“No one shall be held guilty of any criminal offence on account 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.”
“38. … 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 . 39. 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.”
“(1) As soon as a fixed-term prisoner, …, has served the requisite custodial period, the Department of Justice shall release the prisoner on licence under this Article. (2) In this Article ‘the requisite custodial period’ means—(a) …, the custodial period specified by the court under Article 8;”
“(1) Where a fixed-term prisoner is released on licence under this Chapter, the licence shall, subject to any revocation under Article 28 …, remain in force for the remainder of the sentence. (2) ….”
“47. …. It is the overwhelming wish and the expectation of all right-thinking law abiding citizens in this jurisdiction that the days of shootings, killings and explosions should be confined to the past. It is clear from the contents of the discussions of those who were present at the meetings described (to varying degrees) that they were willing to return us to the days which so disfigured our society. 48. Those who seek to do so represent a grave danger to the community ….”
“The Court ordered on13 November 2020 that the said defendant be committed to custody for the period of DCS 3 YRS BEING 18 MTHS IMP AND 18 MTHS ON LICENCE.”
“WHEREAS at Belfast Crown Court on13 November 2020 the above named defendant having been convicted of crime. The Court ordered on13 November 2020 that the said defendant be committed to custody for the period of DCS 3 YRS: BEING 18 MTHS IMPRISONMENT AND 18 MTHS LICENCE. Following the commencement of Article 30 of theCounter Terrorism and Sentencing Act 2021 the above sentence was amended to reflect the revised mandatory custodial period set out in the statute. Accordingly on the17 June 2021 the sentence passed on13 November 2020 was amended to: The Court ordered on13 November 2020 that the said defendant be committed to custody for the period of DCS 3 YEARS: 2 YEARS IMPRISONMENT AND 1 YEAR ON LICENCE.”
“2 YEARS IMPRISONMENT AND 1 YEAR ON LICENCE”
“Yesterday’s appalling incident plainly makes the case for immediate action. We cannot have the situation, as we saw tragically yesterday, in which 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. We will therefore introduce emergency legislation to ensure an end to terrorist offenders getting released automatically with no check or review having served half their sentence. The underlying principle must be that offenders will no longer be released early automatically and that anyone released 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 respond immediately, and that this legislation will therefore also apply to serving prisoners. The earliest point at which these offenders will now be considered for release will be once they have served two-thirds of their sentence. Crucially, we will introduce a requirement that no terrorist offender will be released before the end of the full custodial term unless the Parole Board agrees.”
“In the present case the changes wrought by the 2020 Act were changes in the arrangements for early release; they were not changes to the sentence imposed by the sentencing judge. In the absence of a fundamental change of the sort described in Del Río Prada …, a redefinition of the penalty itself, the principle is clear; an amendment by the legislature to the arrangements for early release raises 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.”
“Both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of art.7. ”
“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)
“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 the present case, the ‘penalties’ foreseen by law for the offences committed by the applicant were the various sentences of imprisonment imposed by the trial judge, and not challenged by the applicant on appeal.”
“The ‘measure’ in the present case, the application of the rules on early release, was not a ‘measure’ in the sense understood by the Court in the case of Welch, and was not ‘imposed’ at all, but was part of the general regime applicable to prisoners. The nature and purpose of the ‘measure’, far from being punitive, were to permit early release, and they cannot be considered as inherently ‘severe’ in any ordinary meaning of the word. 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.”
“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).
“… recourse … to the new approach to the application of remissions of sentence for work done in detention introduced by the ‘Parot doctrine’ cannot be regarded as a measure relating solely to the execution of the penalty imposed on the applicant …. This measure … also led to the redefinition of the scope of the ‘penalty’ imposed. As a result of the ‘Parot doctrine’, the maximum term of 30 years’ imprisonment ceased to be an independent sentence to which remissions of sentence for work done in detention were applied, and instead became a 30-year sentence to which no such remissions would effectively be applied.”
“Nothing in the court's judgment in Del Río 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.”
“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.”
“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 ….”
“It is well established in the Court’s case-law on art.5(1) that all deprivation of liberty must not only be based on one of the exceptions listed in subparas (a)–(f) but must also be ‘lawful’. Where the ‘lawfulness’ of detention is in issue, including the question whether ‘a procedure prescribed by law’ has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the articles of the Convention. The ‘quality of the law’ implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness. The standard of ‘lawfulness’ set by the Convention requires that all law be sufficiently precise to allow the person—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Where deprivation of liberty is concerned, it is essential that the domestic law define clearly the conditions for detention.”