Post Sentence Supervision – Breach and Billing


This article considers how to bill such cases where the offender is before the court for other matters.

The issue arises due to clause 10.70 (Crime Contract 2017), which provides:

For the purposes of the definition of a series of offences, a breach of a community penalty or other court order must be treated as an offence. If the defendant is before the court for other reasons, then no separate Standard Fee payment will be made for breach proceedings in respect of a community penalty or other court order, irrespective of whether there is any link between such breach proceedings and any other proceedings being heard at the same time. If breach proceedings are heard alone then they will attract a separate Standard Fee.

Is breach of PSS a breach of a ‘community penalty’ or ‘other court order’?

‘Community penalty’

‘Community penalty’ is not defined in the contract, it is also not a term used in current sentencing legislation. The nearest we get to understanding what it might mean is to consider the Criminal Justice Act 2003, where the terms ‘community sentence’ and ‘community order’ appear (s 147). A search of legal databases for the term produces a very large number of hits in relation to sentencing cases, and as we might have expected the term is used to mean a community penalty ordered by a court.

We can be clear in my view that PSS is not a community penalty.

Is PSS a ‘court order’ (or part of)?

Post sentence supervision arises due to section 256AA CJA 2003 (as inserted by s 2 Offender Rehabilitation Act 2014). Therefore, PSS arises as a matter of statute, not court or other order.

Supervision requirements only arise if the offender is given a notice containing those requirements (s 256AA(3)). Whilst in many cases these are standard directions, it is clear that the Secretary of State (not the court) must have regard to the purpose of supervision ( s 256AA(5)) when specifying the requirements (s 256AA(6)).

Another commentator on a recent training course has taken issue with my view on this and cites the case of R (Uttley) v Secretary of State for the Home Department [2003] 1 WLR 2590 as support for the contention that licence conditions are part of the sentence, para 14 states:

‘…the licence is plainly a part of the sentence originally imposed by the sentencing judge.’

With due respect, I beg to differ. In R (Robinson) v Secretary of State for Justice [2010] EWCA Civ 848 the court held:

‘Accordingly, with one exception, the English courts have recognised that the provisions relating to the early or conditional release relate to the administration or execution of a determinate sentence. They are not part of the sentence passed by the sentencing judge [22].

The one exception to which I have just referred is to be found in the decision of the Court of Appeal in R(Uttley) v The Secretary of State for the Home Department [2003] 1 WLR 2590. The court in that case considered the imposition of licence conditions on the release of a prisoner who had committed offences before the 1991 Act came into effect. Had he been convicted before the provisions came into effect, there would have been no licence requirements and he would not, on release, have been subject to a period of licence. The Court of Appeal took the view that the imposition of a period of licence after release was part of the sentence passed [23].

The House of Lords reversed that decision on the basis that the maximum sentence was life: see R(Uttley) v SSHD [2004] 1 WLR 2278. Since the maximum sentence was life, no heavier penalty was imposed following the introduction of the provisions of the 1991 Act. Their Lordships did not therefore consider it necessary to reach a conclusion as to whether the fact that the prisoner could only be released on licence amounted to a heavier penalty…[24].

But the decision in the Court of Appeal in Uttley cannot stand with the jurisprudence of the Strasbourg court… In the Commission decision on admissibility in Uttley v United Kingdom (Application No 3694/03), the Commission, in ruling that the application was manifestly inadmissible, concluded that for the purposes of Article 7 the penalty was and was only the sentence passed by the court in that case, namely 12 years [25].'

In R (Abedin) v Secretary of State for the Home Department [2016] EWCA Civ 296, the court when dismissing a renewed application to appeal held: '...for my part, Robinson was correctly decided. I also take the view that it is very much in point, even though in strictness it was of dealing with Article 6 rather than Articles 5 and 7; but, even assuming, as Mr Southey contends, that the Court of Appeal is or would be free to depart from Robinson, I would not, with respect, even arguably be attracted to doing so. The practical considerations voiced by William Davis J go a long way towards explaining why that would be an unfortunate course.'


In my view PSS is not a community penalty or other court order. Of course, you must make your own decisions when billing cases, but I have set out my view for you to consider.

Andrew Keogh

26 June 2017