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
(MR JUSTICE WILLIAM DAVIS)

		Royal Courts of Justice Strand London WC2A 2LL
		10 March 2016

1. LORD JUSTICE GROSS: In his very full and helpful skeleton argument, augmented orally today, Mr Southey QC has said all that could be said in support of this renewed application for permission to appeal.
2. The point which Mr Southey has emphasised today is one of foreseeability at the time of sentencing, based on the decision of the European Court of Human Rights in the case of Del Rio Prada v Spain [2014] 58 EHRR 37. Del Rio Prada did not seek to erode the well established distinction between sentence and penalty on the one hand and the execution or administration of that penalty,on the other. However, in a case such as Del Rio Prado, where the change was not foreseen at the time of sentence, that had the effect of changing the penalty itself: see the judgment at [109] - where, as the court put it, the measure taken by the court that convicted the applicant also led to the redefinition of the scope of the penalty imposed.
3. For my part, I am not persuaded that that is analogous to the present case. I think too much can be made of an otherwise attractive use of the label "foreseeability". I do not for my part think that the penalty in the present case was redefined.
4. The claim here was carefully considered by, if I may say so, an experienced Divisional Court, which dismissed it for the cogent reasons given by Laws LJ and William Davis J.
5. The application for permission was succinctly but comprehensively dismissed by Lloyd Jones LJ on the papers.
6. Other than dealing, as I have done, specifically with the foreseeability point, which Mr Southey has underlined today, it is unnecessary to say more than that I agree entirely with the reasons given by the Divisional Court. I likewise entirely agree with the reasons for refusing permission given by Lloyd Jones LJ, and respectfully adopt the points he made as my own. He said this:

i. "The change in the early release provisions did not increase the penalty within Article 7 of the ECHR but concerned the administration and execution of the sentence.

ii. The decision of the Strasbourg court in Del Rio Prada ... is distinguishable because the Spanish legislation 'led to the redefinition of the scope of the penalty imposed' ...

iii. Furthermore, there is no infringement of Article 7 here because the sentence does not constitute a heavier penalty than that which could have been imposed on the applicant under the law in force at the time that his offence was committed (Uttley [2004] 1 WLR 2278).

iv. Finally, if the applicant is detained after the three-quarters point of his sentence, it will be pursuant to a lawful sentence and there will be no infringement of Article 5 ECHR."

7. For completeness, three matters. First, although Mr Southey says that Uttley did not concern an unforeseeable change, nonetheless the general thrust of the point in Uttley still holds good.
8. Secondly, in the light of the difficulties this claim faces, I am not persuaded that there is some other compelling reason for granting permission. There may be other cases which might turn on it, but they will have to wait for a more promising vehicle.
9. Thirdly, for my part, Robinson was correctly decided. I also take the view that it is very much in point, even though in strictness it was of dealing with Article 6 rather than Articles 5 and 7; but, even assuming, as Mr Southey contends, that the Court of Appeal is or would be free to depart from Robinson, I would not, with respect, even arguably be attracted to doing so. The practical considerations voiced by William Davis J go a long way towards explaining why that would be an unfortunate course.
10. Mr Southey has put his application attractively. With respect to those submissions, I am against him and the renewed application for permission to appeal is dismissed.