The life of a criminal barrister has several sources of irritation.
One is the difficulty of getting clients to see the marvelous subtlety of the logic of the criminal law.
For example, “If you plead guilty you will get a reduced sentence” is not the same as, “You get a longer sentence for not pleading guilty”. You do get a longer sentence, but only because it is the sentence that fits the crime and any mitigating factors you point to will not include a guilty plea.
Yes, but …
Another irritant is having to explain for the millionth time the difference between a sentence of imprisonment and an eligibility for release. Why, for example, a person sentence to a richly-deserved 10 years’ imprisonment [1] may be released after, say, only one year. [2]
This distinction between the sentence and the release is particularly acute if the law on release is changed after a person is sentenced, so that initial calculations of time to be spent in prison have to be revised upwards. You can imaging how irksome this is for the prisoner, to whom it looks like an increased sentence.
The need to properly interpret such a change was the central issue in Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14 (19 April 2023). The answer looks easy now that we can read the judgment, but there were respectable arguments on both sides. Did the change in release eligibility amount to a retroactive penalty, and further, did it make it impossible for proper legal advice to have been given before the change?
A central consideration was a decision of the Grand Chamber of the Eurpoean Court of Human Rights, Del Río Prada v Spain (Application No 42750/09) (2014) 58 EHRR 37. Pursuant to that decision, the imposition of a sentence could be taken to include the administrative rules as to release. It is not always easy, as European decisions illustrate, to distinguish between measures concerning the imposition of a sentence and measures concerned with its execution or enforcement. In Del Río Prada the distinction was recognised and endorsed, and the same distinction had been made in the relevant domestic law (see Morgan at [83] ff) but the Spanish law interpreted in Del Río Prada was distinguishable (at [94]).
And on the foreseeability of the law point, there was authority for the proposition that measures relating to the execution or enforcement of a sentence do not need to be foreseeable (at [100]). As noted at [103], the Court in Del Río Prada had said that foresight of a change in a penalty is to be assessed in the context that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States”.
Any barrister who has to explain to a client why an increase in the period that has to be spent in prison is not the same as an increase in the sentence can hand over the judgment in Morgan. And any advice on when release can be expected can always be given with the caveat that the law on release might change.
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[1] Another source of irritation is having to use all those fucking apostrophes when specifying periods of sentences such as imprisonment.
[2] On good behaviour and without a judicially-imposed minimum term, a successful application for release on parole after serving one-third of the sentence can be expected, with any actual period in custody prior to being sentenced taken into account as time served. In the example I have suggested, the prisoner was most fortunate to have been refused bail from the outset and so to have spent a couple of years in pre-sentence custody. In any event, release on parole comes with conditions and there is potential for recall to prison to continue serving the sentence until it expires. This applies to so-called long-term sentences, which are usually defined as being more than two years’ imprisonment. Shorter sentences of imprisonment commonly have no parole date but release is usually when half the term has been served. Consult your local laws.
