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Attorney(S)
- Philip Brunt (instructed by The Registrar of Criminal Appeals) for the Appellant
- Simon Edwards (instructed by The Crown Prosecution Service) for the Respondent
Judges
- MR JUSTICE BEATSON
- LORD JUSTICE SCOTT BAKER
- MRS JUSTICE RAFFERTY DBE
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B v. REGINA
Smart Summary
Factual and Procedural Background
The Appellant, aged 65, pleaded guilty to multiple sexual offences including rape, indecent assault on a female under 13, buggery, and inciting a child to commit an act of gross indecency. The offences took place primarily in the 1970s and involved three victims: the Appellant's two children and his sister-in-law. The Appellant was originally sentenced to a total of 15 years imprisonment with an extended licence period under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"). He appealed against the length of the sentence and the extension of the licence period. The appeal was allowed in part by reducing the imprisonment term to 10 years while dismissing the challenge to the extended licence period. This opinion provides the reasons for that decision.
Legal Issues Presented
- Whether the original sentence of 15 years imprisonment was manifestly excessive in light of the Appellant’s guilty pleas and mitigation.
- Whether the imposition of an extended licence period under section 86 of the 2000 Act for offences committed before 30 September 1998 violated Article 7 of the European Convention on Human Rights, which prohibits retrospective heavier penalties.
Arguments of the Parties
Appellant's Arguments
- The sentence of 15 years imprisonment was manifestly excessive given the Appellant’s guilty pleas, mitigation, and previous good character.
- The extended licence period imposed under section 86 of the 2000 Act was unlawful as it imposed a heavier penalty retrospectively, contrary to Article 7 of the European Convention on Human Rights, since the offences were committed before the extended licence regime existed.
Respondent's Arguments
- The extended licence period under section 86 is a preventive, not punitive, measure and therefore does not violate Article 7.
- The sentence as imposed was appropriate given the gravity of the offences, although the court accepted some mitigation in relation to the totality of the sentence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Milbery and others [2003] 2 Cr App R (S) 31 |
Starting point for sentencing multiple rape offences is 15 years after trial. |
Used to assess the appropriateness of the original sentence and to determine that the total sentence was manifestly excessive post guilty plea discount. |
| R v BR [2004] 1 WLR 490 |
Extended licence orders under s.86 are preventive, not punitive, and do not violate Article 7 ECHR. |
Followed as binding authority to uphold the extended licence despite offences predating the relevant legislation. |
| R v JT [2003] 4 All ER 877 |
Argued that extended licence provisions are punitive and violate Article 7. |
Distinguished and effectively overruled by R v BR; not followed by this court. |
| Hogben v United Kingdom (application 11653/85) |
Parole system changes affecting sentence execution do not constitute heavier penalties under Article 7. |
Supported the view that extended licence is part of sentence execution, not a heavier penalty. |
| R v Hodgeon [1997] 1 CAR (S) 399 |
Section 44 of the Criminal Justice Act 1991 allows additional control over offenders through licence conditions. |
Supported interpretation of s.86 as preventive and protective, not punitive. |
| Welch v United Kingdom (1995) 20 EHRR 247 |
Criteria for determining whether a measure constitutes a retrospective penalty under Article 7. |
Used to frame the analysis of whether extended licence constitutes a penalty. |
| R v Field and Young [2002] EWCA Crim 2913 |
Distilled criteria from Welch for assessing whether a measure is punitive. |
Applied criteria to conclude extended licence is preventive, not punitive. |
| McFetrich v Secretary of State for the Home Department [2003] EWHC 1542 (Admin) |
Distinction between penalty and its execution; penalty concerns whole sentence, not constituent parts. |
Supported the view that licence conditions are part of sentence execution and not additional penalty. |
| R (Uttley) v Secretary of State for the Home Department [2003] 1 WLR 2590 |
Considered extended sentences and licence periods under related legislation. |
Reversed on other grounds; not directly relevant but cited in discussion of legislative context. |
Court's Reasoning and Analysis
The court first addressed the conventional ground of appeal concerning the manifest excessiveness of the sentence. It noted the Appellant’s previous good character, the pleas of guilty, and mitigation. The offences were of the utmost gravity involving three victims, two of whom were children under 13 and one a sister-in-law. The court referred to the Sentencing Council Guidelines and relevant authorities, particularly R v Milbery, which set a 15-year starting point for multiple rapes after trial. Given the guilty pleas and mitigation, the court concluded the total sentence of 15 years was manifestly excessive and reduced it to 10 years, making the rape sentences concurrent with others to achieve this total.
Regarding the extended licence period imposed under section 86 of the 2000 Act, the Appellant argued this was a retrospective heavier penalty contrary to Article 7 of the European Convention on Human Rights. The court examined the legal framework of section 86, which applies to sexual offences committed before 30 September 1998 and allows licence to run until the end of the sentence rather than the usual three-quarter point.
The court relied heavily on the binding precedent of R v BR, which held that extended licence orders under section 86 are preventive rather than punitive measures and thus do not violate Article 7. This decision was contrasted with the earlier R v JT, which had found the opposite, but was considered per incuriam and not binding. The court reviewed the criteria established by the European Court of Human Rights in Welch v UK and distilled by R v Field and Young for determining whether a measure is punitive, applying these to the facts. It found that although the extended licence restricts liberty, it is part of the execution of the sentence aimed at protecting the public and preventing further offences, not an additional penalty.
The court further supported this view by reference to Hogben v UK and the reasoning of Moses J in Uttley at first instance, which emphasized the protective and rehabilitative purpose of licence conditions. The court concluded that the extended licence period did not impose a heavier penalty than was applicable at the time of the offences and therefore did not breach Article 7.
Holding and Implications
The court ALLOWED IN PART the appeal by reducing the term of imprisonment from 15 years to 10 years while UPHOLDING the extended licence period imposed under section 86 of the Powers of Criminal Courts (Sentencing) Act 2000.
This decision confirms that extended licence periods imposed retrospectively under section 86 are preventive measures and do not violate the prohibition on retrospective heavier penalties under Article 7 of the European Convention on Human Rights. The ruling clarifies sentencing practice for offences committed before the relevant legislation and reinforces the binding authority of R v BR. No new precedent was established beyond affirming existing principles.
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