R v Barnes, R v Berouain, R (Lill) v Secretary of State for Justice

The Court heard together an application for judicial review brought by Jordan Lill, an application for leave to appeal against sentence by Danny Barnes, and an application by the Attorney-General for leave to refer the sentence in R v Youssef Berouain which he regarded as unduly lenient.

The cases raised one common issue: the proper application of the provisions for release of prisoners on licence in section 244ZA of the Criminal Justice Act 2003 (“the CJA 2003”) to persons convicted of the offence of causing death by dangerous driving, when the offending took place before 28 June 2022 but the sentence was passed after that date.

The CJA 2003 makes provision for the early release on licence of certain prisoners who are serving standard determinate sentences of imprisonment. Under section 244, it is generally the duty of the Secretary of State to release such prisoners on licence as soon as they have served half of their sentence. However, since 1 April 2020, the early release arrangements for certain violent or sexual offenders serving standard determinate sentences have been altered so that they must serve two-thirds of their sentences in prison.

The revised early release arrangements were initially provided for by the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. They were subsequently enshrined in primary legislation when section 244ZA was inserted into the CJA 2003 by the Police, Crime, Sentencing and Courts Act 2022. That Act also increased the maximum sentence for causing death by dangerous driving to life imprisonment, but only for offending occurring on or after 28 June 2022.

The issue before the Court of Appeal was the correct interpretation of section 244ZA(4)(d), which provides that a fixed-term sentence is within section 244ZA if it was “imposed in respect of an offence (i) that is specified in Part 1 or 2 of Schedule 15, and (ii) for which a sentence of life imprisonment could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed.”

The central question was whether sub-paragraph (ii) refers to the maximum sentence that the court could have imposed on the offender who was sentenced by the court – in which case Barnes, Berouain and Lill fell outside section 244ZA because they could not personally have been sentenced to life imprisonment – or to the maximum sentence that could be imposed for the offence as it stood at the date of the sentencing hearing – in which case Barnes, Berouain and Lill fell within section 244ZA.

The Court of Appeal accepted the submissions made on behalf of the Secretary of State for Justice that, contrary to the approach that had been taken in a number of previous Court of Appeal decisions, the latter is the correct interpretation.

The judgment can be accessed here.

Iain Steele acted for the Secretary of State for Justice.