Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)
35. The respondent does not base his complaint on the provisions that I have just narrated, however. Which is presumably why the courts below make no mention of them. He says, rather, that there has been a violation of article 7(1) because, by virtue of the relevant provisions of the Criminal Justice Act 1991 ("the 1991 Act") which came into force in 1992, a heavier penalty was imposed on him than the one that was applicable at the time when the criminal offences in question were committed. The argument is based on a comparison of the effect of these provisions on the 12 year sentence imposed by the court in 1995 and the effect which section 25(1) of the Prison Act 1952, rule 5 of the Prison Rules 1964 and section 60 of the Criminal Justice Act 1967 would have had on any equivalent sentence imposed by a court in 1983.
36. It is agreed that, if the pre-1991 Act provisions had remained in force, then, provided he had been of good behaviour, the respondent would have been entitled to be released when he had completed two-thirds of his sentence, on 24 October 2003. Thereupon his sentence would have expired under section 25(1) of the Prison Act 1952. Instead, by virtue of section 33 of the 1991 Act the respondent was released on the same day, 24 October 2003, when he had completed two-thirds of his 12 year sentence - but his release was on licence. The licence contains a number of conditions and remains in force until 24 October 2004. During that period, under section 39 of the 1991 Act, the respondent is liable to be recalled to prison if he fails to comply with the conditions. Even after the end of the licence period, if the respondent is convicted of an imprisonable offence, under section 40 the court dealing with the new offence has the power to require him to serve the whole, or part, of the remainder of his 12 year sentence. The argument for the respondent, which the Court of Appeal accepted, is that, because he remains subject to the licence period and liable to be required to serve the remainder of his twelve-year sentence, in terms of article 7(1) the sentence of 12 years imposed on him in 1995 is "heavier" than a sentence of 12 years would have been if it had been imposed on him in 1983, before the 1991 Act came into force.
37. Since the alleged violation of the respondent's rights under article 7(1) would not have materialised until he was released in October 2003, Mr Pannick accepted that, if there was a violation, the Human Rights Act 1998 would apply even though the sentence had been imposed before 2 October 2000.
38. The respondent's argument is misconceived. For the purposes of article 7(1) the proper comparison is between the penalties which the court imposed for the offences in 1995 and the penalties which the legislature prescribed for those offences when they were committed around 1983. As I have explained, the cumulative penalty of 12 years' imprisonment that the court imposed for all the offences in 1995 was not heavier than the maximum sentence which the law would have permitted it to pass for the same offences at the time they were committed in 1983. There is accordingly no breach of article 7(1).
39. In applying article 7(1) in this way, I interpret the word "applicable" as referring to the penalties which the law authorised a court to impose at the time of the offences. Section 20(1) of the Constitution of India expresses the same idea when it says that no person is to be subjected to a penalty "greater than that which might have been inflicted under the law in force" at the time of the commission of the offence. These and similar provisions embody a principle of comparatively modern origin: there can be no room for it in legal systems which do not use statutes to prescribe a particular punishment or range of punishments for individual offences, but rely instead on the court to choose the appropriate punishment for any given offender. That was once the case with most legal systems. Therefore, although traces of the doctrine can be found in the writings of Bartolus de Saxoferrato in the 14th century (Commentaria ad digestum vetus, de iustitia et iure, 1.9.49 - 51), it really came to prominence only towards the end of the 18th century when developments in constitutional thinking led to the idea that crimes and their punishments should be regulated by statutes passed by the legislature. Article 8 of the French Declaration of the Rights of Man 1791 famously proclaimed that "nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit et légalement appliquée." Ten years later, in his Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts, p 20, para 24, von Feuerbach gave the principle its familiar and enduring Latin form, nulla poena sine lege. From these beginnings the principle came to be generally recognised and eventually to take its place in many constitutions, as well as, for example, in article 7(1) of the European Convention on Human Rights and article 15 of the International Covenant on Civil and Political Rights. There is some discussion of the limits to the principle in English law in Glanville Williams, Criminal Law: The General Part 2nd ed, (1961), pp 606 - 608.
40. The idea that one should not be punished for doing an act that was lawful at the time meets with ready acceptance. Leaving aside the general argument against retroactive legislation, it is perhaps less obvious why, if his conduct was criminal, a court should not be able to impose on the offender a sentence that is authorised by law and otherwise appropriate, simply because it is heavier than the sentence which the law authorised for that offence at the time when it was committed. Even if the perpetrator was aware of the penalty that the law prescribed for the offence at the time he committed it, in the case of a crime such as rape, at least, it will scarcely lie in his mouth to claim that he would not have carried out the rape if he had known that the new heavier penalty would be applied to him and that it is, accordingly, unfair to impose it. In practice, however, changes in the law which are designed to allow a heavier punishment for an offence that has already been committed may tend to be made for the purpose of unfairly penalising the past acts of particular individuals, for political or other reasons. Article 7(1) eliminates that risk.
41. The wording of article 7(1) is indeed well adapted to counteract such dangers. The European Court of Human Rights has therefore been able to give proper effect to the article while interpreting its wording in a straightforward fashion. In Coëme v Belgium ECHR 2000-VII 75 the Court held, at para 145:
One has to identify the legal provision which made the act punishable at the time it was committed and make sure that the punishment which the court imposes does not exceed the limits fixed by that provision. Although the decision of the European Court was not cited to the Privy Council in Flynn v HM Advocate  UKPC D1; 2004 SCCR 281, Lord Carswell encapsulated the same interpretation when he said, at pp 314G - 315A, para 109:
Putting the matter within the specific context of the Scottish system for mandatory life sentence prisoners, I adopted the same construction, at p 310D - F, para 85.
42. Mr Scrivener QC reminded your Lordships that under section 2 of the Human Rights Act decisions of the European Court of Human Rights are not binding. It respectfully appears to me, however, that not only is no other interpretation required in order to give effect to article 7(1), but indeed no other interpretation is feasible in the present case. Mr Scrivener could not begin to paraphrase article 7(1) so as to specify which penalties were "applicable" at the time of the offences if they were not the penalties or range of penalties that the law permitted a court to impose at that time. As Lord Carswell shows, there are obvious difficulties in any attempt to interpret "applicable" as referring to the penalty that the court could in practice have been expected to impose for an offence at the time it was committed. The decision of the European Court demonstrates, however, that article 7(1) does not envisage such speculative excursions into the realm of the counter-factual. Its purpose is not to ensure that the offender is punished in exactly the same way as he would have been punished at the time of the offence, but to ensure that he is not punished more heavily than the relevant law passed by the legislature would have permitted at that time. So long as the court keeps within the range laid down by the legislature at the time of the offence, it can choose the sentence which it considers most appropriate. The principle of legality is respected.
43. Here there was no change in the relevant penalties which the law permitted a court to impose. What changed between 1983 and 1995 were the arrangements that were to apply on the prisoner's early release from any sentence of imprisonment imposed by the court. In particular, since 1992 a prisoner such as the respondent has remained subject to his sentence for its entire duration of 12 years, whereas before 1992 an equivalent sentence would have expired when he was released after serving 8 years. The respondent says that, for this reason, the sentence of 12 years imposed on him in 1995 was "heavier" than a sentence of 12 years imposed at the time of the offences in 1983. Leaving aside all the other possible objections, this argument simply involves a misinterpretation of article 7(1). Of course, if legislation passed after the offences were to say, for instance, that a sentence of imprisonment was to become a sentence of imprisonment with hard labour, then issues would arise as to whether the article was engaged, even where the maximum sentence had been life imprisonment at the time of the offences. But in this case there is no suggestion that the actual conditions of the respondent's imprisonment changed. The very worst that could have happened to him under the 1991 Act was that he would have required to serve the whole of his 12 year sentence in gaol. Happily for him, that has not in fact happened. But, even if it had, he would still have spent only 12 years in prison - which is well within the limits of the penalty that was allowed by law for the three rapes and many other offences at the time when he committed them. There is no violation of article 7(1).BARONESS HALE OF RICHMOND
44. I too have reached the conclusion that the change from the remission and parole system to the licence system for early release of prisoners was not a 'heavier penalty . . . than the one that was applicable at the time' when these offences were committed. I believe that this conclusion is not incompatible with the views I expressed in Flynn and others v Her Majesty's Advocate  UKPC D1 at paragraphs 99 to 100, but I certainly owe the respondent an explanation.
45. It is quite clear that the words 'penalty . . . applicable' in article 7(1) refer to the penalty or penalties prescribed by law for the offence in question at the time when it was committed. It does not refer to the actual penalty which would probably have been imposed upon the individual offender had he been caught and convicted shortly after he had committed the offence. The court does not have to make a comparison between the sentence he would have received then and the sentence which the court is minded to impose now. In Flynn, I did not accept the argument that it did. As I said at paragraph 100, '[My] conclusion does not cast doubt upon the validity of sentencing guidelines which may indicate that the existing applicable sentence is to be applied in a more severe way than had been the previous practice'. As the European Court of Human Rights said in Coeme and others v Belgium, Application nos 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, at paragraph 145,
46. However, it is clear from the Court's decision in Welch v United Kingdom (1995) 20 EHRR 247 that article 7 is not limited to the sentences prescribed by the law which creates the offence. It can also apply to additional penalties applied to that offence by other legislation. The concept of a penalty is an autonomous Convention concept. When considering what are the 'limits fixed' by the law, the maximum duration of any permitted sentence of imprisonment (or the maximum fine which may be payable) may not be the only relevant factor. There may be changes in the essential quality or character of such a sentence which make it unquestionably more severe than any sentence which might have been imposed at the time of the offence. Examples might be the reintroduction of hard labour with every sentence of imprisonment or the automatic conversion of a sentence of imprisonment into a sentence of transportation. These may seem fanciful today. Less fanciful might be the replacement, for certain juvenile offenders, of committal to the care of a local authority with determinate sentences of detention in prison department establishments. The care order was ostensibly a welfare disposal, rather than a penalty, although of indefinite duration up to the age of 18. The detention order was unquestionably punitive in intent and effect, although of definite duration. There must, at the very least, be an argument that article 7 is engaged by such a change.
47. Flynn concerned a radical change in the legal effect of a mandatory life sentence, through the introduction of a fixed 'punishment part' into what had previously been in reality an indeterminate sentence. The nature of the sentence begged the question of what it was that the law prescribed, notional imprisonment for life or imprisonment for a term to be fixed. As there was only one penalty for murderers, it mattered what it meant. I readily acknowledge that, as with the care order example, there is room for argument about whether this change made that penalty in itself more severe than it had previously been. Some might think that it did and some might think that it did not. It was, after all, introduced to protect the human rights of offenders. Nevertheless, the equivalent legislation for England and Wales took the precaution of protecting those sentenced to life imprisonment for offences committed before the change from a longer tariff than that already fixed or likely to have been fixed under the previous regime: see Criminal Justice Act 2003, schedule 22. Without that protection, some offenders might do better than they might previously have done whereas others might do worse. But for the reasons given earlier, that is not the question. The question, as I believe all your lordships agree, is whether the penalty now legally applicable (and applied) to the offence is heavier than (or exceeds the limits of) the penalty which was legally applicable at the time it was committed.
48. In this case we are concerned with a sentence of imprisonment which could have been of any duration up to life imprisonment. I am persuaded that a change in the arrangements for determining how much of that time is actually spent in prison and how much in the community does not make the penalty heavier than it previously was. A longer term of imprisonment was always available. It can be distinguished from a mandatory life sentence, which is the only penalty available, where the consequences prescribed by law might become heavier than those which previously obtained. (Whether I was right to consider that they had done is another matter.) Just as there might once have been some forms of death penalty which were heavier than others, there may be forms of incarceration which are heavier than others. But in this case the complaint is essentially about duration and a longer duration has always been available. I therefore agree article 7(1) is not breached.
49. It follows that I too would allow this appeal.
50. The respondent Brian Uttley was on 24 October 1995 sentenced to an effective total of 12 years' imprisonment for a series of sexual offences committed over a period prior to 1983. He had pleaded guilty to several counts of sexual assault and was convicted on three counts of rape and also on charges of taking indecent photographs.
51. Upon sentence the respondent became subject to the provisions of the Criminal Justice Act 1991 (the 1991 Act), whereby he was entitled to release on licence after serving two-thirds of his term of imprisonment (having been eligible for consideration for parole after serving half of the term) and was then subject to a number of restrictions under the licence until the expiry of three-quarters of the term.
52. In accordance with these statutory provisions he was released on licence on 24 October 1993, the date of expiry of two-thirds of his term of imprisonment, and will remain on licence until 24 October 1994, when three-quarters of the term will have expired. The conditions of the licence (with which he must comply, as provided by section 37(4) of the 1991 Act) impose a number of significant restrictions on his freedom and require him to place himself under the supervision of a probation officer, keep in touch with him and receive visits from him. Under section 39 of the 1991 Act where a prisoner is released on licence the Secretary of State may revoke his licence and recall him to prison, if so recommended by the Parole Board. By virtue of section 40 of the 1991 Act (now replaced by section 116 of the Powers of Criminal Courts (Sentencing) Act 2000), if he is convicted of a new offence during the currency of the licence the sentencing court may, in addition to passing any other sentence, order him to be returned to prison to serve out the whole or any part of the original sentence unexpired at the date of commission of that offence.
53. The respondent points to the fact that if he had been convicted and sentenced before the 1991 Act came into operation on 1 October 1992 he would, subject to good behaviour, have been unconditionally discharged after serving two-thirds of his sentence, which would then have expired by virtue of section 25(1) of the Prison Act 1952. He would have been eligible for parole after serving one third of his sentence. It is not necessary for present purposes to delve into the refinements of remission and prisoners' legitimate expectations, for it was not in dispute that the release provisions would have operated as I have outlined.
54. The respondent maintains that the effect of subjecting him to the regime of the 1991 Act was to violate the provisions of article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), the material part of which reads:
He brought an application for judicial review of the decision to release him on licence on 24 October 1993, claiming declarations that Schedule 12 to the Criminal Justice Act 1991 is incompatible with article 7 of the Convention and that the imposition of a period of licence and/or the imposition of conditions of licence under the provisions of the 1991 Act are incompatible with article 7. Moses J in the Administrative Court rejected the respondent's arguments and dismissed the application ( EWHC 950 Admin), but the Court of Appeal (Pill and Longmore LJJ and Maurice Kay J) allowed his appeal:  1 WLR 2590. The Secretary of State has appealed to your Lordships' House against the decision of the Court of Appeal.
55. The decisions of the Administrative Court and the Court of Appeal centred round the issue whether the licence provisions constituted a heavier penalty for the purposes of article 7(1). Moses J held that they did not, concluding in para 15 of his judgment that
The Court of Appeal differed from Moses J in their classification of the licence provisions. They held that, whatever the purpose of those provisions, their effect was onerous as a part of the sentence imposed. Viewing the matter as a matter of substance rather than form, the sentence was thereby increased and the penalty imposed was heavier. The transitional provisions in the 1991 Act for release on licence of prisoners whose offences had been committed at a time before the introduction of such licences were accordingly incompatible with article 7(1) of the Convention. They made a declaration in the following terms:
56. Mr Pannick QC on behalf of the Secretary of State advanced a new argument before your Lordships' House, based on the construction of the word "applicable" in article 7(1), in addition to those relied on in the courts below. He marshalled his arguments into four main contentions:
(i) The penalty imposed was well within the maximum allowed by law in 1983 and therefore did not violate the terms of article 7(1) of the Convention, when properly construed.
(ii) The respondent's complaints are about early release provisions, which concern the administration of sentences and are not covered by article 7.
(iii) The trial judge was required by the Practice Statement to take the changes in early release provisions into account when sentencing.
(iv) Licensing provisions are not a penalty, but are designed to assist the offender in his rehabilitation and protect the public against the risk of his re-offending.
57. In the course of developing his first contention Mr Pannick argued that the word "applicable" in article 7(1) means the sentence which could have been imposed on the offender at the time when he committed the offence, ie the maximum sentence then fixed by law for that offence. The object of article 7(1) was to prevent persons from being subjected to penalties heavier than those which could have been imposed at the time of commission of the crime. An obvious example is the increase in the maximum sentence for indecent assault on a woman from two years to ten years by the Sexual Offences Act 1985: persons convicted after the date on which that Act came into operation of indecent assaults committed before that date could not be sentenced to a term of imprisonment longer than two years.
58. The wording of article 7(1) of the Convention has its origins in the early constitutional documents of the human rights movement. It was purposely framed so as to follow closely the terms of article 11(2) of the Universal Declaration of Human Rights, approved by the General Assembly of the United Nations in 1948, save that in the English version of the Convention the phrase "penal offence" became "criminal offence". In the International Covenant on Civil and Political Rights (1966) the first two sentences of article 15.1 are identical in wording to article 7(1) of the Convention. A third sentence, however, was added which is of significance for present purposes:
This sentence gives support to the interpretation propounded on behalf of the appellant, that in the previous sentence in article 15.1 of the ICCPR, like the second sentence of article 7(1) of the Convention, the word "applicable" was intended to refer to the maximum sentence which could be imposed by law. That interpretation is also borne out by the references in the travaux préparatoires to a penalty "authorised by the law" and the "maximum penalty under the law in force at the time".
59. Further support for the appellant's proposition may be derived from the decision of the European Court of Human Rights in Coëme and others v Belgium (Applications nos 32492/96 et al), which was cited on behalf of the appellant. The major issue with which the case was concerned was whether the defendants could properly have been tried in the Court of Cassation. Two of the applicants claimed that the extension of the limitation period for trial of criminal offences under Belgian law which was brought in after the commission of the offences with which they were charged was in breach of article 7(1) of the Convention. In paragraph 145 of its judgment the Court observed that offences and the relevant penalties must be clearly defined by law and went on:
60. This issue was considered by the Judicial Committee of the Privy Council in a devolution appeal from Scotland, Flynn and others v Her Majesty's Advocate  UKPC D1. The appeal concerned complaints from prisoners sentenced to imprisonment for life in Scotland prior to the passing of the Convention Rights (Compliance) (Scotland) Act 2001 that under the regime brought into operation by that Act - their complaint being directed specifically to paragraph 13 of the Schedule to the Act, which dealt with transitional provisions -- they would serve a longer period in prison than they would have expected to serve under the arrangements in force at the time when they were originally sentenced. It is not necessary for present purposes to go into details of the issues in the appeal and it is sufficient to say that the Judicial Committee rejected the appellants' claim. They were able to give an interpretation to paragraph 13 whereby the reviewing court would be entitled to avoid the necessity to impose a higher "sentence". It followed that no breach of article 7(1) could be involved and paragraph 13 was within the competence of the Scottish Parliament. It had been argued on behalf of the appellants that the "applicable" sentence in article 7(1) of the Convention is that which would have been imposed by a court if it had passed sentence under the law in force at the time of the commission of the offence. It followed from this reasoning that if the length of the punishment part of the life sentence (previously known in common parlance as the "tariff") exceeded that which they could realistically have expected under the previous arrangements for fixing that part, article 7(1) could be engaged.