The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. He wanted a consideration which would parallel the new won rights of review for discretionary lifers.
Held: His appeal was dismissed. The structure of the Act did not envisage such a review. Any relief would have to be found in Human Rights law. The primary target of article 5(4), read with article 5(1), is deprivation of liberty which is arbitrary, or directed or controlled by the executive. The sentence was imposed by the judge, and should be treated as any other sentence. The parallel with discretionary lifers failed. 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.
Lord Bingham described the core rights which Article 5 is designed to protect in the following terms: ‘Its primary target is deprivation of liberty which is arbitrary or directed or controlled by the executive.’
Lord Hope considered the cases of E v Norway and Van Droogenbroeck, saying: ‘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.’
Judges:
Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote
Citations:
[2004] 1 AC 1, [2003] UKHL 42, Times 01-Aug-2003, [2003] 3 WLR 736, [2003] UKHRR 1035, [2003] 4 All ER 429, [2003] HRLR 37
Links:
Statutes:
European Convention on Human Rights 5.4, Powers of Criminal Courts (Sentencing) Act 2000 80(2)(b)
Jurisdiction:
England and Wales
Citing:
Cited – De Wilde, Ooms and Versyp v Belgium ECHR 18-Jun-1971
ECHR Judgment (Just satisfaction) Preliminary objection rejected (non-exhaustion); Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient 2832/66; 2835/66; 2899/66
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – Regina v Governor of Brockhill Prison ex parte Evans; Regina v Governor of Onley Young Offender Institution Rugby ex parte Paul Reid CACD 15-Nov-1996
Time which had been spent in custody by the defendant awaiting trial and otherwise, was to be allowed to be set off against the sentence to be served, but once only and against all concurrent sentences. . .
Cited – Weeks v The United Kingdom ECHR 2-Mar-1987
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous.
Held: ‘The court agrees with the Commission and the . .
Cited – Wynne v United Kingdom ECHR 18-Jul-1994
A Discretionary lifer is not entitled to a review by a court of his continued detention. His article five rights were not breached. Where a national court imposed a fixed sentence of imprisonment, the supervision required by article 5.4 was . .
Cited – McLeod v The United Kingdom ECHR 23-Sep-1998
A Police Officer assisting in recovery of items ordered to be returned in matrimonial proceedings acted in excess of his powers and trespassed in entering house where there was no immediate threat of breach of the peace, and no sight of disorder. An . .
Cited – Torbet v H M Advocate HCJ 1999
The appellant had offended while on licence from a life sentence for murder. When sentencing 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 . .
Cited – Regina v Chapman CACD 22-Jul-1999
A discretionary life sentence intended to protect the public could now only be imposed after establishing compliance with the Act in that the sentence was so serious as to deserve a very long sentence, and for an unforeseeable time into the future, . .
Cited – Thynne, Wilson and Gunnell v The United Kingdom ECHR 25-Oct-1990
The applicants, discretionary life prisoners, complained of a violation on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment.
Held: A . .
Cited – Hussain v The United Kingdom ECHR 21-Feb-1996
The determination of a life sentence by the Home Secretary without recourse to a court was unlawful. 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 . .
Cited – Van Droogenbroeck v Belgium ECHR 24-Jun-1982
The applicant was sentenced to two years’ imprisonment for theft. He had a previous convictions and was thought to have a persistent tendency to crime, and was placed at the government’s disposal for 10 years on that ground. This was subject to . .
Cited – E v Norway ECHR 29-Aug-1990
The applicant 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 . .
Cited – Perez v France ECHR 1995
The applicant complained that, having been convicted in Andorra, no provision availed for review of his detention in France where he served his sentence.
Held: There was no violation ‘The review required by article 5(4) is incorporated in the . .
Cited – Silva Rocha v Portugal ECHR 15-Nov-1996
The applicant was tried on charges of aggravated homicide and others, but the court found him mentally disturbed, preventing criminal responsibility. He was dangerous it and ordered him to be detained. This security measure remained for a minimum . .
Cited – Mansell v United Kingdom ECHR 2-Jul-1997
The judge imposed a longer than commensurate sentence in an indecent assault case to protect the public. 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 . .
Cited – Regina v King CACD 1973
Two men carried out 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 . .
Cited – Regina v Sargeant CACD 1974
The judge had imposed a longer sentence for a crime of violence in order to protect the public against the violent propensities of the accused.
Held: Lawton LJ said: ‘What ought the proper penalty to be? We have thought it necessary not only . .
Appeal from – Regina on the Application of Giles v Parole Board and Secretary of State for the Home Department CA 4-Jul-2002
The prisoner had been sentenced to a punitive term, and an additional protective term under the Act. After the parole board had decided that he could be released from the punitive part of the sentence, he obtained declaration that the board should . .
Cited by:
Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Cited – Regina (Sim) v Parole Board CA 18-Dec-2003
The prisoner had been sentenced to an extended term of five years imprisonment for indecent assault. He had been released, and then recalled for alleged breaches of his licence. The respondent appealed findings that such a recall was subject to . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department CA 29-Apr-2004
The claimant was a prisoner serving a determinate term exceeding 15 years. He complained that the respondent’s remaining juridsiction as to his release on licence infringed his human rights.
Held: This was the sole remaining element of the . .
Cited – Secretary of State for the Home Department v Hindawi and Headley CA 13-Oct-2004
The applicant was a foreign national serving a long-term prison sentence. He complained that UK nationals would have had their case referred to the parole board before his.
Held: The right to be referred to the parole board was a statutory . .
Cited – McClean, Re HL 7-Jul-2005
The appellant was serving a life sentence for terrorist offences. He complained that he should have been released under the 1998 Act. It was said he would be a danger to the public if released. On pre-release home leave he was involved in a . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Cited – Whiston, Regina (on The Application of) v Secretary of State for Justice CA 25-Oct-2012
The claimant was a prisoner released on a home detention licence, but his licence had been revoked. He now said that the way it had been revoked, without the respondent’s decision being subject to confirmation by the Parole Board, nor to other . .
Cited – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Prisons
Updated: 07 June 2022; Ref: scu.185218