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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan, R (On the Application Of) v Secretary of State for the Justice Department [2020] EWHC 2084 (Admin) (30 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2020/2084.html Cite as: [2020] EWHC 2084 (Admin), [2021] Crim LR 504, [2021] 2 All ER 1033, [2020] HRLR 19, [2020] 1 WLR 3932, [2020] ACD 114, [2020] WLR(D) 450 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FULFORD
and
MR JUSTICE GARNHAM
____________________
| THE QUEEN (On the application of MOHAMMED ZAHIR KHAN) |
Claimant |
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| - and - |
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| SECRETARY OF STATE FOR THE JUSTICE DEPARTMENT |
Defendant |
____________________
Sir James Eadie QC and Jason Pobjoy and Celia Rooney (instructed by Government Legal Department) for the Defendant
Hearing dates: 24th & 25th June 2020
____________________
Crown Copyright ©
Mr Justice Garnham:
Introduction
"…yesterday's appalling incident makes the case plainly for immediate action. We cannot have the situation, as we saw tragically in yesterday's case, where an offender – a known risk to innocent members of the public – is released early by automatic process of law, without any oversight by the Parole Board.
We will be doing everything we can to protect the public, that is our primary duty. And we will therefore introduce emergency legislation to ensure an end to terrorist offenders getting released automatically, having served half their sentence with no check or review. The underlying principle has to be that offenders will no longer be released early automatically and that any release before the end of their sentence will be dependent on risk assessment by the Parole Board.
We face an unprecedented situation of severe gravity and, as such, it demands that the government responds immediately, and that this legislation will therefore also apply to serving prisoners.
Now, the earlier point at which these offenders will be considered for release will be once they have served two-thirds of their sentence and, crucially, we will introduce a requirement that no terrorist offenders will be released before the end of the full custodial term unless the Parole Board agrees."
The Facts
The New Legislation
(1) This section applies to a prisoner (a "terrorist prisoner") who—
(a) is serving a fixed-term sentence imposed (whether before or after this section comes into force) in respect of an offence within subsection (2), and
(b) has not been released on licence.
(2) An offence is within this subsection (whether it was committed before or after this section comes into force) if—
(a) it is specified in Part 1 of Schedule 19ZA (offences under counter-terrorism legislation),
(b) it is specified in Part 2 of that Schedule and was determined by the court to have had a terrorist connection under section 30 or (in the case of a person sentenced in Scotland but now subject to the provisions of this Chapter) section 31 of the Counter-Terrorism Act 2008 (sentences for certain offences with a terrorist connection), or
(c) it is a service offence as respects which the corresponding civil offence is an offence specified in Part 2 of that Schedule and was determined by the service court to have had a terrorist connection under section 32 of that Act (sentences for certain offences with a terrorist connection: armed forces).
(3) It is the duty of the Secretary of State to refer the case of a terrorist prisoner to the Board—
(a) as soon as the prisoner has served the requisite custodial period, and
(b) where there has been a previous reference of the prisoner's case to the Board under this subsection and the Board did not direct the prisoner's release, no later than the second anniversary of the disposal of that reference.
(4) It is the duty of the Secretary of State to release a terrorist prisoner on licence as soon as—
(a) the prisoner has served the requisite custodial period, and
(b) the Board has directed the release of the prisoner under this section.
(5) The Board must not give a direction under subsection (4) unless—
(a) the Secretary of State has referred the terrorist prisoner's case to the Board, and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(6) Subsection (7) applies where the terrorist prisoner is serving a sentence imposed under section 226A, 226B, 227, 228 or 236A.
(7) It is the duty of the Secretary of State to release the terrorist prisoner on licence under this section as soon as the prisoner has served the appropriate custodial term (see sections 255B and 255C for provision about the re-release of a person who has been recalled under section 254).
(8) For the purposes of this section—
"the appropriate custodial term", in relation to a sentence imposed under section 226A, 226B, 227, 228 or 236A, means the term determined as such by the court under that provision;"the requisite custodial period" means—(a) in relation to a person serving one sentence imposed under section 226A, 226B, 227, 228, or 236A, two-thirds of the appropriate custodial term,(b) in relation to a person serving one sentence of any other kind, two-thirds of the sentence, and(c) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2);"service offence", "corresponding civil offence" and "service court" have the same meanings as in the Counter-Terrorism Act 2008 (see section 95 of that Act).
Sentencing for Terrorist Offenders
Article 14
Discussion
The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
…First, the circumstances must fall within the ambit of a convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or "other status". Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the different treatments will be lacking… (Lady Black at paragraph 8 in R(Stott) v Secretary State for Justice [2018] UKSC 59)
Other Status
…in principle the aim of Law no. 3713 is to penalise people who commit terrorist offences and that anyone convicted under that law will be treated less favourably with regard to automatic parole than persons convicted under the ordinary law. It deduces from that fact that the distinction is made not between different groups of people, but between different types of offence, according to the legislature's view of their gravity. The Court sees no ground for concluding that that practice amounts to a form of "discrimination" that is contrary to the Convention. Consequently, there has been no violation of Article 14 taken together with Article 5(1)(a) of the Convention. (emphasis added).
Each of the specific grounds of discrimination listed in article 14 shares one feature in common. This is that they exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant. They can be an acquired characteristic, such as the person's religion or political opinion. They can also, like a person's race or birth, be a characteristic over which he has no control. On the other hand, in Gerger v Turkey…the court held that prisoners who were treated differently simply because of the category of the offences which they had committed were not within the protection of article 14. As the court put it in para 69 of its judgment, the distinction was not between different groups of people but between different types of offence according to the legislature's view of their gravity.
46. It could be said in Mr Clift's case that the length of his sentence did confer a status on him which can be regarded as a personal characteristic. This is because prisoners are divided by the domestic system into broadly defined categories, or groups of people, according to the nature or the length of their sentences. These categories affect the way they are then dealt with throughout the period of their sentences.…
48. The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words "or other status" while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach, that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised.
49. But the Strasbourg jurisprudence has not yet addressed this question and… it is possible to regard what he has done, rather than who or what he is, as the true reason for the difference of treatment in Mr Clift's case….the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. A measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the States Parties to the Convention. I am persuaded, with some reluctance, that it is not open to us to resolve the…issue in Mr Clift's favour (emphasis added).
the approach adopted in Gerger has been followed in a number of cases, but all concerned special court procedures or provisions on early release for those accused or convicted of terrorism offences in Turkey…Thus while Gerger made it clear that there may be circumstances in which it is not appropriate to categorise an impugned difference of treatment as one made between groups of people, any exception to the protection offered by Article 14 of the Convention should be narrowly construed. In the present case the applicant does not allege a difference of treatment based on the gravity of the offence he committed, but one based on his position as a prisoner serving a determinate sentence of more than fifteen years. While sentence length bears some relationship to the perceived gravity of the offence, a number of other factors may also be relevant, including the sentencing judge's assessment of the risk posed by the applicant to the public (emphasis added).
I am not persuaded by the Secretary of State's attempt to liken the case to Gerger v Turkey CE:ECHR:1999:0708JUD002491 994 and Budak v Turkey CE:ECHR:2006:0110JUD005734500, rather than Clift v United Kingdom, and to exclude the extended determinate term prisoner on the basis that the differential treatment in his case is because of what he has done and the risk he poses. The ECtHR dealt with the Gerger cases in para 61 of Clift v United Kingdom, and explained them as all being concerned with special provisions for those accused or convicted of terrorism offences. They also stressed that any exception to the protection offered by article 14 should be narrowly construed. True it is that an extended determinate sentence will only be imposed where there is a particular combination of gravity of offence and risk, but within the category of those serving extended determinate sentences, there will be various types of offence of varying seriousness. Putting it another way, what Mr Stott did has led to him receiving an extended determinate sentence, but, once imposed, that extended determinate sentence exists independently of what he did. If a life sentence is capable of constituting an "acquired personal status", as Lord Bingham was understandably disposed to think it was (R(Clift) [2007] 1 AC 484, para 28), and a determinate term of 15 years is also (Clift v United Kingdom), it is difficult to see why an extended determinate sentence should be viewed differently" (emphasis added).
Analogous Position
is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the courts scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.
The various sentencing regimes laid down under English law had to be considered holistically; that each sentencing regime had its own detailed set of rules dictating when it could be imposed and how it operated in practice, with the early release provisions being part of those rules; that each sentence was tailored to a particular category of offender, addressing a particular combination of offending and risk to the public; that an ordinary determinate sentence was not comparable with an extended determinate sentence because the former could not be broken down into a component for punishment and a component for avoidance of risk to the public whereas the latter could; that, likewise, a discretionary sentence of life imprisonment, although broken down into such components, was not comparable with an extended determinate sentence because a prisoner serving an extended determinate sentence was entitled to be released after serving the whole of the appropriate custodial term while a discretionary life prisoner, even though entitled to apply for release after serving the specified minimum term, had no right to be released at all; that, consequently, prisoners serving extended determinate sentences were not in an analogous position with other prisoners; and that, even if they were, the difference in treatment was proportionate and justified.
In my view, the Secretary of State is correct to differentiate between determinate and indeterminate sentences in this connection. The ECtHR does make a distinction, treating the post-tariff phase of an indeterminate sentences as directed at managing risk, whereas the whole of a determinate sentence is viewed as punishment. In R (Black) v Secretary of State for Justice [2009] AC 949, Lord Brown of Eaton-under-Heywood (in the majority) remarked on the distinction, commenting (para 67) that, throughout its case law, the Strasbourg court has consistently appeared to treat determinate sentences quite differently, time and again contrasting them with the indeterminate cases, with article 5.4 being engaged in the determination of the length of post-tariff detention in life sentence cases, but not in decisions regarding early or conditional release from a determinate term of imprisonment (para 83). So, in Mansell v United Kingdom CE:ECHR:1997: 0702DEC003207296, Ganusauskas v Lithuania CE:ECHR:1999:0907DEC 004792299 and Brown v United Kingdom CE:ECHR:2004:1026DEC 000096804, the ECtHR held article 5 challenges to determinate sentences to be manifestly ill-founded, the sentences being justified throughout the prison term as punishment for the offence.
I have come to the view that EDS prisoners cannot be said to be in an analogous situation to other prisoners. Most influential in this conclusion is that, as I see it, rather than focusing entirely upon the early release provisions, the various sentencing regimes have to be viewed as whole entities, each with its own particular, different, mix of ingredients, designed for a particular set of circumstances.
Justification
Terrorist offending is therefore of a very particular nature. It is driven by ideology, which is combined with a genuine and real desire to do harm. Unlike other types of violent offending, such harm is not ordinarily directed at a discrete number of individuals, but rather the community at large. This means that it is difficult to identify potential victims, and the likely number of victims if an offender reoffends may well be high. It is moreover unpredictable in nature, in that a terrorist offence may be committed at any time. Many of the risk factors are also 'acute', meaning that can change quickly over days or even hours.
As a result of the above, the index offences for which sentences are imposed do not always reflect the very high level of harm that an offender may subsequently cause. A relatively short standard determinate sentence imposed upon a terrorist offender can mask the fact the individual could be much more dangerous than other offenders who receive similar sentences, because of the ideological and unpredictable nature of their offending, as well as the disparate identity of their potential victims.
As regards the difference in treatment between those serving less than fifteen years and those serving fifteen years or more, the Government argued that while the cut-off point might appear arbitrary, a bright line distinction was necessary and justified. The Court accepts in principle that the application of more stringent early release provisions may have to be dependent on a bright-line cut-off point and considers that such a bright-line distinction will not of itself fall foul of the Convention (see Twizell v. the United Kingdom, no. 25379/02, [24], 20 May 2008; Amato Gauci v. Malta, no. 47045/06, [71], 15 September 2009; and Allen and others v. the United Kingdom (dec.), no. 5591, 6 October 2009). Accordingly, in the present case, the fact that different early release provisions applied to those serving determinate sentences of fifteen years or more, compared to those serving less than fifteen years, does not of itself suggest unlawful discrimination
Article 7
No one shall be held guilty of any criminal offence of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed (emphasis added).
91. When speaking of "law" art.7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability. These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries.
92. It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.
93. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain. The progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen. The lack of an accessible and reasonably foreseeable judicial interpretation can even lead to a finding of a violation of the accused's Article 7 rights. Were that not the case, the object and the purpose of this provision—namely that no one should be subjected to arbitrary prosecution, conviction or punishment—would be defeated.
The Court notes that the Audiencia Nacional (the court) used the new method of application of remissions of sentence for work done in detention introduced by the "Parot doctrine" rather than the method in use at the time of the commission of the offences and the applicant's conviction, thus depriving her of any real prospect of benefiting from the remissions of sentence to which she was nevertheless entitled in accordance with the law.
3. The Commission recalls that the applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Article 7 arises in this respect. 4. Furthermore, in the opinion of the Commission, the "penalty" for purposes of Article 7 § 1 must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years' imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the "penalty" which remains that of life imprisonment. Accordingly, it cannot be said that the "penalty" imposed is a heavier one than that imposed by the trial judge (emphasis added).
38. …For the purposes of article 7(1) the proper comparison is between the penalties which the court imposed for the offences in 1995 and the penalties which the legislature prescribed for those offences when they were committed around 1983. As I have explained, the cumulative penalty of 12 years' imprisonment that the court imposed for all the offences in 1995 was not heavier than the maximum sentence which the law would have permitted it to pass for the same offences at the time they were committed in 1983. There is accordingly no breach of article 7(1).
43.. Here there was no change in the relevant penalties which the law permitted a court to impose. What changed between 1983 and 1995 were the arrangements that were to apply on the prisoner's early release from any sentence of imprisonment imposed by the court. In particular, since 1992 a prisoner such as the respondent has remained subject to his sentence for its entire duration of 12 years, whereas before 1992 an equivalent sentence would have expired when he was released after serving 8 years. The respondent says that, for this reason, the sentence of 12 years imposed on him in 1995 was "heavier" than a sentence of 12 years imposed at the time of the offences in 1983. Leaving aside all the other possible objections, this argument simply involves a misinterpretation of article 7(1). Of course, if legislation passed after the offences were to say, for instance, that a sentence of imprisonment was to become a sentence of imprisonment with hard labour, then issues would arise as to whether the article was engaged, even where the maximum sentence had been life imprisonment at the time of the offences. But in this case there is no suggestion that the actual conditions of the respondent's imprisonment changed. The very worst that could have happened to him under the 1991 Act was that he would have required to serve the whole of his 12 year sentence in gaol. Happily for him, that has not in fact happened. But, even if it had, he would still have spent only 12 years in prison — which is well within the limits of the penalty that was allowed by law for the three rapes and many other offences at the time when he committed them. There is no violation of article 7(1) (emphasis added).
Although, as the Court of Appeal found in the present case, the licence conditions imposed on the applicant on his release after eight years can be considered as "onerous" in the sense that they inevitably limited his freedom of action, they did not form part of the "penalty" within the meaning of Article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed. Accordingly, the application to the applicant of the post-1991 Act regime for early release was not part of the "penalty" imposed on him, with the result that no comparison is necessary between the early release regime before 1983 and that after 1991. As the sole penalties applied were those imposed by the sentencing judge, no "heavier" penalty was applied than the one applicable when the offences were committed (emphasis added).
For the purposes of the issue in the instant appeal article 6 requires an answer to the question: what was the sentence passed by the court with which it is said the legislature has interfered? The answer under English jurisprudence is that it was a sentence of five years. The legislative changes have not affected or increased the level of that sentence (emphasis added).
In my judgment this reasoning (in Del Rio Prada) is very specifically geared to the facts of the case. There is no erosion in principle of the well-established distinction between the penalty imposed and the means of its enforcement or execution. Del Rio Prada, notwithstanding Mr Southey's submissions this morning, is not as I see it authority for anything like a general proposition to the effect that any detrimental change to provisions concerning release on licence if it is not foreseeable at the time of sentence alters the meaning of the penalty for the purpose of Article 7. The general remarks at paragraphs 91 to 93 (which I have not read) certainly produce no such conclusion nor does the specific passage at paragraph 111 and following dealing with the question whether the Parot doctrine was reasonably foreseeable.
In the present case there has been nothing approaching a redefinition of the scope of the penalty imposed for the claimant's offence. Del Rio Prada does not assist him (emphasis added).
32. The starting point for the Court's examination of whether Article 7 was engaged here must be, as explained in Uttley and reaffirmed explicitly in the Del Rio Prada judgment [83], that where the nature and purpose of a measure relate to a change in the regime for early release, this does not form part of the "penalty" within the meaning of Article 7. The applicant's submission that Del Rio Prada and Arrozpide Sarasola and Others confirmed that early release provisions could lead to the modification of the scope of the sentence overly simplifies the Court's analysis in that case…
33. The Court went on to underline that such changes had to be distinguished from changes made to the manner of execution of the sentence, which did not fall within the scope of Article 7 § 1 in fine. It can be seen, therefore, that the critical element in determining the applicability of Article 7 to such a case is whether the changes introduced had the effect of modifying or redefining the penalty itself.
34. In Del Rio Prada the multiple, lengthy, individual sentences imposed on the applicant (amounting to over 3,000 years' imprisonment) were converted into a single thirty-year sentence pursuant to applicable legislation. At the same time, Spanish law provided for prisoners to earn remissions of sentence for work done 21 in detention, at a stipulated rate of one day's remission for every two days' work. As the Court explained: "101. … remission of sentence gave rise to substantial reductions of the term to be served – up to a third of the total sentence – unlike release on licence, which simply provided for improved or more lenient conditions of execution of the sentence (see, for example Hogben and Uttley, both cited above…)".
35. The Article 7 issue arose because, instead of applying remission earned to the applicant's thirty-year sentence as had previously been the judicial practice, the authorities applied the remissions earned by the applicant to the individual sentences in line with a recent change in the case-law. The Court considered the overall effect of the change to the practice in Spain was, essentially, to modify or redefine the penalty imposed on the applicant from one of thirty years less any remissions earned to one of thirty years with no entitlement to remissions, resulting in a violation of Article 7...
36. The same considerations do not apply to the present case. The applicant's penalty of twenty years' imprisonment has not been changed, and it is to that penalty that the early release provisions continue to apply. There has been no conceivable redefinition, or modification, of the "penalty" imposed on the applicant. Nothing in the Court's judgment in Del Rio Prada called into question the central proposition outlined in Uttley that where the nature and purpose of a measure relate exclusively to a change in the regime for early release, this does not form part of the "penalty" within the meaning of Article 7. The Court is satisfied that this was the case here. The new provisions on the duration of licence conditions amounted to a change to the manner of execution of the applicant's sentence and as such did not fall within the scope of Article 7 § 1 in fine (emphasis added).
Article 5
(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;
(a) the lawful detention of a person after conviction by a competent court…
The Court notes that the application of the "Parot doctrine" to the applicant's situation deprived of any useful effect the remissions of sentence for work done in detention to which she was entitled by law and in accordance with final decisions by the judges responsible for the execution of sentences. In other words, the applicant was initially sentenced to a number of lengthy terms of imprisonment, which were combined and limited to an effective term of 30 years, on which the remissions of sentence to which she was meant to be entitled had no effect whatsoever. It is significant that the Government have been unable to specify whether the remissions of sentence granted to the applicant for work done in detention have had—or will have—any effect at all on the duration of her incarceration.
"Discretionary and mandatory lifers, after the expiry of the punitive element of their sentence, are detained on the basis of risk - the justification for their continued detention is whether it is safe for the public for them to live in the community once more. ... The applicant however has been sentenced to a fixed prison term by a court as the punishment for his offence. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of Article 5 § (1)(a) of the Convention (emphasis added).
It seems to me plain that in cases such as the appellants' the sentence of the trial court satisfies article 5(1) not only in relation to the initial term served by the prisoner but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral component of the composite sentence passed by the court.
Mr Winter sought to argue that as the judge intended a three-and-a half year sentence actually to be served, the sentence should in any event be reduced to five-and-a-quarter years. The submission is based on a fallacy. The actual sentence was seven years' imprisonment. The release provisions did not and should not have affected the judge's sentencing decision. What he was required to do was to explain the effect of the sentence in the context of the applicable statutory provisions relating to release. He did not ''intend'' that the appellant should be released after three-and-a-half years: that would simply have been the consequence if the 2003 Act had applied to the sentence, and he was required to state that consequence in open court. Precisely the same applies to his observations when reconsidering the sentence. He knew that the appellant would be eligible for release after three-and-a-half years, but not automatically entitled to it. He was entitled to say, as a judge of considerable experience, that it would be very likely indeed that the defendants would in fact be released at the end of three-and-a-half years. Again, that did not mean that he so ''intended''. The sentence of seven years' imprisonment is not open to question on the basis that the order achieved a different result to that which the judge intended. Indeed, he himself made it absolutely clear that he had no intention whatever of changing the sentence which he decided to impose. (emphasis added).
The general principle that early release, licence and their various ramifications should be left out of account upon sentencing is, as it seems to us, a matter of principle of some importance. The existence of the varied regimes which we have attempted to summarise at [23] and [24] above confirm us in that view. Above all, the HDC regime is entirely in the discretion of the Secretary of State. Whatever the statute may say about eligibility, there is no way of knowing in advance what decision may be made about HDC release. The Secretary of State might, between the passing of the sentence and the arrival of any possibility of HDC release, change his policy, whether because of public concern about release, or pressure on prison places, or for any other reason…Even if the policy remains the same, its application to any individual is a matter of considerable uncertainty... It is, we are satisfied, wrong in principle for sentencers to be required to adjust the sentence imposed to so uncertain a future prospect. And it is wrong in principle for the judge to be required to analyse in nice detail the many pages of Prison Service Instructions in order to attempt to foresee the impact on the prisoner of a discretionary regime (emphasis added).
Where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5.4. This is because, for the duration of the sentence period, the lawfulness of his detention has been decided . . . by a court, namely the court which sentenced him to the term of imprisonment.
That does not appear to me to be a surprising result. Once a person has been lawfully sentenced by a competent court for a determinate term, he has been deprived of his liberty in a way permitted by article 5.1(a) for the sentence term, and one can see how it follows that there can be no need for the lawfulness of his detention during the sentence period to be decided speedily by a court, as it has already been decided by the sentencing court. If that is the law, it would follow that Mr Whiston's appeal in this case must fail.
I turn briefly to Article 5. That too was held to have been violated on the facts in Del Rio Prada "in the light of the considerations that led it to find a violation of Article 7" (see paragraph 130). This does not I think assist the claimant.
I propose to add only this in view of my own personal experience of criminal jurisdiction. In the course of his submissions Mr Southey QC put this proposition: namely that judges in criminal courts when sentencing do to some extent take account of release provisions. That was the submission made. It is, with respect, plainly wrong. It flies in the face of what is set out at paragraph 20 in the judgment of Moses LJ in the case of Robinson already cited by my Lord. It also is contrary to any number of decisions of the Court of Appeal Criminal Division where even in cases where a judge has misapplied the release provisions in his explanation of the sentence, the sentence has not been interfered with (see for instance R v Bright [2008] EWCA Crim 419). The penalty imposed by a sentencing judge is the sentence he announces in court. Were he to attempt to reflect the release provisions in his sentence at any given time confusion and chaos would reign.
Prisoners who are detained during the custodial term, or during a period ordered to be served under section 16 of the 1993 Act (as explained in para 55 above), are during that period in an analogous position to prisoners serving determinate sentences. They are serving a period of imprisonment of a term of years which the court has stipulated as appropriate for the offence committed. If they are released on licence and then recalled during that period, they continue to serve the period of imprisonment imposed by the court.(emphasis added)
i) The early release arrangements do not affect the judge's sentencing decision;
ii) Article 5 of the Convention does not guarantee a prisoner's right to early release;
iii) The lawfulness of a prisoner's detention is decided, for the duration of the whole sentence, by the court which sentenced him to the term of imprisonment;
iv) The sentence of the trial court satisfies Article 5(1) throughout the term imposed, not only in relation to the initial period of detention but also in relation to revocation and recall; and
v) The fact that a prisoner may expect to be released on licence before the end of the sentence does not affect the analysis that the original sentence provides legal authority for detention throughout the term.
Conclusions