England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Monday, 17th February 2003

Monday, 17th February 2003

1. MR JUSTICE FULFORD: On 8th November 2001 in the Crown Court at Maidstone the appellant was convicted of various offences and on 30th November 2001 was sentenced as follows. Counts 1, 2, 4, 5, 6, 8 and 9, all of indecent assault on a female, he was sentenced to two and a half years' imprisonment on each to be served concurrently. On counts 3, 7, 10 and 11, all of gross indecency with a child, the appellant was sentenced to 12 months' imprisonment on each, concurrent with each other and concurrent with the sentences imposed on the earlier offences. The total sentence was, therefore, one of two and a half years' imprisonment.
2. Having passed that sentence of imprisonment, the learned judge, after some discussion with counsel, stated that his licence period was to be extended for two years under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000. The learned judge indicated in terms that he wanted to ensure that the appellant was to be under supervision for a period of two years following his release.
3. Although we do not have a transcript of any court proceedings following the original sentencing hearing, it appears that the learned judge purported to vary the extended licence period after counsel returned to court in order to address him on the terms and effect of section 86. We are told that he stated by way of variation of sentence that the supervision of the appellant would run not for two years, but for the entirety of the sentence. In those circumstances, and in the absence of a proper record, it is difficult to determine exactly what order was made finally by the learned judge.
4. It is important to note that the offences spanned the period of 4th July 1981 to 2nd November 1988. The effect of section 86 is that if an offender is sentenced to a determinate sentence of 12 months or more, and the whole or any part of his sentence was imposed for a sexual offence committed before September 30th 1998, the court may order that section 86 of the PCC(S)A will apply to him. The consequence of the order is that when he is released on licence he will remain on licence until the end of the whole of his sentence. The offender will not necessarily remain in custody any longer than otherwise would be the case, but he will be liable to supervision and recall throughout the whole of sentence.
5. The appellant appeals against the part of the sentence that concerns that licence period with the leave of the single judge, the Registrar having granted an extension of time, 159 days, for the filing of grounds of appeal. We turn, briefly to the facts.
6. Since the issue that falls for determination on this appeal is not fact dependent and relates solely to the validity of the extension of the licence period we are able to deal with the background facts in summary form only.
7. Between 4th July 1981 and 2nd November 1988 the appellant committed a number of indecent acts with three of the female grandchildren of his partner. The victims were all under 13 years of age at the time. The indecent assaults consisted initially of touching the genital area of two of the victims and progressed to digital penetration, oral sex, simulation of sexual intercourse and finally to forcing the children to masturbate him. The appellant indecently exposed himself to the third victim.
8. The offences were reported to the police in January 2001. On 16th January 2001 the appellant was arrested. When interviewed he denied the offences.
9. In passing sentence the learned judge observed that the appellant had been convicted of a number of offences of indecency with young girls who were effectively his grandchildren and in those circumstances only a custodial sentence could be justified. In deciding the appropriate sentence account was taken of the fact that the matters were the subject of discussion within the family in 1993, and his partner was currently in ill health, but those were not, in the view of the court, exceptional circumstances such as to justify suspension of the sentence. We have set out above the learned judge's purported orders under section 86 of the PCC(S)A.
10. It is argued that this sentence is invalid in that the offences were committed prior to the coming into force of the relevant legislation that gave the courts the power to extend the licence period. The courts gained these powers by way of section 44 of the Criminal Justice Act 1991, which was later replaced by section 86. Section 44 contains the following:

"(1) Where, in the case of long-term or short-term prisoner --

(a) the whole or any part of his sentence was imposed for a sexual offence; and

(b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) above, ordered that this section should apply,

Section 33(3) and section 37(1) above shall have effect as if for the reference to three quarters of his sentence there were substituted a reference to the whole of that sentence".

11. Section 33(3) of the 1991 Act required a short-term prisoner who had been released on licence, and then recalled, to be released on licence once he would (but for his release) have served three-quarters of his sentence. Section 37(1) limited the licence period of all prisoners to three-quarters of their sentence.
12. The matters mentioned in section 32(6)(a) and (b) are the linked needs of protecting the public from serious harm from offenders; preventing the commission by them of further offences and securing their rehabilitation.
13. Section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 sets out as follows:

"(1) Where, in a case of a long-term or short-term prisoner --

(a) the whole or any part of his sentence was imposed for a sexual offence committed before 30th September 1998, and

(b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) of the Criminal Justice Act 1991, ordered that this section should apply."

There are similar references, as in section 44, to section 33 and section 37 of the 1991 Act (see paragraph 11 above).

14. The provision from which section 86 is derived, the Criminal Justice Act 1991 section 44, came into force on October 1st 1992 (SI 1992 number 333). Before that date the longest period which an offender could serve under any determinate sentence was two thirds of the sentence.
15. Prior to that date there were no provisions available for ordering supervision and recall throughout the whole of the sentence. It is submitted that the extension of the supervision to the end of the sentence represents a heavier penalty than could have been imposed in accordance with the provisions in force at the time. Article 7 of the European Convention on Human Rights is relied on in this regard.
16. Article 7 provides as follows:

"(1) No one shall be held guilty of a criminal offence on account of any act or admission which did not constitute a criminal offence under national or international law at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This article shall not prejudice the trial and punishment of any person for any act or admission which at the time it was committed was criminal according to general principles of law recognised by civilised nations."

17. It is submitted that these provisions would be violated if an order under section 86 is made in respect of an offence committed before 1st October 1992. Counsel for the appellant argues that section 86 must be interpreted in accordance with the Human Rights Act 1988 section 3 as if it contained a limitation to offences committed on or after that date.
18. Section 3 of the Human Rights Act contains the following:

"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

(2) This section (a) applies to primary legislation and subordinate legislation whenever enacted, (b) does not affect the validity, continuing operation, or enforcement of any incompatible primary legislation and (c) does not affect the validity, continuing operation, or enforcement of any incompatible subordinate legislation, if, disregarding any possibility of revocation, primary legislation prevents removal of the incompatibility."

19. There is no doubt, in our judgment, that these provisions are punitive and are properly to be contrasted with purely preventative measures that do not invoke any principle against retrospective penalty: see Ibbotson v United Kingdom [1999] Crim LR 153, where, by contrast, the European Commission held that the registration requirements of the Sex Offenders Act 1997, which have a partially retrospective operation were preventative, rather than punitive in character, and did not therefore constitute a penalty for the purposes of Article 7.
20. We, therefore, accept the submissions that we should apply section 3 of the Human Rights Act so as to read section 86 in a manner that is compatible with Article 7 of the Convention. There is no incompatibility with primary legislation, and, accordingly, we have no hesitation in applying to section 86 the interpretation contended for, namely that it is without effect as regards any sentence passed for an offence committed before October 1st 1992. We add that we would have arrived at this conclusion independently of the Humans Rights Act for it is a general principle of law long applied in England and Wales that where an act or admission constituted an offence when committed no penalty is usually to be imposed which is heavier than the one applicable at that time.
21. Maxwell on the Interpretation of Statutes puts the matter in emphatic terms:

"It is a fundamental rule of English law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication." (see 12th Edition page 239).

No such terms or necessary or distinct implication is to be found under the relevant legislation.

22. We quash the purported extension of the licence period under section 86, but otherwise the sentence in all other respects remains as passed, namely two and a half years' imprisonment.
23. It is an offence to publish the name and address of the victim, or any matter which might lead to identification of the victim.