England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 July 2009

1. MR JUSTICE COLLINS: As Lord Bingham has observed in R (West) v Parole Board [2005] 1 WLR 350, 359, a custodial sentence passed by a judge has not within living memory been a simple statement of the period the defendant must spend in prison. There have over the years in recent times been a number of statutory changes to the length of time that had to be served before release on parole or on licence or unconditionally could occur. Similarly there have been changes to the period during which release would be on licence rather than unconditional.
2. These claims concern prisoners who have been adversely affected by such changes so that in Robinson's case it is said he remains in custody when he should have been released, and in Salami's case that he is on licence subject to conditions so that he is at risk of recall when he ought to have been released unconditionally. Each claims that the relevant change which adversely affects him, brought into effect on 14 July 2008, breaches Article 6 of the European Convention on Human Rights.
3. Marcel Salami was involved in an incident in which a machine gun was used to fire at rivals and at the police in Croydon on 29 May 2001. On 18 March 2002 he was convicted of a number of firearms offences and sentenced to a total of 10 years' imprisonment. He was released on licence on the recommendation of the Parole Board on 22 November 2007. As the law then stood, that licence would have remained in force until he had served three-quarters of his sentence, namely 14 January 2009. On 19 March 2008 he was recalled to prison, but again released on licence on 13 May 2008. As a result of the relevant change in the law, any subsequent release, even if after he had served three-quarters of his sentence, would be on licence extending to the end of his sentence, namely 10 July 2011. He has since been released on licence.
4. Darren Robinson committed an offence of robbery on 7 December 2004. He was convicted, and on 19 October 2005 he was sentenced to five years' imprisonment. On 8 July 2008, having served two-thirds of that sentence, he was released on licence. That licence was due to expire on 23 November 2008 when he had served three-quarters of his sentence. On 25 July 2008 he was recalled for a breach of his licence conditions. He remained unlawfully at large until 4 September 2008 so that the three-quarters date of his sentence became 2 January 2009. The change to the law meant that he no longer had to be released when he had served three-quarters of his sentence so he has remained in custody. That is said to be unlawful.
5. Since each claimant was sentenced to imprisonment for more than four years, each was a long-term prisoner under the legislation then in force which was contained in Part II of the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998. In Robinson's case, there had been further amendments made by the Criminal Justice Act 2003. Since these claims are concerned with prisoners who have been recalled for breaches of their licences, I shall refer to the legislation which is relevant to them.
6. The history of the position under the 1991 Act and the amendments made by the 1998 Act is conveniently set out in the speech of Lord Brown of Eaton-under-Heywood in R (Stellato) v Home Secretary [2007] 1 AC 70, 78 at paragraphs 19 to 21. It reads as follows:

"19 Under the 1991 Act long-term prisoners became eligible for release on licence (parole as I shall call it) at the Home Secretary's discretion on the Parole Board's recommendation at the halfway point of their sentence (section 35(1)). At the two-thirds point, if not already released, the prisoner became entitled to parole (section 33(2)). At the three-quarter point, the prisoner was entitled to his freedom; if he had before then been recalled to prison and was still in custody he was entitled to be released unconditionally (section 33(3)); if he was then on parole his licence at that point expired (section 37(1)). The prisoner could not, in short, be required to serve more than three-quarters of his sentence. Section 39 (under the heading "Recall of ..... prisoners while on licence") provided for recall in either of two ways -

(1) if recommended to do so by the Board in the case of a ..... prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(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.

20 The 1991 Act, as amended by the 1998 Act, provided that where a prisoner was released on licence and then recalled, his further release at the three-quarter point was to be on licence for the rest of his sentence. This was effected by section 104 of the 1998 Act which amended section 33(3) so as to preserve the prisoner's absolute right to release at the three-quarter point but to make that release subject to licence rather than unconditional. Section 37 (under the heading "Duration ..... of licences") was correspondingly amended to provide that in such a case the licence was to remain in force for the whole of the sentence.

21 That new regime, however, was not to operate retrospectively. It was to apply only to those whose offending post-dated its coming into effect. It accordingly did not apply to this respondent whose offences were committed before 30 September 1998."

7. The 2003 Act introduced a new regime which came into effect on 4 April 2005. Broadly it provided that most prisoners serving determinate sentences had to be released on licence having served a part of their sentence, but the licence and so the possibility of recall for breach was to continue until the end of the sentence.
8. Part II of the 1991 Act (which included the relevant provisions) was repealed, but this was subject to transitional provisions. These were contained in the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005. This disapplied many of the new provisions, including the repeal of Section 33 of the 1991 Act, for those convicted of offences committed prior to 4 April 2005.
9. Paragraph 19 of Schedule 2 to the Order provided as follows:

"The coming into force of -

(a) [various sections of the 2003 Act and the repeal of various sections of the 1991 Act, including section 33]

is of no effect in relation to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4 April 2005."

10. Paragraph 23 deals with transitional arrangements for recall after release. It provides as follows:

"23 (1) Subject to sub-paragraphs (2) and (3), in relation to a prisoner who falls to be released under the provisions of Part 2 of the 1991 Act after 4 April 2005 -

(a) the reference to release on licence in section 254 (1) of the 2003 Act (recall of prisoners on licence) shall be taken to include release on licence under those provisions; and

(b) the reference in sections 37 (1) and 44 (3) and (4) of the 1991 Act to revocation under section 39 of that Act shall be treated as a reference to revocation under section 254 of the 2003 Act.

(2) Paragraph 12 (1) and (2) of Schedule 9 to the Crime and Disorder Act 1988 shall continue to apply to the recall of prisoners whose sentence was committed before the commencement of section 103 of that Act.

(3) The repeal of section 39 of the Act is of no effect in a case in which the Secretary of State has received a request for the recall of an offender from an officer of a local Probation Board before 4 April 2005."

Paragraph 23 is one of the most carelessly drafted statutory instruments that one has come across. There are obvious errors in paragraph 23 (2). There was a further error in Section 23 (3) in that there was a failure to include Section 33 (3) in that sub-paragraph. So much was made clear by the decision of the Court of Appeal in R (Kelly) v Secretary of State [2009] QB 2004.

11. Section 254 of the 2003 Act reads:

"(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2) A person recalled to prison under subsection (1)—

(a) may make representations in writing with respect to his recall, and

(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(3) The Secretary of State must refer to the Board the case of a person recalled under sub-section (1).

(4) Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

(5) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.

(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.

(7) Nothing in sub-sections (2) to (6) applies in relation to a person recalled under section 255."

12. Thus recall after 5 April 2005 would, whenever the offence was committed, be pursuant to Section 254 but the re-release entitlements would be the same as they were under the 1991 Act. In particular that would mean that the prisoner would be entitled to unconditional release having served three-quarters of his sentence. It is to be noted that Lord Brown approved observations of Lord Justice Scott in the Court of Appeal in Stellato. That appears in paragraph 44 of Lord Brown's speech where he said:

"44 ..... The more stringent regime introduced by the 1998 Act was, as already explained, to apply only to those offending after September 1998. And this, as Scott Baker LJ pointed out at paragraph 15 of his judgment, 'is consistent with the longstanding principle that existing prisoners should not be adversely affected by changes in the sentencing regime after their conviction.' [He] also drew attention to the practice direction issued by Lord Bingham of Cornhill CJ on 22 January 1998 (Practice Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278) directing that defendants be told the effect of the sentence passed upon them ..... "

13. The Criminal Justice and Immigration Act 2008 has made further amendments. Section 32 of that Act inserts a new Section 50A in the 1991 Act which provides:

"50A Prisoners recalled under section 254 of Criminal Justice Act 2003

(1) This section applies to a person who is —

(a) released on licence under any provision of this Part, and

(b) recalled to prison under section 254(1) of the 2003 Act (recall of prisoners while on licence).

(2) Nothing in the following provisions of this Part (which authorise or require the Secretary of State to release prisoners) applies in relation to the person —

(a) section 33;

(b) section 33A;

(c) section 34A;

(d) section 35;

(e) section 43(4).

(3) Sections 254(2) and (6) and 255A to 256A of the 2003 Act (which authorise release on licence etc) apply in relation to a person to whom this section applies with the modifications specified in subsection (4)."

I do not think it is necessary to read through those modifications. Suffice to say that it is that provision which has led to the claims in this case.

14. Section 153 of the 2008 Act provides for the coming into effect of various sections of the Act. Sub-section (7) provides that -

"(7) The other provisions of this Act [which include Section 254] come into force on such day as the Secretary of State may by order appoint.

(8) An order under any of subsections (4) to (7) may —

(a) appoint different days for different purposes and in relation to different areas;

(b) make such provision as the person making the order considers necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision falling within that subsection."

15. Section 148 of the Act applies Schedule 7 which contains transitory transitional and saving provisions. Section 148 (3) provides:

"(3) The Secretary of State may by order make —

(a) such supplementary, incidental or consequential provision, or

(b) such transitory, transitional or saving provision,

as the Secretary of State considers appropriate for the general purposes, or any particular purposes, of this Act, or in consequence of, or for giving full effect to, any provision made by this Act."

16. Schedule 27 (which is applied by Section 148) contains material provisions at paragraph 12. Paragraph 12 provides -

"The amendment made by subsection (1) of section 32 applies in relation to any person who is recalled under section 254(1) of the Criminal Justice Act 2003 on or after the commencement of section 32 but it is immaterial when the person was released on licence under Part 2 of the Criminal Justice Act 1991."

That provision appears to mean or to require rather that a particular provision inserted by Section 32 applies immediately following the commencement - or the bringing into force rather - of that section. It is immaterial when the offence was committed.

17. The claims are essentially on the basis that there could and should have been transitional provisions or savings which meant the new arrangements did not affect those sentenced before 4 April 2005 since they meant that they were adversely affected by the changes. It is recognised that if primary legislation provided that there were not to be any such savings, they could not succeed directly and the most that they could obtain would be a declaration of incompatibility. But they submit that the transitional arrangements could have been made and should have been made by the Secretary of State relying on Section 148 (3) and (4). I have already read sub-section (3). Sub-section (4) confirms, or appears to confirm, that that can be applied.
18. The claims aver that the effect of the changes is to breach Article 6 of the European Convention on Human Rights. As a consideration of the authorities will show, Article 7 (retrospective heavier penalty) does not apply, nor does Article 5 (detention). It is submitted that Article 6 provides that determination of a criminal charge must be by an independent and impartial tribunal. Thus it would breach Article 6 if a more severe result followed than that imposed by the court which sentenced the prisoner.
19. All therefore turns on the nature of the sentence. If it is to be regarded as imprisonment for the particular period, then all the arrangements in relation to release before the end of the sentence are concerned with the administration or execution of that sentence. It cannot be said to affect the determination of the court. In effect, the sentence of imprisonment imposed by the court is subject to such arrangements as may from time to time be made in relation to early release. If the sentence is to be regarded as one of imprisonment on the terms then prevailing, changes which adversely affect the prisoner may be regarded as affecting the determination.
20. The 1991 Act itself introduced significant changes to the sentencing regime. This led to a Practice Statement [1992] 1 WLR 948 made by Lord Taylor CJ. Having set out the relevant changes in paragraph 6 in the Practice Statement, Lord Taylor said:

"6 It is therefore vital for all sentencers in the Crown Court to realise that sentences on the 'old' scale would under the 'new' Act result in many prisoners actually serving longer in custody than hitherto.

7 It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole.

8 I have consulted the Lords Justice presiding in the Court of appeal (Criminal Division) and we have decided that a new approach is essential.

9 Accordingly from 1 October 1992, it will be necessary, when passing a custodial sentence in the Crown Court, to have regard to the actual period likely to be served, and as far as practicable to the risk of offenders serving substantially longer under the new regime than would have been normal under the old.

10 Existing guideline judgments should be applied with these considerations in mind."

21. The position in relation to guidelines and practices that should be adopted are now contained in the Consolidated Statement [2002] 1 WLR 2870. Annex A, which lists those Practice Statements and Directions, which had been taken into account in the Consolidated Statement, includes the Practice Statement in 1992. It is not referred to as having been repealed. However there is nothing in the Consolidated Statement which suggests that the approach indicated by paragraph 9 of that Statement is to have effect. It was, it seems, essentially designed to avoid more severe sentences being imposed after the 1991 Act came into force because guidelines hitherto had been on the basis of the sentencing arrangements that were then in force. However there is authority that makes it clear that judges should not, in passing sentence, take release provisions into account. (See, for example, R v Aihazraji [2004] 2 CAR (Sentence) 291, 294 at paragraph 13).
22. The same point is clearly made by Lord Bingham in R (West) v Secretary of State, paragraph 23, page 359, where he said:

"23 Secondly, the court which imposes a determinate sentence of imprisonment is of course aware of the statutory provisions governing early release, and should, pursuant to Practice Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278, outline the effect of these to the defendant when passing sentence. But save in an exceptional case these provisions do not and should not influence the length of the sentence passed. The court does not sentence a defendant to six years' imprisonment because it judges four years' to be the appropriate term, or 3 years' because it judges that the defendant should be incarcerated for 18 months."

23. In fact Lord Bingham should perhaps have referred to the 2002 Statement, but in Annex C (c) there is included a model statement that a judge should read out to a prisoner sentenced to a long-term sentence - a sentence of over four years - which reflects what was contained in the 1998 Practice Direction.
24. Mr Southey submits that the changes in the release provisions imposed by the 2008 Act make the sentence more severe. He relies upon the decision of the Court of Appeal in R v Uttley [2003] 1 WLR 2590. The issue in that case was believed by the Court of Appeal to be whether the licence, and so the conditions under it, were an integral part of the sentence. Uttley had committed the offences for which he received sentences totalling 12 years' imprisonment before 1983, but he was not dealt with them - and so sentenced for them - until 1995. It was said that the imposition in the 1991 Act of release on licence made that sentence more severe than a similar sentence which was available in 1983. That, it was said, was a breach of Article 7 of the European Court of Human Rights.
25. Lord Justice Pill said at paragraphs 14 to 16 (page 2595 of the report):

"14 In my judgment, the licence is plainly a part of the sentence originally imposed by the sentencing judge. Under section 33(2) of the 1991 Act, the Secretary of State is required on a specific date following the imposition of the sentence not only to release the prisoner but to release him on licence. The sentence imposed by the judge thus comprised a period of detention followed by a period on licence. The statute, and the previous requirements of the Prison Rules [1964], specify the effect of the order made by the judge. The judge pronounces a 12-year sentence but, by virtue of the statutory provisions, that is a fiction to the extent that there are detailed provisions as to what, in terms of punishment, it actually means.

15 Approached in that way, a sentence which includes a period of licence inevitably extending beyond two-thirds of the term imposed is in my judgment a heavier penalty than a sentence without that requirement. The fiction that in each case the penalty is one of 12 years in custody must not be allowed to obscure the reality of the effects of the licence. While licence conditions vary, and in some cases will be more onerous than in others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments upon the offender's freedom of action. Moreover, the conditions create a potential liability to serve a further substantial period in custody, as do the provisions dealing with the effects of re-conviction. Arguments that the purpose of the licence procedures is rehabilitative and preventative, as undoubtedly in part they are, do not detract from their onerous nature viewed as a part of the sentence. Whatever the purpose, the effect is onerous. In my judgment, the judge fell into error in deciding the case on a consideration of the purpose of a licence as such rather than its effect as a part of the sentence.

16 The approach I have adopted is supported by the directions relating to the recall of determinate sentence prisoners subject to licence issued by the Parole Board in 2002. They provide that 'where an offender is subject to a custodial sentence, the licence period is an integral part of the sentence, and compliance with licence conditions is required.'"

26. Lord Justice Longmore at paragraph 36 said:

"36 Although I have not found this case entirely easy I have come to the conclusion that Mr Crow's submission cannot be accepted. It is tempting to treat the matter as one of form and say that the sentence of twelve years, which remains the same both before and after 1992, is all that the court can look at. But that would be the triumph of form over substance. The reality is that before 1992, in normal circumstances, the sentence expired after two-thirds of it had elapsed. After 1992 the sentence only expires at the conclusion of three-quarters of that sentence. Indeed, now it only expires at the end of the sentence; meanwhile the prisoner is subject to recall. Any prisoner would regard the penalty of 12 years as harsher after 1992 than before. So, in my view, would the ordinary informed observer."

Mr Justice Maurice Kay (as he then was) agreed with both judgments.

27. Uttley was appealed to the House of Lords which allowed the appeal on a basis not argued before the Court of Appeal, in that Article 7 referred to the applicable sentence, namely the maximum available, and that had not changed. Accordingly, there was no breach of Article 7. The House of Lords did not either endorse or disapprove, in terms, what the Court of Appeal had to say about the nature of the sentence imposed. The House of Lords' decision is reported at [2004] 1 WLR 2278. At paragraph 14 Lord Phillips of Worth Maltravers said, in reference to new arguments which had been put forward on behalf of the Secretary of State before the House:

"I have found these new arguments conclusive. They render it unnecessary to decide whether a sentence of 12 years' imprisonment under the new regime constitutes a heavier penalty than a 12-year sentence under the old regime. I do not propose to attempt to resolve that issue. To do so would be to encroach on issues raised in at least one other appeal that is pending before your Lordship's House."

It is believed that that refers, among other cases, to West which did, at least to an extent, raise that point.

28. Lord Carswell, at paragraph 66, said:

"I do not find it necessary to express an opinion on the issue whether the effect of the 1991 Act was to impose a heavier penalty on the respondent, as the Court of Appeal held, and I should prefer not to do so."

29. The other members of the committee did not specifically deal with the point but they agreed with the opinions given by Lord Phillips and Lord Carswell.
30. In the circumstances, since the Court of Appeal in Uttley was dealing with Article 7 and the House of Lords has neither approved nor disapproved the conclusions reached, Mr Southey does not suggest that the Court of Appeal decision is binding. Nonetheless the conclusions are entitled to be regarded as carrying weight. It is to be noted that, following his failure in the House of Lords, Uttley sought to pursue his case in the European Court of Human Rights. The court noted that the -

"complaint has underlined that the Court of Appeal found that a sentence incorporating a condition that release would be on licence was a harsher sentence than one which provided for unconditional release."

It noted that that finding was not overturned by the House of Lords.

31. The European Court, in Uttley v United Kingdom No 36946/03, in its judgment on admissibility given on 29 November 2005 (the decision being that of the Fourth Section), so far as material, said:

"In the present case, the 'penalties' foreseen by law for the offences committed by the applicant were the various sentences of imprisonment imposed by the trial judge, and not challenged by the applicant on appeal.

....

The Court recalls that the former Commission considered amendments to a parole regime in the case of Hogben v The United Kingdom (No 11653/85 ..... Decisions and Reports (DR) 46 p 231). In that case, as a result of a change in the policy on release on parole, the applicant was transferred from open to closed prison, and had to serve a substantially longer time in prison that would otherwise have been the case. In answering his Article 7 complaint, the former Commission held:

'3 The Commission recalls that the applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Article 7 arises in this respect.

4 Furthermore, in the opinion of the Commission, the 'penalty' for the purposes of Article 7 (1) must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years' imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the 'penalty' which remains that of life imprisonment. Accordingly, it cannot be said that the 'penalty' imposed is a heavier one than that imposed by the trial judge.'

That decision was confirmed in the case of Grava, in which the court found that a refusal to reduce the applicant's sentence related to questions of enforcement of the sentence, rather than to the 'penalty', and as such fell outside the scope of Article 7 (Grava v Italy, No 43522/98, paragraph 51 ..... ).

The 'measure' in the present case, the application of the rules on early release, was not a 'measure' in the sense understood by the Court in the case of Welch, [Welch v United Kingdom] and was not 'imposed' at all, but was part of the general regime applicable to prisoners. The nature and purpose of the 'measure', far from being punitive, were to permit early release, and they cannot be considered as inherently 'severe' in any ordinary meaning of the word.

Although, as the Court of Appeal found in the present case, the licence conditions imposed on the applicant on his release after eight years can be considered as 'onerous' in the sense that they inevitably limited his freedom of action, they did not form part of the 'penalty' within the meaning of Article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed.

Accordingly, the application to the applicant of the post-1991 Act regime for early release was not part of the 'penalty' imposed on him with the result that no comparison is necessary between the early release regime before 1983 and after 1991. As the sole penalties applied were those imposed by the sentencing judge, no 'heavier' penalty was applied than the one applicable when the offences were committed."

32. That approach is somewhat wider than that of the House of Lords and inconsistent with the conclusion reached by the Court of Appeal. The court is making it clear that so far as they are concerned, for the purposes of the Convention, the sentence imposed was the sentence of imprisonment for whatever period, and any parole provisions, release on licence or early release would be regarded as administration of that sentence of imprisonment. Thus even if they resulted in a prisoner having served a longer period than that applicable at the time the sentence was imposed, that would not make the sentence more severe for the purposes of Article 7 or, indeed, on the reasoning of the court, for any purposes of the Convention.
33. West considered the obligation of the Parole Board in relation to revocation of licences since Article 5 (4) applied and required a hearing by a court to determine the lawfulness of any renewed detention. The Parole Board had the essential features of a court for the purposes of Article 5 (4). The House of Lords decided that the original sentence -

"36 ..... [satisfied] Article 5 (1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court." [see Lord Bingham's speech, paragraph 36, page 363 C.]

34. In paragraphs 23 and 24, Lord Bingham made the observations which are most material for the purposes of this case. I have read what he said in paragraph 23. At paragraph 24 he said:

"Thus, thirdly, the sentence passed is not (as it has not within living memory been) a simple statement of the period the defendant must spend in prison. The sentence is in reality a composite package, the legal implications of which are in large measure governed by the sentence passed."

His reference to the "composite package" is something that Mr Southey particularly relies on. He submits that the existing early release provisions are part of that package, so any subsequent change to them will affect the finality of the court's determination.

35. The final House of Lords' decision which is material for our purposes is R (Black) v Secretary of State for Justice [2009] 2 WLR 282. That case concerned a prisoner who had been sentenced to 24 years' imprisonment imposed in 1995. The Secretary of State had refused to accede to a recommendation by the Parole Board that he should be released on licence, exercising the power that he had under Section 35 of the 1991 Act. That was said to be a breach of Article 5 (4). The House of Lords disagreed, Lord Phillips dissenting. It is convenient to read what the headnote has to say:

" ..... the jurisprudence of the European Court of Human Rights drew a distinction between sentences of imprisonment for an indeterminate period where the question of release was dependent on factors unknown at the time of the original sentence and so required periodic review by a judicial body, and sentences of imprisonment for a determinate period where the lawfulness of the detention for the purposes of Article 5 (4) had been satisfied by the original sentencing procedures and where the implementation of that sentence could properly be left to the executive unless some new issue arose affecting the lawfulness of the detention; that it followed that Section 35 (1) of the 1991 Act, in giving the Secretary of State power subject to judicial review to administer the court's determinate sentence by authorising or refusing to authorise as he thought fit the release on licence of certain long-term prisoners whose release on licence the Parole Board had recommended after they had served more than one half but less than two thirds of a sentence of 15 years or more, did not infringe Article 5 (4)."

36. Mr Southey relies on observations of Lord Phillips, but he was dissenting. He made the point in his speech that when a judge imposed a determinate sentence he did not do so on the basis that the seriousness of the offences required that the prisoner should be detained for the full period of the sentence. He said at paragraph 18:

"18 In these circumstances it cannot be suggested that the imposition of a determinate sentence renders the detention of the defendant lawful for the full period of the sentence. It will provide the legal foundation for detention during the term of the sentence provided that other conditions, such as those governing recall of a defendant released on licence, are satisfied. The law provides, however, circumstances in which a person sentenced to a determinate sentence is entitled to be released. Article 5.4 must apply so as to enable him to seek a determination of whether those conditions are satisfied should this be in issue."

That was not agreed to by the rest of their Lordships.

37. Lord Phillips did refer to the Sentencing Guidelines Council in which this guidance is included:

"Since there are so many factors that will vary, it is difficult to calculate precisely how much more demanding a sentence under the new framework will be [that refers to 2003]. The Council's conclusion is that the sentencer should seek to achieve the best match between a sentence under the new framework and its equivalent under the old framework so as to maintain the same level of punishment. As a guide, the Council suggests the sentence length should be reduced by in the region of 15%."

That is from the guidance New Sentences: Criminal Justice Act 2003, paragraph 2.1.9.

38. Lord Brown gave the main reasoned speech. He considered the jurisprudence of the European Court of Human Rights in some detail. There have been a number of cases in which the court has decided that Article 5 (4) was incorporated in the original conviction and sentence and did not apply to subsequent proceedings relating to release or re-release on licence. At paragraph 81 Lord Brown said:

"Cogently though these judgments are reasoned, and broadly sympathetic though I am to the conclusions they arrive at, I have finally come to regard them as mistaken."

That is a reference to two judgments in the Court of Appeal - which the House of Lords overruled - in Black, namely R (Johnson) v Secretary of State for the Home Department [2007] 1 WLR 1990 and R (O'Connell) v Parole Board [2008] 1 WLR 979. Lord Brown continued:

"In the end they seem to me to involve widening the reach of Article 5(4) beyond its proper limits, certainly beyond its hitherto recognised scope. Article 5(4) cannot be held to apply merely because it would be useful if it did because 'it has a function to perform, 'a clear purpose to be served' (O'Connell [2008] 1 WLR 979, para 14). There is suggested to be a risk of arbitrariness in the operation of the parole system if the Secretary of State can overrule the Parole Board on the question of risk. But the Secretary of State's decision is, of course, judicially reviewable and, if found arbitrary or irrational, it will be struck down. There was, indeed, an irrationality challenge in this very case but it failed before the judge and permission to appeal was refused in respect of it. There is nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision, notwithstanding that it involves rejecting another body's recommendation. In one sense it may be said to be putting the cart before the horse. And, as we said in Clift, it is indefensibly anomalous. But it is not contrary to Article 5(4)."

Clift is R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484.

"82 There was no need for the Parole Board to have been involved in the process at all: a state could perfectly lawfully, and consistently with the Convention, leave the entire question of release, whether absolutely or on licence, and whether throughout the sentence or only after a given period, solely to the executive. Does then the fact that the UK has chosen to give the Parole Board a role in the process and statutory directions as to how to approach that role, and has chosen to fix precisely the period within a determinate sentence during which the prisoner is to be considered for parole (the period before which he cannot be released and after which he must be released), mean that Article 5(4) is necessarily thereby engaged so that the Board's decision must be final?

83 In my judgment not. The essential contrast struck by the ECHR is between on the one hand 'the administrative implementation of the sentence of the court', for example decisions regarding 'early or conditional release from a determinate term of imprisonment' (para 87 of the court's judgment in Stafford 35 EHRR 1121 ..... ), and on the other hand 'fixing the tariff' and later determining the length of post-tariff detention in life sentence cases. The administrative implementation of determinate sentences does not engage Article 5(4); the decision when to release a prisoner subject to an indeterminate sentence does."

39. Thus it is made clear that the questions when and under what conditions there should be early release are issues which relate to the administration or execution of the sentence. It is clear that the House of Lords in Black has applied that approach to the imposition of determinate sentences in the knowledge that the sentencing judge had to inform the defendant of the effect of the pre-release conditions.
40. The composite package referred to by Lord Bingham is a recognition of the position in relation to pre-release, but it does not mean that any subsequent change is other than the administration of the sentence whether by Parliament or by executive decision. The sentence of imprisonment, as Lord Bingham said in paragraph 24 in West, in large measure governs the legal implications of that package. Furthermore it would be inconsistent with the approach required of the sentencing judge to impose a custodial sentence if he believes one is required for such period as he considers appropriate to mark the seriousness of the offence and the culpability of the defendant, ignoring any existing provisions concerning pre-release. Those may change, not only generally but in particular cases.
41. For example, it may become clear that an individual should be given the benefit of particular compassionate considerations; or there may be - in the case of a person who is not a national of this country - a transfer out of the jurisdiction to serve his sentence abroad. It may be that the length as a result and the pre-release conditions will be different. It may be that consideration should be given whether - to make things clear - the information that the judge gives the prisoner as to the effect of the sentence and the existing pre-release provisions should make it clear that that is the position as it stands. There may, in future, be changes which would be beneficial or could be adverse.
42. Finally I should refer to the decision of Belinda Bucknall QC, sitting as a Deputy Judge in this Court in R (Poku) v Secretary of State for Justice [2009] EWHC 1380. The basis of the claim in that case was that the changes brought about by the 2008 Act in relation to early release had the effect of producing unfairness since a co-defendant was released on licence half-way through his sentence but the claimant had to wait for two-thirds. This meant that the claimant served a longer period than his co-defendant.
43. The argument - in fact, presented by Mr Southey - Miss Bucknall records at paragraph 17:

"i) Article 6 of the European Convention on Human Rights enshrines the right to a fair trial; that includes a trial conducted by an independent judge without interference from, inter alia, the legislature; the sentencing exercise is part of the trial process; it is the role of the judge when sentencing co-defendants to reflect any difference in culpability between them by the sentences passed; in the present case the sentencing judge considered [the co-defendant] to be more culpable than the Claimant because he imposed a longer term of imprisonment on him; each sentence is a 'whole package' in that it includes not only the custodial period but also the licence period applicable pursuant to the early release provisions; the amendment of the early release provisions in Part 2 of the 1991 Act by the 2008 Act has had the consequence of interfering with the judge's intention to mark [the co-defendant] as more culpable than the Claimant; the relevant provisions of the 2008 Act therefore constitute an interference with the sentencing judge's role and Article 6 will be infringed unless steps are taken to restore the status quo by requiring the [Parole Board] to take into account the fact of [the co-defendant's] automatic release at mid-term in order 'to determine whether the relationship between [the Claimant's and [the co-defendant's]] sentences can be maintained' ..... "

44. The Deputy Judge said in dealing with that argument:

"19 ..... the Claimant's argument seems to me to fail at the point at which it is contended that the consequence of the 2008 Act amendments is to interfere with the judge's intention to mark [the co-defendant] as more culpable than the Claimant. The sentencing judge cannot have known when passing sentence what period each offender would actually serve in prison. For instance, Mr Williams might not be released until he reached the two-thirds point of his 10-year sentence and would thus serve 80 months whereas the Claimant might be released at the mid-point of his 12-year sentence and thus be released after 72 months. Alternatively the Claimant might not be released until the two-thirds point in which case he would serve 96 months and [the co-defendant] might be released at the mid-point of his 14-year sentence and thus serve 84 months. Those uncertainties were compounded by the fact that days might be added for disciplinary offences (as they were in the case of the Claimant) or that one or more of the three might be released early on compassionate grounds. It follows from these considerations, that the sentencing judge could only reflect his view of the relative culpability of each by the length of the custodial sentence passed on each, leaving the actual period of time to be served, whatever it might be, to those whose duty it is to give effect to the early release provisions.

Accordingly, although the early release provisions are part of the composite package (to adopt the phraseology of Lord Bingham in R (West) v Parole Board [2005] 1 WLR 350 at page 359) which constitutes the punishment imposed on each offender they play no part in the judicial exercise of marking relative culpability.

20 It further follows that the legislature has not, by enacting provisions which amend the early release provisions in the 1991 Act, interfered with the independence of the judge in the sentencing process, nor can it be said that the alterations to the 1991 Act early release provisions by the 2008 Act have, in any way, re-determined the Claimant's sentence. Reinforcing that conclusion is the fact that the Claimant's sentence remains exactly what it always has been. Accordingly, there has been no breach of Article 6."

45. I entirely agree with what Miss Bucknall there says. It is also entirely consistent with the approach of the European Court, namely that the sentence is one of imprisonment and questions of pre-release are concerned with the administration or execution of that sentence. While one recognises the force of what was said by the Court of Appeal in Uttley as to the effect on the prisoner of the changes and the views that were likely to be held so far as any informed bystander was concerned, nonetheless it seems to me clear that, for the purposes of the Convention, the sentence must be regarded as one of imprisonment and that is consistent with the approach that a judge is not to amend the sentence that he imposes by consideration of pre-release matters. So the increased severity - if that is the correct way of looking at it in the sense that it has an adverse effect - does not mean that Article 6 is in any way breached.
46. In those circumstances these claims, so far as they rely on Article 6, must be dismissed. The Article 6 grounds were the only grounds upon which permission was granted. In Salami's case there was - at least in the skeleton argument - the suggestion that there might be attempts to raise other matters, but when it came to it counsel accepted that he was not able to argue that there were errors of law involved in the other matters. So he did not seek to obtain leave to argue those issues.
47. Accordingly it is not necessary for me to consider them.
48. MR MOFFETT: My Lord, I appear for the Secretary of State in place of Mr Strachan. There is a certain amount of confusion as to what happens next. On this side of the court we understood that consequential matters would be dealt with this morning. But my friends, and perhaps your Lordship, understand that they are going to be dealt with in writing.
49. MR JUSTICE COLLINS: I would have been happy to deal with it in either way depending on whether there had been any form of agreement as to what might happen, depending on the outcome.
50. MR MOFFETT: I think my friends might be in a little difficulty in that they may not have instructions. It might be more appropriate for you to hear form them.
51. MR JUSTICE COLLINS: I can deal with this later if necessary, the only caveat being that I am not here from Friday. I shall be back at the end of August/beginning September; subject to that.
52. MISS SMITH: I appear instead of Mr Southey today. He is in the new Regional Court in Manchester which is why he cannot be here today. I do not have any further instructions in relation to subsequent orders. It may be I can take instructions. My understanding from Mr Southey was that if possible - - if they can be dealt with in writing.
53. MR JUSTICE COLLINS: That would be convenient if that can be done obviously. I take it you are both legally aided.
54. MISS SMITH: Yes.
55. MR JUSTICE COLLINS: You will want, in any event, the usual order.
56. MISS SMITH: Certainly.
57. MR JUSTICE COLLINS: Are you going to be asking for any costs?
58. MR MOFFETT: Yes, the usual order.
59. MR JUSTICE COLLINS: I do not think you can resist the usual order. Almost certainly it will not be enforced but I do not think I can refuse to make it.
60. MISS STEINHARDT: My understanding from trial counsel for Mr Salami was that there had been a broad agreement reached by trial counsel that costs would be dealt with by written submissions.
61. MR JUSTICE COLLINS: I will not make any final order. I am happy that that should be done. At the moment I find it difficult to see that there is any scope for not making the usual order. I very much doubt that it would ever be enforced, but I think, prima facie, they are entitled to it. The only other question I suppose might be leave to appeal.
62. MISS STEINHARDT: I have no instructions.
63. MR JUSTICE COLLINS: You can indicate that I would be at the moment reluctant to grant leave because I think that this has been well and truly thrashed out on a number of occasions before the House of Lords and it seems to me that the position is clear. The only thing to point in the other direction is the existence of the Court of Appeal decision in Uttley which has not specifically been dealt with by the House of Lords. I have made it clear that whatever may be the scope of that it does not affect the position under the Convention, whichever Article it is concerned with. I think that is entirely consistent with the House of Lords and with Strasbourg, which is why, at the moment, I would be thinking in terms of not being likely to grant permission. I am simply saying that so you can pass it on.
64. Obviously, if it is still appropriate that an application be made, Mr Southey can spell out in writing, if he wishes to do so, the reason why he thinks permission should be granted. Obviously serve anything on the other side and they can respond. It looks to me as if the effect of all this is that you will not be in a position to have a final decision from me until end of August. I think you would probably want to see the transcript of the judgment anyway which should be available.
65. MISS SMITH: In relation to that, my Lord, I understand

it is sometimes possible to ask for an expedited transcript.

66. MR JUSTICE COLLINS: Yes. I am not sure that there is much point because, with the best will in the world, I do not think there is any chance of my correcting it. You have all heard it. I will ask that the transcript be provided, but that counsel - and counsel only and legal advisers - get a copy of the transcript even though it is uncorrected. Obviously I will have to correct it in due course before it becomes final. I think it is probably convenient that you get a transcript. I do not doubt it will contain some errors - and some obvious errors. Therefore it is not to be regarded as the final version and must be disposed of when you get the final version. But having regard to the time and so on, I think it is probably convenient, is it not, that you get a copy of the uncorrected transcript. It is strictly on the basis that it is uncorrected and it is not to be used at all once you get the proper transcript.
67. It does mean that almost certainly times for question of appeal will not run until I make the final decision. (Inaudible) I do not think that is a disaster in all the circumstances.
68. MR MOFFETT: I missed that.
69. MR JUSTICE COLLINS: It is a question of delay because I do not think it would be possible for time to start running effectively until I make any final order.
70. MR MOFFETT: I think time runs from your Lordship's final order.
71. MR JUSTICE COLLINS: I am not sure that that is right. There is some rule brought to my attention which may suggest that it runs from delivery of judgment.
72. MR MOFFETT: In those circumstances - for the avoidance of doubt - you could grant an extension of time to that effect. We would not object.
73. MR JUSTICE COLLINS: Although the delay is unfortunate, I do not think it is disastrous.
74. MR MOFFETT: It is not. The one thing you should know - I am not suggesting this affects the matter in any way - is there are two other cases which were due to come up for permission hearing the week after you heard argument in this case. They were stood out of the list pending judgment in this case.
75. MR JUSTICE COLLINS: My judgment is very clear.
76. MR MOFFETT: Mr Southey is counsel in one of them.
77. MR JUSTICE COLLINS: He seems to be counsel in quite a lot of these.
78. MR MOFFETT: Yes.
79. MISS SMITH: Can I clarify representations as to costs? If any are to be made, are they to be submitted within a certain timescale?
80. MR JUSTICE COLLINS: No. You can do all your submissions at the same time if you want to. But I would have thought, frankly, that at the moment I cannot see that you have anything to say on costs - - - - -
81. MISS SMITH: I will certainly pass that on.
82. MR JUSTICE COLLINS: - - - - - unless there is something I have missed, but it is difficult to see what.
83. MISS SMITH: So no submission need to be put in until we get the uncorrected version of the transcript.
84. MR JUSTICE COLLINS: You will get the uncorrected version. (Pause) Give your details to the shorthand writer so she knows to whom the uncorrected transcript can be sent, and of course to me. That will be at the end of next week. What I think is that the sensible thing is to say that you have seven days thereafter to make any representations in writing, serve them on the other side. They have seven days thereafter, so everything is ready for me when I get back at the end of August. You can have a bit longer than seven days if you want.
85. MISS SMITH: I think seven days will suffice.
86. MR JUSTICE COLLINS: Mr Moffett, so far as you are concerned?
87. MR MOFFETT: I think Mr Strachan will be doing these.
88. MR JUSTICE COLLINS: We are coming into the vacation.
89. MR MOFFETT: We are. I think Mr Strachan is away on holiday at the beginning of next week for two weeks.
90. MR JUSTICE COLLINS: I will say 14 days. As long as everything is ready for the last week in August. That is what it boils down to. I will deal with the matter on paper. If I decide that because there is so much between you - - it may be suggested an oral hearing (?); we can deal with that then. I shall also correct the transcript.
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