R (Giles) v Parole Board
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] UKHL 42 |
| Court | House of Lords |
| Date | 31 July 2003 |
and another
[2003] UKHL 42
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Scott of Foscote
HOUSE OF LORDS
My Lords,
At issue in this appeal is the impact of article 5(4) of the European Convention on Human Rights on a sentence imposed under section 2(2)(b) of the Criminal Justice Act 1991 (since re-enacted as section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000).
The appellant pleaded guilty in the Crown Court at Nottingham to two offences, committed on different occasions, against sections 20 and 47 of the Offences against the Person Act 1861. On 10 January 1997 he was sentenced to consecutive terms of four and three years' imprisonment. In passing that sentence the judge expressed the opinion that it was necessary to pass a custodial sentence which was longer than the sentence which would be commensurate with the seriousness of the offences in order to protect the public and one of the appellant's victims in particular from serious harm from him. The judge was exercising the power conferred by section 2(2)(b) of the 1991 Act and following the procedure laid down by that section which, so far as relevant, provided:
"2 Length of custodial sentences
(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."
The appellant sought leave to challenge that sentence but was refused leave to do so by the single judge and, on 13 June 1997, by the Court of Appeal for detailed reasons which give rise to no issue before the House. On 17 May 2001 the appellant was released on licence.
Article 5(4) of the Convention 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".
This provision, part of a very important article directed to protection of the right to liberty and security, reflects principles long cherished in this country by lawyers and the public alike: that no one shall be deprived of his liberty save on lawful authority; that anyone challenging the lawfulness of his detention shall have access to a court with power to decide whether his detention is lawful or not; and that if his detention is not held to be lawful his release shall be ordered. No one is to be detained arbitrarily or (other than very temporarily) at the direction of the executive. Article 5(4) must be read with article 5(1), which begins:
"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 …".
The appellant does not challenge the imposition upon him of punitive sentences of imprisonment. Nor does he challenge in principle the extension of a sentence beyond the term necessary to punish an offender where such extension is properly directed towards protection of the public against serious harm caused by a violent or sexual offender. His contention, based on article 5(4), is in essence this: that once a defendant sentenced under section 2(2)(b) or 80(2)(b) has served the part of his sentence imposed purely for purposes of punishment (that is, the term "commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it") and is about to begin serving the balance of the sentence imposed for purposes of public protection ("such longer term …. as in the opinion of the court is necessary to protect the public from serious harm from the offender") he should enjoy the substantive and procedural rights held to be necessary where discretionary life sentence prisoners have served the punitive (or tariff) term imposed by the trial judge or, on appeal, by the Court of Appeal. The underlying rationale of this argument is clear. The sentence passed on a discretionary life sentence prisoner has two components, the first punitive, the second protective. The only justification for continued detention of a prisoner who has served the punitive part of his sentence is the need to protect the public. But a prisoner's danger to the public, however evident at the time of sentence, may diminish or disappear. Thus his danger to the public, and the justification for continued detention, should be the subject of periodic review (in which the prisoner should have the right to participate) to ensure that a prisoner is not detained on the ground of his danger to the public when he is no longer such a danger. A similar régime, it is argued, should apply to those sentenced under section 2(2)(b) or 80(2)(b): once the commensurate term has been served, the only ground for continued detention is public protection; but by the end of the commensurate term the prisoner may no longer be a danger to the public; therefore his continued detention should be the subject of review, with his participation, to ensure that he is no longer detained on the ground of his danger to the public when he is no longer such a danger.
In December 2000, with the first review of his case approaching, the appellant's solicitors sought confirmation from the Parole Board that at the review he would be treated in the same way as a discretionary life sentence prisoner (a) in being granted an oral hearing, and (b) in application of the same test to decide whether he should continue to be detained. The Parole Board gave no such confirmation and the appellant applied for permission to seek judicial review, basing his application on the argument summarised in paragraph 4. On 23 May 2001 Sir Oliver Popplewell granted the appellant permission, giving detailed reasons favourable to the appellant for doing so: [2001] EWHC Admin 463. By this time the application was strictly moot, since the appellant had already been released on licence, but the application was rightly held to raise an important point of principle. At the substantive hearing of the application in October 2001, Elias J granted the application, accepting the appellant's argument based on the Convention: [2001] EWHC Admin 834; [2002] 1 WLR 654. On the Secretary of State's appeal, the Court of Appeal (Kennedy, May and Tuckey LJJ) reached a different conclusion: [2002] EWCA Civ 951; [2003] 2 WLR 196.
In domestic law the sentences imposed on the appellant took effect as a single composite term of seven years' imprisonment: see section 51(2) of the Criminal Justice Act 1991. He was a "long-term" prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991, since he was serving a sentence of four years or more. As a long-term prisoner the appellant was eligible for release on the recommendation of the Parole Board after serving one half of his sentence (section 35(1) of the Criminal Justice Act 1991) and was entitled to release on licence after serving two-thirds of his sentence (section 33(2) of the 1991 Act). There is no provision in domestic law for release of a long-term prisoner, save on compassionate grounds, before half of the single composite term has been served. If effect were given to the appellant's contention that release of a long-term prisoner should be considered at the end of the commensurate term which would have been imposed under section 2(2)(a) or 80(2)(a), this would plainly conflict with the domestic ré gime described above in any case where the protective extension ordered under section 2(2)(b) or 80(2)(b) exceeds the commensurate term which would have been ordered under section 2(2)(a) or 80(2)(a). There is nothing in any statute which indicates that the protective extension should not be longer than the commensurate term, and there are reported cases in which the Court of Appeal has approved longer terms: R v Chapman [2000] 1 Cr App R 77; R v Smith [2001] 2 Cr App R(S) 160; R v Wilson ( unreported), 10 February 2000, CA; R v Barker [2003] 1 Cr App R(S) 212. In a case where the index offence does not merit the imposition of a life sentence but the offender is recognised to represent a serious risk to the public, imposition of a protective extension longer than the commensurate term may well represent the best means of reconciling the need to protect the public with the need to do justice to the individual offender.
Section 34 of the Criminal Justice Act 1991, since repealed and replaced by section 28 of the Crime (Sentences) Act 1997, required the sentencing judge, when imposing a discretionary life sentence, to specify the period to be served before the prisoner might require the Secretary of State to refer his case to the Parole Board. This was the...
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