England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Ipswich Crown Court
HIS HONOUR JUDGE DEVAUX
T20077131

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 November 2008

Mr Justice Plender :

1. On 23^rd May 2008 May in the Crown Court at Ipswich the appellant was convicted by a jury of manslaughter, but acquitted of murder. On 10^th July 2008 he was sentenced by HH Judge Devaux to imprisonment for public protection with a minimum term of 4½ years' imprisonment less 1711 days spent in custody, the application for leave to appeal was referred to this Court by the Registrar and we now give leave.
2. The background is that on 28^th September 2003, the appellant, then aged 18, was party to an attack on Edward Nelson which caused the victim to be in a permanent vegetative state and to die on 6^th July 2006.
3. On 4^th April 2005 there entered into force Section 225 of the Criminal Justice Act 2003 which provides that where a person aged 18 or over is convicted of a serious offence committed after the commencement of that section, and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences the court shall impose a sentence of imprisonment for public protection if subsection (2) does not apply and the condition in subsection 3(a) and 3(b) is met. After the appellant's conviction for manslaughter (a serious offence for the purposes of section 225) the Judge decided that life imprisonment was inappropriate but that a sentence of imprisonment for public protection was appropriate. His conclusion is one with which the Court of Appeal will not normally interfere: R v Johnson [2007] 1 Cr App R (S) 112.
4. It is now submitted that since a sentence of imprisonment for public protection became available after the date on which the appellant assaulted Edward Nelson, the sentence was inconsistent with Article 7 of the European Convention on Human Rights which provides that:

"No one shall be held guilty of any criminal offence on account of any act or omission 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."

5. The offence of manslaughter is not completed until the victim dies. It is not clear whether Article 7 applies to the case where a newly named offence is created in the period after the offender commits an unlawful act but before that act produces the consequence that determines its criminal character. In such a case, is the "act or omission" taken to signify the offender's conduct alone or his conduct together with the consequence? Is the "the time the criminal offence was committed" to be identified independently of the consequences of the offender's conduct? We do not find an answer in the case to which counsel for the Appellant referred us, Application 6335/01 Achour v France, 29^th March 2006 where the Court said: "the present case had in fact concerned the "retrospective" application of the criminal law, seeing that the new legislation had been applied when the time during which recidivism was possible under the previous legislation had no longer been running but had already expired."
6. It is however clear that at the date when the appellant assaulted Edward Nelson the acts done by the appellant to Edward Nelson constituted a criminal offence if Edward Nelson died as a result, namely manslaughter; and that the maximum penalty for manslaughter was then imprisonment for life; and that the sentence imposed on him was not greater than life imprisonment. Counsel for the appellant invites us to infer that if he had been sentencing under the law in force on 28^th September 2003, the Judge would have imposed a term of imprisonment of four and a half years, which is less than a term of imprisonment for public protection with a minimum period of four and a half years' custody. That is speculative; and it overlooks Uttley v Secretary of State, [2004] UKHL 38 in which Lord Phillips, interpreting Article 7 of the European Convention, stated (at paragraph 18)

"Article 7(1) prohibits the imposition of a penalty which is heavier than the one that was "applicable" at the time when the offence was committed. ".

7. After referring to the judgment of the European Court of Human Rights in Applications 32492/96, 32547/96, 32548/96, 33209/96, 33210/96, Coëme and Others v Belgium, 22^nd June 2000 he stated

"It [Article 7(1] will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time his offence was committed."

8. Even if it were assumed in favour of the present Appellant, that, for the purposes of Article 7, his offence must be taken to have been committed on 28^th September 2003, the fact remains that the sentence imposed on him was not heavier than the penalty that could have been imposed on him on that date. Accordingly this appeal must be dismissed.
9. In sentencing the appellant on 10^th July the Judge stated that

"the period I specify is therefore one of 4 years and 6 months less the 1711 days [that you have spent in custody] which leaves a balance of a few months. After that period the parole board will be entitled to consider your release …"

10. As of 10^th July the appellant had spent 1711 days in custody. 4 years and 6 months (approximately 1643 days) is less than 1711 days. Therefore, contrary to the Judge's remarks, the appellant had already served more than the specified period in custody. The validity of the sentence imposed is not affected but we made the necessary correction at the conclusion of the oral hearing.