Communicated on 12 March 2018
FIRST SECTION
Application no. 54026/16
Moinul ABEDIN
against the United Kingdom
lodged on 8 September 2016
STATEMENT OF FACTS
The applicant, Mr Moinul Abedin, is a British national who was born in 1974 and lives in Birmingham. He is represented before the Court by Mr D. Guedalla of Birnberg Peirce and Partners, a firm of solicitors based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 February 2002 the applicant was sentenced to twenty years imprisonment, having been convicted of doing an act with intent to cause explosions likely to endanger life. He was released on licence in August 2012 but recalled to prison in February 2013 on the basis that he had breached his licence conditions. A judicial review of his recall was unsuccessful and on 31 October 2014 the Parole Board decided that he was not suitable to be released again.
The applicant was sentenced under the Criminal Justice Act 1991 (“the 1991 Act”) as amended by the Crime and Disorder Act 1998. Section 33(3) of the 1991 Act provided that a long-term prisoner such as the applicant, who had previously been released and then recalled to prison, would be entitled to be released automatically at the three-quarter point of his sentence. Although section 33 of the 1991 Act was repealed by Part 7 of Schedule 7 to the Criminal Justice Act 2003, it remained in force in respect of the applicant as his sentence had been imposed before 4 April 2004. However, section 33 ceased to apply to him on 14 July 2008, when the Criminal Justice and Immigration Act 2008 came into force. This Act introduced a new section 50A, the result of which was that if a prisoner in the applicant’s position was recalled after being released on licence, he would not automatically be released again; rather, he would be detained until the end of his sentence unless released earlier by the Parole Board.
In a further application for judicial review, the applicant, relying on DelRío Prada v. Spain [GC], no. 42750/09, ECHR 2013, submitted that the provisions regulating his release were in breach of Article 7 of the Convention. In addition, he argued that any detention after the three‑quarters stage of his sentence was not foreseeable and therefore in breach of Article 5 of the Convention. However, the Divisional Court judge considered that the reasoning in Del Rio Prada was specifically geared to the facts of the case and, therefore, not authority for the general proposition that any detrimental change to provisions concerning release on licence – if not foreseeable at the time of sentence – altered the meaning of “penalty” for the purposes of Article 7 of the Convention. In any case, the judges considered themselves bound by R (Robinson) v. Secretary of State for Justice [2010] 1 WLR 2380 in which the Court of Appeal held that a change to conditions relating to release by the legislature did not interference with the sentence that had been passed.
An application for permission to appeal to the Court of Appeal was dismissed on the papers and finally, on 10 March 2016, following an oral hearing.
B. Relevant domestic law and practice
1. Legislation
Section 33 of the Criminal Justice Act 1991 provided as follows:
“33 Duty to release short-term and long-term prisoners
... ... ...
(3) As soon as a short-term or long-term prisoner who—
(a) has been released on licence under subsection (1)(b) or (2) above or section 35 or 36(1) below; and
(b) has been recalled to prison under section 38(2) or 39(1) below,
would (but for his release) have served three-quarters of his sentence, it shall be the duty of the Secretary of State to release him unconditionally.
... ... ...
(5) In this Part—
“long-term prisoner” means a person serving a sentence of imprisonment for a term of four years or more; ...”
The Criminal Justice and Immigration Act 2008 subsequently introduced a new section 50A into the 1991 Act, pursuant to which a prisoner, recalled after being released on licence, would be detained until the end of his sentence unless released earlier by the Parole Board. Although section 50A has since been repealed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it has been retained for a certain class of prisoner (which includes the applicant in the present case).
2. Case-law
(a) R. v. Secretary of State for the Home Department ex parte Uttley [2004] UKHL 38
In Uttley the respondent had been convicted of a series of sexual offences in 1995 and sentenced to a number of periods of imprisonment which were to run concurrently. The overall effect was that he was sentenced to a total of twelve years’ imprisonment. The maximum sentence available for the most serious offence had been life imprisonment.
At the time the respondent committed the offences the combined effect of section 25(1) of the Prison Act 1952, rule 5 of the Prison Rules 1964 and section 60 of the Criminal Justice Act 1967 meant that a person sentenced to twelve years’ imprisonment would have been entitled, provided he had been of good behaviour, to be released when he had completed two thirds of his sentence, and the sentence would then have expired. Release on licence would have been possible after expiry of one third of the sentence, that is, after four years. However, as a result of the relevant provisions of the Criminal Justice Act 1991, which entered into force in 1992, release on licence became an entitlement after two thirds of the sentence, and the licence remained in force until the expiry of three quarters of the sentence.
The respondent complained that the changes brought about by the Criminal Justice Act 1991, which had the effect of imposing licence conditions on release for an additional year, with a continuing residual liability to serve the outstanding term if convicted of further offences, amounted to a heavier penalty than the one that was applicable at the time the criminal offences were committed. He therefore applied for judicial review on that ground, relying on Article 7 of the Convention.
The Administrative Court dismissed the claim, holding that the imposition of a licence as part of the sentence did not amount to a penalty. On appeal, the Court of Appeal held that Article 7 had been violated and made a declaration that the relevant sections of the 1991 Act were incompatible with the respondent’s Article 7 rights. Lord Justice Pill stated:
“... 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 the penalty is one of 12 years in custody in each case 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 others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments on the offender’s freedom of action. Moreover, the conditions create a potential liability to serve a further substantial period in custody, as to the provisions dealing with the effects of reconviction. Arguments that the purpose of the licence conditions is rehabilitative and preventative, as they undoubtedly are, do not detract from their onerous nature when viewed as part of the sentence. Whatever the purpose, the effect is onerous.”
However, the House of Lords allowed the Secretary of State’s appeal. The Lords considered that the contention that they had to resolve was whether the word “applicable” in the second sentence of the first paragraph of Article 7 referred to the sentence that would actually have been applied at the time, or the maximum sentence that was available in law. They concluded that Article 7 only prohibited a retrospective increase in the maximum penalty that was available following conviction and not a particular penalty that might be awarded within that maximum. Lord Phillips summarised the position thus:
“It follows that Article 7 § 1 will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time the offence was committed ... The maximum sentence that could be imposed for rape at the time the respondent committed the rapes for which he was convicted was life imprisonment. That was the applicable penalty for the purposes of Article 7 § 1. The sentence of 12 years imposed on the respondent would seem manifestly a less heavy penalty than life imprisonment.”
The respondent subsequently applied to this Court, which declared his complaint under Article 7 to be inadmissible (see Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005). While it considered that the “penalties” foreseen by law for the offences committed were the various sentences of imprisonment imposed by the trial judge, and not challenged on appeal, it held that the licence conditions imposed on the respondent on his release after eight years 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.
(b) R (Robinson) v. Secretary of State for Justice [2010] 1 WLR 2380
In Robinson the appellant had been recalled to prison shortly after section 50A was inserted into the Criminal Justice Act 1991 on 14 July 2008. Had it not been introduced, he would have been released after he had served three-quarters of his sentence on 2 January 2009. The effect of section 50A was that he was not entitled to be released at that date but instead was subject to detention until the expiry of his original sentence, unless he was released before then on the recommendation of the Parole Board or by the Secretary of State. He contended that the removal of his entitlement to release amounted to a retrospective change of the sentence originally imposed on him by the legislation contrary to Article 6 of the Convention. The Administrative Court rejected that submission and the Court of Appeal dismissed his appeal. The Court of Appeal considered that the appeal turned on the question whether the appellant’s sentence had been changed by the legislature. It concluded that it had not, since he
“was sentenced to a period of five years’ imprisonment. That sentence remains unchanged. The legislature changed the conditions relating to his release and recall on breach of licence but they did not interfere with the sentence that had been passed.”
COMPLAINTS
The applicant complains that the changes to the legislative provisions relating to early release were in breach of Article 7 of the Convention; and that any detention after the three-quarters stage of his sentence was not foreseeable and therefore in breach of Article 5 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the application of the new regime for early release breach the applicant’s rights under Article 7 of the Convention? In particular, having regard to the judgment in Del Río Prada v. Spain [GC], no. 42750/09, ECHR 2013, did the application of the new regime alter “the scope of the penalty” imposed on the applicant, or merely its “means of execution”? If so, was it “foreseeable”?
2. If there has been a breach of Article 7 of the Convention, can the applicant’s detention following the three-quarter point of his sentence be described as “lawful” within the meaning of Article 5 of the Convention?
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