Neutral Citation No. [2003] EWCA Crim 2199 
Case No: 2003/0423/Y1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 25th July, 2003
Before :
LORD JUSTICE KENNEDY
and 
MR JUSTICE PITCHERS
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Between :
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Mr J Goodman appeared for the appellant
Mr T Owen QC and Ms A Macdonald appeared as advocates to the Court 
Hearing dates : 8th May 2003 and 4th July 2003

Mr Justice Pitchers:
Introduction. 
1.	On 8 May last, we heard the appeal of this appellant against his sentence of two years imposed for four offences of indecent assault. We dismissed the appeal against the custodial term but adjourned consideration of the legality of the order that his licence be extended under s86 of the Powers of the Criminal Courts (Sentencing) Act 2000 (PCC(S)A) so that counsel might be instructed as an advocate to the Court to assist the court on what is a matter of law of some importance. As will become clear in this judgment, we have been greatly assisted by Mr Tim Owen QC who was so instructed. 
2.	For the full details of the facts of the case and our reasons for dismissing that part of the appeal, reference should be made to the judgment delivered on 8 May [2003] EWCA Crim 1518. For the purposes of this part of the judgment, the only relevant facts are these: 
i.	The appellant pleaded guilty to four offences of indecent assault for which he was sentenced to a total of two years, which custodial term we upheld; 
ii.	the charges represented a course of conduct of indecency against his two stepdaughters who at the time of the offences were 10 and 8; 
iii.	The offences were committed between 1976 and 1979 and 1976 and 1982 respectively. 
3.	The judge wished to include as part of his order an extension to the licence period to which the appellant would normally have been subject. The power to do so under s85 of PCC(S)A was not available because that section expressly applies only to offences were committed after 30 September 1998. The judge therefore purported to exercise his power under s86 which applies to sexual offences committed before 30 September 1998. The question raised in this part of the appeal is whether there was power to extend the licence in the way that the judge did or whether that was unlawful as being a retrospective penalty and as such in breach of Art 7 (1) of the ECHR. 
4.	Before dealing with the major point in the appeal, we should dispose of a subsidiary argument advanced by Mr. Goodman in his written submissions but not elaborated orally. He argues that, if the order was lawful, it should not have been made on the facts of this case. We disagree. The necessary criteria, which we set out in full below, were satisfied and it was not wrong in principle for the judge to make the order that he did. 
The statutory framework
5.	PCC(S)A 1986: Sexual offences committed before 30th September 1998 
(1) Where, in the 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,
sections 33(3) and 37(1) of that Act shall each have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.
(2) Expressions used in this section shall be construed as if they were contained in Part II of the Criminal Justice Act 1991.
(3) The reference in subsection (1) above to section 33(3) of the Criminal Justice Act 1991 is to section 33(3) as it has effect without the amendment made by section 104(1) of the Crime and Disorder Act 1998 (which substituted the words "on licence" for the word "unconditionally" and does not apply in relation to a prisoner whose sentence or any part of whose sentence was imposed for an offence committed before 30th September 1998).
6.	The matters mentioned in section 32(6)(a) and (b) are "the need to protect the public from serious harm from offenders" and "the desirability of preventing the commission by them of further offences and of securing their rehabilitation". That section was originally contained in s44 of the Criminal Justice Act 1991 which came into force on 1 October 1992. That section was itself amended by s 58 of the Crime and Disorder Act 1998. 
7.	The effect of the interplay of these sections is this. In an ordinary case, if the sentence is at least twelve months but less than four years ("a short term prisoner"), the prisoner is released after one half of his sentence and remains on licence until he would have served three quarters of his sentence had he not been released. If his sentence is four years or more ("a long term prisoner"), he is eligible for release on parole after one half of his sentence, he must be released after two-thirds and also remains on licence until three quarters of his sentence would have been served. If, in a sexual case, the judge passing sentence has made an order under PCC(S)A s86, the licence continues not until the prisoner would (but for his release) have served three-quarters of his sentence but until the end of the total sentence. 
8.	The consequences of any breach of licence were set out in section 38 of the 1991 Act: 
38. —(1)A short-term prisoner— 
(a) who is released on licence under this Part; and 
(b) who fails to comply with such conditions as may for the time being be specified in the licence, shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 
(2) The magistrates' court by which a person is convicted of an offence under subsection (1) above may, whether or not it passes any other sentence on him— 
(a) suspend the licence for a period not exceeding six months; and 
(b) order him to be recalled to prison for the period during which the licence is so suspended. 
(3) On the suspension 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, shall be deemed to be unlawfully at large. 
This section applies to any prisoner who is serving a sentence for an offence committed before 30 September 1998 although it has been repealed for all other purposes. 
9.	The potential consequences for a defendant in respect of whom an order under s86 of the 2000 Act is made are thus that he may, if in breach of his licence, be fined or recalled to prison for up to six months. 
10.	It is those potential consequences that lead counsel for the appellant in the present case to argue that a sentence passed under s 86 for an offence committed before 1 October 1992 (the commencement date of the 1991 Act) violates Article 7(1) of the European Convention on Human Rights as being a heavier retrospective penalty. Consistent with the Court’s duty under section 3 of the Human Rights Act 1998 to give effect to legislation in a way that is compatible with Convention rights so far as is possible, counsel argues that this provision should be interpreted as not applying to cases involving offences committed before 1 October 1992. This argument is not advanced in relation to sentences for offences committed after 1 October 1992 but before 30 September 1998. 
11.	Had the appellant been sentenced for these offences at the time he committed them, his release would have been governed by the Criminal Justice Act 1967. Under section 60 of that Act, a prisoner serving a two year sentence was eligible to apply for parole after twelve months of his sentence and would have remained on licence until the two thirds point. 
The test under the Convention
12.	Article 7 (1) reads as follows: 
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.
13.	Certain matters are not in dispute between the parties. First, "penalty" is an autonomous concept under the Convention. Secondly, the relevant leading case in the European Court of Human Rights is Welch v UK (1995) 20 EHRR 247. The criteria for determining whether an order is a penalty, distilled from that case, were set out by this court in R v Field and Young [2002] EWCA Crim 2913. 
i. The starting point is whether the measure is imposed following a criminal conviction (see paragraphs 28 and 29 of the judgment of the ECtHR); 
ii. The nature and purpose of the measure are also relevant (see paragraphs 28 and 30); 
iii. Its characterisation under national law is relevant (see paragraphs 28 and 31); 
iv. The procedures involved in the making and implementation of the measure are relevant (see paragraph 28); 
v. Its severity is relevant (see paragraphs 28 and 32); 
vi. The court will look at the substance, rather than the form, in determining whether the measure forms part of a "regime of punishment" (see paragraphs 27, 33 and 34) 
Relevant case law.
14.	The courts have been called upon to determine whether a measure is a penalty and to apply the Welch criteria in a number of recent cases. For present purposes they can be divided into two broad categories: those where the court had to consider a measure which stood on its own and those where the court was considering early release from a custodial sentence. The first group of cases is helpful in showing the approach of the Courts to this issue but it is the second group which is most closely analogous to the present case. 
Cases involving stand-alone measures 
15.	The case of Welch itself concerned a confiscation order made under the Drug Trafficking Offences Act 1986, the operative provisions of which came into force on 12 January 1987. The drug offences triggering the order were committed in 1986. The ECtHR held that the measure was a penalty. The sweeping nature of the statutory assumptions, the fact that confiscation was not limited to the actual enrichment, the discretion in the judge to have regard to the culpability of the accused and the possibility of imprisonment in default were elements which taken together provided a strong indication of a regime of punishment. 
16.	In R v Taylor [1996] 2 Cr App R 64 this court held that a confiscation order which involved confiscating the proceeds of drug trafficking before the coming into effect of the relevant Act did not violate Art 7 because the conviction which triggered the confiscation proceedings related to conduct after the coming into effect of the Act so the Defendant must be presumed to have known the consequences of his offending when he committed the offence. This distinction from Welch was also made in the subsequent decision in the European Commission of Human Rights (Taylor v UK [1998] EHRLR 90) 
17.	In Ibbotson v UK [1999] Crim LR 153, an application to the ECtHR in respect of the registration requirement under the Sex Offenders Act 1997 was refused on the grounds that the measure was preventive rather than punitive and hence did not violate Art 7. The same view for the same reason was taken by this court of a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000 insofar as it operated retrospectively: Field and Young [2002] EWCA Crim 2913 
Cases concerning early release.
18.	Understandably, Mr Goodman for the appellant puts the decision of this court in J.T. [2003] EWCA Crim 1011 at the forefront of his argument. That case is the only one in which the precise issue of orders made under s86 of PCC(S)A in respect of offences committed before 1 October 1992 has been considered. The court said at paragraph 19 of the judgment that : 
There is no doubt, in our judgment, that these provisions are punitive and are properly to be contrasted with purely preventive measures that do not invoke any principle against retrospective penalty."
Accordingly, the court held that s86 must be read as not applying to offences committed before 1 October 1992. It follows that, if we come to a contrary conclusion, it can only be on the basis that J.T. was decided per incuriam.
19.	In an admissibility decision, Hogben v UK (Appn 11653/85) the Commission rejected the argument that the introduction in 1983 of the tariff system by the then Home Secretary was a breach of Art 7. Although part of their reasoning can no longer be regarded as sound following the decision of the ECtHR in Stafford v UK (2002) 35 EHRR 1121 and of the House of Lords in R (Anderson) v Home Secretary [2002] 3 WLR 1800, the following paragraph is unaffected by those decisions: 
Although [the change in parole policy] 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.
20.	The nature of licence provisions in determinate sentences was considered recently by Moses J in the Administrative Court in Uttley v Secretary of State for the Home Department [2003] EWHA 950 (Admin). The claimant was a long term prisoner whose offences had been committed before 1983. The passing of the 1991 Act meant that he would be eligible for release on licence at a later point in his sentence than would have been the case had he been sentenced in 1983. He argued that these provisions were contrary to Art 7. In rejecting that argument, Moses J said this: 
14. It is plain that the purpose of a licence is to enable the long-term prisoner to stay out of trouble, both for his own benefit and for the benefit of the community, and so that thereby he does not lose his liberty. True it is that, if he breaches his licence, he is at risk of recall, but the licence itself is designed to avoid the risk of further offences and a return to prison. Nor in any real sense can it be said that the imposition of the licence follows conviction. The judge makes no order. The licence follows by virtue of the operation of section 33 on release and is plainly part of the rehabilitation process.
15. I conclude that the nature and purpose of the licence are such that they dominate the factors which go to the conclusion as to whether the imposition of the licence is a penalty or not. The imposition of the licence is designed to protect the public once a prisoner is released, and assist in preventing the prisoner from committing further offences. 
In the present case, the extension of the licence is imposed by the judge at the time of sentence. However, in our judgment, the analysis of the purpose and effect of licence provisions set out in that passage is correct.
21.	The case of McFetrich v Secretary of State for the Home Department [2003] EWHA 1542 (Admin) was decided on 30 June 2003 but the judgment was not available at the time of the oral hearing of this case. Accordingly, counsel have not had the opportunity to consider it. However, it is relevant to the present case since it deals with the impact of Art. 7 on the tariff period of a mandatory life sentence. Scott Baker LJ said this: 
Article 7 is concerned with retrospectivity and the word "penalty" is in my view referring to the whole penalty rather than to its constituent elements. The penalty is a life sentence and the fact that some prisoners, perhaps the vast majority, are released during their lifetime does not prevent the sentence from being a life sentence. Even after release the sentence continues for the prisoner is on licence for the rest of his life and liable to recall to prison. If he is recalled to prison he will inevitably serve a greater period in custody than the original tariff.
A sentence of life imprisonment is different from a determinate sentence because it contains separate elements aimed (i) at retribution and deterrence and (ii) at the protection of the public. It is, in my judgment, however, not possible to equate the period to be served for retribution and deterrence (the tariff) with the penalty for the offence. Put slightly differently, Article 7 is not concerned with the machinery for carrying out the penalty but rather with the penalty itself.
Application of the Welch criteria.
22.	(i) Measure made following a criminal conviction. 
Clearly the order can only be made when there is a conviction.
23.	(ii) The nature and purpose of the measure. 
The statutory criteria for the making of an order are "the need to protect the public from serious harm from offenders" and "the desirability of preventing the commission by them of further offences and of securing their rehabilitation". Although these criteria are expressed in words suggesting a preventive measure and are in the context of a section dealing with the basis for release on parole, it should be noted that the words of the first are the same as one of the pre-conditions for passing a custodial sentence in violent or sexual offences (s1(2)(b)). 
24.	We have set out above our view of the correct way of looking at licence provisions in the context of Art. 7 generally. Strong support for the proposition that this is the proper view of section 86 is contained in the judgment of this court given by Lord Bingham CJ in R v Hodgeon [1997] 1 CAR(S) 399: 
[s44] is a section which gives the authorities additional control over an offender in relation to whom such an order is made. It affects both the period which an offender will serve if recalled to prison after release on licence and the period for which a prisoner will be supervised after release on licence. In making such an order the primary considerations to be borne in mind are the need to protect the public from serious harm from offenders, the desirability of preventing the commission by them of further offences and the rehabilitation of offenders. 
25.	(iii) Its characterisation under national law. 
Although the forerunner of section 86 was passed before the incorporation of the Human Rights Act 1998, there is no doubt that Parliament intended that the measure should apply to all offences committed before 30 September 1998 regardless of whether they predated the coming into force of the Criminal Justice Act 1991. It is also true that the section was applied retrospectively after the passing of the 1991 Act both at first instance and in this court. That has continued since the implementation of the Human Rights Act 1998 and, with the exception of J.T. to which we will return, has not been questioned in this court. 
26.	(iv) The procedures involved in the making and implementation of the measure. 
An order under section 86 can only be made as part of a custodial sentence. The maximum length of that sentence remains unchanged by the 1991 Act. It will only be implemented in the event of a breach by the released prisoner. The licence terminates at the end of the notional sentence and cannot exceed it.
27.	(v) The severity of the measure. 
There is no doubt that the extended licence in itself involves a restriction of the liberty of the released prisoner even if he does not commit a breach of it. A breach may lead to a penalty of up to six months imprisonment. That, however, is not conclusive. Breaches of a number of orders held not to be penalties may similarly lead to loss of liberty or other sanction if breached.
28.	(vi) The substance, rather than the form. 
It is the exercise of looking at the substance rather than the form that we have been carrying out in our review of the statutory provisions and relevant case law.
Conclusion.
29.	In our judgment, the true analysis of the relevant statutory provisions and the way in which they have been interpreted in the domestic and European courts demonstrates that an order for an extended licence is preventive not punitive. Its operation relates to the "execution of the sentence " (Hogben) and is part of "the machinery for carrying out the penalty" (McFetrich). Adding such an order to a sentence of imprisonment for an offence committed before 1 October 1991 is not to impose a heavier penalty than was available when the offence was committed and does not violate Art.7 
30.	As we have already indicated, the conclusion to which we have come necessarily involves the further conclusion that J.T. was wrongly decided. In concluding that we may properly consider that decision as per incuriam, we have had regard to the guidance given recently by this court in R v Simpson [2003] EWCA Crim 1499 in relation to the modern doctrine of per incuriam in criminal cases. 
31.	Lord Woolf CJ giving the judgment of a five judge court said: 
34. ….. We appreciate that there may be a case for not interpreting the law contrary to a previous authority in a manner that would mean that an offender who otherwise would not have committed an offence would be held to have committed an offence. However, we do not understand why that should apply to a situation where a defendant, as here, wishes to rely upon a wrongly decided case to provide a technical defence. While justice for a defendant is extremely important, justice for the public at large is also important. So is the maintenance of confidence in the criminal justice system….
35. Here we prefer the approach indicated in Bennion on Statutory Interpretation (4th edition) at p 134 which states: 
"The basis of the per incuriam doctrine is that a decision given in the absence of relevant information cannot be safely relied on. This applies whenever it is at least probable that if information had been known the decision would have been affected by it."
32.	There are two significant factors in this case which fall into the category of information referred to in the quotation from Bennion. First, and importantly, J.T. was a sentence appeal where only the appellant was represented. The Court therefore did not have the benefit of the sort of submissions which have been advanced to us by Mr Owen. Secondly, the Court had cited to it only one of the cases to which we have been referred namely Ibbotson v UK. In particular, neither Hogben nor Hodgeon was cited and each is, in our judgment, important to the proper consideration of this issue. 
33.	Mr Goodman reminds us that we are a two judge court and the court in J.T. was a three judge court. That is a relevant consideration: See Simpson at paragraph 38. However, that cannot outweigh the other factors to which we have referred. We have come to the clear view that J.T. should be regarded as decided per incuriam and not followed. Had the court in that case been provided with the information that we have had, we have no doubt they would have come to the same conclusion as we do. 
34.	Accordingly, the appeal is dismissed.