Where the Court of Appeal allowed an appeal against sentence at a time by which, subsequent to the original passing of sentence, the law had changed in relation to release on licence, it was not the case that reliance could be placed on the particularities of such date in order to claim that it was the later provisions which governed matters relating to release.

The Court of Appeal so stated in a reserved judgment dismissing the appeal of the claimants, Daniel Modhej and Scott Smith, from a decision of the Divisional Court of the Queen’s Bench Division (Sir John Thomas P, Davis and Treacy JJ) on 16 August 2011 [2011] EWHC 2267 (Admin), dismissing their claim by way of judicial review for a declaration that their continuing detention in custody, respectively after 21 September 2011 and 25 November 2011, would be unlawful.

The claimants were convicted in the Crown Court of sexual and violent offences and sentenced on 11 January 2008 on the basis that they were dangerous offenders for the purposes of sections 224 to 229 of the Criminal Justice Act 2003. They appealed against sentence. While they awaited the hearing of the appeals, on 14 July 2008 the Criminal Justice and Immigration Act 2008 came into force and significant changes to the dangerous offender provisions in the 2003 Act were introduced. On 14 January 2010 the Court of Appeal allowed the claimants’ appeals against sentence, upholding the finding of dangerousness but deciding that the appropriate means of providing protection for the public was an extended sentence of imprisonment rather than detention or imprisonment for public protection. If continued detention were subject to the provisions of the 2003 Act, as originally enacted, release after serving half of the appropriate custodial sentence was dependent on the Parole Board being satisfied that continued detention was no longer necessary for the purposes of public protection. If, on the other hand, the provisions of the 2008 Act applied, then the claimants were entitled to automatic release on licence after completing one half of the custodial term without reference to the Parole Board.

The Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Saving Provisions) Order 2008) (SI 1586/2008) provides, by paragraph 2 of Schedule 2: “The coming into force of sections 13 to 18 and 25 of, Schedule 5 and paragraph 71 of Schedule 26 to, of the 2008 Act (and the related entries in Schedule 28 (Repeals) to that Act) is of no effect in relation to any person sentenced under any of sections 225, 226, 227 or 228 of the 2003 Act before 14 July 2008.”

LORD JUDGE CJ said that the claimants had submitted that the effect of section 11 of the Criminal Appeal Act 1968, which created the jurisdiction to order a reduction in sentence on appeal from the Crown Court, proceeded in two stages: if for any reason it was not appropriate for the sentence to be upheld, then it had to be quashed; and after it had been quashed the Court of Appeal would decide the sentence which should replace the sentence which had been quashed. Thus, it was contended, the claimants had been “sentenced” by the Court of Appeal and not the Crown Court. However, the question was whether the claimants had been “sentenced” under the dangerous offender provisions in the 2003 Act when the amendments to it were brought into force. The answer was that they had. The provisions continued in force and governed the detention of the claimants until the substitution of the sentence ordered by the Court of Appeal. The appeals against sentence, although successful on the grounds that the sentences were excessive, did not nullify the sentences imposed in the Crown Court: they simply replaced them. Thus the provisions of the 2008 Act were “of no effect” (for the purposes of the 2008 Commencement Order) in relation to them. If the contrary were the case, then another two young men, hypothetically sentenced as in this case and on the same date but in different courts and for similar offences to those here committed, who either chose not to appeal, or who appealed unsuccessfully, or whose successful appeals were concluded before the 2008 Act provisions came into effect, would remain subject to the more restrictive provisions than the present claimants whose successful appeals happened to be heard and decided after that date. That would produce unjust disparities. The fact was that a sentence passed in the Court of Appeal was in place of the sentence passed by the court below, but unless the Court of Appeal otherwise directed the sentence began to run from the time when it would have begun to run if passed by the court below.

LORD NEUBERGER OF ABBOTSBURY MR and MOSES LJ agreed.