Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex parte Uttley (Respondent)

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    61.  In the course of reaching our conclusions my noble and learned friend Lord Rodger of Earlsferry and I specifically rejected this construction of article 7(1). Lord Rodger of Earlsferry stated in his judgment at para 85 that he was not persuaded that article 7(1) was engaged in the circumstances of the appeals. Adopting the construction propounded on behalf of the appellant in the present appeal he said in that paragraph:

    "Under paragraph 13 the appellants are liable to be required to serve a longer period than would have been likely, but not a longer period than would have been competent, before the first review under the previous system. That is not incompatible with article 7(1)."

    62.  I adopted the same construction of article 7(1) as did Lord Rodger of Earlsferry. I stated in a passage in para 109 of my judgment which I venture to repeat:

    "I am unable, however, to accept the construction of article 7(1) propounded by the appellants. It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was 'applicable' at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie the maximum sentence then prescribed by law for the particular offence. I may observe in passing that resort to the French text of article 7 is of little avail, since the word used is 'applicable', which does not throw any further light on the draftsman's intention. The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower."

    63.  Mr Scrivener QC for the respondent supported the construction of article 7(1) which had been advanced on behalf of the appellants in Flynn v HM Advocate. He argued that the licensing provisions introduced a new component into the system, which did not exist at the time when the respondent committed the offences. This was in reality, as Longmore LJ indicated at para 36 of his judgment in the Court of Appeal, a lengthening of the sentence which would have been imposed before 1992. It accordingly violated the terms of article 7(1).

    64.  Mr Scrivener reminded the House that article 7, like all provisions of the Convention, must be construed autonomously, purposively and giving primacy to substance. I have borne this in mind, but I still believe that the construction of article 7(1) which Lord Rodger of Earlsferry and I adopted in Flynn v HM Advocate is correct and I adhere to the views which I expressed in that case. As I there stated, in my opinion other interpretations fail to give due effect to the fact that article 7(1) refers to the time when the offence was committed, not the time when the sentence was passed. If the interpretation propounded on behalf of the respondent were correct, it would frequently be necessary to attempt to divine what sentence a court would have passed if sentencing at the time of commission of the offence, a quest fraught with obvious difficulties. For example, the guidelines for length of sentences appropriate for the offence may have changed and the general level of sentence may have been increased, as may be seen to have occurred in the case of such offences as dangerous driving causing death.

    65.  When one applies this conclusion of law to the facts of the present case, the answer is entirely clear. The maximum sentence for rape, the most serious of the offences committed by the respondent, was imprisonment for life both before and after 1983 and so remains. A court sentencing the respondent before 1983 could if it thought fit have imposed imprisonment for life or for a term very much longer than 12 years. It is in my opinion impossible to regard a sentence of 12 years, even with the new element of a licence, as a heavier penalty than that which could have been imposed at the time when the offence was committed. Accordingly on this ground alone I consider that the judge was right to dismiss the application for judicial review.

    66.  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.


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