R (Giles) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice May,Lord Justice Tuckey |
| Judgment Date | 04 July 2002 |
| Neutral Citation | [2002] EWCA Civ 951 |
| Docket Number | Case No: C/2001/2524 QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2002 |
[2002] EWCA Civ 951
Lord Justice Kennedy
Lord Justice May and
Lord Justice Tuckey
Case No: C/2001/2524 QBACF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ELIAS
Royal Courts of Justice
Strand,
London, WC2A 2LL
DAVID PANNICK QC & ELEANOR GREY (instructed by Treasury Solicitor) for the appellant
EDWARD FITZGERALD QC & PHILLIPPA KAUFMANN (instructed by Irwin Mitchell, Sheffield) for the respondent
This is an appeal by the Secretary of State from a decision of Elias J sitting in the Administrative Court, who on 5 th October 2001 granted a declaration to the claimant in these terms—
"Where a person has been sentenced pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (or its statutory predecessor), once he is detained in circumstances where he would have been released but for the imposition of the additional element of the sentence imposed by virtue of that subsection, his continuing period of detention shall be subject to Article 5(4) of the European Convention on Human Rights such that it will need to be reviewed periodically at reasonable intervals by a procedure compliant with Article 5(4) to determine whether the continued detention remains necessary to protect the public from serious harm."
Article 5 and this case.
Article 5 of the Convention, so far as material, reads as follows:
"(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."
It has long been established that where a criminal is convicted or pleads guilty to an offence, and is sentenced to a period of imprisonment which the court considers commensurate with the gravity of his offence, the decision of the sentencing court constitutes the necessary compliance with Article 5(4)—See De Wilde, Ooms and Versyp v Belgium [1970] 1 EHRR 373. However, the position is different where the detention, in a hospital or in a prison, is not to punish but to protect the public from harm that may be caused by the person detained. In such a case Article 5(4) applies. In Thynne, Wilson and Gunnell v UK [1990] 13 EHRR 666 the applicants had all been sentenced to life imprisonment in the United Kingdom for offences for which such a sentence was not mandatory. The European Court of Human Rights held that Article 5(4) applied "after the expiry of the punitive periods of their sentences". In order to meet the requirements of Article 5(4) sentencing judges now specify the tariff period or minimum term (i.e. the punitive period allowing for remission) after which the offender's case will be considered at intervals by the Parole Board, which operates in such a way as to comply with Article 5(4). The same procedure is operated in relation to young offenders ordered to be detained for an indefinite period. The issue which arises in this case is whether that procedure should also have been adopted when a sentencing judge invoked the powers given to him by section 2(2)(b) of the Criminal Justice Act 1991, now re-enacted in identical terms in section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000. As this case is concerned with a sentence passed in 1997 I will refer hereafter only to the provisions of the earlier Act.
The 1991 Act was preceded by a White Paper "Crime, Justice and Protecting the Public" ( 1990 Cm 965) which proposed—
"A coherent legislative framework for sentencing, with the severity of the punishment matching the seriousness of the crime and a sharper distinction in the way the courts deal with violent and non-violent crimes".
It also proposed—
"New powers for the Crown Court to impose longer sentences for violent and sexual offences, if this is necessary to protect the public from serious harm."
That latter proposal was amplified in paragraphs 3.12 and 3.13 which, so far as material, read—
"3.12 ……. The Court of Appeal has indicated that sentences should be longer if the victims of violent crime are very young or very old and so especially vulnerable.
3.13. The Government proposes to take this approach further by giving the Crown Court power to give custodial sentences longer than would be justified by the seriousness of the offence to persistent violent and sexual offenders, if this is necessary to protect the public from serious harm. There are a small number of offenders who become progressively more dangerous and who are a real risk to public safety. Some will be mentally disordered and can be detained under mental health legislation. For those convicted of the most serious crimes, a sentence of life imprisonment may be justified. … Some offenders will be convicted of less serious offences but the Crown Court will recognise that they are a serious risk to the public. In these circumstances, the Government considers that an exception should be made to the principle that the length of the individual sentence should be justified by the seriousness of the offence. The Crown Court would be able to give a longer sentence within the maximum penalty for the offence for which the offender has been convicted. For example, an assault causing actual bodily harm might be serious enough to justify a sentence of twelve months, but the Crown Court could give a longer sentence, up to the maximum penalty of 5 years, if it considers this necessary to protect the public from the risk of serious harm from the offender. The Court would, of course, have to state in open court why it was giving a longer sentence and it would be open to the defendant to appeal against his sentence."
That is the background to section 2 of the 1991 Act, which reads—
"(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 sub section (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."
Part III of the Act deals with early release of prisoners, and provides that as soon as a short-term prisoner (i.e. one serving less than four years imprisonment) has served half of his sentence he must be released (section 33(1)). Others must be released after serving two-thirds of their sentences (section 33(2)), and after a long-term prisoner has served half of his sentence the Secretary of State will release him on licence if required to do so by the Parole Board. That is the effect of section 35(1) read together with the Regulations made under the Act.
Section 2(2)(b) Operation and Limitations.
Before turning to the facts of the present case it is worth pausing to consider the wording of section 2(2). The first thing to be noticed is that where the offence is of a violent or sexual nature the court has to form an opinion as to whether a sentence longer than that commensurate with the seriousness of the offence is necessary to protect the public from serious harm from the offender, and if so, secondly, what is the length of sentence required for that purpose. However, thirdly, the sentence cannot exceed the permitted maximum for the offence which has brought the defendant before the court. Fourthly, any sentence passed under section 2(2)(b) is in substitution for the sentence which would otherwise be passed under section 2(2)(a). It is not additional to it, as can be seen from the use of the word "or" at the end of section 2(2)(a).
Extent of relationship to offending.
Clearly therefore when the powers under section 2(2)(b) are exercised there remains a close link between the offence which has brought the offender before the court and the sentence imposed, illustrated by the fact that only one sentence is imposed, which the statute does not require the sentencing judge to divide into two parts, and by the fact that the sentence cannot be for any longer term than the statutory maximum for the relevant offence.
Over the years since 1991 there has been a certain lack of consistency in judicial pronouncements as to the nature of the relationship between the index offence and the sentence imposed under section 2(2)(b), and in particular as to whether the sentence imposed when section 2(2)(b) is relied upon must be not only less than the maximum for the index offence but...
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