R (Black) v Secretary of State for Justice

My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood and gratefully adopt his summary of the facts and of the relevant legislation. I do not, however, share the conclusion to which he has come. Both established principles of law laid down by the European Court at Strasbourg and recent jurisprudence of your Lordships' House have led me to conclude that the regime for considering the release on licence of prisoners in the position of the respondent is not compatible with the European Convention on Human Rights ("the Convention").

Strasbourg jurisprudence

This appeal concerns the interrelationship of article 5.1(a) and article 5.4 of the Convention. They provide:

"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."

In De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, para 76 the ECtHR held that article 5.4 did not entitle a person detained to take proceedings to challenge detention when that detention was pursuant to an order of a court:

"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. The two official texts do not however use the same terms, since the English text speaks of 'proceedings' and not of 'appeal', 'recourse' or 'remedy' (compare article 13 and 26). Besides, it is clear that the purpose of article 5 (4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected: the word 'court' ('tribunal') is there found in the singular and not in the plural. 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)."

Subsequent decisions have made it plain that this principle only applies in relation to the sentence imposed by a competent court where that sentence is conclusive of the lawfulness of the detention of the applicant. In such circumstances no issue as to the lawfulness of the detention can arise and so there is nothing to which article 5.4 can apply. A sentence of imprisonment will not be conclusive of the lawfulness of imprisonment if the law under which it is imposed makes provision for the release, either unconditionally or subject to the satisfaction of certain criteria, of the person detained before the sentence has been served in full. In such circumstances, when the point is reached where the person detained is entitled to release or where the relevant criteria fall to be considered, there will be a justiciable issue as to whether the continued detention of that person is lawful. Article 5.4 entitles the person detained to the determination of that issue by a court. If that determination concludes that the criteria for release do not apply, the lawfulness of the detention will remain attributable, under article 5.1(a), to the original sentence.

The Strasbourg decisions that support this proposition start with Van Droogenbroeck v Belgium (1982) 4 EHRR 443. In that case, at para 45, the ECtHR said of the passage from De Wilde that I have cited that it

"speaks only of 'the decision depriving a person of his liberty'; it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise".

The court was in that case dealing with a law that provided for the detention of recidivists at the discretion of the Government and held that article 5 applied to such detention. It observed at para 47 that the system under consideration was fundamentally different from that - on which it did not have to express an opinion - "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".

In Weeks v United Kingdom (1987) 10 EHRR 293 the applicant had been given a discretionary life sentence for armed robbery, described by the sentencing judge as an "indeterminate sentence" that would permit the Secretary of State to release him when it was determined that he was no longer a danger. He was released on licence but subsequently recalled, at which point he claimed that his detention violated article 5.1 and article 5.4. The ECtHR held that there was no violation of article 5.1 but that there had been a violation of article 5.4. The reasoning of the court was as follows. The object of the sentencing judge in imposing a life sentence had not been that the applicant should remain in prison by way of punishment for the whole of his life. Rather it was that he should be detained until he ceased to be a danger. The facts that resulted in his recall had demonstrated that he remained dangerous, so that his original sentence was justification for his renewed detention under article 5.1(a). In the words of the court there was "a sufficient connection" for the purposes of that sub-paragraph between his conviction and his recall. There had, however, been an issue as to whether his recall had been justified and this he had been entitled to have determined by a court under article 5.4. The court held that article 5.4 had not in that case been satisfied because of deficiencies in the process and the power of the Parole Board that had considered the justification for the applicant's recall.

The same distinction between a life sentence imposed by way of punishment and one imposed as an indeterminate sentence because of uncertainty as to when it would be safe to release the prisoner was drawn by the ECtHR in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666. The court emphasised that detention pursuant to the latter type of sentence would only be lawful if it satisfied the purpose of the sentence. In this context the court drew at this time a distinction between a discretionary life sentence and a mandatory life sentence. In the former case, once the prisoner had served the punitive element of his sentence the lawfulness of his continued detention depended upon whether he remained a danger, something that was capable of changing over time. It followed that article 5.4 entitled the prisoner to a periodic review by a court of the continued necessity, and thus lawfulness, of his detention. Once again the court held that the Parole Board did not satisfy the requirements of article 5.4.

The next step in the development of the ECtHR's jurisprudence in this area was the extension of the reasoning that I have just described to the mandatory detention during Her Majesty's pleasure of a young person convicted of murder - Hussain v United Kingdom (1996) 22 EHRR 1. Initially the ECtHR did not extend this reasoning to mandatory life sentences imposed on adults convicted of murder - see Wynne v United Kingdom (1994) 19 EHRR 333. In Stafford v United Kingdom (2002) 35 EHRR 1121 the court altered its approach and recognised that in the case of such sentences also, once the prisoner had served the tariff that represented the punitive element of the sentence, the justification for his continued detention was the risk that he posed to the public. Whether this justification continued was a question that under article 5.4 the prisoner was entitled to have periodically determined by a court.

These decisions show that the ECtHR has not found it easy to identify the true nature of at least that part of the English sentencing regime that covers mandatory life sentences. As I am about to show, the ECtHR has not yet extended the reasoning applied in the case of life sentences to determinate sentences. It requires no great leap of reasoning to adopt the same approach to that latter part of a life sentence in which, the tariff having been served, the prisoner is entitled to be considered for release under licence and that latter part of a determinate sentence in which, in a case such as that of the respondent, the prisoner is eligible to be released on licence. The question raised by this appeal is whether there is any difference in principle between the two or whether this is another area of this country's confusing sentencing regime that the Strasbourg court has not yet fully understood. That is, I believe, a question that has already been answered by your Lordships' House. Before explaining why this...