QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRIAN UTTLEY||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS JENNI RICHARDS AND MR JONATHAN CROW (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."
By section 33(5):
"'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more."
By section 37(1) of the 1991 Act the claimant as a long-term prisoner, subject to any revocation under section 39(1) or (2), remains on licence until he has served three-quarters of his sentence. The claimant will remain on licence until the expiry of that three-quarters period unless his licence is revoked pursuant to section 39. By section 39(1):
"If recommended to do so by the Board in the case of a long-term ... prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison."
By section 39(2):
"The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable."
If he is recalled on revocation of his licence, this claimant will have to serve the remainder of his sentence of 12 years.
"(1) 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 the 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."
Thus it can be seen that Article 7 focuses on the time when the offence was committed. It is clear, submits Mr Scrivener QC, that a heavier penalty is being imposed by virtue of the operation of section 33(2) than would have been imposed had he been sentenced at the time he committed the offences in or around 1983.
"'existing prisoner' means any person who, at that commencement [ie the commencement of the Act on 1 October 1992] is serving a custodial sentence."
Under subparagraph (6) of paragraph 8 of schedule 12:
"In relation to an existing prisoner ... whose sentence is for a term of more than twelve months-
"(b) sections 33(3) and section 37(1) of this Act shall apply as if the reference to three-quarters of his sentence were a reference to two-thirds of that sentence."
Thus it is argued that, when a existing prisoner is due for release, his licence will also have expired, so that there can be no question of any imposition of a licence in respect of someone who had been sentenced before the coming into force of the 1991 Act but was still in prison when it commenced. It was argued that there can be have been no intention by the draftsman to create a third category; in other words, an additional category to those who committed offences and were sentenced before the coming into force of the Act as well as those who were sentenced after the coming into force of the Act, who committed offences before it.
(1) The concept of penalty is an autonomous concept.
(2) The court must look at the substance of that which has been imposed upon a prisoner and not the form.
(3) The starting point is whether the measure follows the conviction.
(4) The characterisation of the measure under domestic law must be considered.
(5) The nature and purpose of the measure must be considered.
(6) The court must consider the procedures involved.
(7) The court must consider the severity of the measures, so far as its effect upon the prisoner is concerned.
(8) The court must consider whether the measure could lead to a punitive loss of liberty.
"The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part or in Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to-
"(a) the need to protect the public from serious harm from offenders; and
"(b) the desirability of preventing commission by them of further offences and of securing their rehabilitation."
It is plain from that provision that the parole board, in considering whether to recommend the revocation of a licence, must have regard to the all important factors of protection of the public and prevention of further crimes in assisting the rehabilitation of the offender. If they are the prime factors in considering revocation, so they must be the prime factors in considering the nature and the purpose of the imposition of a licence.
"They are the classification of proceedings in domestic law; the nature of the offence; and the nature and degree of severity of the penalty that the person concerned risked incurring ... When coming to such decision in the course of the court's 'autonomous' approach, factors (b) and (c) carry substantially greater weight than factor (a)."