On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
The Supreme Court in Morgan and others v Ministry of Justice (Northern Ireland) [2023] UKSC 14 considered whether this change in release provisions in Northern Ireland was contrary to Articles 5 and/or 7 of the European Convention on Human Rights (“ECHR”).
The Facts
The challenge was brought by four offenders who had been convicted of terrorism offences. They were sentenced at a hearing before a trial Judge, Colton J, on 13 November 2020. The relevant provisions of the Criminal Justice (Northern Ireland) Order 2008 (“the Order”) at the time provided that the Claimants were to spend half of their sentence in custody and the other half on licence.
The Act received Royal Assent on 29 April 2021 whilst the Claimants were all serving the custodial term of their sentences. Section 30 of that Act introduced Article 20A into the Order. The practical effect of Article 20A was that the Claimants, being “terrorist prisoners”, were no longer going to be released on licence at the halfway point of their sentence. Instead, in line with the legislative changes outlined by the Secretary of State for Justice, they were required to serve at least two-thirds of their sentence in custody and would not be released on licence unless the Parole Commissioners directed their release.
The Claimants challenged Section 30 of the Act under Articles 5, 6 and 7 of the ECHR.
The Court of Appeal Decision
Before the Court of Appeal the Claimants argued that the effect of Section 30 of the Act was to modify and/or redefine the penalty imposed and therefore amounted to a retroactive application of penalties, contrary to Article 7 ECHR. They pointed not just to the increase in the custodial period to be served by terrorist prisoners but also to the requirement for individuals to have their cases considered and ruled upon by the Parole Commissioners. The Claimants also argued that Section 30 of the Act breached Article 5 ECHR as the conditions for deprivation of liberty under domestic law should be clearly defined and the law should be foreseeable. Finally, the Claimants argued that Section 30 was contrary to Article 6 ECHR as it amounted to “retrospective legislation which affects the result of pending proceedings” ([104]).
The Ministry of Justice’s position was that the determinate custodial sentence had not changed and the penalty had not increased. It argued that early release provisions form part of the administration of a sentence, such that there was no breach of Article 7 ECHR. In terms of Article 5 ECHR, the Ministry of Justice relied upon the decision of the Supreme Court in R (Whitson) v Secretary of State for Justice [2014] UKSC 39 to support the submission that the Convention does not apply to recall to custody in the context of standard determinate sentences, together with paragraphs 106-123 of R (Khan) v Secretary of State for Justice [2020] EWHC 2084 (Admin). The Ministry of Justice’s position on Article 6 ECHR was that it was not engaged on the facts of the case; there were no pending criminal proceedings and no state interference with the judicial determination of the Claimants’ cases.
Maguire LJ gave the judgment of the Court of Appeal, with which Treacy LJ and Horner J agreed, and concluded that the key question in relation to Article 7 ECHR was whether a “heavier penalty” had been imposed “than the one that was applicable at the time the criminal offence was committed.” ([83]). Maguire LJ emphasised that in Northern Ireland the Judge is required to determine not just the length of the sentence imposed but also the apportionment as between the period which the prisoner will serve in custody and the period he will serve on licence ([86]). The effect of Section 30 of the Act was that each offender suffered at least a 16% loss of time on licence as opposed to time in custody, contrary to the stipulations of the Judge at the date of sentencing, and would be subject to the new requirement of having to obtain the approval of the parole authorities to be released on licence.
Maguire LJ found that “the sentencing arrangements which have governed the sentencing process in respect of these men has been subverted” ([94]) and the change in law amounted to a redefinition or modification of the penalty originally imposed by the trial court. The Court concluded that Section 30 of the Act breached Article 7 ECHR and issued a declaration of incompatibility under Section 4 of the Human Rights Act 1998. Maguire LJ did not go on to consider Article 5 ECHR, stating that the Court was “content to leave to one side whether there could also be a breach of Article 5.” [114]. The Court also found that Article 6 was not engaged ([108]).
The Ministry of Justice was given permission to appeal to the Supreme Court on the declaration of incompatibility made in relation to Article 7 ECHR and the Claimants cross-appealed on the compatibility of Section 30 of the Act with Article 5 ECHR. Permission to cross-appeal the decision on Article 6 ECHR was refused.
The Supreme Court Decision
Lord Stephens gave the leading judgment, with whom Lord Reed, Lord Sales, Lord Hamblen and Lord Burrow agreed.
Lord Stephens considered the relevant sentencing provisions under Northern Irish law in detail. He noted that when a Judge in Northern Ireland sentences offenders, he or she must first impose a determinate custodial sentence under Article 7 of the 2008 Order and then specify the custodial period under Article 8 of the 2008 Order. In specifying the custodial period the Judge does not “amend the term of the sentence of imprisonment” but its task is “as to the manner and execution of the sentence which it has imposed.” ([18]).
Having considered both domestic and ECtHR case law, he highlighted that there is a distinction to be drawn between measures constituting a penalty and those representing the execution or enforcement of a penalty. Lord Stephens emphasised that the penalties in these cases were the determinate custodial sentences imposed on the Claimants ([107]). He continued to reject the Court of Appeal reasoning that judicial involvement in setting the time spent in custody and on licence meant that the same was a penalty, stating that “just because there is judicial involvement in a measure which relates to the execution of enforcement of a penalty does not change the measure to one in which a penalty is fixed.” ([109, 110]).
Ultimately, Lord Stephens found that there had been no retrospective increase in the penalties imposed on the respondents by Colton J and the declaration of incompatibility was set aside.
As to Article 5 ECHR, Lord Stephens highlighted that even if a measure falls outside the qualitative requirements of Article 7 ECHR (by virtue of being related to the execution of a penalty), it still falls within the qualitative requirements of “law” under Article 5 ECHR ([112]). However, he continued to conclude that the changes to the licence regime did comply with Article 5 ECHR for a number of reasons including that the determinate custodial sentences were calculated without reference to early release provisions ([124]) and it is entirely foreseeable that during the currency of a determinate custodial sentence arrangements for the manner of execution of the sentence might be changed by the policy of legislation ([127]). The Claimants’ cross-appeal under Article 5 ECHR was therefore dismissed.
Comment
The ECtHR are unequivocal in paragraph 83 of the Del Rio Prada judgment that “where the nature and purpose of a measure relates to the remission of sentence or a change in the regime for early release, this does not form part of the “penalty” within the meaning of Article 7.” The decision of the Supreme Court is therefore unsurprising but there are a few points to note:
- In practice the distinction between what constitutes a “penalty” and what amounts to the “execution” or “enforcement” of the “penalty” is not always clear;
- When trying to determine if something is a penalty or an execution/enforcement of a penalty the focus should be on the form or nature of the measure as opposed to the manner in which the change is imposed on the individual;
- Lord Stephens was clearly persuaded by the “compelling policy reasons” supporting the change brought about by Section 30 of the Act. The judgment reinforces that the policy intention behind the Act was to protect the public. It may be that absent such compelling policy reasons a Court in the future could be more easily in a borderline case to find that a measure constitutes a modification or redefinition of the original penalty as opposed to simply execution/enforcement of the same.
Amelia Williams is a Barrister at 1 Crown Office Row
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