Practice and Procedure

R (On the application of UTTLEY) v Secretary of State for the Home Department (2003)

PUBLISHED July 30, 2003

The appellant was entitled to a declaration that s.33 Criminal Justice Act 1991 was incompatible with his rights under art.7 European Convention on Human Rights in that he was subject to a heavier penalty as a result of the Act than he would have been at the time he committed the offences.Appeal from the judgment of Moses J dismissing the appellant's ('U') application for a declaration that s.33 Criminal Justice Act 1991 was contrary to Art.7 European Convention on Human Rights. In October 1995 U pleaded guilty to serious sexual offences that he had committed many years before the 1991 Act came into force. He was sentenced to twelve years' imprisonment and was entitled to be released in October 2003 when he had completed two-thirds of that sentence but he would remain on licence until he had served three-quarters of his sentence. U contended that the statutory scheme of licence under s.33 of the 1991 Act breached Art.7(1) of the Convention in that a heavier penalty was being imposed on him than the one that was applicable at the time the offence was committed. Prior to the 1991 Act, the Criminal Justice Act 1967 provided that an offender in U's position was entitled to be released without licence having served two-thirds of his sentence. The issue was whether U's liability to the conditions of a licence constituted a heavier penalty within the meaning of Art.7, no such liability having arisen at the time the criminal offence was committed.HELD: (1) The sentence imposed upon U in 1995, whatever it included, was plainly a penalty. The licence was plainly a part of the sentence originally imposed. The sentence imposed by the judge thus comprised a period of detention followed by a period on licence. A sentence which included a period of licence inevitably extending beyond two-thirds of the term imposed was a heavier penalty than a sentence without that requirement. Conditions were imposed on licence that were impediments upon the offender's freedom of action. (2) 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 part of the sentence. The sentence of the court had to be viewed comprehensively. It included, by statute, a period on licence to which U would not have been subject under the law as it was at the time he committed the offence.Appeal allowed. Declaration of incompatibility given.

[2003] EWCA Civ 1130