Tag: Criminal Sentencing

Williams, Regina v: CACD 15 Mar 2017

Appeal against sentence 20 years imprisonment for manslaughter – police officer killed by escaping driver’s car.

Judges:

Sir Brian Leveson P QBD, Holroyde J, Sir John Saunders

Citations:

[2017] 4 WLR 78, [2017] 2 Cr App R (S) 12, [2017] EWCA Crim 305

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 28 March 2022; Ref: scu.591203

Morfitt, Regina v: CACD 25 May 2017

Application to quash a confiscation order made under section 6 of the 2002 Act after the prosecution and the defence had agreed, and presented to the judge, figures for the ‘value of the benefit’ and the ‘available amount’, which he approved. The appeal was argued on the basis that the approach adopted by the prosecution to the calculation of the benefit figure had been wrong in law.

Judges:

Lindblom LJ, Carr DBE J, Kinch QC HHJ

Citations:

[2017] EWCA Crim 669

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 6

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 27 March 2022; Ref: scu.588231

Stott, Regina v: CACD 24 Feb 2017

Appeal, brought by leave of the single judge, against an extended sentence comprising a custodial term of four years’ detention in a young offender institution and an extended licence period of four years.

Judges:

Simon LJ, Holroyde, Soole JJ

Citations:

[2017] EWCA Crim 370

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 27 March 2022; Ref: scu.588228

Tata Steel UK Ltd, Regina v: CACD 7 Jun 2017

The company appealed from very substantial fines imposed after serious incidents involving breaches of Health and Safety Regulations.

Judges:

F#Gross LJ, Jefford DBE J, Aubrey QC HHJ

Citations:

[2017] EWCA Crim 704

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing, Health and Safety

Updated: 27 March 2022; Ref: scu.588235

Mirchandani, Regina (on The Prosecution By) v Somaia: CACD 9 Jun 2017

Renewed application for leave to appeal against a confiscation order totalling 20 million pounds after convictions for fraud.

Judges:

Fuloford LJ, O’Farrell DBE J, Cooke QC HHJ

Citations:

[2017] EWCA Crim 741

Links:

Bailii

Statutes:

Criminal Justice Act 1988 71

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 27 March 2022; Ref: scu.588234

Barwick, Regina v: CACD 13 Oct 2000

The defendant had defrauded women of in excess of pounds 500,000. He admitted dishonesty. The court ordered confiscation under the 1988 Act, with the benefit assessed as that figure, adjusted to pounds 600,000 to allow for the return he should have made. No assets were traced, and the police said that he had hidden it, since he did not appear to have lived extravagantly or spent large sums of money. The appellant said he had gambled it away, but gave no evidence of this. His evidence was found evasive but the benefit figure was reduced by pounds 150,000 as an acknowledgement that some of the money had probably been spent over the years. He appealed contending that the judge had been wrong to place the burden on the appellant to establish that his realisable assets were less than the amount of the benefit.
Held: Where an application for a confiscation order was being resisted, the onus of proving the ‘benefit’ obtained is first upon the prosecution. The burden then lay on the defendant to establish to the civil standard, that he had no realisable assets and how the proceeds of the criminal activity were no longer available. The Act requires two distinct tasks. To determine the benefit, and then determine the amount that might be realised. The amount may be quite unrelated to the identifiable proceeds of the offence, eg a lottery win, inheritance, or other lawfully acquired property. The task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise; subject to the issue of changes in the value of the money.
‘it is likely that an offender may take steps to make the proceeds of crime difficult to trace. Once it is proved that he has received the benefit, it is pragmatic, and entirely fair to the defendant, to place upon him the onus of showing (to the civil standard) that he no longer has the proceeds or that their extent or value has diminished’ and ‘We stress that the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise . .’

Judges:

Judge LJ, Holman, Andrew Smith JJ

Citations:

Times 10-Nov-2000, [2001] 1 Cr App R (S) 445, [2000] EWCA Crim 3551, [2001] Crim LR 52, [2001] 1 Cr App R (S) 129

Links:

Bailii

Statutes:

Criminal Justice Act 1988 71

Jurisdiction:

England and Wales

Cited by:

Cited – Grayson and Barnham v The United Kingdom ECHR 23-Sep-2008
Each applicant had been subject to confiscation in criminal proceedings relating to drugs offences. They complained that the legislation had reversed the burden of proof.
Held: ‘it was not incompatible with the notion of a fair hearing in . .
Cited – Mcintosh and Another v Regina CACD 22-Jun-2011
The appellants argued that the court had misdirected itself in law when concluding that neither appellant had satisfied him that the amount that might be realised at the time he made the confiscation orders was less than the agreed amount of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Sentencing

Updated: 26 March 2022; Ref: scu.431642

Glaves v Crown Prosecution Service: CA 3 Feb 2011

Judges:

Lord Justice Toulson

Citations:

[2011] EWCA Civ 69, [2011] ACD 46

Links:

Bailii

Statutes:

Criminal Justice Act 1988 71, Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – May, Regina v HL 14-May-2008
The defendant had been convicted of involvement in a substantial VAT fraud, and made subject to a confiscation order. He was made subject to a confiscation order in respect of the amounts lost to the fraud where he was involved, but argued that the . .

Cited by:

Cited – Mcintosh and Another v Regina CACD 22-Jun-2011
The appellants argued that the court had misdirected itself in law when concluding that neither appellant had satisfied him that the amount that might be realised at the time he made the confiscation orders was less than the agreed amount of . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 26 March 2022; Ref: scu.428528

Cornick, Regina v: CACD 29 Jan 2015

Appeal against minimum term of 20 years set on conviction for murder. A schoolboy aged 15 had stabbed his teacher at school.
Held: The judge had set the correcting starting point at 25 years, and had given the correct credit for the early plea but the evidence was overwhelming.

Judges:

Lord Thomas of Cwmgiedd LCJ, Hallett DBE VP CACD LJ, Globe J

Citations:

[2015] EWCA Crim 110

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 24 March 2022; Ref: scu.581984

Pitman and Hernandez v The State: PC 23 Mar 2017

(Trinidad and Tobago) The Board considered questions concerning the law applicable to persons convicted of offences carrying a death sentence where they are to an extent mentally impaired. Thought the applicants were not now subject to such sentences, they had been imprisoned for very long times.

Judges:

Lady Hale, Lord Kerr, Lord Clarke, Lord Hughes, Lord Toulson

Citations:

[2017] UKPC 6, [2017] WLR(D) 215

Links:

Bailii, WLRD, Bailii Summary

Jurisdiction:

Commonwealth

Criminal Sentencing, Human Rights

Updated: 24 March 2022; Ref: scu.581725

Adams v Crown Prosecution Service (CPS): CA 27 Mar 2017

Appeal against refusal to grant to the appellant a certificate of inadequacy.
Held: The judge had been justified in his finding that the defendant had not discharged the burden of proof which fell upon him.

Judges:

Longmore, Hamblen, Irwin LJJ

Citations:

[2017] EWCA Civ 185, [2017] WLR(D) 212

Links:

Bailii, WLRD

Statutes:

Criminal Justice Act 1988 83(1)

Jurisdiction:

England and Wales

Criminal Sentencing

Updated: 24 March 2022; Ref: scu.581128

Regina v Jacobs: CACD 28 Dec 2000

A police officer is as entitled as anybody else not to be racially abused. An arrested person made racist remarks against a police officer, and was convicted of the offence of threatening behaviour, racially aggravated. Even though the appellant might not be racist, her offence passed the custody threshold. Even so a short sentence of three months was substituted.

Citations:

Times 28-Dec-2000

Statutes:

Crime and Disorder Act 1998 31(1)(b) 31(4)

Jurisdiction:

England and Wales

Police, Discrimination, Criminal Sentencing

Updated: 23 March 2022; Ref: scu.86986

CPS Nottinghamshire v Rose: CACD 21 Feb 2008

Judges:

Richards LJ, Openshaw J, Stephens QC J

Citations:

[2008] 2 Cr App Rep 15, [2008] 1 WLR 2113, [2008] Lloyd’s Rep FC 206, [2008] 2 Cr App R (S) 80, [2008] 3 All ER 315, [2008] WLR 2113, [2008] Crim LR 650, 200606278-B5, [2008] EWCA Crim 239

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Cited by:

Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
Cited – GH, Regina v SC 22-Apr-2015
Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 09 February 2022; Ref: scu.264656

A v ACC: QBD 15 Feb 2017

Claim for compensation brought by the claimant under the 2002 Act alleging a serious default on the part of the police in not disclosing to the Crown Court when applying for a restraint order against him, the fact that he was an informant who had given valuable information against the very criminal whose assets he was alleged to have laundered, thereby causing him loss.

Judges:

Openshaw J

Citations:

[2017] EWHC 301 (QB)

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 72

Jurisdiction:

England and Wales

Criminal Sentencing, Police

Updated: 03 February 2022; Ref: scu.577504

Vinter, Regina (on The Application of) v Secretary of State for The Home Department and Others: Admn 19 May 2016

The claimant prisoners said that section 269(4) of the 2003 Act was incompatible with their Article 3 rights.

Supperstone J
[2016] EWHC 1635 (Admin)
Bailii
Criminal Justice Act 2003 269(4), European Convention on Human Rights 3
England and Wales

Criminal Sentencing, Human Rights

Updated: 24 January 2022; Ref: scu.570532

A v Director of Public Prosecutions: CACD 23 Sep 2016

Application for permission to appeal against a decision refusing to cancel the registration under the provisions of the 2014 Regulations of an order made by a judge in France restraining the disposition of assets, up to a specified limit, of the applicant.

[2016] EWCA Crim 1393
Bailii
Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
England and Wales

Criminal Sentencing

Updated: 23 January 2022; Ref: scu.569623

Attorney Generals Reference Under Section 36 of The Criminal Justice Act 1988, Kelly and Others v Regina: CACD 30 Jun 2016

Appeal against sentences for conspiracy to rob as too lenient.
Held: The starting point for sentencing these offenders, taken from the guidelines applicable at the date of sentencing, in respect of their participation in this conspiracy to rob should be in the range of 6 to 11 years imprisonment, depending on the nature and extent of their involvement and their antecedents. The appeals succeedd in each case, and the sentences increased accordingly.

Lloyd Jones LJ, Gilbart, May JJ
[2016] EWCA Crim 750
Bailii
England and Wales

Criminal Sentencing

Updated: 18 January 2022; Ref: scu.566427

The City and County of Swansea v Swansea Crown Court and Another: Admn 9 Jun 2016

The defendant, suffering dementia and with other age related disabilities, had been found under the 2006 Act to have committed an historic rape. The authority now appealed saying that the supervision order imposed by the court had been outside its jurisdiction.
Held: He did not have the jurisdiction used. The case was remitted for resentencing

Hickinbottom J
[2016] EWHC 1389 (Admin)
Bailii
Criminal Procedure (Insanity) Act 1964

Criminal Sentencing

Updated: 17 January 2022; Ref: scu.565718

F and Another, Regina (on The Application of) v Secretary of State for The Home Department: SC 21 Apr 2010

The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the absence of a review was incompatible with their article 8 rights.
Held: The appeal failed. It was a question of proportionality. The requirements to notify addresses and report were infringements of the respondents’ article 8 rights. The court asked, to what extent it was an infringement, how vauable was the regime in the pursuit of a legitimate aim, and whether the success of the arrangement was dependent on the absence of a review system.
Where, given an opportunity, a defendant could satisfy the authorities that there was no need for a continued registration, there was no purpose served by a continued registration, and its associated infringements. There were already systems in place and relied on for the review of sex offenders, and therefore a system of review was practicable.
Lord Phillips said: ‘it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable.’

Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger, Lady Hale, Lord Clarke
[2010] WLR (D) 98, [2010] UKSC 17, [2010] 2 WLR 992, [2011] 1 AC 331, [2010] 2 All ER 707, (2010) 113 BMLR 209, 113 BMLR 209
SC, SC Summ, Bailii, WLRD
Sexual Offences Act 2003 82, European Convention on Human Rughts 8
England and Wales
Citing:
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Appeal From – JF and Another, Regina (On the Application of) v Secretary of State for the Home Department CA 23-Jul-2009
The claimants complained of the system under which they had been placed on the sex offenders’ register indefinitely with no ability to have the registration reviewed. They said that this interfered with their right to respect for their private and . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
At first Instance – F and Another, Regina (on the Application of) v Secretary of State for the Home Department QBD 19-Dec-2008
The defendants each complained that being placed on the sex offenders’ register indefinitely was a disproportionate interference with their rights for private and family life, and under European law.
Held: A declaration of incompatibility was . .
Cited – Stubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .
Cited – Bouchacourt v France ECHR 17-Dec-2009
The applicant had been sentenced to ten years’ imprisonment for rape and sexual assault on minors. His name had been placed automatically on a Register of Sexual and Violent Offenders, and had had to confirm his address every year and to give notice . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Adamson v The United Kingdom ECHR 26-Jan-1999
The Court reached the following conclusion as to the purpose of the notification requirements for sex offenders: ‘the purpose of the measures in question is to contribute towards a lower rate of reoffending in sex offenders, since a person’s . .
Cited – Massey v United Kingdom ECHR 8-Apr-2003
The applicant complained that there was no ‘assessment or review’ of the necessity for his sex offender registration. . .
Cited – Gallagher, Re an Application By for Judicial Review QBNI 9-Apr-2003
The applicant had been convicted of offences of indecent assault. He contended that the notification requirements of the 1997 Act infringed his rights under Article 8.
Held: The court rejected the claim: ‘The task of deciding whether the . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – A v The Scottish Ministers and Others, Re Application for Judicial Review SCS 27-Nov-2007
. .
Cited – Forbes v Secretary of State for the Home Department CA 11-Jul-2006
The defendant had been placed on the sex offenders’ register on conviction for fraudulent evasion of prohibitions on importing goods, by importing indecent photographs of children. He had maintained that he had not known of the exact nature of the . .

Cited by:
Cited – T, Regina (on The Application of) v Greater Manchester Police and Another Admn 9-Feb-2012
The claimant challenged the terms of an enhanced Criminal Records Certificate issued by the defendant. He had been warned in 2002 for suspicion of theft of two cycles. The record had been stepped down in 2009, but then re-instated. He wished to . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Sentencing

Updated: 09 January 2022; Ref: scu.409977

McCool and Another, Regina v: CANI 22 May 2015

Renewed applications for leave to appeal by two applicants who were convicted, following pleas of guilty, of offences of false accounting. They challenged the use of the Commencement order for the 2002 Act as it applied to offences coming into force after the partial commission of continuing unlawful benefits claims.

Morgan LCJ, Coghlin LJ and Gillen LJ
[2015] NICA 31
Bailii
Theft Act (Northern Ireland) 1969 17(1)(a), Proceeds of Crime Act 2002, Proceeds of Crime Act 2002 (Commencement No.5, Transitional Provisions, Savings and Amendment) Order 2003
Northern Ireland
Cited by:
Appeal from – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 01 January 2022; Ref: scu.549371

Regina v Secretary of State for the Home Department Ex Parte Pierson: CA 8 Dec 1995

The courts’ control over the exercise by the Home Secretary of his discretion on lifers was limited to procedural fairness. It was not irrational to refuse any reduction of a lifer’s minimum sentence after aggravation involving the prisoner.

Independent 12-Dec-1995, Times 08-Dec-1995
Criminal Justice Act 1991 35
England and Wales
Citing:
Appeal from – Regina v Secretary of State for Home Department Ex Parte Pierson QBD 14-Nov-1995
The Home Secretary does not have the power to increase a mandatory lifer’s base sentence for retribution purposes. His powers to revise minimum life sentence are not absolute; and must be used fairly. . .

Cited by:
Appeal from – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 31 December 2021; Ref: scu.87896

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

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 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

Rajendra Prasad v State of Uttar Pradesh: 1979

The court noted the substantial differences in culpability in different murders.

Krishna Iyer J
[1979] 3 SCR 78
England and Wales
Cited by:
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 04 December 2021; Ref: scu.226133

Attorney Generals Reference Nos 4, 5, 6, 7 and 8 of 2014: CACD 13 Mar 2014

AG’s appeal against sentences imposed saying that they were too lenient. The defendants had variously been convicted of offences of conspiracy to possess a firearm and, in some cases ammunition also, with intent to endanger life or to enable another to endanger life. There was a gangland context.

[2014] EWCA Crim 651
Bailii
England and Wales

CrimInal Sentencing

Updated: 03 December 2021; Ref: scu.525087

Howe, Regina v: CACD 10 Feb 2014

This matter is concerned with the appropriate level of sentencing for the offence of encouraging or assisting suicide pursuant to Section 2(1) of the Suicide Act 1961. It is a crime which is relatively rarely prosecuted.

[2014] EWCA Crim 114, [2014] WLR(D) 77
Bailii, WLRD
Suicide Act 1961 2(1)
England and Wales

Criminal Sentencing

Updated: 29 November 2021; Ref: scu.521113

Regina v Yorkshire Water Services Ltd: CACD 16 Nov 2001

The defendant company was sentenced for supplying water which was below standard. The fine imposed was calculated according to the number of consumers affected.
Held: When considering the level of fine, the court should look to, the degree of culpability; damage caused; the previous record; the need for balance between censure and any counter-productive effect, in the light of efforts to remedy the situation; and the acts of the water authority after the events in question. The number of complainants should not be used as a multiplier.

Lord Justice Mance and Mr Justice Rougier
Times 12-Dec-2001
Water Industry Act 1991 70(1)
England and Wales
Citing:
Cited – Regina v F Howe and Son (Engineers) Limited CACD 6-Nov-1998
The general run of fines imposed for Health and Safety breaches is too low. Penalties should be increased where the standards were compromised for cost cutting, for the degree of lapse, and where a fatality resulted. The same standards apply for . .

Lists of cited by and citing cases may be incomplete.

Environment, Criminal Sentencing

Updated: 23 November 2021; Ref: scu.167015

Director of Public Prosecutions v Scarlett: CACD 7 Feb 2000

A defendant subject to a confiscation order in criminal proceedings for drugs related offences could be ordered to repatriate assets from banks accounts held abroad. The absence of an explicit power in this behalf did not prevent the order because of the wide power to make such ancillary orders to ensure compliance with an order as appeared necessary. An additional punishment for contempt for failing to obey was not punishing him twice, and he could purge the contempt if he chose.

Times 07-Feb-2000
England and Wales

Criminal Sentencing, Banking, Contempt of Court

Updated: 23 November 2021; Ref: scu.80043

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 October 1992.
Held: The true nature of the provision was preventive, to ensure that some control was retained over a sex offender released early on licence, rather than punitive. The JT case had been decided without full reference to reported cases and was given per incuriam.

Kennedy LJ, Pitchers J
Times 04-Aug-2003
Powers of Criminal Courts (Sentencing) Act 2000 86, European Convention on Human Rights A-7, Criminal Justice Act 1991 44
England and Wales
Citing:
Cited – Welch v United Kingdom ECHR 15-Feb-1995
The applicant was convicted in 1988 of drug offences committed in 1986. The judge passed a sentence of imprisonment but imposed a confiscation order pursuant to an Act that came into force in l987.
Held: The concept of penalty in Article 7 was . .
Cited – Regina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
per incuriam – Regina v JT CACD 2003
The provisions of section 68 were punitive, and therefore could not be read to have retrospective effect. . .
Cited – Hogben v United Kingdom ECHR 3-Mar-1986
. .
Cited – Regina v Hodgson CACD 27-Jun-1996
Court to make use of control over sex offenders in appropriate cases by the use of extended licences. . .
Cited – 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’ . .
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 – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 20 November 2021; Ref: scu.185761

Harvey, Regina v: CACD 3 Jul 2013

The defendant had been convicted of handling and receiving stolen goods. He now appealed from a confiscation order made under the 2002 Act. The defendant having admitted to benefiting from a criminal lifestyle, the court had to decide to what extent, if any, he had benefited over the relevant period from his ‘general criminal conduct’, as defined by subsections (1) and (2) of section 76 of POCA. By no means all the items of machinery hired out by the Company were stolen, and the Crown accepted that the Company would have been viable if it had limited itself to legitimate activities. The total sum was calculated to include VAT. The defendant argues that since he had paid the VAT, this amounted to double counting.
Held: Save as to a default sentence, his appeal was dismissed.
As to the application of VAT: ‘[t]he court ha[s] to focus on the property coming to the offenders, not what happened to it subsequently’

Jackson LJ, Wyn Williams J,Russell QC HHJ
[2013] EWCA Crim 1104, [2013] WLR(D) 268, [2014] 1 Cr App Rep (S) 46, [2014] 1 WLR 124, [2013] Lloyd’s Rep FC 439
Bailii
Proceeds of Crime Act 2002 6 7 (10
England and Wales
Citing:
Applied – Basso and Another v Regina CACD 19-May-2010
The defendants had been convicted of offences of failing to comply with planning enforcement notices (and fined andpound;10.00), and subsequently made subject to criminal confiscation orders. The orders had been made in respect of the gross income . .

Cited by:
At CACD – Harvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
Cited – Ahmad, Regina v SC 18-Jun-2014
The court considered the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals (some of whom may not be before the court) had between them acquired property or . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 15 November 2021; Ref: scu.512128

B v Leeds Crown Court and Another: Admn 24 Feb 2016

Appeal by way of case stated from the Leeds Crown Court raises a question about the implications for the sentencing of youths of restrictions on the powers of a magistrates’ court to sentence adult offenders.

Simon LJ, Leggatt J
[2016] EWHC 1230 (Admin)
Bailii
England and Wales

Magistrates, Criminal Sentencing

Updated: 11 November 2021; Ref: scu.564801

Noone, Regina (on The Application of) v Governor of HMP Drake Hall and Another: SC 30 Jun 2010

The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of State explaining how the release date should be calculated where longest sentence as subject to the 2003 Act, and the shorter sentences subject to the 1991 Act. The CA had ruled the policy lawful.
Held: The appeal succeeded and the policy was declared unlawful. The 2003 Act brought in provisions which had not been implemented, and the Transitional Order applied. However the 2005 Order allowed the possibility of capricious results, and the result was not that intended by Parliament. Paragraph 14 of the 2005 Order was intended to apply only where all the sentences were less than twelve months, but this left a gap for the situation where one or more was not. It was intended that sections 262(3) and 264(2) and (3) should apply. The guidance incorrectly inferred that an order that two sentences are to be consecutive directs that the second should start when the custodial part of the first ends has no basis in law and converts a sentence that is directed to be consecutive into a sentence which is in part concurrent.

Lord Phillips, President, Lord Saville, Lord Brown, Lord Mance, Lord Judge
[2010] UKSC 30, [2010] WLR (D) 164, [2010] 1 WLR 1743, [2010] 4 All ER 463, [2010] 1 WLR 1743
Bailii, Bailii Summary, SC, SC Summary
Criminal Justice Act 1991, Criminal Justice Act 2003 181 244, Crime and Disorder Act 1998 101, Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005 14
England and Wales
Citing:
At First Instance – Noone, Regina (on the Application of) v HMP Drake Hall and Another Admn 31-Jan-2008
The court considered the complications created when the schemes for providing early release of short term prisoners had not been implemented, but the new Act impacted in the previous arrangements anyway as regards those sentenced to consecutive . .
Appeal from – Noone, Regina (on the Application of) v HMP Drake Hall and Another CA 17-Oct-2008
The prisoner disputed the calculation of the date when she would become entitled to consideration for early release under a Home Detention Curfew. The Secretary of State appealed against a decision that his policy guidance was unlawful.
Held: . .
Cited – Highton, Regina (on the Application of) v Her Majesty’s Youth Offender Institute Lancaster Farms and Another Admn 17-Apr-2007
Challenge to calculation of servable sentence term. . .
Cited – Round and Dunn v Regina CACD 16-Dec-2009
Non-consolidation of sentence to debar home curfew
Each defendant had been sentenced to consecutive terms of imprisonment under the 1991 and 2003 Acts. One was above and one below twelve months. They complained that the result of trying to reconcile the statutory provisions was that they had . .
Cited – Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others HL 10-Mar-2000
Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in . .
Cited – Attorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
Cited – Stellato, Regina (on the Application of)v Secretary of State for the Home Department HL 28-Feb-2007
The prisoner had served part of his ten year sentence, been released on licence and then recalled. He complained that the new parole system under which he had then to apply was invalid, having been made Parliament by negative resolution.
Held: . .
Cited – Buddington v Secretary of State for the Home Department CA 27-Mar-2006
The court considered the validity of of the claimant’s recall to prison. The words ‘falls to be released’ in paragraph 23 mean ‘is entitled to be released’ or ‘is released’. The author of the Order may have been suffering from ‘Homeric exhaustion’. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Prisons

Leading Case

Updated: 11 November 2021; Ref: scu.420018

Regina v Sivan: CACD 1988

Lord Lane CJ discussed the systems surrunding the giving of assistance to the police by suspects: ‘It is an area of law fraught with difficulties, as anyone who has practised in this field at the Bar or who has had to decide this type of case, either at trial or on appeal, will know all too well.’
He went on to identify three issues – the difficulty of ascertaining the true facts, the desire of the offender for confidentiality and the extent of credit to be given. He continued with suggestions as to good practice. A letter should be provided from a senior officer of police (or other authority). That officer must be unconnected with the case where assistance was to be given, must have examined the facts and be able to certify the facts as reported by the officers conducting the investigation. The officer in charge of the investigation should set out the facts as certified and should be available to give evidence if necessary, either in court or in chambers. In each case the procedure should be tailored to the circumstances.

Lord Lane CJ
(1988) 87 Cr App R 407
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

Leading Case

Updated: 11 November 2021; Ref: scu.564846

Shutt, Regina v: CACD 10 Dec 2010

The defendant had stolen from cash machines he was employed to repair. He appealed against the concurrent sentences of 8 months imposed.
Held: The appeal succeeded, and a sentence of 12 months supervision substituted. The defendant was of previous good character, had repaid much of what had been stolen, and had stolen only to support his young family. He had suffered psychological damage after witnessing two violent robberies. Reports had recommended non-custodial sentences. The recorder had put the offendig on a higher scale than it was.

Jack J, Stepens QC J
[2010] EWCA Crim 3033
Bailii
England and Wales
Citing:
Cited – Regina v Kinloch CACD 2009
The offender worked for a brewery and ran their public houses in central London. He was responsible amongst other tasks for collecting takings. He stole andpound;20,000.
Held: The court accepted the submission that the manager of a public . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 10 November 2021; Ref: scu.428668

Bieber (Aka Coleman) v Regina: CACD 23 Jul 2008

The Court considered whether a whole life sentence under section 269(4) of the 2003 Act was compatible with Article 3. The defendant had been convicted of murdering a policeman and of attempted murder of two others.
Held: The whole life tarriff was quashed. The 2003 Act introduced the possibility of a whole life sentence with the result that a sentenced prisoner might never be released. Although in this case a minimum sentence of 37 years would be substituted, the imposition of such a sentence in appropriate cases need not infringe the defendant’s human rights. Even with such a sentence it was the practice of the Home Secretary to consider the case after twenty five years, and also there was provision under the 1997 Act to allow a reduction in exceptional cases on compassionate grounds. The case of Kafkaris had not established that a whole life sentence was necessarily an infringement: ‘Schedule 21 of the 2003 Act proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be’.

Baron Phillips of Worth Matravers LCJ, Pitchford, Dobbs JJ
[2008] EWCA Crim 1601, Times 11-Aug-2008, [2009] 1 All ER 295, [2009] 1 WLR 223, [2008] HRLR 43
Bailii
Criminal Justice Act 2003, European Convention on Human Rights 3, Crime (Sentences) Act 1997 30
England and Wales
Citing:
Cited – Kafkaris v Cyprus ECHR 12-Feb-2008
(Grand Chamber) The claimant said that his rights had been infringed by the mandatory imposition of a life sentence after conviction for murder. Only the President could order the release of such a prisoner, either by exercising the power of mercy . .

Cited by:
Adopted – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – Oakes and Others v Regina CACD 21-Nov-2012
A specially constituted CACD heard sentencing appeals for defendants serving life terms for very grave crimes, and in particular, the judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .
Cited – Vinter, Regina v CACD 25-Jun-2009
The appellant challenged the imposition of a whole life term after his conviction for a serious, second, murder. . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The appellants had each been convicted of more than one murder and had been sentenced to to whole life terms. They complained that the absence of a possibility of review or remission
The applicants had each been convicted of . .
Cited – Regina v McLoughlin; Regina v Newell CACD 18-Feb-2014
In each case the appellant had been convicted of particularly serious murders and had been given whole liife terms. They now appealed saying that such sentences were incompatible with their human rights after the ruling of the ECHR Grand Chamber in . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.271029

Martin v Her Majesty’s Advocate: SC 3 Mar 2010

The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish Parliament and the challenge failed. The section set out to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff was defined by the penalties which he can impose and his powers are quintessentially matter of Scots criminal law. As a rule of Scots criminal law, it did not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998. It was a change in procedure.
Lord Walker said that the expression ‘relates to’ in section 29(2)(b) and (3) was ‘familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provision’s purpose and effect, reinforces that.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 10, UKSC 2009/0127, 2010 SCL 476, 2010 SLT 412, 2010 SC (UKSC) 40
Bailii, Times, SC, SC Summ, Bailii Summary
Scotland Act 1998 29(2)(b), Criminal Proceedings etc (Reform)(Scotland) Act 2007 45
Scotland
Citing:
Cited – Logan and Another v Procurator Fiscal HCJ 2-Jul-2008
The appellant challenged sentences for driving whilst disqualified. The defendant questioned the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights. . .

Cited by:
Cited – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Local Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
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 . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Leading Case

Updated: 09 November 2021; Ref: scu.402004

Blackman, Regina v (Sentence): CACD 28 Mar 2017

Sentence – manslaughter of prisoner

The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised medical condition. The court now considered sentencing.
Held: A sentence of seven years was imposed, which would, allowing for time served, lead to his imminent release.

[2017] EWCA Crim 325
Bailii
England and Wales
Citing:
See Also – Blackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See Also – Blackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See Also – Blackman, Regina v CACD 22-May-2014
The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Armed Forces

Updated: 09 November 2021; Ref: scu.581276

Waite v The United Kingdom: ECHR 10 Dec 2002

The claimant had been sentenced to be detained at Her Majesty’s pleasure when a youth. After release on licence, the Parole Board met and revoked that licence without an oral hearing, and in contravention of the rules. He did not dispute the facts which led to his recall. However, he submitted that issues arose concerning his character and mental state which rendered an oral hearing essential to the fairness of the proceedings.
Held: The effect of compliance with article 5.4 by the adoption of ppropriate procedures did not extend beyond the consequences of the first court decision. Where new issues arose affecting the lawfulness of a detention, such as after the expiry of the initial tariff period, the article 5.4 rights were revived. In this case they had been breached. There was no breach of article 5.1 rights because the applicant had given good cause for his recall. References to his relationship with another male whilst under the age of 18 had not affected the decision to recall, and he had not been discriminated against for his sexual orientation.
‘The court is not persuaded by the Government’s argument which appears to be based on the speculative assumption that whatever might have occurred at an oral hearing the Board would not have exercised its power to release. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success of obtaining his release. In matters of such crucial importance as deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses . . ‘

(2002) 36 EHRR 1001, Times 31-Dec-2002, 53236/99, [2002] ECHR 798, [2002] ECHR 804, [2003] Prison LR 160, (2003) 36 EHRR 54,
Worldlii, Bailii
Human Rights
Citing:
Cited – Wynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
Cited – Weeks v The United Kingdom ECHR 5-Oct-1988
The Court was asked as to the recall to prison of a prisoner who had been released on licence. His recall and subsequent detention were considered by the Board, but under the system then in place it could only make a non-binding recommendation. . .

Cited by:
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Hirst v Secretary of State for the Home Department CA 6-Jul-2006
The prisoner had been released on licence but then recalled. He complained that the procedure infringed his human rights. He had been convicted of manslaughter, and was seen to be a long term danger. The court awarded him compensation saying that . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – Osborn and Another v The Parole Board CA 15-Dec-2010
The three claimants complained that the respondent had made decisions adverse to them as to their release to or recall from parole.
Held: Review was refused. While there was ‘some force in the submission that, contrary to the understanding of . .
Cited – Osborn v The Parole Board Admn 19-Mar-2010
The claimants complained that decisions had been made by the respondents without them having been first given a right to an oral hearing. They now sought permission to bring judicial review.
Held: Permission was refused. The facts in the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178372

Main Against Scottish Ministers: SCS 22 May 2015

Second Division, Inner House. The petitioner said that the statutory delay of 15 years after leaving prison before a review of the idenite notification provisions of the 2003 Act were incompatible with his right of respect for his private life in terms of Article 8.1 of the European Convention.

Lord Carloway, Lord Justice Clerk
[2015] ScotCS CSIH – 41
Bailii
European Convention on Human Rights 8.1, Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011, Sexual Offences Act 2003
Scotland

Criminal Sentencing, Human Rights

Updated: 01 November 2021; Ref: scu.547648

Offen and Others, Regina v: CACD 9 Nov 2000

The court heard appeals against automatic life sentences imposed under the 1997 Act. It was contended that either the interpretation of section 2 of the 1997 Act was affected by section 3 of the 1998, or that section 2 is incompatible with a Convention right so that the appellants are entitled to a declaration of incompatibility.
Held: The challenges failed. Lord Woolf, gave fresh consideration to the construction of the statutory provisions in the light of the new circumstances.
The problem had arisen because of the restrictive approach formerly adopted to the interpretation of ‘exceptional circumstances’ in section 2. If exceptional circumstances are construed in a manner which accords with the policy of Parliament in passing section 2, the problem disappears: ‘Under section 2 it will be part of the responsibility of judges to assess the risk to the public that offenders constitute. In many cases the degree of risk that an offender constitutes will be established by his record, with or without the assistance of assessments made in reports which are available to the court. If a court needs further assistance, they can call for it. The courts have traditionally had to make a similar assessment when deciding whether a discretionary life sentence should be imposed. There should be no undue difficulty in making a similar assessment when considering whether the court is required to impose an automatic life sentence, although the task will not be straightforward, because of the lack of information as to the first serious offence which will sometimes exist because of the passage of time.
This does not mean that we are approaching the passing of an automatic life sentence as though it is no different from the imposition of a discretionary life sentence. Notwithstanding the interpretation resulting from the application of section 3(1) of the 1998 Act suggested, section 2 will still give effect to the intention of Parliament. It will do so, however, in a more just, less arbitrary and more proportionate manner. Section 2 will still mean that a judge is obliged to pass a life sentence in accordance with its terms unless, in all the circumstances, the offender poses no significant risk to the public. There is no such obligation in cases where section 2 does not apply. In addition, if the judge decides not to impose a life sentence under section 2, he will have to give reasons as required by section 2(3). Furthermore, the issue of dangerousness will have to be addressed in every case and a decision made as to whether or not to impose a life sentence.’
If in a individual case the facts showed that the statutory assumption that the public needed to be protected against the offender in the future was misplaced, then the position was exceptional. The norm is that those who commit two serious offences are a danger, or risk, to the public, but if in fact the offender on the evidence does not create an unacceptable risk to the public he is an exception to the norm. Offenders who do not constitute a significant risk to the public should not, said the court, receive an automatic life sentence

The Lord Woolf of Barnes LCJ, Steel, Richards JJ
[2000] EWCA Crim 96, [2000] Prison LR 283, [2001] 2 Cr App Rep (S) 10, [2001] 1 Cr App R 24, [2001] Crim LR 63, [2001] 1 WLR 253, [2001] 2 All ER 154, [2001] 1 Cr App Rep 372, [2000] Prison LR 283
Bailii
Crime (Sentences) Act 1997
England and Wales
Cited by:
Cited – S, Regina v CACD 25-Feb-2002
Appeal against sentence for rape, as the result of a reference by the Criminal Cases Review Commission. Life sentence imposed because of historic serious violence. The court was asked what were ‘exceptional circumstances’ so as to allow a non-life . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.263619

Bamber, Regina v: CACD 14 May 2009

The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002.
Held: The judge setting the tariff had agreed with and not merely felt himself bound by the judgments of the Home Secretary and earlier judges, and nor had he misdirected himself. The whole life tariff was not incompatible with the prisoner’s human rights.

[2009] EWCA Crim 962
Bailii
England and Wales
Citing:
See Also – Regina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
See Also – Regina v Secretary of State for the Home Department, Ex Parte Bamber CA 15-Feb-1996
The right of a prisoner to provide a recorded message for a radio station could properly be curtailed. . .
See Also – Bamber v United Kingdom ECHR 11-Sep-1997
The Commission declared inadmissible a complaint that Standing Order 5 G 2B infringed Article 10. The Order precluded prisoners from contacting the media by telephone except in exceptional circumstances. The Standing Order satisfied the requirement . .
See Also – Regina v Secretary of State for Home Department (ex parte Bamber) Admn 24-Apr-1998
The applicant was refused leave to apply for judicial review of a decision as to his release made on the basis of his refusal to accept his guilt. . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
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 – Bamber v Regina CACD 12-Dec-2002
. .
Cited – Kafkaris v Cyprus ECHR 12-Feb-2008
(Grand Chamber) The claimant said that his rights had been infringed by the mandatory imposition of a life sentence after conviction for murder. Only the President could order the release of such a prisoner, either by exercising the power of mercy . .
Cited – Caines, Regina v, Regina v Roberts CACD 23-Nov-2006
The prisoners appealed the review of the recommended minimum terms they must serve on that term being reviewed by the court, saying that the court should have made allowance for the exceptional progress to rehabilitation made in prison.
Held: . .
Cited – Pitchfork, Regina v CACD 14-May-2009
The defendant had been convicted of two rapes and murders in 1988. He was found to have a psychopathic disorder. His minimum term was first set at 25 years, then altered on review to 30 years. He now sought review of the period.
Held: Judge . .
Cited – Bieber (Aka Coleman) v Regina CACD 23-Jul-2008
The Court considered whether a whole life sentence under section 269(4) of the 2003 Act was compatible with Article 3. The defendant had been convicted of murdering a policeman and of attempted murder of two others.
Held: The whole life . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing., Human Rights

Updated: 01 November 2021; Ref: scu.343899

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.
Held: The increase in the minimum term to be served was an increase in the sentence. A mandatory life sentence was not to be distinguished for this purpose from a discretionary life sentence. The tariff-fixing procedure is not a statutory creature, and had to be looked at in substance not in form. Such an act carried out by the executive was an unacceptable blurring of the separation of powers. An act of sentencing could only be done by a court. In addition, the arrangement was in breach of the appellant’s right to have his sentence determined by a court, and a declaration of incompatibility of the section was made. A whole life tariff need not be inconsistent with a defendant’s human rights when properly imposed.
As to the relationship of the House of the ECHR, the House of Lords ‘will not without good reason depart from the principles laid down in a carefully considered judgment of the Grand Chamber.’

Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hutton, Hobhouse of Woodborough, Scott of Foscote, Rodger of Earlsferry, LL
Times 26-Nov-2002, Gazette 23-Jan-2003, [2002] UKHL 46, [2002] 3 WLR 180, [2003] 1 AC 837, [2003] HRLR 7, (2003) 13 BHRC 450, [2003] UKHRR 112, [2003] 1 Cr App R 32, [2002] 4 All ER 1089
House of Lords, Bailii
Murder (Abolition of Death Penalty) Act 1965 1(1), European Convention on Human Rights Art 6(1), Crime (Sentences) Act 1997 29
England and Wales
Citing:
Applied – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Benjamin and Wilson v The United Kingdom ECHR 26-Sep-2002
The applicant challenged the system in the UK of deciding on his release from a secure mental hospital. He had been a discretionary life prisoner, but then later his detention was continued because of his mental condition. Though an independent . .
Appeal from – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .

Cited by:
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Appeal to – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
Cited – 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. . .
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 (on the application of R) v Secretary of State for the Home Department QBD 12-Dec-2003
The decision to designate a prisoner with mental difficulties as a ‘technical lifer’ was not a sentencing exercise requiring a right for the issue to be heard before a court, and it remained a decision for the respondent. . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Regina v Sullivan; Regina v Gibbs; Regina v Elener; Regina v Elener CACD 8-Jul-2004
The appellants, each convicted of murder, challenged the minimum periods of detention ordered to be served.
Held: As to the starting point for sentencing, judges should have regard to the published practice directions, and not the letter from . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Mentioned – Smith, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The applicant had, as a child been subject to detention during Her Majesty’s pleasure, the sentence being imposed before 30 November 2000. She argued that that sentence should be subject to periodic review despite the term had been fixed by the Lord . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Barker, Regina v CACD 24-Oct-2008
The defendant appealed against the minimum term imposed on her under the 2003 Act. She argued that the court should have made allowance for the fact that she had made exceptional progress since arriving in prison.
Held: Caines established that . .
Cited – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178249