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British parole change not 'heavier penalty’

The EU’s highest court has found that a hardening of conditions in Britain’s parole rules does not, in principle, amount to a ‘heavier penalty’ under the EU’s Charter of Fundamental Rights.

The Court of Justice of the European Union (CJEU) was giving its opinion on a question referred to it by the Irish Supreme Court on an extradition case.

The case involves a man alleged to have committed a series of offences under British law, and whether he can be extradited under the relevant provisions of the Trade and Cooperation Agreement (TCA) between the EU and Britain.

Release on licence

He has claimed that his surrender would be incompatible with the principle that offences and penalties must be defined by law, because of an unfavourable change to the rules on release on licence adopted by Britain after the suspected commission of the offences in question.

In an earlier opinion on the same case, the CJEU held that a court could refuse to carry out an arrest warrant only if it had “clear and updated proof” that the person might face a heavier penalty than what was originally set when the crime was committed.

The Supreme Court subsequently asked if the concept of a ‘heavier penalty’ included a change in the rules governing the parole system.

‘Enforcement’ of penalty

“A change which requires a detainee to serve at least two-thirds of his or her sentence before being eligible for release on licence, on the condition that a specialised authority considers that his or her continued imprisonment is no longer necessary for the protection of society, but which provides, in any event, for such release on licence one year before the end of the sentence, is not regarded as imposing a heavier penalty,” the CJEU held.

The previous system had allowed for automatic release on licence after the completion of half of the sentence in custody.

The judges held that the fact that a change to the licence regime led to a hardening of the detention situation did not necessarily have to be regarded as entailing the imposition of a heavier sentence.

“This consideration stems from the separation between the concept of ‘penalty’, understood as the sentence handed down or capable of being handed down, on the one hand, and that of measures relating to the ‘execution’ or ‘enforcement’ of the penalty, on the other,” the CJEU stated.