Regina v. Parole Board and another (Respondents) ex parte Giles (FC) Appellant [2003] UKHL 42

House of Lords
[2003] UKHL 42
Between
ReginaAppellantParole Board and another ex parte GilesRespondent
Before
Lord Bingham of CornhillLord SteynLord Hope of CraigheadLord HuttonLord Scott of FoscoteDate 31 July 2003
[1]At issue in this appeal is the impact of article 5(4) of the European Convention on Human Rights on a sentence imposed under section 2(2)(b) of the Criminal Justice Act 1991 (since re-enacted as section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000).[2]The appellant pleaded guilty in the Crown Court at Nottingham to two offences, committed on different occasions, against sections 20 and 47 of the Offences against the Person Act 1861. On 10 January 1997 he was sentenced to consecutive terms of four and three years' imprisonment. In passing that sentence the judge expressed the opinion that it was necessary to pass a custodial sentence which was longer than the sentence which would be commensurate with the seriousness of the offences in order to protect the public and one of the appellant's victims in particular from serious harm from him. The judge was exercising the power conferred by section 2(2)(b) of the 1991 Act and following the procedure laid down by that section which, so far as relevant, provided:
" 2 Length of custodial sentences (1) This section applies where a court passes a custodial sentence other than one fixed by law. (2) The custodial sentence shall be? (a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or (b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender. (3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it, the court shall? (a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and (b) explain to the offender in open court and in ordinary language why the sentence is for such a term."
The appellant sought leave to challenge that sentence but was refused leave to do so by the single judge and, on 13 June 1997, by the Court of Appeal for detailed reasons which give rise to no issue before the House. On 17 May 2001 the appellant was released on licence.[3]Article 5(4) of the Convention provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful"
. This provision, part of a very important article directed to protection of the right to liberty and security, reflects principles long cherished in this country by lawyers and the public alike: that no one shall be deprived of his liberty save on lawful authority; that anyone challenging the lawfulness of his detention shall have access to a court with power to decide whether his detention is lawful or not; and that if his detention is not held to be lawful his release shall be ordered. No one is to be detained arbitrarily or (other than very temporarily) at the direction of the executive. Article 5(4) must be read with article 5(1), which begins: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court . . .".[4]The appellant does not challenge the imposition upon him of punitive sentences of imprisonment. Nor does he challenge in principle the extension of a sentence beyond the term necessary to punish an offender where such extension is properly directed towards protection of the public against serious harm caused by a violent or sexual offender. His contention, based on article 5(4), is in essence this: that once a defendant sentenced under section 2(2)(b) or 80(2)(b) has served the part of his sentence imposed purely for purposes of punishment (that is, the term "commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it") and is about to begin serving the balance of the sentence imposed for purposes of public protection ("such longer term …. as in the opinion of the court is necessary to protect the public from serious harm from the offender") he should enjoy the substantive and procedural rights held to be necessary where discretionary life sentence prisoners have served the punitive (or tariff) term imposed by the trial judge or, on appeal, by the Court of Appeal. The underlying rationale of this argument is clear. The sentence passed on a discretionary life sentence prisoner has two components, the first punitive, the second protective. The only justification for continued detention of a prisoner who has served the punitive part of his sentence is the need to protect the public. But a prisoner's danger to the public, however evident at the time of sentence, may diminish or disappear. Thus his danger to the public, and the justification for continued detention, should be the subject of periodic review (in which the prisoner should have the right to participate) to ensure that a prisoner is not detained on the ground of his danger to the public when he is no longer such a danger. A similar régime, it is argued, should apply to those sentenced under section 2(2)(b) or 80(2)(b): once the commensurate term has been served, the only ground for continued detention is public protection; but by the end of the commensurate term the prisoner may no longer be a danger to the public; therefore his continued detention should be the subject of review, with his participation, to ensure that he is no longer detained on the ground of his danger to the public when he is no longer such a danger.[5]In December 2000, with the first review of his case approaching, the appellant's solicitors sought confirmation from the Parole Board that at the review he would be treated in the same way as a discretionary life sentence prisoner(a) in being granted an oral hearing, and(b) in application of the same test to decide whether he should continue to be detained. The Parole Board gave no such confirmation and the appellant applied for permission to seek judicial review, basing his application on the argument summarised in paragraph 4. On 23 May 2001 Sir Oliver Popplewell granted the appellant permission, giving detailed reasons favourable to the appellant for doing so: [2001] EWHC Admin 463. By this time the application was strictly moot, since the appellant had already been released on licence, but the application was rightly held to raise an important point of principle. At the substantive hearing of the application in October 2001, Elias J granted the application, accepting the appellant's argument based on the Convention: [2001] EWHC Admin 834; [2002] 1 WLR 654. On the Secretary of State's appeal, the Court of Appeal (Kennedy, May and Tuckey LJJ) reached a different conclusion: [2002] EWCA Civ 951; [2003] 2 WLR 196.[6]In domestic law the sentences imposed on the appellant took effect as a single composite term of seven years' imprisonment: see section 51(2) of the Criminal Justice Act 1991. He was a "long-term" prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991, since he was serving a sentence of four years or more. As a long-term prisoner the appellant was eligible for release on the recommendation of the Parole Board after serving one half of his sentence (section 35(1) of the Criminal Justice Act 1991) and was entitled to release on licence after serving two-thirds of his sentence (section 33(2) of the 1991 Act). There is no provision in domestic law for release of a long-term prisoner, save on compassionate grounds, before half of the single composite term has been served. If effect were given to the appellant's contention that release of a long-term prisoner should be considered at the end of the commensurate term which would have been imposed under section 2(2)(a) or 80(2)(a), this would plainly conflict with the domestic régime described above in any case where the protective extension ordered under section 2(2)(b) or 80(2)(b) exceeds the commensurate term which would have been ordered under section 2(2)(a) or 80(2)(a). There is nothing in any statute which indicates that the protective extension should not be longer than the commensurate term, and there are reported cases in which the Court of Appeal has approved longer terms: R v Chapman [2000] 1 Cr App R 77; R v Smith [2001] 2 Cr App R(S) 160; R v Wilson (unreported), 10 February 2000, CA; R v Barker [2003] 1 Cr App R(S) 212. In a case where the index offence does not merit the imposition of a life sentence but the offender is recognised to represent a serious risk to the public, imposition of a protective extension longer than the commensurate term may well represent the best means of reconciling the need to protect the public with the need to do justice to the individual offender.[7]Section 34 of the Criminal Justice Act 1991, since repealed and replaced by section 28 of the Crime (Sentences) Act 1997, required the sentencing judge, when imposing a discretionary life sentence, to specify the period to be served before the prisoner might require the Secretary of State to refer his case to the Parole Board. This was the punitive or tariff term of the sentence. Thus in such a case there could never be doubt when the punitive phase of the prisoner's detention had come to an end. From that time onwards the continued detention of the prisoner could be justified on grounds of public protection alone. By contrast, a judge who imposes a longer than commensurate sentence under section 2(2)(b) or 80(2)(b) is not required by either statute to indicate what part of the total sentence or sentences is commensurate within section 2(2)(a) or 80(2)(a) and what part represents the protective extension. The Court of Appeal has not required sentencing judges to disclose the make-up of the sentence in that way. While in practice some judges have chosen to disclose the basis on which they have calculated the length of the sentence or sentences imposed, others have not, as the judge in this case did not, and it may be doubted whether sentencing judges necessarily base their overall sentence or sentences on a detailed calculation of the length of the component parts. It follows that in any case in which the commensurate term had not been expressly identified, the Parole Board and the Prison Service would have difficulty in knowing when the commensurate term ended. There would not, as in the case of discretionary life sentence prisoners, be a precise date on which the first phase of the sentence would end and the second begin.[8]These considerations make plain, in my opinion, not only that our domestic sentencing and release régime does not envisage the process of review for which the appellant contends, but that it is inconsistent with it. Mr Fitzgerald QC, representing the appellant, did not suggest otherwise. He founded his argument on article 5(4) of the Convention as interpreted and applied by the Strasbourg institutions. It is of course the duty of the House under section 2(1) of the Human Rights Act 1998 to take account of judgments, decisions and opinions given or made by the Strasbourg institutions (so far as they are relevant) and to give effect to Convention rights (section 6(1)) unless precluded from doing so by primary legislation, in which case a declaration of incompatibility may be made (section 4).[9]I need not repeat the detailed account which my noble and learned friend Lord Hope has given of the Strasbourg jurisprudence to which the House was referred. I agree with his analysis and I fully share his conclusions. As May LJ pithily put it in paragraph 19 of his judgment in the Court of Appeal:
"All the European authorities to which Kennedy LJ has referred, which conclude that article 5(4) of the European Convention [on] Human Rights requires an appropriate procedure allowing a court to determine the continued lawfulness of detention, concern sentences which were indeterminate and where otherwise the decision whether to release the prisoner lay with the executive.

(b) "

Mr Fitzgerald accepted the accuracy of that summary. To conclude that the Strasbourg decisions have only applied article 5(4) to cases having features different from the present does not, however, conclude the issue which the appellant raises unless those differences are such as should lead to a different result.[10]That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as "a savage attack" and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body. Again, May LJ put the point succinctly in paragraph 19 of his judgment:
"Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner's release."
[11]I conclude that the sentence passed on the appellant fell squarely within article 5(1) of the Convention and did not attract the operation of article 5(4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the half-way stage the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under section 2(2)(b) or 80(2)(b) and discretionary life sentence prisoners is in my opinion false.[12]For these reasons as well as for those given by Lord Hope of Craighead and Lord Hutton I would dismiss this appeal. LORD STEYN My Lords,[13]I have read the opinions of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton. For the reasons they have given I would also dismiss the appeal. LORD HOPE OF CRAIGHEAD My Lords,[14]As my noble and learned friend Lord Bingham of Cornhill has explained, the appellant was sentenced by the judge in the Crown Court at Nottingham to a total of seven years' imprisonment. He had pleaded guilty to two violent offences, for which he received sentences of four and three years' imprisonment respectively. The total of seven years' imprisonment resulted from the fact that the judge ordered that these two periods of imprisonment were to be served consecutively.[15]When he was giving his reasons for imposing this sentence the judge said that he was of the opinion that it was necessary to pass a custodial sentence which was longer than the sentence which would be commensurate with the seriousness of the offences in order to protect the public and one of the appellant's victims from serious harm from him. He said that he had formed that opinion on the basis of all the matters disclosed in reports which were before him, which he directed should go to the prison authorities. It appears from the judge's remarks that the appellant's attitude to re-offending was governed by his personality disorder for which he required treatment if that was possible. Although he did not say so in terms, it is plain that in passing this sentence the judge was exercising the power conferred on him by section 2(2)(b) of the Criminal Justice Act 1991.[16]Section 2(2) of the 1991 Act, which has now been re-enacted as section 80(2) of the Powers of Criminal Courts (Sentencing) Act 2000, was designed to provide a statutory basis for determining the length of a custodial sentence other than one fixed by law. The primary rule is that set out in paragraph (a). It provides that the custodial sentence shall be for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it. This is the principle of "just desserts" referred to in the White Paper, Crime, Justice and Protecting the Public (1990) (Cm 965), para 2.3, which requires the court to pass a sentence which is in proportion to the seriousness of the offence. Paragraph (b) provides an alternative approach which the court may adopt where the offence is a violent or sexual offence. In such a case the custodial sentence shall be for such longer term (not exceeding the permitted maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender. Under this paragraph the court is required to apply its mind to the question whether sufficient grounds exist for passing a sentence which is longer than a sentence which would be proportionate to the offence. As Kennedy LJ said in the Court of Appeal [2003] 2 WLR 196, 200, para 5, a sentence which is passed under this paragraph is in substitution for, not additional to, the sentence which would otherwise have been passed under subsection (2)(a).[17]Although section 2(2) of the 1991 Act divided the sentencing exercise into these two parts, every custodial sentence which a judge imposes shares the following characteristics irrespective of the part of the subsection under which it is passed. These are:(a) the decision as to the length of the sentence is taken by a judge as part of the overall sentencing exercise;(b) the judge's decision as to the length of the sentence is based on all the information before him at the time when he imposes it;(c) unless the judge decides to impose a discretionary life sentence under subsection (2)(b), the length of the sentence is fixed by him at the time when he imposes it; and(d) his decision is subject to appeal, but the minimum period of detention that results from a determinate sentence is not open to review by the executive. Where the judge decides to sentence the offender to a term which is longer than one which is commensurate with the seriousness of the offence or the combination of the offence with one or more offences associated with it, he must give his reasons for doing so in open court: section 2(3) of the 1991 Act; see now section 80(3) of the 2000 Act.[18]The approach to sentencing which the statute lays down is therefore, from start to finish, a judicial exercise. It is subject to all the guarantees which are afforded by article 6(1) of the European Convention on Human Rights.[19]The advantages which flow from this structured approach to the sentencing exercise should not be allowed to conceal the fact that the need to protect the public from serious harm had always been regarded as a factor to which a judge could have regard when he was arriving at a custodial sentence which was appropriate to the circumstances. This can be illustrated by reference to the practice which is still followed in Scotland, where there are no statutory rules about the general approach which is to be taken to the length of custodial sentences. The matter is regulated by the practice of the court and by the common law. The need to protect the public from harm caused by further offending is a factor that can legitimately be taken into account by the judge as part of the sentencing exercise, if there are sufficient grounds for doing so in the information which is before the court.[20]In Torbet v H M Advocate , 1999 SLT 113, the appellant had committed offences while released on licence from a life sentence for murder. When he was sentencing him for these offences the trial judge took into account the fact that he posed a moderate risk of future violence to women with whom he had had an intimate relationship. The length of the sentence was held to be excessive on appeal by the High Court of Justiciary. But the judge's approach to the matter was approved, as the Lord Justice General (Rodger) explained at p115L:
"Although a court will be aware that a particular offender has been recalled by the Secretary of State, who will need to bear in mind the safety of the public in considering his future release from custody under the life sentence, the duty of the court in sentencing him for the particular offence of which he has been convicted is to approach the matter in the usual way. The court will therefore chose the sentence which is appropriate, having regard to the nature of the offence, the previous convictions of the offender and all the other factors which a judge normally takes into account. Among those factors may be the need to choose a period which the court considers will give the public appropriate protection from any risk of reoffending."
The issue[21]The question is whether a decision by a judge to take account of the factor mentioned in subsection (2)(b) when he imposes a determinate sentence is compatible with article 5(4) of the Convention read together with article 5(1)(a). If he selects a discretionary life sentence, he is required by section 28(2)(b) of the Crime (Sentences) Act 1997 to specify the period for which the offender will have to remain in prison before becoming eligible for consideration for release on parole by the Parole Board. The period which the judge selects for this purpose is a period which is commensurate with the seriousness of the offence or the combination of the offence and other offences associated with it. The question whether the offender should then be released, bearing mind the need to protect the public, is for the Parole Board. It must direct release when it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined: section 28(6)(b) of the 1997 Act. But if the judge selects a determinate sentence, as the judge did in this case, there is no such requirement. The date when the offender becomes eligible for consideration by the Parole Board is fixed by statute. Section 35 of the Criminal Justice Act 1991 provides that, after a prisoner who is serving a sentence of imprisonment for a term of four years or more (a "long-term prisoner") has served half his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.[22]For the appellant Mr Fitzgerald QC submits that a longer than commensurate sentence which is imposed under subsection (2)(b) contains two distinct components. The first is the punitive component. The second is, as he put it, the preventative one. On his analysis the second part commences when the punitive part of the sentence expires. His argument is that the lawfulness of the preventative part of the sentence depends on whether the prisoner continues to present an unacceptable risk to the public throughout this period. He submits that, as dangerousness is liable to change over time, this is not something that a judge can predict at the time of sentencing. So, if the sentence is not to be regarded as arbitrary during the preventative part, its lawfulness requires to be re-determined by the Parole Board periodically in accordance with article 5(4) of the Convention as soon as the punitive part of it has been served.[23]For the Parole Board Mr Pannick QC submits that the requirements of article 5(4) are fully satisfied where the prisoner is serving a determinate sentence which has been fixed by the judge at the time of sentencing. According to his argument there is nothing arbitrary about a sentence which has been imposed for a fixed period by a judge even if the period has been selected partly by reference to factors that may change over time. This is because the decision about the length of the sentence is a judicial decision which is taken in open court in the light of all the information available to the judge at the time of sentencing. It is the judicial nature of the decision which distinguishes these cases from those where decisions as to the length of the detention is in the hands of the executive. Article 5[24]The relevant provisions of article 5 of the Convention are the following:
"(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
[25]The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4): David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 446. Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387, 402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means(i) that it must be lawful under domestic law,(ii) that it must conform to the general requirements of the Convention as to the quality of the law in question - its accessibility and the precision with which it is formulated and(iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 38E; McLeod v United Kingdom (72/1997/865/1065), para 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements.[26]Article 5(4), on the other hand, is concerned with the need for the detention to be reviewed in order that it may be determined whether it is lawful both in terms of domestic law and in terms of the Convention. Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful. The general rule, as I have said, is that detention in accordance with a determinate sentence imposed by a court is regarded as justified under article 5(1)(a) without the need for any further reviews of the detention to be carried out under article 5(4). The question which Mr Fitzgerald has raised is whether that rule, which undoubtedly applies to determinate sentences imposed under subsection (2)(a), can be applied also to determinate sentences imposed under subsection (2)(b). It was agreed that the answer to it is to be found in the jurisprudence of the European Court of Human Rights, to which I now turn. The Strasbourg jurisprudence[27]The European Court of Human Rights has made it clear from the earliest days that a clear distinction exists between decisions depriving a person of his liberty which are made by an administrative body on the one hand and by a court on the other. In De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, 407, para 76 the court said:
"At first sight, the wording of article 5(4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. … Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the contracting states to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case, the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' (article 5(1)(a) of the Convention)."
[28]In Winterwerp v The Netherlands (1979) 2 EHRR 387, 408, para 55, the European Court observed that the Commission, citing its own case law, had put forward the view that, as it stood, the conclusion by the court in De Wilde, Ooms and Versyp could not be sustained in the case of confinement of persons of unsound mind, at any rate when the confinement was for an indefinite period. This was because the reasons initially warranting confinement of persons on the ground of unsound mind might cease to exist. Consequently, it would be contrary to the object and purpose of article 5 to interpret paragraph 4 of that article as making this category of confinement immune from subsequent review of lawfulness merely provided the initial decision issued from a court. The very nature of the deprivation of liberty under consideration appeared to require a review of lawfulness to be available at reasonable intervals. The Commission's views were upheld by the court in that case. But it was made clear that the detention of persons of unsound mind constituted a special category: p 408, para 57. By virtue of article 5(4) therefore a person of unsound mind who is compulsorily detained in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court for the determination of the lawfulness of his detention: X v United Kingdom (1981) 4 EHRR 188, 207, para 52.[29]The European Court has recognised that offenders sentenced to discretionary life imprisonment also fall into a special category. In Weeks v United Kingdom (1987) 10 EHRR 293 the applicant, who was aged 17, had been convicted of armed robbery and sentenced to life imprisonment in the interests of public safety because he was considered both by the trial judge and the Court of Appeal to be dangerous. At p 310, para 46 the court said:
"The court agrees with the Commission and the applicant that the clearly stated purpose for which [the] sentence was imposed, taken together with the particular facts pertaining to the offence for which he was convicted, places the sentence in a special category."
Later in the same paragraph, at p 311, the court observed that, in substance, Mr Weeks was being put at the disposal of the state because he needed continued supervision in custody for an unforeseeable length of time and, as a corollary, periodic reassessment in order to ascertain the most appropriate way of dealing with him, and added:
"The grounds expressly relied on by the sentencing courts for ordering this form of deprivation of liberty against Mr Weeks are by their very nature susceptible of change with the passage of time, whereas the measure will remain in force for the whole of his life. In this, his sentence differs from a life sentence imposed on a person because of the gravity of the offence."
In Wynne v United Kingdom (1994) 19 EHRR 333 the court held that the mandatory life sentence belonged to a different category because it is imposed automatically as punishment for the offence of murder irrespective of conditions pertaining to the dangerousness of the offender. It saw this as an essential distinction between the two types of sentence: p 347, para 35.[30]In Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 the applicants had each received discretionary life sentences. They complained about the lack of a regular judicial scrutiny of the lawfulness of their detention and, in the case of the second and third applicants, their re-detention. At p 693, para 73 the European Court said that it was not persuaded that it was impossible to disentangle the punitive and security components of such sentences:
"Although the dividing line may be difficult to draw in particular cases, it seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release."
Having examined the judgments of the sentencing courts in each case the court concluded that in each of them the punitive period of the discretionary life sentence had expired. At p 694, para 76 the following conclusion is set out:
"Having regard to the foregoing, the court finds that the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the Van Droogenbroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows that at this phase in the execution of their sentences, the applicants are entitled under article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court."
[31]There is an obvious link between the analysis of the discretionary life sentence which was undertaken in that case and a determinate sentence which is longer than one which is commensurate with the offence passed under subsection (2)(b). In both cases, it can be said, there is a punitive element and a protective or security element. In both cases, it can be said, the factors which justified the protective or security element are susceptible to change with the passage of time. That, in essence, is the basis of Mr Fitzgerald's argument. As he puts it, determinate sentences which are partly punitive and partly preventative are in the same category. He says that they too require a determination, once the preventative phase is entered, as to whether that characteristic is still there and a review of that question thereafter at reasonable intervals.[32]But there is one other point about the discretionary life sentence which emerges from these judgments which a determinate custodial sentence does not share. As the court observed, the effect of a discretionary life sentence was to put the prisoner at the disposal of the state: Weeks 10 EHRR 293, 311, para 46. This was because it conferred on the Secretary of State the responsibility of determining when the public interest permitted the prisoner's release: Thynne, Wilson and Gunnell 13 EHRR 666, 693, part 73.[33]The procedure for periodic review of the public safety element has now been changed, following the decision of the European Court in Hussain v United Kingdom (1996) 22 EHRR 1, in which it was held that there had been a violation of article 5(4) because the applicant who had been detained at Her Majesty's pleasure was unable, after the expiry of his punitive period, to bring the case of his continued detention before a court. The court said that he was entitled under article 5(4) to have the issue of his dangerousness to society, a characteristic susceptible to change with the passage of time, decided by a court at reasonable intervals: p 25, para 54: see also Stafford v United Kingdom (2002) 35 EHRR 32, para 87. A review of the protective element at reasonable intervals conducted by a judicial body at an oral hearing under the rules of the Parole Board satisfies the requirement which these decisions of the European Court identified. But does article 5(4) give rise to the same requirement where, as happens in the case of a determinate sentence, the length of the sentence is determined by the sentencing court at the outset - where, in other words, the length of time that is needed to satisfy the protective element is incorporated in the court's decision and is not left to the executive?[34]In order to find an answer to this question it is necessary to go back in time to Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and E v Norway (1990) 17 EHRR 30, as these decisions formed an important part of the jurisprudence which the court examined in Thynne, Wilson and Gunnell and in Weeks .[35]In Van Droogenbroeck the applicant was sentenced by the criminal court to two years' imprisonment for theft and attempted theft. He had a previous conviction for aggravated theft and he was thought to have manifested a persistent tendency to crime. So he was ordered to be placed at the government's disposal for 10 years on the ground that he was a recidivist. Under Belgian law this disposal, which was provided for by the Social Protection Act 1964 in the case of recidivists and habitual offenders and was subject to appeal, was classified not as a security measure but as a penalty which formed an inseparable whole together with the principal penalty. But it also conferred a wide measure of discretion on the Minister of Justice in deciding how the penalty should be implemented. The measures which were at his discretion under the statute included the offender's conditional release either at the end of the principal sentence or during the course of his detention.[36]Before the Commission it was argued for the respondent government under reference to De Wilde, Ooms and Versyp that the applicant's detention, which was imposed by virtue of a court sentence, was simply an execution of that sentence and that it could not form the subject of proceedings under article 5(4) distinct from those which were embodied in the court's conviction and sentence. As the Commission noted, this raised the question whether the principle stated by the court "of the incorporation of the control" provided for in article 5(4) in the original court decision can be applied in circumstances where neither the law nor the court specified a minimum or normal duration for the deprivation of liberty: Report of the Commission, 9 July 1980, p 26, para 62. Having regard to the nature of the deprivation of liberty and to factors which might affect its lawfulness subsequent to the original court decision, the Commission upheld the complaint. The key to its reasoning, for present purposes, is to found at p 27, para 64:
"The most significant feature of detention ordered in connection with placing at the Government's disposal is, as has already been pointed out, the relative indetermination of its duration. Depending on the case and the relevant administrative decisions, it may vary from nothing to ten years. No minimum duration is fixed by the law or the court ; the detention may continue for a maximum period of 10 years, without the court which ordered the measure exercising the least control over it. In fact, the administration is responsible for adjusting the penalty to the circumstances of the individual."
[emphasis added][37]The approach which the European Court adopted was to look beyond the appearances and the language used and concentrate on the realities of the situation: (1982) 4 EHRR 443, 456, para 38. Considering first the question whether there had been a violation of article 5(1)(a), the conclusion which it drew, adopting the language used by the Commission's delegate, was that the court decision does not "order" the detention of recidivists and habitual offenders but "authorises" it. The task which it then set itself was to consider whether there was a sufficient connection between that decision and the deprivation of liberty. It answered this question in the affirmative, since the minister's discretion was exercised within a framework set both by the statute and by the sentence pronounced by the court. So there was no violation of article 5(1)(a). But it took a different view of the question whether there had been a violation of article 5(4). It noted that, in practice, the court's decision provided the Minister of Justice with initial authority for detention for a period whose actual duration was striking for its relatively indeterminate character and could vary, in principle, according to the treatment required by the offender and the demands of the protection of society. This system, it held, was fundamentally different from that of the conditional release of prisoners "sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case": p 460, para 47. [Emphasis added][38]Turning to the complaint under article 5(4), the court pointed out that when it referred its judgment in the De Wilde, Ooms and Versyp case to "the decision depriving a person of his liberty" it did not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise: p 458, para 45. At p 461, para 48 it recalled that for the purposes of article 5(4) the lawfulness of an arrest or detention had to be determined in the light not only of domestic law but also of the text of the Convention, the general principles embodied in it and the aim of the restrictions permitted by article 5(1):
"Quite apart from conformity with domestic law, 'no detention that is arbitrary can ever be regarded as 'lawful'' for the purposes of paragraph 1. This is the limit which the Minister of Justice must not exceed in the exercise of the wide discretion he enjoys in executing, or implementing, the initial court decision. This requirement is rendered all the more compelling by the seriousness of what is at stake, namely the possibility that the individual may be deprived of his liberty for up to 10 years … 'or even longer' … . This type of detention would no longer be in conformity with the Convention if it ceased to be based on reasons that are plausible and consistent with the objectives of the Social Protection Act; for the purposes of article 5, it would become 'unlawful'."
The court concluded at p 462, para 49 that the Convention required an appropriate procedure allowing a court to determine speedily, on the prisoner's application, whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the 1964 Act. This was not just a question of expediency. It bore on the very "lawfulness" of the deprivation of liberty.[39]In E v Norway (1990) 17 EHRR 30 the applicant had suffered serious brain damage and was an untreatable psychopath. He was convicted of numerous violent offences and sentenced to a period of imprisonment. He was also sentenced to preventive detention under the Norwegian Penal Code, as result of which he was detained in mental hospitals. The effect of this sentence was to enable the Ministry of Justice to monitor his progress and to release or detain him when this would prove appropriate. It gave the ministry a wide discretion in deciding which of various possible security measures was to be imposed and for how long. The court observed, at p 51, para 52, that this system shared a number of features with the Belgian system in regard to recidivists and habitual offenders which was at issue in the Van Droogenbroeck case:
"Under such systems the courts cannot at the time of their decisions do more than assess how the person concerned will develop in the future. The authorities, on the other hand, through and with the assistance of their officers, can monitor that development more closely and at frequent intervals."
However, there was a risk, as in Van Droogenbroeck , that with the passage of time the link between the ministry's decision not to release or to re-detain and the initial judgment might be broken with the result that it would be transformed into a deprivation of liberty that was arbitrary.[40]The important point which emerges from these two decisions for present purposes is that a distinction is drawn between detention for a period whose length is embodied in the sentence of the court on the one hand and the transfer of decisions about the prisoner's release or re-detention to the executive. The first requirement that must be satisfied is that according to article 5(1) the detention must be "lawful". That is to say, it must be in accordance with domestic law and not arbitrary. The review under article 5(4) must then be wide enough to bear on the conditions which are essential for a determination of this issue. Where the decision about the length of the period of detention is made by a court at the close of judicial proceedings, the requirements of article 5(1) are satisfied and the supervision required by article 5(4) is incorporated in the decision itself. That is the principle which was established in De Wilde, Ooms and Versyp . But where the responsibility for decisions about the length of the period of detention is passed by the court to the executive, the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time. If this happens there is a risk that decisions which are taken by the executive will be arbitrary. That risk is absent where the length of the period of detention is fixed as part of its original decision by the court.[41]Elias J in the Administrative Court understood the effect of the Strasbourg jurisprudence to be that the detention was lawful only if it continues to achieve the object for which it was imposed, and that no distinction was to be drawn in this respect between sentences which were determinate and indeterminate: [2002] 1 WLR 654, 660F-G, para 19; 663A-B, para 28. In my opinion however that is not the decisive factor. The critical distinction is that which the European Court has made between cases where the length of the detention is fixed by the court and those where decisions about its length are left to the executive. It is in the latter case only that new issues of lawfulness may arise in the course of the detention which were not incorporated in the original decision by the court.[42]In Mansell v United Kingdom (Application No 32072/96) (unreported) 2 July 1997, the judge imposed a longer than commensurate sentence in an indecent assault case to protect the public under section 2(2)(b) of the 1991 Act. The applicant complained that he should have been entitled to a review of the lawfulness of his detention as he was in the same position as a discretionary life prisoner because his sentence contained a preventative part as well as a punitive part. The Commission held that the application was manifestly unfounded. It recalled at p 3 that the supervision required by article 5(4) is normally incorporated in the decision where a sentence of imprisonment is pronounced after conviction by a competent court: De Wilde, Ooms and Versyp 1 EHRR 373, 407, para 76. It then said that there was no question of the sentence being imposed because of the presence of factors which "were susceptible to change with the passage of time, namely mental instability and dangerousness": Thynne, Wilson and Gunnell , para 70. So the case did not fall into that special category. Rather there was, it said, "an element of 'simple' punishment as well as an element of deterrence". The fact that what it described as "the latter part" of the sentence had been imposed to protect the public from serous harm was accepted. But it did not affect the basic point which the Commission then sought to identify:
"Such an 'increased' sentence is, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the 'increase' has a statutory basis. In particular, nothing in the sentencing procedure indicates that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed."
[43]Mr Fitzgerald said that the Commission had misunderstood the nature of the sentence which the judge had passed in that case. It was also a decision by the Commission and not by the court. He submitted that, as it was not part of the clear and constant part of the court's jurisprudence, it should be treated with caution especially as there was no avenue for redressing what he said was its erroneous understanding of the nature and rationale of the sentence.[44]It is true that it was a decision by the Commission only, and I note that in the Court of Appeal Kennedy LJ said that he had difficulty in following some of the reasoning: [2003] 2 WLR 196, 207G, para 18. But it seems to me that on all the essential points its reasoning was consistent with the court's jurisprudence. The Commission's observation that there was no question of the sentence being imposed because of factors that were susceptible to change has to be read in the light of the previous sentence in which the sentence is described as a "fixed term sentence" and the discussion in the previous paragraph of the cases to which the normal rule in De Wilde, Ooms and Versyp does not apply. The point is then made that what the Commission described as "the increased sentence" was no more than the usual exercise by the sentencing court of its ordinary sentencing powers. That provides the context for the final observation that there was nothing to indicate that the fixed term sentence was anything other than a sentence which was imposed as punishment for the offences committed. It was to be contrasted, in other words, with an indeterminate sentence where the circumstances which were thought by the court initially to warrant detention might cease to exist. As Kennedy LJ said at p 208E-F, para 18, the case was one where a period of time was fixed precisely because the sentencing judge considered that he was in a position to fix it.[45]I do not accept Mr Fitzgerald's criticism of this decision, although I agree that it might have been better expressed. Properly understood, it seems to me to fit in well with the other cases and to be consistent with what I take from the court's jurisprudence to be the guiding principles.[46]In Silva Rocha v Portugal (2001) 32 EHRR 333 the applicant went to trial on charges of aggravated homicide and illegal possession of weapons. The facts were found to have been established, but the court also found that his mentally disturbed state prevented a finding of criminal responsibility. It held that he was a dangerous person who could not be responsible for his actions and ordered him to be detained in a psychiatric asylum. In accordance with the Portuguese Criminal Code this security measure was to remain in force for a minimum period of three years. The Portuguese Government said that this period had been fixed for general deterrence reasons. The applicant challenged the lawfulness of his detention under article 5(1) and maintained that there had been a violation of article 5(4) because there was no provision for judicial supervision of his confinement. The Commission held that the case could not be distinguished from the cases of Winterwerp v The Netherlands 2 EHRR 387 and X v United Kingdom 4 EHRR 188 and declared his complaint admissible. But the court held, by six votes to three, that there was no violation.[47]The court held that the applicant had been lawfully detained within the meaning of article 5(1). It gave the following reasons for its decision that there had been no violation of article 5(4) at p 344, paras 28 - 30:
"28 The case involved a homicide committed by a person who could not be held responsible for his actions and who was at the same time dangerous. The seriousness of the offences together with the risk that he represented for himself as well as for others could reasonably justify his being removed from society for at least three years. 29 For that period the review required by article 5(4) of the Convention was incorporated in the detention decision taken in this instance by the Oporto Criminal Court. 30 It was therefore not until those three years had elapsed that the applicant's right to 'take proceedings by which the lawfulness of his detention shall be decided … by a court' at reasonable intervals took effect. In this respect the court notes that the legislation applied to Mr Silva Rocha (article 93 of the Criminal Code), provided for a periodic and automatic judicial review after two years and made it possible for the person detained to apply to the court at any moment to have the detention measure lifted."
The court concluded in para 31 that the intervals between the reviews were not excessive in these circumstances and noted that Mr Silva Rocha was discharged as soon as he had ceased to be dangerous.[48]Mr Pannick said that this judgment recognised that, where a person had been detained by a judicial decision for a fixed period, the fact that this was by reason of a factor which might change over time did not give rise to a right for the sentence to be further reviewed by a court during that period. Mr Fitzgerald, on the other hand, submitted that the ratio of the case was concerned solely with the length of time which could elapse between reviews. The court's finding, he said, was simply that it was not unreasonable in the case of a person who had committed such a serious offence for the first review to be delayed for at least two years from the actual time of sentence. The context was that of a period which had been selected for reasons of general deterrence, not the characteristics of the offender.[49]I think that it would be unwise to draw any firm conclusions from this judgment other than that the court was seeking to find an answer to the question raised by the unusual facts of the case which was in keeping with the jurisprudence established by the earlier cases. The reasons for the decision in the court's judgment are far from elaborate. Three of the judges in the majority took the unusual step of annexing concurring opinions to the court's judgment, and a dissenting opinion by the minority was also annexed to it. The President, Judge Ryssdal, who was in the majority, said at p 345 that the facts as assessed by the competent domestic courts showed that the applicant's mental disorder and his danger to society persisted throughout the period of three years and that on the facts there had been no violation. It was indeed the fact that there had been a series of reviews at reasonable intervals, and the applicant was discharged as soon as he had ceased to be considered dangerous. The case is best seen as a decision on its own facts which does not add to or detract from the guidance which is to be obtained from the other cases.[50]A convenient summary of the guidance which is to be obtained from the Strasbourg jurisprudence is to be found in Iribarne Perez v France (1995) 22 EHRR 153. The applicant's complaint in that case was that, having been convicted and sentenced in Andorra, no provision had been made for the lawfulness of his detention to be reviewed in France where he had chosen to serve his sentence. The court, holding that there had been no violation, said at pp 173-174, para 30: "The court refers to its case law on this question. The review required by article 5(4) is incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceeding; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' within the meaning article 5(1)(a) of the Convention. Only the 'initial decision' is contemplated, not 'an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise. [Reference is made in footnotes to De Wilde, Ooms and Versyp v Belgium 1 EHRR 373 and X v United Kingdom 4 EHRR 188, para 51.] However, article 5(4) sometimes requires the possibility of subsequent review of the lawfulness of detention by a court. This usually applies to the detention of persons of unsound mind within the meaning of paragraph 1(e), where the reasons initially warranting confinement may cease to exist: '...it would be contrary to the object and purpose of article 5 … to interpret paragraph 4 thereof … as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court'. [Reference is made in a footnote to Winterwerp v The Netherlands 2 EHRR 387, para 55 and to X v United Kingdom , para 52.] The same principle applies to the detention 'after conviction by a competent court' mentioned in paragraph 1(a), but only in certain quite specific circumstances. These include, for example, the placing of a recidivist at the government's disposal in Belgium, the continuing detention of a person sentenced to an 'indeterminate' or 'discretionary' life sentence in Great Britain and the detention for security reasons of a person with an underdeveloped or permanently impaired mental capacity in Norway." [Reference is made in footnotes to Van Droogenbroek v Belgium 4 EHRR 443, Weeks v United Kingdom 10 EHRR 293, Thynne, Wilson and Gunnell v United Kingdom 13 EHRR 666 and E v Norway 17 EHRR 30.] Conclusion[51]It is plain from this summary that the basic rule which the European Court laid down in De Wilde, Ooms and Versyp v Belgium continues to apply. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.[52]I would hold that the present case falls within the basic rule. The review which article 5(4) requires was incorporated in the sentence which the judge passed under subsection (2)(b). This is because he fixed the period of the sentence which was needed to protect the public from serious harm. He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate. As he was able to take this decision at the outset there is no risk that detention for the minimum period fixed by the sentence will become arbitrary. The appellant has no further right under article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially.[53]For these reasons, and for those given by my noble and learned friend Lord Bingham of Cornhill, I would dismiss the appeal. LORD HUTTON My Lords,[54]On 10 January 1997, following pleas of guilty, the appellant was sentenced to four years' imprisonment for an offence of unlawful wounding and, consecutively, to a period of three years' imprisonment for an offence of assault occasioning actual bodily harm. The total sentence of seven years' imprisonment was imposed pursuant to the powers contained in section 2 of the Criminal

Justice Act 1991 which provides:

"(1) This section applies where a court passes a custodial sentence other than one fixed by law. (2) The custodial sentence shall be— (a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and [one or more] offences associated with it; or (b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender. (3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and [one or more] offences associated with it, the court shall— (a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and (b) explain to the offender in open court and in ordinary language why the sentence is for such a term. (4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term."
[55]In passing sentence in the Crown Court at Nottingham His Honour

Judge Bennett stated:

"I am satisfied that the offences that you have committed led to physical injury to persons and are, accordingly, offences of violence within the law and I am of the opinion that it is necessary to pass a custodial sentence which is longer than the sentence which would be commensurate with the seriousness of the offences in order to protect the public and Mr Johnson in particular from serious harm from you."
[56]In his judgment on the appeal by the Secretary of State to the Court of Appeal from the decision of Elias J sitting in the Administrative Court [2003] 2 WLR 196, 208 - 209, May LJ accurately summarised the nature of the sentence imposed on the appellant as follows (omitting subparagraph (c) which refers to judgments of the European Court of Human Rights):
"(a) A sentence under section 2(2)(b) of the Criminal Justice Act 1991 — now section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 — is a single determinate sentence, the product of a judicial decision. (b) Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner's release …. (d) Section 2(2)(b) applies to violent or sexual offences where the court is of the opinion that it is necessary to protect the public from serious harm from the offender. In some such combined circumstances, an indeterminate sentence may be an available alternative. Even if that is not so, and although the sentence requires an element of judicial prediction, the choice of sentence is a judicial decision that a longer term necessary to protect the public should be determined at the time of sentence."
[57]The appellant submits that his continued detention under the sentence passed upon him after the punitive period of the sentence had expired constituted an infringement of his rights under article 5(4) of the European Convention on Human Rights which provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The appellant contends that the period of his sentence imposed to protect the public and not for the purpose of punishment constituted arbitrary detention because he did not have the right, after he had served the punitive part of his sentence, to apply to a court to decide whether it was still necessary to detain him in order to protect the public.[58]At first sight this would seem to be a difficult argument to advance because the sentence of seven years which the appellant served would appear to fall squarely within subparagraph (a) of article 5(1) of the Convention which provides:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court"
. Moreover in De Wilde, Ooms and Versyp v Belgium (No 1) [1971] 1 EHRR 373, 407, para 76 the European Court of Human Rights stated:
"Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case, the supervision required by article 5(4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' (article 5(1)(a) of the Convention)."
[59]However Mr Fitzgerald QC, for the appellant, submits that the jurisprudence of the European Court establishes that where a sentence of imprisonment consists of a punitive period at the outset followed by a further period designed to protect the public from the danger arising from the defendant's propensity to violence, the factor of the defendant's propensity to violence which influenced the sentencing judge to impose the additional period of imprisonment may change over the passage of time, and therefore the defendant is entitled to require a court to decide whether he should continue to be detained, and the denial of such a right makes the second period of his detention arbitrary.[60]This argument is set out in the appellant's written case as follows:
"a longer than commensurate determinate sentence comprises two distinct components. The first is punitive and on the expiration of this part the second, preventative phase of the sentence commences. The lawfulness of detention in this phase depends on whether the prisoner continues to pose an unacceptable risk. Dangerousness is a characteristic susceptible to change over time. The pronouncement of sentence by the sentencing judge is not, and is not capable of being, decisive as to the lawfulness of detention throughout the preventative phase. This is because the court can do no more than estimate for how long the offender may continue to pose an unacceptable risk. To prevent arbitrary detention the court can only authorise detention in the preventative phase as long as the offender continues to pose a danger. The lawfulness of detention falls to be re-determined in accordance with article 5(4) by reference to the question of ongoing dangerousness as soon as the punitive phase ceases to govern detention, and by reason of the changeable quality of dangerousness, at reasonable intervals thereafter."
[61]In courts throughout the United Kingdom it has been common for a sentencing judge, where he or she thinks it right to do so, to increase within reasonable bounds a sentence for a crime of violence in order to protect the public against the violent propensities of the accused. In R v Sargeant (1974) 60 Cr App R 74, 77 and 78, Lawton LJ, a

judge of great experience in the sphere of criminal law, stated:

"What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing. …. We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period."
[62]One year earlier the same judge delivered the judgment of the Court of Appeal in R v King (1973) 57 Cr App R 696. In that case two men carried out a number of offences, including going equipped for stealing, burglary, possessing an imitation pistol, and carrying offensive weapons, which included an unloaded revolver for which they had no ammunition. They pleaded guilty to the charges against them. Their counsel read out a statement by them expressing anarchical views which included the passage:
"The police uphold the laws, which in turn ensure the safety of the capitalist exploiters and their system. Therefore the police, police stations and courts are legitimate targets for acts of violence which are necessary to bring about badly needed changes in the structure of our society. Other legitimate targets are government ministers, officials and buildings, prisons and prison staff and troops."
The judge was clearly influenced very considerably by this statement and it led him to impose the maximum sentence on each count to which the defendants had pleaded. In the Court of Appeal Lawton LJ observed that the offences for which the judge had passed these sentences were clearly not the worst of their kind and that therefore the maximum sentences should not have been imposed. He then said, at pp 702 - 703:
"The learned judge increased the sentences because of the statement read to the court, and because of his view, for which there was ample evidence, that these young men were enemies of society. But the court has to bear in mind that in our system of jurisprudence there is no offence known as being an enemy of society. The court is concerned with the offences charged in the indictment. It may well be that at a trial the evidence establishes that those who have committed the offences charged are dangerous men. When the evidence establishes that the court has no reason for mitigating the penalties in any way. If the evidence does establish that the accused are dangerous men, then it is no good their saying that they have no previous convictions, or that they are still young men. The evidence cancels out such mitigation as there is. But the fact remains that the correct principle for sentencing is to sentence for the offences charged and on the facts proved or admitted. In those circumstances the court adjudges that these sentences will have to be altered."
[63]In R v King the accused had not committed crimes of violence against other persons and the sentences imposed upon them by the judge were, in reality, sentences of preventive detention. Therefore I consider that the observations of Lawton LJ in that case and in R v Sargeant were not in conflict but were reflecting the distinction referred to by Mason CJ in Veen v The Queen (No. 2) (1988)164 CLR 465, 473:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."
[64]The question to be determined in the present case is whether the effect of article 5 of the European Convention, interpreted in accordance with the jurisprudence of the European Court, is that the appellant's post-punitive period of imprisonment pursuant to the determinate sentence passed upon him under section 2(2)(b) of the 1991 Act constituted detention which violated his rights under article 5(4).[65]Mr Fitzgerald relies on the judgments of the European Court in Van Droogenbroeck v Belgium [1982] 4 EHRR 443, E v Norway [1990] 17 EHRR 30 and Thynne, Wilson and Gunnell v United Kingdom [1990] 13 EHRR 666. In the former case the applicant was sentenced to two years' imprisonment for theft and attempted theft and the court also ordered that he be "placed at the Government's disposal" for 10 years pursuant to section 23 of the Social Protection Act of 1 July 1964, the court noting that the applicant was a recidivist who had been sentenced by a criminal court on 9 April 1968 to two years' imprisonment for aggravated theft and who manifested a persistent tendency to crime. The European Court held that there had been a violation of article 5(4) because the applicant was entitled to a review of his detention once he had served his sentence of two years' imprisonment and had been placed at the Government's disposal. An important part of the reasoning of the court is set out at p 457, para 40 of its judgment:
"In fact, sight must not be lost of what the title and general structure of the 1964 Act, the drafting history and Belgian case law show to be the objectives of this statute, that is to say not only 'to protect society against the danger presented by recidivists and habitual offenders' but also 'to provide [the Government] with the possibility of endeavouring to reform [them]'. Attempting to achieve these objectives requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The Minister of Justice, for his part, is able, through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5."
[66]The court also stated, at pp 460 - 461, paras 47 to 48:
"In practice, the court's decision provides the Minister of Justice 'with initial authority for detention for a period . . . whose actual duration' — 'from nothing to 10 years' — is striking for its relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands of the protection of society. …. As the Commission pointed out in paragraph 66 of its report, this system is fundamentally different from that — on which the court does not have to express an opinion on this occasion — of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case. The discretion enjoyed by the Minister of Justice under the 1964 Act implies that he should, throughout the period of application of the measure, direct his mind to the need to deprive or continue to deprive the person concerned of his liberty or to the absence or disappearance of such a need. 'Persistent tendency to crime' and 'danger to society' are essentially relative concepts and they involve monitoring the development of the offender's personality and behaviour in order to adapt his situation to favourable or unfavourable changes in his circumstances. To a certain extent this was recognised both by the Belgian legislature when it made it possible for the Court of Appeal to grant release from the effects of the initial judgment and by the Government when they set up the Recidivists Board and associated 'medical officers specialised in psychology' with the decisions taken by the minister. It must therefore be asked whether the very logic of the Belgian system does not require subsequent judicial review, at reasonable intervals, of the justification for the deprivation of liberty. If one were to consider such justification to have been established once and for all at the moment of conviction, this would amount, in a way, to a presumption that the detention would produce no useful result. …. Quite apart from conformity with domestic law, 'no detention that is arbitrary can ever be regarded as "lawful"
' for the purposes of paragraph 1. This is the limit which the Minister of Justice must not exceed in the exercise of the wide discretion he enjoys in executing, or implementing, the initial court decision. This requirement is rendered all the more compelling by the seriousness of what is at stake, namely the possibility that the individual may be deprived of his liberty for up to 10 years (section 23 of the Act) or even longer (section 22). This type of detention would no longer be in conformity with the Convention if it ceased to be based on reasons that are plausible and consistent with the objectives of the Social Protection Act; for the purposes of article 5, it would become 'unlawful'."[67]In E v Norway the applicant was an untreatable psychopath who had been convicted of numerous offences of violence. He was sentenced to a term of imprisonment and the court also made an order under article 39 of the Penal Code which provided:
"1. If an otherwise punishable act is committed . . . by someone with an underdeveloped or permanently impaired mental capacity and there is a danger that the offender, because of his condition, will repeat such an act, the court may authorise the prosecuting authority, as a security measure, to …. (e) place him, whenever this is possible, in a mental hospital, sanatorium, nursing home or security ward, in accordance with the general provisions promulgated by the King; (f) keep him in detention in prison."
Pursuant to this order the applicant had been detained in various mental hospitals and prisons for a considerable number of years. He alleged a breach of article 5(4) in that, while in detention, he had not had access to a court as required by paragraph (4). The European Court applied the principle it had stated in Van Droogenbroeck and held that article 5(4) was applicable to the applicant's detention under article 39 of the Penal Code. The court stated at p 51, para 52:
"Under article 39 of the Penal Code the Ministry of Justice has a wide discretion in deciding which security measure is to be imposed and for how long. In fact, this system shares a number of features with the Belgian system in regard to recidivists and habitual offenders which was at issue in the Van Droogenbroeck case."
[68]In Thynne, Wilson and Gunnell v United Kingdom [1990] 13 EHRR 666 discretionary life sentences had been imposed on the applicants because, in addition to the need for punishment, they had each been considered by the court as dangerous and suffering from a mental or personality disorder which required treatment. Therefore their sentences each contained a punitive element and a preventative element, and the final decision on the prisoner's release rested with the Home Secretary. The European Court held that as the punitive period of detention had expired in each case the applicants were entitled to subsequent judicial control of their detention by virtue of article 5(4) and that there had been a violation of that paragraph of the article in the case of all three applicants. The court stated at p 693, para 73:
"it seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release."
And at p 694, para 76:
"Having regard to the foregoing, the court finds that the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the Van Droogenbroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows that at this phase in the execution of their sentences, the applicants are entitled under article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court."
[69]Mr Fitzgerald submits that as stated by the European Court in paragraph 48 of its judgment in Van Droogenbroeck "no detention that is arbitrary can ever be regarded as 'lawful' for the purposes of paragraph 1 [of article 5]", and that detention under the post punitive part of a determinate sentence passed pursuant to section 2(2)(b) of the 1991 Act is arbitrary because the dangerous propensity of the prisoner which existed at the time of the sentence may have changed with the passage of time and may require reassessment.[70]I am unable to accept this submission because I consider that the judgments of the European Court on which Mr Fitzgerald relies do not support it and are distinguishable from the present case. I am further of opinion that there are decisions of the European Commission and of the European Court which are directly contrary to the submission. I consider that the essential element in the reasoning in Van Droogenbroeck, in E v Norway and in Thynne, Wilson and Gunnell is that after the expiration of the period of detention for punishment the decision as to the further period for which the prisoner should be detained was handed over to the government. It is expressly stated at p 444, para 9 of the judgment of Van Droogenbroeck that the applicant was "placed at the Government's disposal". The applicant submitted (at p 455, para 36) that "the deprivations of liberty complained of stemmed not from a sentence imposed by a 'competent court' but from decisions taken by the Minister of Justice" and it is clear that the court accepted this submission. It was for this reason that the court stated (at p 457, para 40) that because the Minister of

Justice could monitor how the prisoner was developing:

"with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and the court or on an assessment that was unreasonable in terms of those objectives."
[71]The same reasoning informs the judgment of the European Court in Thynne, Wilson and Gunnell . The court stated at p 693, para 73 in relation to a life sentence that, after the punitive period, there is "a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release." Making a clear reference to this responsibility conferred on the Secretary of State, the court then states at p 694, para 76:
"Having regard to the foregoing, the court finds that the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the Van Droogenbroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention."
[72]The present case is distinguishable from Van Droogenbroeck, E v Norway and Thynne, Wilson and Gunnell because here no discretion or responsibility was given to a government minister to decide when the prisoner should be released after he had served the punitive part of his sentence. The time when a prisoner serving a sentence of imprisonment for a term of four years or more becomes eligible for release (after having served one-half of his sentence) is fixed by section 35 of the Criminal Justice Act 1991, and he may only be released after that time on the recommendation of the Parole Board which acts as a judicial body. At all times the appellant was detained pursuant to the single sentence of the court and there was no breaking of the link between the initial judgment of the court and the continued detention of the appellant.[73]It is also relevant to observe, as Mr Pannick QC for the respondents submitted, that there are a number of factors as to a defendant's future prospects, intentions and circumstances, such as his employment prospects or his family circumstances, in addition to his dangerous propensities, which a judge may properly take into account in deciding on the appropriate length of sentence, but the fact that those factors may change during the course of the sentence does not make the sentence arbitrary.[74]In my opinion the jurisprudence of the European Commission and the European Court has recognised that article 5(4) has no application where a prisoner is serving or has served a fixed term sentence such as a sentence passed pursuant to section 2(2)(b) of the 1991 Act. In Mansell v United Kingdom (Application No 32072/96) (unreported), 2 July 1997, European Commission of Human Rights) the applicant had served a determinate sentence imposed under section 2(2)(b) of the 1991 Act and he was thus in the same position as the appellant. He had been convicted on 17 December 1992 on three counts of indecent assaults on men, and he had been previously convicted in 1986 for an indecent assault and kidnapping of another man. In sentencing the applicant the judge stated that although a sentence of two and a half years would normally be appropriate for an act of indecent assault, in his judgment, for reasons of protection of the public, the proper sentence was five years' imprisonment. The applicant claimed that there had been a violation of his rights under article 5(4) because his "longer than normal" sentence should have attracted a special form of parole review from the moment that he served the period he would have served under a normal punitive sentence. The European Commission held that the application was manifestly ill-founded and declared it inadmissible. In its decision the Commission stated: "In the present case, the Commission must determine whether the applicant was entitled, under article 5(4) of the Convention, to a further review of the lawfulness of his detention after the expiry of the first two and a half years of his sentence. The sentence imposed on the applicant was a fixed term sentence of five years. There is no question of the sentence being imposed because of the presence of factors which 'were susceptible to change with the passage of time, namely mental instability and dangerousness' (above-mentioned Thynne, Wilson and Gunnell judgment, p 29, para 73). Rather, there was an element of 'simple' punishment as well as an element of deterrence. It is true that the latter part of the sentence was imposed pursuant to section 2 of the Criminal Justice Act 1991, which provides for sentences in the case of violent or sexual offences to be longer than 'normal' in order to protect the public from serious harm. Such an 'increased' sentence is, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the 'increase' has a statutory basis. In particular, nothing in the sentencing procedure indicates that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed. It follows that the judicial control required by article 5(4) of the Convention was incorporated in the original conviction and sentence, and that article 5(4) of the Convention does not apply to the parole proceedings in which the applicant was denied a[75]Mr Fitzgerald contends that this decision was erroneous because the Commission made no reference to the judgments in Van Droogenbroeck and E v Norway , but I consider, for the reasons which I have given, that those decisions are clearly distinguishable and that the Commission did not err in omitting any reference to them.[76]Counsel further submitted that the Commission erred in stating that there was no question of the sentence being imposed because of a factor such as dangerousness which was susceptible to change with the passage of time and that the sentence merely contained an element of "simple" punishment. However the words "It is true" in the relevant passage show that the Commission was fully aware that a sentence imposed under section 2(2)(b) is longer than a normal punitive sentence, and whilst the Commission's statement that there was nothing to indicate that the five year sentence "was anything other than a sentence which was imposed as punishment for the offences committed" can be criticized as less than fully accurate, I consider (as did Kennedy LJ in the Court of Appeal [2003] 2 WLR 196, 207 - 208, para 18) that what the Commission was stressing was that the "increased" sentence was "no more than the usual exercise by the sentencing court of its ordinary sentencing powers"; in other words the Commission was recognising, as did Lawton LJ in R v Sargeant , that protecting the public from a violent criminal is a proper part of the ordinary process of sentencing.[77]In my opinion the decision of the European Court in Silva Rocha v Portugal [2001] 32 EHRR 333 also supports the respondents' submission that article 5(4) does not apply to a determinate sentence passed under section 2(2)(b) of the 1991 Act. In that case the applicant had killed a neighbour and was charged with aggravated homicide and illegal possession of weapons. The Oporto Criminal Court found that on account of his mentally disturbed state the applicant was criminally irresponsible and dangerous and ordered his detention in a psychiatric institution for the minimum period of three years which was expressly required by article 91(2) of the Portuguese Criminal Code. The European Court, by a majority, rejected the applicant's allegation that there had been a violation of article 5(4) because he had been unable to have the lawfulness of his continued detention reviewed by a court at reasonable intervals. The court stated in its judgment, p 344, paras 28 - 31:
"28. The case involved a homicide committed by a person who could not be held responsible for his actions and who was at the same time dangerous. The seriousness of the offences together with the risk that he represented for himself as well as for others could reasonably justify his being removed from society for at least three years. 29. For that period the review required by article 5(4) of the Convention was incorporated in the detention decision taken in this instance by the Oporto Criminal Court. 30. It was therefore not until those three years had elapsed that the applicant's right to 'take proceedings by which the lawfulness of his detention shall be decided . . . by a court' at reasonable intervals took effect. In this respect the court notes that the legislation applied to Mr Silva Rocha (article 93 of the Criminal Code), provided for a periodic and automatic judicial review after two years and made it possible for the person detained to apply to the court at any moment to have the detention measure lifted. 31. In the present case, after the judgment of 13 July 1990 judicial reviews took place between 21 March and 29 June 1992 in February 1993 between 19 March and 3 May 1993 and over a period from the summer of 1993 to 9 January 1994. The court considers that the intervals between the different reviews were not excessive. It notes that Mr Silva Rocha was discharged as soon as he had ceased to be regarded as dangerous."
[78]Mr Fitzgerald submits that the ratio of the decision was not that article 5(4) does not apply to a fixed term sentence imposed by a criminal court on a dangerous offender. He contends that the essential reasoning in the judgment was that in the case of a dangerous and mentally disordered offender who had taken another person's life, it was not unreasonable to delay the first judicial review for two years (the three-year period having commenced on remand and not with the order of the criminal court). He relies on paragraphs 30 and 31 of the judgment. I am unable to accept that submission. Paragraph 23 of the court's judgment expressly records, at p 342:
"The applicant complained that in any event he could be discharged only after three years even if it was established before the expiry of that period that he was no longer dangerous. Under the rules in issue there was therefore, he argued, no judicial review of the lawfulness of the detention before the expiry of the period, and that could not be regarded as reasonable under the court's case law."
This complaint was clearly rejected in paragraphs 28 and 29 of the judgment and I consider that the second sentence in paragraph 30 and paragraph 31 on which Mr Fitzgerald relies relate to the period of detention after the three year period required by article 91(2) of the Portugal Criminal Code had expired.[79]Mr Fitzgerald submits in the alternative that the case is distinguishable from the present one because under Portuguese law the issue of general deterrence would justify the postponement of the first judicial review required by article 5(4) for a period of three years even though the object of the detention measure was primarily preventive. However, whilst this is a point of distinction from the present case, I consider that paragraphs 28 and 29 constitute the central part of the reasoning of the judgment and support the respondents' case.[80]Accordingly, I am of opinion that the decisions of the European Commission and the European Court lead to the conclusion that there was no violation of article 5(4) in the present case and for the reasons which I have given, and also for those given by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead, I would dismiss this appeal. LORD SCOTT OF FOSCOTE My Lords,[81]I have had the advantage of reading the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton. For the reasons they have given, with which I agree, I too would dismiss this appeal.

Cited in 54 later judgments

and 41 more of the most senior

Showing the 50 most senior of 54.