Regina v. Parole Board and another (Respondents) ex parte Giles (FC) Appellant
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:
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:
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:
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:
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:
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:
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):
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:
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:  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:
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:  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:
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.