(back to preceding text)
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.]
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.
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  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)  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  4 EHRR 443, E v Norway  17 EHRR 30 and Thynne, Wilson and Gunnell v United Kingdom  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  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."