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Barnes, R. v
Factual and Procedural Background
This judgment addresses three related proceedings involving the application of section 244ZA of the Criminal Justice Act 2003 ("the 2003 Act") concerning release on licence of prisoners convicted of causing death by dangerous driving, where the offending occurred before 28 June 2022 but sentencing took place after that date. The proceedings include a judicial review application by Plaintiff, an application for leave to appeal sentence by Appellant, and an Attorney-General’s application for leave to refer a sentence considered unduly lenient in Defendant’s case.
Plaintiff was involved in a fatal collision on 30 July 2020 and pleaded guilty in July 2023, receiving a 7½ year sentence in November 2023. The sentencing judge initially imposed a disqualification period based on a two-thirds release point but later revised it to reflect release after half the sentence served.
Appellant was convicted in April 2024 for causing death by dangerous driving for an offence committed in April 2022 and sentenced to 9 years' imprisonment with an 11-year driving disqualification, calculated on the basis that release eligibility would occur after two-thirds of the sentence was served. Appellant seeks leave to appeal the extended disqualification period.
Defendant pleaded guilty in June 2024 to causing death and serious injury by dangerous driving for offences committed in December 2020. Defendant was sentenced to 8½ years' imprisonment with a driving disqualification of 7 years and 3 months, based on an assumption of eligibility for release after half the sentence served. The Attorney-General challenges the sentence as unduly lenient, particularly regarding the application of the release provisions under section 244ZA.
Legal Issues Presented
- Whether section 244ZA of the 2003 Act applies to offenders convicted of causing death by dangerous driving where the offence was committed before 28 June 2022 but sentencing occurred after that date.
- The correct interpretation of the phrase "for which a sentence of life imprisonment could have been imposed at the time the actual sentence was imposed" in section 244ZA(4)(d)(ii) of the 2003 Act.
- Whether the application of section 244ZA in these circumstances breaches Article 7(1) of the European Convention on Human Rights by imposing a heavier penalty retroactively.
- The appropriate sentence and disqualification period in the Attorney-General’s Reference concerning Defendant’s case.
Arguments of the Parties
Plaintiff and Appellant's Arguments
- Section 244ZA applies only where a life sentence could have been imposed at the time the offender was sentenced.
- The wording of subsection (4)(d)(ii) should be construed to prevent applying the increased custodial period to offenders sentenced before the maximum sentence was increased to life imprisonment.
- The phrase "actual sentence" refers to the sentence imposed on the particular offender, not the hypothetical maximum sentence available at the sentencing date.
- Applying section 244ZA to offenders sentenced after 28 June 2022 for offences committed before that date would have a retroactive penal effect, incompatible with Article 7(1) ECHR.
- If the provision is ambiguous, the interpretation most favourable to the offender should be adopted, consistent with established legal principles.
Prosecution and Attorney-General's Arguments
- Paragraphs (a) to (c) of section 244ZA(4) relate to individual prisoner circumstances, but paragraph (d) concerns the category of offences and their seriousness.
- The phrase "could have been imposed at the time the actual sentence was imposed" refers to the maximum penalty for the offence as it stood at the date of sentencing, not the offender’s personal sentencing range.
- Section 244ZA applies to offences that would carry a life sentence if committed at the sentencing date, regardless of when the offence was actually committed.
- The wording, legislative history, and parliamentary materials support the interpretation that the provision applies based on the offence’s seriousness at sentencing date.
- Article 7(1) ECHR is not engaged because the penalty assessed is the sentence imposed by the judge, not the release arrangements, which relate to execution of the sentence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Jeffries [2022] EWCA Crim 1503 | Section 244ZA does not apply if offence committed before 28 June 2022 regardless of sentencing date. | Noted as consistent with non-retroactivity but issue was not formally argued. |
| R v Lomas [2023] EWCA Crim 1436 | Section 244ZA applies if sentencing after 28 June 2022, regardless of offence date. | Court adopted view that release provisions apply based on sentencing date. |
| R v Freeth [2023] EWCA Crim 1754 | Section 244ZA does not apply to offences committed before 28 June 2022 despite sentencing after that date. | Allowed appeal to correct disqualification period; agreed section 244ZA not applicable. |
| R v Bates [2024] EWCA Crim 684 | Confirmed approach in Freeth; section 244ZA does not apply retroactively. | Allowed minor correction to disqualification period; reaffirmed non-application of section 244ZA. |
| R (Uttley) v Secretary of State for the Home Department [2004] UKHL 38 | Distinction between penalty imposed and arrangements for early release; no heavier penalty imposed by release conditions. | Supported conclusion that early release provisions do not impose heavier penalty under Article 7(1). |
| Uttley v United Kingdom (App. no. 36946/03), ECtHR (2005) | Licence conditions are not part of the penalty under Article 7. | Confirmed no violation of Article 7 by changes to early release regime. |
| Del Río Prada v Spain (2014) 58 EHRR 37 | Distinction between penalty and execution/enforcement of penalty in context of early release. | Supported view that early release provisions do not constitute penalty. |
| R (Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin) | Changes in early release arrangements do not amount to heavier penalty under Article 7. | Agreed that early release regime changes relate to execution, not sentence length. |
| Morgan v Ministry of Justice [2023] UKSC 14 | Confirmed that changes restricting early release relate to execution of sentence, not increase of penalty. | Supported non-retroactivity in penalty terms of release arrangements. |
| R v Ahmed [2023] EWCA Crim 1537 | Sentencing guideline applies even if new maximum sentence does not; evaluation of culpability factors. | Found sentencing judge erred in placing offence at bottom of category range; relevant to Attorney-General's Reference. |
Court's Reasoning and Analysis
The court examined the statutory language of section 244ZA, particularly subsection (4)(d)(ii), concluding that the phrase "could have been imposed at the time the actual sentence was imposed" refers to the maximum sentence available for the offence at the date of sentencing, not the offender’s personal sentencing range. The court rejected the argument that section 244ZA should only apply where the offender could personally have received a life sentence at sentencing, emphasizing that the provision targets the seriousness of the offence rather than individual offender circumstances.
The court reviewed previous case law, noting conflicting interpretations and concluding that prior decisions in Jeffries, Freeth, and Bates were incorrect on this point, while adopting the reasoning in Lomas. It held that the release provisions under section 244ZA apply to offenders sentenced after 28 June 2022 for offences that, at sentencing, carry a maximum life sentence, regardless of when the offence was committed.
On the issue of retroactivity and compatibility with Article 7(1) of the European Convention on Human Rights, the court relied on established authority distinguishing the sentence imposed from the arrangements for early release. The court found that section 244ZA’s provisions govern the execution of the sentence and do not impose a heavier penalty than was applicable at the time of the offence, thus not engaging Article 7(1).
Regarding the Attorney-General’s Reference, the court found that the sentencing judge erred in applying the sentencing guideline by placing Defendant’s culpability towards the bottom of the category range without adequately reflecting the totality and seriousness of the offending. The court concluded that the sentence was unduly lenient and substituted a higher sentence consistent with the guideline and the facts.
Holding and Implications
The court's final decisions are as follows:
- Dismissed Plaintiff’s application for judicial review concerning the release date calculation under section 244ZA.
- Dismissed Appellant’s appeal against sentence and extended driving disqualification period.
- Allowed in part the Attorney-General’s application to refer Defendant’s sentence as unduly lenient; quashed the original sentence and disqualification order and substituted an increased custodial sentence and a revised disqualification period reflecting the two-thirds release point under section 244ZA.
The court’s interpretation establishes that section 244ZA applies based on the maximum sentence available at the date of sentencing, not the offence date, thereby affecting release eligibility for offenders sentenced after 28 June 2022. This clarifies the legal position and resolves conflicting prior authorities, but does not create a new precedent on retroactivity or Article 7 compatibility beyond reaffirming established principles regarding the execution of sentences versus the penalty imposed.
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