but this does not begin to displace what to my mind is an obvious crossover between the provisions in the 2000 Act and those in the Sexual Offences Act.
15. Mr Southey relies, as I have foreshadowed, on the fact that section 76(1) opens with the words "In this Act", so that, as he would put it, the definition of "custodial sentence" as "sentence of imprisonment" is limited to the 2000 Act. But the 2003 Act was enacted in the knowledge of the careful regime provided for in section 76 and 85 of the 2000 Act. If it was intended that the reference to a prison sentence in the 2003 Act meant something different from the meaning given in section 76, the plain expectation is that the legislature would have said so.
16. The starting point for any sensible consideration of a question of this kind is the proposition that Parliament may be taken to have acted consistently. The submission also advanced this morning that the seriousness of the offence is reflected or given by the custodial term strictly and not the extension period (itself with great respect a doubtful proposition, pace a comment of Leveson LJ to which we were referred in R v H [2007] EWCA Crim 2622 at paragraph 18) does nothing, in my view, to touch the relationship between the statutory provisions with which we are here concerned. The notification requirements are not merely concerned with the gravity of the offence in terms of the offender's culpability; they are concerned with risk, protection and prevention. In short there is nothing in any consideration of the statutes to displace the conclusion of the Divisional Court.
17. Mr Southey has relied upon a number of authorities. First, he took us to the decision of the Court of Appeal, Criminal Division, in R v S (Graham) [2001] 1 Cr App R 111. That was an appeal against an extended sentence. The Grounds of Appeal said nothing about the notification period, which was in that case regulated by section 58 of the Sex Offenders Act 1997, a predecessor of section 85 of the 2000 Act. But the court chose to deal with the notification provisions. It should not have done so. The application of those requirements is not appealable to the Criminal Division of this court. The judgment of the court, delivered by Rougier J, set out the wording of section 58 of the 1997 Act and continued:

"6. It is to be noted that although the word 'custodial' is used in relation to sub-paragraph (b) quoted above, this does not necessarily imply a period of imprisonment. It merely denotes a period during which any offender is liable to be imprisoned if he is discovered to be in breach of the licence.

7. That must be compared with section 1 of the Sex Offenders Act 1997, which sets out in tabular form the applicable period for which any person convicted of a sexual offence is required to register and to notify the appropriate authorities. In relation to the sentence of imprisonment which is passed, the appropriate wording of the table is:

'A person who, in respect of the offence, is or has been sentenced to imprisonment for a term or more than six months, but less than 30 months.'

8. We note the difference between the phrase 'custodial sentence' and the phrase 'a term of imprisonment'. It seems to us that, on the plain construction of the latter Act, 'a term of imprisonment' connotes actual and immediate imprisonment and does not include a sentence of extended licence during which he is liable to be imprisoned but will not necessarily be so.

9. Accordingly, we take the view that the requirement of registering for an indefinite period was incorrectly imposed and that the correct period should be 10 years, beginning with the relevant date in accordance with the section ..."

18. Richards LJ considered that this reasoning was obiter. It was in any event held to be wrong in R v Wiles [2004] 2 Cr App R (S) 467. There was no reference whatever in Graham to the definition of "custodial sentence" in section 76(1) of the 2000 Act or the predecessor legislation. In Wiles the first issue was whether an order disqualifying the appellant from working with children was unlawful. By section 28(2)(b) of the Criminal Justice and Court Services Act 2000, one of the conditions for making such an order was that a "qualifying sentence" (that is, a sentence of 12 months or more) should have been imposed on the defendant. The appellant's counsel relied on Graham to support an argument that, because his client's custodial term was less than 12 months, there was no qualifying sentence.
19. Delivering the judgment of the court, Mitting J referred to section 76 and 85 of the 2000 Act and continued:

"14. By reason of the definition of 'custodial sentence' under section 76, section 85(1) must therefore read:

'This section applies where a court proposes to impose a sentence of imprisonment or detention.'

Section 85(2) must read:

'... the court may pass on the offender an extended sentence, that is to say a term of imprisonment of detention which is equal to aggregate of---

(a) the term of imprisonment or detention that the court would have imposed...

(b) a further period ... for which the offender is to be subject to a licence.'

Thus read, it is clear that the term of imprisonment or detention includes the extension period and is not confined to the custodial term. That reading is mandated by the definition of custodial sentence in section 76.

15. It is also consistent with the nature of a modern determinate sentence of imprisonment or detention. It is not, as the phrase might in ordinary language suggest, an order for a period of incarceration of defined length: it is an order for a period of restriction on freedom of the offender, which begins with a period of incarceration and then may include a period of release on licence and will end with a period during which the offender is liable to be ordered to serve the unexpired term if he reoffends during the currency of the term. All that an extended sentence does is adjust the length of the second (licence) period. Therefore, for the purposes of section 28, the whole length of the extended sentence is to be taken into account in determining the length of the qualifying sentence. The qualifying sentence here was 2 years."

20. The court in Wiles referred to Graham and held it was decided per incuriam for want of any reference to the statutory definition of custodial sentence. In my judgment, with great respect, the Criminal Division in Wiles was entirely right.
21. There has been some reference in the argument, perhaps prompted by observations of Sedley LJ at paragraph 8 of his judgment granting permission to appeal, to issues of stare decisis and, in particular, to what extent and in what circumstances this Division is obliged to follow an earlier decision of the Criminal Division. But in my judgment nothing in this case requires any clarification of the law in that area. If we are not bound to follow Wiles, it is in any event in my judgment right, as I have indicated. It is not, I think, contended that we are bound to follow Graham, though Mr Southey submits, in my judgment incorrectly, that it is rightly decided.
22. Some other authorities have been relied on by Mr Southey. In R(Sim) v the Parole Board [2004] QB 1288 the Court of Appeal stated:

"... no great weight is to be attached in the present case to the fact that section 85(2) refers to the aggregate of the custodial term and the extension period as 'a custodial sentence'. More attention needs to be focused on what actually happens in reality when such a sentence is passed."

23. That passage is referred to in Mr Southey's skeleton argument. Before us this morning he referred to further passages at paragraphs 33 and 36. It is perhaps sufficient just to refer to the passage at paragraph 36 in the judgment of Keene LJ:

"In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period ... In cases of extended sentences under section 85, it is the executive which decides upon an offender's recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body."

24. The case of Sim, however, was simply not concerned with the statutory relationships which are relevant in the present appeal. The court there addressed the question whether recall to prison of an offender during the extension period of an extended sentence engaged the provisions of Article 5(4) of the European Convention on Human Rights. In my judgment the court was not in the least considering, and the judgments cast no light whatever upon, the question what is the relationship between section 76(1) and 85(2) of the 2000 Act, and section 82(1) of the Sexual Offences Act 2003. Mr Southey submitted that paragraph 15 of the decision in Wiles is inconsistent with Sim. But this, with respect to him, is to ignore entirely the context of both cases.
25. In R v H [2007] EWCA Crim 2622, to which I have referred to in passing, Leveson LJ at paragraph 16 saw "considerable force" in a submission, as I understand the passage, that Wiles was wrongly decided, but the court did not "feel it necessary to decide the matter". It is nowhere indicated what was the basis for Leveson LJ's potential or preliminary view. With respect, I consider, as I have said, that Wiles was plainly right. The court in R v H did not, and expressly did not, decide the contrary.
26. R(Webb) v Secretary of State[2011] 1 WLR 774 in truth advances the matter no further. Nor does R v Terry [2013] 1 Cr App R (S) 51, referred to in Mr Southey's supplementary skeleton argument and briefly the subject of remarks this morning. That case was about whether the extension period should be taken into account for the purpose of applying the sentencing guidelines.
27. Leaving aside Graham, which was, with deference, wrongly decided, authority favours the Divisional Court's conclusion (Wiles). Other cases decide nothing to the contrary.
28. I should add that it is to my mind wholly unsurprising that the prison term for the purpose of ascertaining the notification requirements should cloud the extension period of an extended sentence. The purpose of both is to promote the prevention of further sexual crime (see the case of F in the Supreme Court to which I have adverted per Lord Phillips at paragraph 51, and Richards LJ in the present case at paragraph 39).
29. Lastly Mr Southey prays in aid Articles 8 and 14 of the European Convention on Human Rights. On Article 8 it is, as I understand it, submitted that the imposition of the notification requirements for an indefinite period of the appellant, whose custodial term was no more than 18 months and extension period 3 years, was arbitrary and disproportionate. That, I think, is submitted independently of the argument on Article 14. In relation to that the submission is that the impact of the requirement is indiscriminate by comparison with other cases specified by Mr Southey. In these circumstances the statutory provisions should be read, he submits, pursuant to section 3 of the Human Rights Act so as to limit the prison term for the purpose of the Sexual Offences Act to the custodial term of the extended sentence.
30. It is accepted on all hands that the impact of the notification requirements constitute a substantial interference with the Article 8 right. In any live issue concerning the consequence of that fact, the issue would be whether Article 8(2) provides, in effect, a justification for the interference.
31. Even if there were a possible case here of violation of the Convention rights or either of them, it would not, in my judgment, justify doing such violence to the statutory language as Mr Southey's argument requires. But in fact I am unpersuaded of any breach. Given the purpose of the notification requirements and of extended sentences, and the provisions for review now contained in sections 91A and 91F of the Sexual Offences Act 2003 to which the appellant in due course will have access, I do not accept that there is anything arbitrary or disproportionate in the indefinite requirements in the appellant's case.
32. But Mr Southey's submissions this morning concentrated, I apprehend, not so much on Article 8 simpliciter but on Article 8 taken with Article 14. He was at pains to point out that his client, as a person of previous good character, would not under subsequent legislation be liable to an extended sentence at all. However statutory regimes of course change. I cannot see how this circumstance can in the least assist Mr Southey. The fact that the change is to the bite of the notification requirements rather than, for example, to length of sentence taken on its own cannot in my judgment make the difference. All that has happened is that Parliament has altered its view as to the reach for the need of the notification requirements. That does not generate, as it were, retrospectively a good Article 14 argument.
33. Furthermore, in relation to Article 14, the Divisional Court was, in my judgment, right to consider itself bound by the decision of the House of Lords in Clift v SSHD [2007] 1 AC 484 to the effect that the asserted grounds of discrimination were not grounds falling within the term "other status" in Article 14. We are likewise bound to follow the House of Lords. All this despite the latest Strasbourg decision, Clift v the United Kingdom App No 7205/07, 13 July 2010, to the effect that the same applicant did indeed enjoy other status. We are bound by the House of Lords case, having regard to the decision in Kay v Lambeth LBC [2006] 2 AC 465, though there was, I apprehend, some recognition there of the possibility of an exceptional case. I see no exceptional case here.
34. I do not consider therefore, for all these reasons, that the terms of the Convention or the jurisprudence of Strasbourg assists Mr Southey in this appeal.
35. For the reasons I have given, I would dismiss it.
36. I should add that Mr Southey canvassed the possibility that the court might consider making a declaration of incompatibility. Given the conclusions I have reached, there is no case whatever for taking such a course.

Lord Justice Moore-Bick:

37. I agree that the appeal should be dismissed for the reasons given by my Lord, Laws LJ, and I have nothing further to add.

Lord Justice Beatson:

38. I also agree and have nothing further to add.

Order: Appeal dismissed