Category: Criminal Sentencing

Regina v J: CACD 4 Jul 2000

It does not necessarily follow from the mere possession of drugs that a person is not a mere minder or custodian

Lord Woolf of Barnes LCJ, Rougier, Bell JJ
[2000] EWCA Crim 115, [2001] 1 Cr App R (S) 79
Bailii
Drug Trafficking Act 1994 2
Cited by:
Cited – Mackle, Regina v SC 29-Jan-2014
Several defendants appealed against confiscation orders made against them on convictions for avoiding customs and excise duty by re-importing cigarettes originally intended for export. They had accepted the orders being made by consent, but now . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 29 December 2021; Ref: scu.544931

Kakkad, Regina v: CACD 17 Mar 2015

Appeal against a confiscation order. The defendant argued that once a court had made a forfeiture order, it had no continuing jurisdiction under the 2002 Act

Pitchford LJ, Cooke, Lang JJ
[2015] EWCA Crim 385, [2015] Crim LR 642, [2015] WLR(D) 130
Bailii, WLRD
Proceeds of Crime Act 2002 10
England and Wales

Criminal Sentencing

Updated: 28 December 2021; Ref: scu.544340

Keywood, Regina v: CACD 26 Oct 2021

The sole ground of appeal relates to a Sexual Harm Prevention Order (‘SHPO’) which the Recorder imposed in place of an existing Sexual Offences Prevention Order (‘SOPO’) which he discharged. The ground of challenge is that the Recorder lacked jurisdiction to grant the SHPO or to discharge the SOPO.

Lord Justice Popplewell,
Mr Justice Dove,
His Honour Judge John Potter
[2021] EWCA Crim 1692
Bailii
England and Wales

Criminal Sentencing

Updated: 28 December 2021; Ref: scu.669846

James, Regina (on The Application of) v HM Prison Birmingham and Others: CA 9 Feb 2015

The court considered the treatment of time on remand by those who have been arrested under section 43 of the 2009 Act for breach of a final gang injunction order under sections 34 to 36 of the 2009 Act, and subsequently imprisoned for contempt of court pursuant to section 14 of the Contempt of Court Act 1981 and section 120 of the County Courts Act 1984.

Arden, Beatson, Gloster LJJ
[2015] EWCA Civ 58
Bailii
Policing and Crime Act 2009 43, Contempt of Court Act 1981 14, County Courts Act 1984 120
England and Wales

Criminal Sentencing, Contempt of Court

Updated: 27 December 2021; Ref: scu.542435

Dillon v Regina: CACD 20 Jan 2015

‘This appeal against sentence in a murder case, brought by leave of the single judge, raises once again the issue of when a weapon is to be treated as having been ‘taken to the scene’ for the purposes of paragraph 5A of Schedule 21 to the Criminal Justice Act 2003.’

Bean LJ, Globe, Turner JJ
[2015] EWCA Crim 3
Bailii
Criminal Justice Act 2003 S21 5A
England and Wales

Criminal Sentencing

Updated: 27 December 2021; Ref: scu.541566

Barclay, Regina v: CACD 29 Oct 2021

wounding with intent to cause grievous bodily harm

Lord Justice Coulson,
Mr Justice Jeremy Baker,
The Recorder of Leeds,
(His Honour Judge Kearl QC),
(Sitting as a Judge of the Court of Appeal Criminal Division)
[2021] EWCA Crim 1675
Bailii
England and Wales

Criminal Sentencing

Updated: 27 December 2021; Ref: scu.669841

Link Spolka ZOO and Others v Secretary of State for The Home Department: CA 2 Dec 2021

Operation of Part II of the Immigration and Asylum Act 1999 [‘the Act’], which provides for carriers who are found with clandestine entrants on board their vehicles to be liable to civil penalties. The facts of each case differ slightly but are in many respects routine and typical. In each case the appellants appealed to the County Court against the Respondent SSHD’s imposition of a penalty. The present appeals are from the decisions of the respective County Court judges.

Lady Justice King DBE,
Lord Justice Stuart-Smith,
And,
Lord Justice Warby
[2021] EWCA Civ 1830
Bailii
England and Wales

Immigration, Criminal Sentencing

Updated: 27 December 2021; Ref: scu.670337

Richards, Regina (on The Application of) v Teesside Magistrates’ Court and Another: CA 16 Jan 2015

The court was asked whether the powers conferred under the Sexual Offences Act 2003 (‘the SOA 2003’) enable a person who is subject to a Sexual Offences Prevention Order (‘SOPO’) to be required to wear a Location Monitoring Device, ‘a tag’, when away from the premises at which he is residing or staying overnight. The tag uses a global positioning system (‘GPS’) to identify the location of the person wearing it.

Lord Dyson MR, Beatson, Fulford LJJ
[2015] EWCA Civ 7, [2015] WLR(D) 13, (2015) 179 JP 119, [2015] 1 Cr App R (S) 60, [2015] 1 WLR 1695, [2015] Crim LR 461, 179 JP 119
Bailii, WLRD
European Convention on Human Rights 8, Sexual Offences Act 2003
England and Wales

Criminal Sentencing, Human Rights

Updated: 25 December 2021; Ref: scu.541484

Bayliss v Parole Board of England and Wales and Another: CA 16 Dec 2014

The Court of Appeal Criminal Division had quashed an indeterminate sentence imposed on the claimant under s.225(3) of the CJA 2003 on an appeal brought long out of time on the ground that there had been no proper basis for the original finding that the Applicant posed a significant risk of serious harm to the public by the commission of further specified offences.

Sir Brian Leveson, P QBD, Elias, Rafferty LJJ
[2014] EWCA Civ 1631
Bailii
Criminal Justice Act 2003 225(3)
England and Wales

Criminal Sentencing, Human Rights

Updated: 24 December 2021; Ref: scu.539978

Gray and Others, Regina v: CACD 7 Oct 2014

These applications raise yet again the question of when it is appropriate to make a loss of time order.
Held: ‘the only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985’.

Hallett VP CACD LJ, Sweeney, Warby JJ
[2014] EWCA Crim 2372
Bailii
Criminal Appeal Act 1968, Prosecution of Offences Act 1985
England and Wales
Cited by:
Cited – AXN v The Queen CACD 27-May-2016
The defendant argued that greater note should have been taken on his sentencing to allow for the assistance he had given to the police after his arrest.
Held: The current accepted practice is that the text of the letter from the police to the . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 24 December 2021; Ref: scu.539449

The Secretary of State for Justice v RB and Another: CA 20 Dec 2011

The court considered and rejected the possibility of the First Tier Tribunal making orders under the 2005 Act which would have the effect of depriving a patient of his liberty. The respondent, now aged 73, suffered a persistent delusional condition and was a ‘restricted patient’.

Maurice Kay LJ VP, Arden, Moses LJJ
[2011] EWCA Civ 1608, (2012) 124 BMLR 13, [2012] 1 WLR 2043, [2012] AACR 31, [2012] MHLR 131, [2011] WLR (D) 379
Bailii, WLRD
Mental Health Act 1983
England and Wales
Cited by:
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Health, Criminal Sentencing

Updated: 24 December 2021; Ref: scu.450118

Regina v Prime: CACD 1985

Lawton LJ confirmed the need for deterrent sentencing in cases of communication information likely to be of assistance to an enemy: ‘Anyone, particularly those in the Armed Services and Government Service who is tempted, whether by money, threats of blackmail or ideology, to communicate sensitive information to a potential enemy, should have in mind what happened to this applicant. This is particularly so nowadays when, because of the developments in the gathering and storing of information by electronic means, those in comparatively lowly positions often have access to material which could endanger the security of the state if it got into the wrong hands.’

Lawton LJ
[1983] 5 CAR (S) 127
England and Wales
Cited by:
Cited – James, Regina v CACD 25-Jun-2009
The defendant appealed against his conviction for communicating information likely to be useful to an enemy. His sentence was heavier because of the trust placed in him as an army officer, but the relationship with the foreign power had not fully . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Armed Forces

Updated: 23 December 2021; Ref: scu.373760

Regina v Smith: CACD 1996

The defendant appealed against his sentence for communicating information likely to be of assistance to an enemy.
Held: The sentence for communicating information was reduced to 5.5 years’ imprisonment, while the longer consecutive sentence for collecting information was unchanged.

[1996] 1 CAR(S) 202
England and Wales
Cited by:
Cited – James, Regina v CACD 25-Jun-2009
The defendant appealed against his conviction for communicating information likely to be useful to an enemy. His sentence was heavier because of the trust placed in him as an army officer, but the relationship with the foreign power had not fully . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 23 December 2021; Ref: scu.373759

Regina v Kehoe: CACD 8 Apr 2008

The defendant appealed against the imposition of a life sentence with a minimum of four and a half years imprisonment through section 225.
Held: A finding under section 225 would lead to adequate protection against the defendant, and the addition of a life term should be reserved for truly exceptional cases. Pre-2003 cases should not now be followed.
‘When, as here, an offender meets the criteria of dangerousness, there is no longer any need to protect the public by passing a sentence of life imprisonment for the public are now properly protected by the imposition of the sentence of imprisonment for public protection. In such cases, therefore, the cases decided before the Criminal Justice Act 2003 came into effect no longer offer guidance on when a life sentence should be imposed. We think that now, when the court finds that the defendant satisfies the criteria for dangerousness, a life sentence should be reserved for those cases where the culpability of the offender is particularly high or the offence itself particularly grave. It is neither possible nor desirable to set out all those circumstances in which a life sentence might be appropriate, but we do not think that this unpremeditated killing of one drunk by another, at a time when her responsibility was diminished, and after she was provoked, can properly be said to be so grave that a life sentence is required or even justified. Accordingly, we quash the life sentence and substitute a sentence of imprisonment for public protection.’

Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Wilkie and Mr Justice Openshaw
Times 28-Apr-2008, [2008] EWCA Crim 819, [2009] 1 Cr App R(S) 9
Bailii
Criminal Justice Act 2003 225
England and Wales
Cited by:
Cited – Wilkinson and Others, Regina v, Attorney-General’s Reference No 43 of 2009 CACD 6-Oct-2009
The court examined the provisions distinguishing between sentences of imprisonment for life and imprisonment for public protection (IPP) in cases involving very serious gun and drugs crimes.
Held: The Avis case guidelines remained valuable, . .
Cited – Fort, Regina v CACD 13-Dec-2013
The defendant had been found guilty of manslaughter by virtue of diminished responsibility. He had been 17, and a technically incorrect sentence of life imprisonment had been passed. There had been conflicting diagnoses of his condition between . .
Cited – Sturnham, Regina (on The Application of) v The Parole Board of England and Wales and Another (No 2) SC 3-Jul-2013
From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection (‘IPP’). The Court addressed the practical and legal issues resulting from the new system.
Held: The decision . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 23 December 2021; Ref: scu.268790

Darrin Roger Thomas and Haniff Hilaire v Cipriani Baptiste: PC 17 Mar 1999

(Trinidad and Tobago) If the reason for delay in executing a prisoner was the slowness of bodies with whom appeals had been undertaken, that delay itself was not to be considered a good reason for preventing the execution. A delay period above 18m would be disregarded. The phrase ‘due process of law’ is a compendious expression in which the word ‘law’ does not refer to any particular law and is not a synonym for common law or statute. Rather it invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilised nations which observe the rule of law.’

Lord Millett
Times 23-Mar-1999, [1999] UKPC 13, (Appeal No 60 of 1998), [1999] 3 WLR 249, [2000] 2 AC 1
Bailii, PC, PC, PC
England and Wales
Cited by:
Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 23 December 2021; Ref: scu.174593

C and D, Regina (on the Application of) v Sheffield Youth Court and Another: Admn 23 Jan 2003

In making its sentencing decision the Youth Court should take into account any undisputed fact put forward in mitigation, such as the good character of the accused, and the Youth Court must consider the sentencing powers of the Crown Court under section 91(3) and the guidance that has been given as to their exercise – ‘If, on the basis of that guidance, there is no real possibility of such a sentence, committal is inappropriate.’ and ‘Was the decision of the Youth Court wrong? The test is one appropriate to a review court rather than one making the original decision. Parliament has clearly given the original decision to the Youth Court, and in terms that admit of some latitude: … There is normally a range of appropriate sentencing decisions available, and a sentence within that range cannot be said to be wrong: . . .It is not sufficient for the High Court to consider that it would have made a different decision under section 24(1) to that of the Youth Court. Only if the High Court is satisfied that the original decision was wrong may it interfere.’

Stanley Burnton J
[2003] EWHC 35 (Admin)
Bailii
Magistrates’ Courts Act 1980 24(1)
England and Wales
Cited by:
Cited – Regina (Director of Public Prosecutions) v Camberwell Youth Court; Regina (H) v Camberwell Youth Court QBD 23-Jul-2004
The DPP sought directions as to the issuing of voluntary bills of indictment to have transferred to the Crown Court, allegations of robbery against youths between 12 and 14.
Held: A child convicted of an offence for which an adult would . .

Lists of cited by and citing cases may be incomplete.

Magistrates, Criminal Sentencing

Updated: 23 December 2021; Ref: scu.184929

Regina v Hobbs, Hobbs, Hobbs, Charge: CACD 14 Feb 2002

The defendants appealed sentences of 7.5 and 3 years for conspiracy to facilitate illegal immigration. They had hired lorries with a view to bringing people in It was submitted that the sentences were outside the powers under the Act. The sentence had been increased to ten years. The conspiracy extended over the point where the sentence maximum was increased, and the applicable overt act occurred after the change.
Held: Where a conspiracy continues beyond a change in the law it was appropriate to consider the two time spans separately. Under the convention a sentence must not extend beyond one provided for in law. A conspiracy is complete when the agreement is made, and the maximum sentence must be derived at that point. Appeal allowed.

Lord Justice Pill Mrs Justice Hallett Dbe And His Honour Judge Fawcus
[2002] EWCA Crim 387
Bailii
Criminal Law Act 1977 1(1), Immigration and Asylum Act 1999 29, Immigration and Asylum Act 1999 (Commencement No 2 and Transitional Provisions) Order 2000 (SI 2000 No 168), European Convention on Human Rights 7(1)
England and Wales
Citing:
Cited – Regina v Cairns CACD 28-Oct-1997
The defendant appealed sentences of 7 years for indecent assaults on young girls. He was a policeman running a youth club. Certain of the allegations related to times when the maximum sentence was two years, but the defendant’s pleas specifically . .
Cited – Mulcahy v Regina HL 1868
When two or more agree to carry a criminal scheme into effect, the very plot is the criminal act itself, the conspiracy. . .
Cited – SW v The United Kingdom; CR v United Kingdom ECHR 22-Nov-1995
Criminal Law Change not retrospective
The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 23 December 2021; Ref: scu.167997

Regina v Fryer etc: CACD 19 Mar 2002

The appellants had been convicted of assaulting prisoners in their care as prison officers.
Held: A prison officer had a particularly high duty of care toward prisoners. He held a position of trust. A prison officer who assaulted a prisoner must expect to be dealt with severely. The damage caused did not stop at damage to the prisoner, but extended to the prison system, and the proper administration of prisons. Sentences of over three years were upheld.

Lord Justice Auld, Mr Justice Newman and Mr Justice Roderick Evans
Times 10-Apr-2002
England and Wales

Criminal Sentencing

Updated: 23 December 2021; Ref: scu.168536

Regina v Szczerba: CACD 6 Feb 2002

The defendant appealed against sentence following conviction for burglary and false imprisonment. He had received sentences of 8 years and life respectively, with a determinate period of 11 years, and an earliest release of 6 years. The sentences had been on the basis that the offence of false imprisonment was an offence of violence. He appealed.
Held: False imprisonment was a crime of violence. That test was passed if behaviour might lead to injury. It did not need to be shown that an injury was probable, only that it was foreseeable. Nevertheless, the determinate part of the sentence was too long and a minimum of 4.5 years was set in this case.
The Vice President: ‘There are, however, circumstances in which more than half may well be appropriate. Dr Thomas identified two examples. In Hayward [2000] 2 Cr.App.R. (S.) 418 a life sentence was imposed on a serving prisoner for an offence committed in prison. In such a case the term specified can appropriately be fixed to end at a date after that on which the defendant would have been eligible for release on licence from his original sentence. This may involve identifying a proportion of the notional determinate term up to two-thirds. Another example is where a life sentence is imposed on a defendant for an offence committed during licensed release from an earlier sentence, who is therefore susceptible to return to custody under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. In such a case the specified period could properly be increased above one-half, to reflect the fact that a specified period cannot be ordered to run consecutively to any other sentence.’

Lord Justice Rose, Mr Justice Jackson and Mr Justice Owen
Times 10-Apr-2002, [2002] 2 Cr App R (S) 387, [2002] EWCA Crim 440
Bailii
Powers of Criminal Courts (Sentencing) Act 2000 161(3)
England and Wales
Citing:
Cited – Regina v Haywood CACD 2000
The defendant had been sentenced to 8 years for robbery. Two days after being sentenced he attacked a prison officer. He pleaded guilty to wounding with intent. The Recorder of Liverpool sentenced him to life imprisonment, as he was obliged to do . .

Cited by:
Cited – Regina v Stevens (Danny) CACD 1-Dec-2003
The defendant appealed the imposition of a consecutive sentence to follow a mandatory life sentence. He was subject to a suspended sentence when he committed the offences for which he received the life sentence, and had been given a consecutive two . .
Cited – O’Brien, Harris, Moss, Llewellyn and others v Regina CACD 14-Jul-2006
In each case the court was asked whether a sentence imposed under section 225(2) of the 2003 CJA for the protection of the public could be made to run consecutively to the principle sentence for the offence, and how did this link in with the courts . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 23 December 2021; Ref: scu.169833

Regina v O’Halloran: CACD 14 Nov 2006

The defendant, after convictions for violence, now appealed against a sentence of detention for public protection for a period of two-and-a-half years.
Held: The court summarised the principles applicable: ‘(i) whilst it is not unlawful to impose consecutive indeterminate sentences, or an indeterminate sentence consecutive to another period of imprisonment, such a practice is undesirable. Common sense suggests that life imprisonment or IPP should start immediately it is imposed;
(ii) where a judge intends to order that a period before which the defendant becomes eligible for parole, should be served consecutively to an existing sentence, or should follow the period of return to prison under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, then in order to ensure that the sentence imposed includes the balance of the existing sentence, or the period under section 116, he should increase the notional determinate term to reflect that balance or that period (see R v Hayward [2000] 2 Cr App R(S) 418.
(iii) where a judge imposes concurrent and indeterminate sentences for two or more offences with concurrent minimum terms and absent those indeterminate sentences he would have passed consecutive determinate sentences, he may reflect in the notional determinate term the totality of the offending by either choosing the same notional determinate term for all the offences or setting an increased notional determinate term for the most serious offence.’

Sir Igor Judge P QBD, Forbes, Treacy JJ
[2006] EWCA Crim 3148
Bailii
England and Wales
Cited by:
Cited – Crees, Regina v CACD 24-Oct-2007
The defendant had been convicted of several offences involing serious assaults. He now appealed against a sentence to imprisonment for public protection. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 22 December 2021; Ref: scu.537360

Jones and Others, Regina v: CACD 16 Jul 2014

The several defendants were convicted of involvement in a conspiracy to fund a very substantial property portfolio by deceiving mortgage lenders. They said that the evidence of an expert witness was biasd and that they had not been allowed to put before the court evidence that she had been criticised for bias elsewhere.
Held: The evidence did not constitute evidence of bad character within the meaning of section 98 and section 112. The appeals against conviction were rejected. The sentence was a proportionate reflection of the seriousness of his offending over a substantial period of time. Accordingly the appeal against sentence is dismissed. An appeal by the wife of one was successful in reducing her sentence to 5 years imprisonment.

Pitchford LJ, Openshaw J, Deberah Taylor HHJ
[2014] EWCA Crim 1762, [2014] WLR(D) 319
Bailii, WLRD
Criminal Justice Act 2003 98 100 112(1), Criminal Justice Act 1987 12
England and Wales

Criminal Evidence, Criminal Sentencing

Updated: 21 December 2021; Ref: scu.536527

C v Balham Youth Court: Admn 22 May 2003

The court discussed sentencing practice on very young offenders: ‘The fact than an offender . . does not qualify for a detention and training order because he is only 14 and not a persistent offender is not an exceptional circumstance to justify passing a sentence of less than two years under section 91 of the 2000 Act.’ The relevant question was whether it was such a serious case that detention above two years would or might realistically be required. Two 14 year olds attempted to rob another 14 year old and no weapons were used, although one was threatened. The court found it inappropriate to think in terms of two years or more.

Scott Baker LJ
[2003] EWHC 1332 (Admin)
Bailii
England and Wales
Cited by:
Cited – Regina (Director of Public Prosecutions) v Camberwell Youth Court; Regina (H) v Camberwell Youth Court QBD 23-Jul-2004
The DPP sought directions as to the issuing of voluntary bills of indictment to have transferred to the Crown Court, allegations of robbery against youths between 12 and 14.
Held: A child convicted of an offence for which an adult would . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Children

Updated: 20 December 2021; Ref: scu.185329

Hamill v The Chelmsford Magistrates’ Court and Another: Admn 8 Aug 2014

The claimant had been convicted of a sexual offence many years before and was initially subject to an indefinite obligation to report his whereabouts to the police. After section 91B of the 2003 Act came in he asked for the requirements to be discontinued. He now challenged a refusal by the police and magistrates to do so. It waas also questioned whether a senior inspector had authority to sign the refusal when the act required it to be that of the chief constable.
Held: Judicial review was granted, and the magistrates would be required to rehear the case.

Aikens LJ, Bean J
[2014] EWHC 2799 (Admin)
Bailii
Sexual Offences Act 2003 91B, Sex Offenders Act 1997, Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004
England and Wales

Criminal Sentencing, Police

Updated: 18 December 2021; Ref: scu.535655

Regina (Uttley) v Secretary of State for the Home Department: Admn 8 Apr 2003

The court had to consider consider whether the application of statutory provisions requiring a prisoner to be released on licence, that were not applicable at the date of the offence, violated Article 7. The claimant had been sentenced to 12 years’ imprisonment for various sex offences.
Held: They did not. The essential question is whether the statutory imposition of the licence constituted the imposition of a penalty greater than that which would have been imposed at the time he committed the offences. The purpose of a licence was to enable a long-term prisoner to stay out of trouble, both for his own benefit and for the benefit of the community and so that he did not again lose his liberty. The nature and purpose of the licence are such that they dominate the factors which go to the conclusion as to whether the imposition of a licence is a penalty or not. The imposition of a licence is designed to protect the public once an prisoner is released, and assist in preventing the prisoner from committing further offences.

Moses J
[2003] EWHC 950 (Admin)
Bailii
European Convention on Human Rights 7.1
England and Wales
Citing:
Appealed to – Regina on the Application of Uttley v Secretary of State for the Home Department CA 30-Jul-2003
Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
Cited by:
Cited – McFetrich, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jun-2003
The defendant had been convicted of murder in Scotland. He requested a transfer to an English prison. The trial judge recommended a tariff of eight years which was eventually set at 12 years by the respondent. That figure also exceeded the maximum . .
Cited – Regina v R (Sentencing: Extended licences) CACD 25-Jul-2003
The imposition of an extended period of licence in respect of offences committed before 1992 did not infringe the defendant’s human rights. The defendant had been convicted of offences from 1976 and 1982. The commencement date for the 1991 Act was 1 . .
Appeal from – Regina on the Application of Uttley v Secretary of State for the Home Department CA 30-Jul-2003
Licence conditions imposed at the time of sentence would restrict the defendant after he had served his sentence and been released, and so operated as a heavier penalty, and section 33(1) was incompatible with the defendant’s Art 7.1 rights.
Human Rights, Criminal Sentencing

Updated: 18 December 2021; Ref: scu.184132

Regina on the Application of Clift v Secretary of State for the Home Department: Admn 13 Jun 2003

The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary.
Held: The decision itself was clearly not irrational. As to the involvement of the Home Secretary, the court applied the four stage sequence of analysis from Michalak. (i) Does it fall within a substantive convention provisions (ii) If so, was there different treatment between the complainant other comparitors? (iii) Were the chosen comparators analogous? (iv) If so, did the difference in treatment have an objective and reasonable justification? As to 1) Legislation on early release on parole falls within Article 5(1) to engage Article 14. On 2) there was a difference, and the comparators were analagous. The difference in treatment was however justified because of the particular difficulties making decisions realting to such offenders.

The Honourable Mr Justice Hooper
Times 25-Jun-2003, CO4732/2002, [2003] EWHC 1337 (Admin), Gazette 28-Aug-2003
Bailii
European Convention on Human Rights 5 14, Criminal Justice Act 1991 35 50
England and Wales
Citing:
Applied – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Nasser v United Bank of Kuwait CA 11-Apr-2001
The claimant, a foreign resident, alleged that her jewels had been stolen from a deposit box while in possession of the defendants. The defendants sought security for costs.
Held: An order for security may not legitimately be based on the bare . .
Cited – Regina on the Application of Giles v Parole Board and Secretary of State for the Home Department CA 4-Jul-2002
The prisoner had been sentenced to a punitive term, and an additional protective term under the Act. After the parole board had decided that he could be released from the punitive part of the sentence, he obtained declaration that the board should . .
Cited – Regina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Cited by:
Appeal from – Clift, Regina (on the Application of) v Secretary of State for the Home Department CA 29-Apr-2004
The claimant was a prisoner serving a determinate term exceeding 15 years. He complained that the respondent’s remaining juridsiction as to his release on licence infringed his human rights.
Held: This was the sole remaining element of the . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights, Prisons

Updated: 16 December 2021; Ref: scu.183565

Jenkin, Attorney General’s Reference No 34 of 2014: CACD 8 Jul 2014

The AG referred for reconsderation a minimum sentence of twelve years imposed on the defendant for the murders of his mother and sister. Evidence was that he suffered mental illness which affected his responsibility.

Teacy LJ, Foskett J, Inman QC HHJ
[2014] EWCA Crim 1394
Bailii
England and Wales

Criminal Sentencing

Updated: 16 December 2021; Ref: scu.533946

Connal v Procurator Fiscal, Stirling: HCJ 4 Jul 2014

HCJ ‘This appeal, following upon a Reference from the Scottish Criminal Cases Review Commission, raises an issue concerning the proportionality of prohibitions in Sexual Offences Prevention Orders (SOPOs) which restrict a person’s access to the internet. The decision in that regard may have some resonance in relation to conditions attached to other sentencing disposals, including community payback orders.’

Lord Carloway, the Lord Justice Clerk
[2014] ScotHC HCJAC – 57
Bailii

Scotland, Criminal Sentencing

Updated: 16 December 2021; Ref: scu.533864

Paulet v The United Kingdom: ECHR 13 May 2014

ECHR Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Narrow scope of review for order confiscating wages from employment obtained using a false passport: violation
Facts – The applicant, an Ivoirian national living illegally in the United Kingdom, obtained employment using a false French passport. From 2003 to 2007 he accumulated over GBP 20,000 in savings. When he applied for a driving licence with the same passport, the falsity of the document was discovered and criminal proceedings were brought against him. At his trial the applicant pleaded guilty. The trial judge sentenced him to prison, recommended him for deportation, and imposed a confiscation order in respect of all of his savings under section 6 of the Proceeds of Crime Act 2002. The applicant appealed against the confiscation order on the ground that it was an abuse of process and oppressive, noting that Parliament had intended the Proceeds of Crime Act to be compatible with Article 1 of Protocol No. 1 to the Convention. The Court of Appeal dismissed his appeal.
Law – Article 1 of Protocol No. 1
(a) Admissibility – The Government contended that the application should be rejected for non-exhaustion of domestic remedies because the applicant’s complaints in the domestic proceedings had been framed by reference to domestic law (‘oppression’ and ‘abuse of process’), not by reference to the Convention (‘disproportionate’). However, the Court held that the applicant, in arguing that the confiscation order was an abuse of process and oppressive because it was disproportionate in light of Article 1 of Protocol No. 1, had taken sufficient steps towards advancing his Convention complaint at the domestic level. Moreover, at the time the applicant brought his complaint before the domestic courts, it had been appropriate for him to argue his case in terms of ‘oppression’ and ‘abuse of process’ because it was only in a later case (R v. Waya [2012] UKSC 51) that the Supreme Court had indicated that it would be preferable to analyse confiscation cases in terms of proportionality under Article 1 of Protocol No. 1.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – The applicant complained that the confiscation order was a disproportionate interference with his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1. The Government argued that the order was proportionate because it only confiscated assets with a value equivalent to the applicant’s benefit from his criminal conduct. However, rather than ruling on whether the order met the proportionality requirement, the Court ruled on procedural grounds. The Court observed that the scope of review carried out by the Court of Appeal was too narrow, as it had only asked whether the order was in the public interest, and not whether it maintained a fair balance between property rights and the public interest. On the contrary, the Court of Appeal had only asserted that the abuse of process jurisdiction had to be exercised ‘sparingly’. Given that fair balance was not within the Court of Appeal’s scope of review, the Court concluded that there had been a violation of Article 1 of Protocol No. 1 of the Convention.
Conclusion: violation (six votes to one).
Article 41: EUR 2,000 in respect of non-pecuniary damage.

6219/08 – Legal Summary, [2014] ECHR 714, Times 19-May-2014
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 16 December 2021; Ref: scu.533846

Rowan, Regina (on The Application of) v The Governor of Her Majestys Prison Berwyn and Another: Admn 5 Nov 2021

The claimant was sentenced to a term of imprisonment. He was released on licence but failed to comply with the terms of the licence and he was recalled to prison. This is a claim for judicial review challenging (1) the lawfulness of the detention of the claimant following his recall to prison and (2) the calculation of the date of re-release on licence and the length of any remaining licence period.

[2021] EWHC 3136 (Admin)
Bailii
England and Wales

Prisons, Criminal Sentencing

Updated: 12 December 2021; Ref: scu.670068

Manning, Regina v: CACD 30 Apr 2020

AG’s reference – lenient sentence
‘We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.’

Lord Burnett of Maldon LCJ
[2020] EWCA Crim 592, [2020] WLR(D) 284
Bailii, WLRD
England and Wales
Cited by:
Cited – Hussain v Vaswani and Others CA 18-Sep-2020
Breach of Undertaking went Beyond Debt
The tenant had obtained a stay of execution of a warrant for possession, by undertaking to discharge the arrears. He failed to pay, and the Court now considered whether such a failure was a contempt with a possible imprisonment for punishment. The . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 11 December 2021; Ref: scu.650715

Mckendrick v The Financial Conduct Authority: CA 28 Mar 2019

Appeal from sentence for contempt of court – Defendant breaching terms of worldwide freezing order – Defendant committed to six-month prison sentence
‘In deciding what sentence to impose for a contempt of court, the judge has to weigh and assess a number of factors. This court is reluctant to interfere with decisions of that nature, and will generally only do so if the judge: (i) Made an error of principle; (ii) Took into account immaterial factors or failed to take into account material factors; or (iii) Reached a decision which was plainly wrong in that it was outside the range of decisions reasonably open to the judge. See Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 , at paras 35-36, Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260; [2008] 1 WLR 748, at para 16, Stuart v Goldberg Linde [2008] EWCA Civ 2; [2008] 1 WLR 823, at paras 76 and 81 and the very recent decision of this court in Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA 392 (Civ), at para 44.
It follows from that approach that there will be few cases in which a contemnor will be able successfully to challenge a sentence as being excessive. If however this court is satisfied that the sentence was ‘wrong’ on one of the above grounds, it will reverse the decision below and either remit the case to the judge for further consideration of sanction or substitute its own decision.
In Liverpool Victoria Insurance Co Ltd v Zafar, at para 58 this court considered the correct approach to sentencing for a contempt of court involving a false statement verified by a statement of truth. We consider that a similar approach should be adopted when-as in this case-a court is sentencing for contempt of court of the kind which involves one or more breaches of an order of the court. The court should first consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order. In this regard, aggravating or mitigating factors which are likely to arise for consideration will often include some of those identified by Popplewell J in the Asia Islamic Trade Finance Fund case (see para 32 above). Having determined the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the contemnor’s means are so limited that the amount of the fine must be modest.
Breach of a court order is always serious, because it undermines the administration of justice. We therefore agree with the observations of Jackson LJ in the Solodchenko case (see para 31 above) as to the inherent seriousness of a breach of a court order, and as to the likelihood that nothing other than a prison sentence will suffice to punish such a serious contempt of court. The length of that sentence will, of course, depend on all the circumstances of the case, but again we agree with the observations of Jackson LJ as to the length of sentence which may often be appropriate. Mr Underwood was correct to submit that the decision as to the length of sentence appropriate in a particular case must take into account that the maximum sentence is committal to prison for two years. However, because the maximum term is comparatively short, we do not think that the maximum can be reserved for the very worst sort of contempt which can be imagined. Rather, there will be a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and as therefore justifying a sentence at or near the maximum.’

Hamblen, Holroyde LJJ
[2019] EWCA Civ 524, [2019] WLR(D) 192, [2019] 4 WLR 65
Bailii, WLRD
England and Wales

Contempt of Court, Criminal Sentencing

Updated: 11 December 2021; Ref: scu.635242

Attorney General’s Reference Nos. 31, 45, 43, 42, 50 and 51 of 2003: CACD 24 Jun 2004

The Lord Chief Justice of England and Wales,
(The Lord Woolf of Barnes),
Mr Justice Forbes,
And,
Mr Justice Bell
[2004] EWCA Crim 1717
Bailii
England and Wales
Cited by:
See Also – Attorney General’s Reference v Nos. 31, 45, 43, 42, 50 and 51 of 2003; Regina v McInerney; Regina v McLean CACD 16-Jul-2004
The court considered appeals by the Attorney-General against sentences considered to be too lenient, and in particular where a community penalty had been imposed rather than a sentence of immediate imprisonment.
Held: The Court emphasised the . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 11 December 2021; Ref: scu.263574

Regina (Crown Prosecution Service) v Guildford Crown Court: QBD 4 Jul 2007

The defendant had been convicted of rape. The judge had decided that an extended sentence was appropriate, and added four years to the seven year sentence under section 227. However the judge had no jurisdiction to do so, he retired on the same day and could not correct his mistake, and the prosecution delayed the appeal beyond the time limit. They now asked the divisional court to quash the sentence to allow him to be resentenced.
Held: To found a jurisdiction to quash the order, the prosecution had to establish that the matter related to a trial on indictment. The court had no such jurisdiction in this case, and could only resentence if requested by the defendant, who made no such request. The sentence was not itself an nullity and must be left to stand.

Lord Phillips of Worth Matravers LCJ, Griffith Williams J
Times 16-Jul-2007, [2007] EWHC 1798 (Admin), [2007] 1 WLR 2886
Bailii
Criminal Justice Act 2003 227
England and Wales
Citing:
Cited – Regina v Maidstone Crown Court, ex Parte Harrow London Borough Council QBD 30-Apr-1999
The High Court may review, on an application made by a properly interested party, a decision made by a Crown Court under the Act. Although this related to a trial on indictment, the Crown Court judge had made an order without jurisdiction. . .
Cited – Regina (Kenneally) v Snaresbrook Crown Court Admn 27-Nov-2001
That a mentally disturbed defendant may cause embarrassment by his behaviour in court was no reason for him not to be brought to court to be present when an order detaining him under the Act was to be made. The words of section 51(5) must be . .
Cited – Reynolds and Others, Regina v CACD 8-Mar-2007
The court considered how it could marry the law against the increase of penaties on appeal with the possible need to correct a judge’s error in sentencing. It summarised the provisions for sentencing for specified offences: ‘[The] regime requires . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Sentencing

Updated: 10 December 2021; Ref: scu.254620

Redding, Regina v: CACD 29 Sep 2021

Application by Her Majesty’s Attorney General pursuant to s.36 of the Criminal Justice Act 1988 for leave to refer a sentence to this court upon the ground that she regards it as unduly lenient.

[2021] EWCA Crim 1502
Bailii
England and Wales

Criminal Sentencing

Updated: 07 December 2021; Ref: scu.669228