The High Court has refused an inquiry into the detention of a man serving a 16-year sentence for rape, ruling that the maximum sentence available for the offence was life imprisonment.
In a judgment delivered on 9 May 2017, Mr Justice Eagar rejected the applicant’s argument that the sentencing judge lacked power to impose more than five years’ imprisonment. The application concerned his detention in Midlands Prison under Article 40.4.2 of the Constitution, which provides for an inquiry into the legality of detention.
The applicant, identified in the judgment as Hassan Selim and formerly known as Francis Condra, was convicted at the Central Criminal Court in 2006 of rape and related offences arising from the same events. He received 16 years’ imprisonment for rape, with concurrent sentences of eight years for aggravated sexual assault, three years for false imprisonment and three years for assault. He did not appeal his conviction or sentence at the time.
He argued that section 11(2) of the Criminal Law Act 1997 converted the former penalty of penal servitude into a prison sentence capped at five years unless another enactment authorised a longer term. He said the sentencing judge had acted beyond his powers by imposing 16 years. He also told the court that judicial review was not an available remedy because he did not wish to challenge his conviction, and that there was not enough time to seek an extension to appeal before his sentence expired.
The court rejected the five-year interpretation. Justice Eagar said section 11 of the 1997 Act substituted imprisonment for penal servitude in section 48 of the Offences Against the Person Act 1861. Because section 48 provided for penal servitude for life, the court concluded that the maximum prison term for rape was life imprisonment.
The judgment records that the applicant had served more than 11 years and was expected to be released in about nine months with one-quarter remission. It also refers to his having about ten months left to serve. The court did not order his release or otherwise alter the sentence; it refused the requested inquiry into the legality of his detention.