The High Court this week confirmed that the new release provisions, applying to some offenders, operate retrospectively.
The court was hearing a challenge to the Terrorist Offenders (Restriction of Early Release) Act 2020, which provides that persons convicted of certain offences will not be released automatically after serving half of their sentence. Instead, prisoners will only be eligible for release after serving at least two-thirds, and then only with the approval of the Parole Board.
What happened in this case?
The challenge was brought by Mohammed Zahir Khan, who in May 2018 was sentenced to 4 years imprisonment. He was due to be released on 1 March 2020. However, the 2020 Act came in to force on 26 February 2020, a few days before Khan was scheduled for release.
The question for the court was whether this change to Khan’s release date and the removal of automatic release, was lawful.
There were several challenges to the Act that were argued, but concerning the provisions being retrospective, as in Khan’s case, the court concluded:
‘The fundamental question is what is the “penalty”? Is it the sentence imposed by the sentencing court or is it the sentence ameliorated by whatever provisions are then in force for early release?
…the principle is clear; an amendment by the legislature to the arrangements for early release raise no issue under Article 7. A change to those arrangements does not amount to the imposition of a heavier penalty than that applicable at the time the offence was committed. In those circumstances we reject the claim under Article 7.
Throughout the relevant period, the governing authority for the detention is the original sentence. It is entirely foreseeable (if necessary with appropriate legal advice) that during the currency of a determinate sentence, which was calculated and imposed without account being taken of the possibility of early release, the arrangements for the execution of the sentence might be changed by policy or legislation. Accordingly, the lawfulness of the sentence was not undermined or compromised by changes of the sort made by the 2020 Act.’
In summary, five principles can be drawn from the case law:
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.
The court may likely be asked to deal with similar challenges brought concerning The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which came in to force on 1 April 2020 and applies to all persons sentenced on or after that date. Delays to court hearings may well mean that some people are now disadvantaged. Considering the approach in Khan, and earlier cases it is not likely that any challenge would be successful, but that remains to be seen.
A detailed understanding of sentencing provisions is critical to protect best the interests of those facing custodial and other sentences. Our team stay up to date with all developments in this area and regularly discuss the tactical implications of current and intended legislation. In some cases, as Khan’s illustrates, little can be done, but in others, an awareness of impending legislative change can be hugely advantageous.
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