Court of Appeal holds that the extended licence component added to an extended sentence of imprisonment does count as part of the sentence of imprisonment

Court of Appeal holds that the extended licence component added to an extended sentence of imprisonment does count as part of the sentence of imprisonment

On 1st May 2013, the Court of Appeal, (Laws, Moore-Bick & Beatson LJJ) upheld the decision of the Divisional Court (Richards LJ, Eady & Treacy JJ ([2012] 1 WLR 1157)) in R (Minter) v Chief Constable of Hampshire Constabulary & Secretary of State for the Home Department [2013] EWCA Civ 697 (click here to read the judgment).

This decision will affect those given extended sentences (in which an extended licence period is added to their custodial period) where the extended licence period takes them over a relevant threshold for purposes such as sex offender registration or rehabilitation under the Rehabilitation of Offenders’ Act 1974.

Minter is a convicted sex offender who was given an extended sentence of imprisonment where the custodial period was 18 months and the licence extension period was 12 months. The prison authorities told him that he was required to comply with the notification regime under Part 2 of the Sexual Offences Act 2003 for 10 years, in the belief that he had been “sentenced to imprisonment for a term of … less than 30 months”. The Chief Constable notified him that he was, in fact, subject to lifelong notification, being someone who had “been sentenced … to imprisonment for a term of 30 months or more”, considering that the whole term applied, even though the sentencing court was not authorising Claimant’s detention for the last 12 months.

The same periods apply to rehabilitation under the 1974 Act, so that, if the Chief Constable was right, Minter would never be rehabilitated.

The Court of Appeal (Civil Division) was faced with conflicting authorities from the Court of Appeal, Criminal Division. In R v S (Graham) [2001] 1 Cr. App. R. 7, Lord Woolf LCJ, Rougier and Bell JJ, favoured the Claimant’s interpretation. In R v Wiles [2004] 2 Cr. App. R. (S) 88, the Vice President (Rose LJ), Mitting & Newman JJ considered S (Graham) to have been decided per incuriam. On the other hand, in R v H[2007] EWCA Crim 2622 Leveson LJ, Stanley Burnton and Pitchford JJ (as they then were) saw “considerable force” in S (Graham).

Giving the leading judgment of the Court of Appeal, in characteristically trenchant terms, Laws LJ (with whom Moore-Bick and Beatson LJJ agreed) held that S (Graham) was wrongly decided and that the Chief Constable’s interpretation of s.82(1) of the Sexual Offences Act 2003 was correct. That also means that Minter will never be rehabilitated under the 1974 Act.

Laws LJ dismissed the claimant’s argument that he was the victim of discrimination contrary to Article 14, read with Article 8 ECHR, as a result of the changing sentencing regime which would have meant that a person like him, committing his offences before the extended sentence regime was introduced or committing them after it was amended so that a sentence had to be deserving of 4 years’ imprisonment before it could be extended, would not have been subject to lifelong notification (and denied rehabilitation under the 1974 Act). Laws LJ held that a change in the law did not give rise to a violation of Article 14 and that, in any event, the Court was bound by the decision of the House of Lords in Clift v SSHD [2007] 1 AC 484 to the effect that the postulated grounds of discrimination were not grounds falling within the term “other status” in Article 14.

The claimant is understood to be seeking permission to appeal directly from the Supreme Court.

Dijen Basu acted for the successful Chief Constable before both the Court of Appeal and the Divisional Court. He is recommended for Police law by Chambers UK 2013 which comments that he “knows his stuff” and is “spot on in his analysis”.