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