House of Lords
|Session 2002 - 03
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Regina v. Parole Board and another (Respondents) ex parte Giles (FC) Appellant
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Parole Board and another (Respondents)
ex parte Giles (FC) (Appellant)
THURSDAY 31 JULY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Parole Board and another (Respondents)
ex parte Giles (FC) (Appellant)
 UKHL 42
LORD BINGHAM OF CORNHILL
1. 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).
2. 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:
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.
3. Article 5(4) of the Convention provides:
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:
4. 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.
5. 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:  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:  EWHC Admin 834;  1 WLR 654. On the Secretary of State's appeal, the Court of Appeal (Kennedy, May and Tuckey LJJ) reached a different conclusion:  EWCA Civ 951;  2 WLR 196.
6. 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 régime 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  1 Cr App R 77; R v Smith  2 Cr App R(S) 160; R v Wilson (unreported), 10 February 2000, CA; R v Barker  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.
7. 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 punitive or tariff term of the sentence. Thus in such a case there could never be doubt when the punitive phase of the prisoner's detention had come to an end. From that time onwards the continued detention of the prisoner could be justified on grounds of public protection alone. By contrast, a judge who imposes a longer than commensurate sentence under section 2(2)(b) or 80(2)(b) is not required by either statute to indicate what part of the total sentence or sentences is commensurate within section 2(2)(a) or 80(2)(a) and what part represents the protective extension. The Court of Appeal has not required sentencing judges to disclose the make-up of the sentence in that way. While in practice some judges have chosen to disclose the basis on which they have calculated the length of the sentence or sentences imposed, others have not, as the judge in this case did not, and it may be doubted whether sentencing judges necessarily base their overall sentence or sentences on a detailed calculation of the length of the component parts. It follows that in any case in which the commensurate term had not been expressly identified, the Parole Board and the Prison Service would have difficulty in knowing when the commensurate term ended. There would not, as in the case of discretionary life sentence prisoners, be a precise date on which the first phase of the sentence would end and the second begin.
8. These considerations make plain, in my opinion, not only that our domestic sentencing and release régime does not envisage the process of review for which the appellant contends, but that it is inconsistent with it. Mr Fitzgerald QC, representing the appellant, did not suggest otherwise. He founded his argument on article 5(4) of the Convention as interpreted and applied by the Strasbourg institutions. It is of course the duty of the House under section 2(1) of the Human Rights Act 1998 to take account of judgments, decisions and opinions given or made by the Strasbourg institutions (so far as they are relevant) and to give effect to Convention rights (section 6(1)) unless precluded from doing so by primary legislation, in which case a declaration of incompatibility may be made (section 4).
9. I need not repeat the detailed account which my noble and learned friend Lord Hope has given of the Strasbourg jurisprudence to which the House was referred. I agree with his analysis and I fully share his conclusions. As May LJ pithily put it in paragraph 19 of his judgment in the Court of Appeal:
Mr Fitzgerald accepted the accuracy of that summary. To conclude that the Strasbourg decisions have only applied article 5(4) to cases having features different from the present does not, however, conclude the issue which the appellant raises unless those differences are such as should lead to a different result.
10. That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as "a savage attack" and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body. Again, May LJ put the point succinctly in paragraph 19 of his judgment:
11. I conclude that the sentence passed on the appellant fell squarely within article 5(1) of the Convention and did not attract the operation of article 5(4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the half-way stage the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under section 2(2)(b) or 80(2)(b) and discretionary life sentence prisoners is in my opinion false.
12. For these reasons as well as for those given by Lord Hope of Craighead and Lord Hutton I would dismiss this appeal.
13. I have read the opinions of Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton. For the reasons they have given I would also dismiss the appeal.
LORD HOPE OF CRAIGHEAD
14. As my noble and learned friend Lord Bingham of Cornhill has explained, the appellant was sentenced by the judge in the Crown Court at Nottingham to a total of seven years' imprisonment. He had pleaded guilty to two violent offences, for which he received sentences of four and three years' imprisonment respectively. The total of seven years' imprisonment resulted from the fact that the judge ordered that these two periods of imprisonment were to be served consecutively.
15. When he was giving his reasons for imposing this sentence the judge said that he was of 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 from serious harm from him. He said that he had formed that opinion on the basis of all the matters disclosed in reports which were before him, which he directed should go to the prison authorities. It appears from the judge's remarks that the appellant's attitude to re-offending was governed by his personality disorder for which he required treatment if that was possible. Although he did not say so in terms, it is plain that in passing this sentence the judge was exercising the power conferred on him by section 2(2)(b) of the Criminal Justice Act 1991.
16. Section 2(2) of the 1991 Act, which has now been re-enacted as section 80(2) of the Powers of Criminal Courts (Sentencing) Act 2000, was designed to provide a statutory basis for determining the length of a custodial sentence other than one fixed by law. The primary rule is that set out in paragraph (a). It provides that the custodial sentence shall be 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 other offences associated with it. This is the principle of "just desserts" referred to in the White Paper, Crime, Justice and Protecting the Public (1990) (Cm 965), para 2.3, which requires the court to pass a sentence which is in proportion to the seriousness of the offence. Paragraph (b) provides an alternative approach which the court may adopt where the offence is a violent or sexual offence. In such a case the custodial sentence shall be for such longer term (not exceeding the permitted maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender. Under this paragraph the court is required to apply its mind to the question whether sufficient grounds exist for passing a sentence which is longer than a sentence which would be proportionate to the offence. As Kennedy LJ said in the Court of Appeal  2 WLR 196, 200, para 5, a sentence which is passed under this paragraph is in substitution for, not additional to, the sentence which would otherwise have been passed under subsection (2)(a).
17. Although section 2(2) of the 1991 Act divided the sentencing exercise into these two parts, every custodial sentence which a judge imposes shares the following characteristics irrespective of the part of the subsection under which it is passed. These are:(a)
the decision as to the length of the sentence is taken by a judge as part of the overall sentencing exercise;(b)
the judge's decision as to the length of the sentence is based on all the information before him at the time when he imposes it;(c)
unless the judge decides to impose a discretionary life sentence under subsection (2)(b), the length of the sentence is fixed by him at the time when he imposes it; and(d)
his decision is subject to appeal, but the minimum period of detention that results from a determinate sentence is not open to review by the executive.
Where the judge decides to sentence the offender to a term which is longer than one which is commensurate with the seriousness of the offence or the combination of the offence with one or more offences associated with it, he must give his reasons for doing so in open court: section 2(3) of the 1991 Act; see now section 80(3) of the 2000 Act.
18. The approach to sentencing which the statute lays down is therefore, from start to finish, a judicial exercise. It is subject to all the guarantees which are afforded by article 6(1) of the European Convention on Human Rights.
19. The advantages which flow from this structured approach to the sentencing exercise should not be allowed to conceal the fact that the need to protect the public from serious harm had always been regarded as a factor to which a judge could have regard when he was arriving at a custodial sentence which was appropriate to the circumstances. This can be illustrated by reference to the practice which is still followed in Scotland, where there are no statutory rules about the general approach which is to be taken to the length of custodial sentences. The matter is regulated by the practice of the court and by the common law. The need to protect the public from harm caused by further offending is a factor that can legitimately be taken into account by the judge as part of the sentencing exercise, if there are sufficient grounds for doing so in the information which is before the court.
20. In Torbet v H M Advocate, 1999 SLT 113, the appellant had committed offences while released on licence from a life sentence for murder. When he was sentencing him for these offences 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 length of the sentence was held to be excessive on appeal by the High Court of Justiciary. But the judge's approach to the matter was approved, as the Lord Justice General (Rodger) explained at p115L:
21. The question is whether a decision by a judge to take account of the factor mentioned in subsection (2)(b) when he imposes a determinate sentence is compatible with article 5(4) of the Convention read together with article 5(1)(a). If he selects a discretionary life sentence, he is required by section 28(2)(b) of the Crime (Sentences) Act 1997 to specify the period for which the offender will have to remain in prison before becoming eligible for consideration for release on parole by the Parole Board. The period which the judge selects for this purpose is a period which is commensurate with the seriousness of the offence or the combination of the offence and other offences associated with it. The question whether the offender should then be released, bearing mind the need to protect the public, is for the Parole Board. It must direct release when it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined: section 28(6)(b) of the 1997 Act. But if the judge selects a determinate sentence, as the judge did in this case, there is no such requirement. The date when the offender becomes eligible for consideration by the Parole Board is fixed by statute. Section 35 of the Criminal Justice Act 1991 provides that, after a prisoner who is serving a sentence of imprisonment for a term of four years or more (a "long-term prisoner") has served half his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.
22. For the appellant Mr Fitzgerald QC submits that a longer than commensurate sentence which is imposed under subsection (2)(b) contains two distinct components. The first is the punitive component. The second is, as he put it, the preventative one. On his analysis the second part commences when the punitive part of the sentence expires. His argument is that the lawfulness of the preventative part of the sentence depends on whether the prisoner continues to present an unacceptable risk to the public throughout this period. He submits that, as dangerousness is liable to change over time, this is not something that a judge can predict at the time of sentencing. So, if the sentence is not to be regarded as arbitrary during the preventative part, its lawfulness requires to be re-determined by the Parole Board periodically in accordance with article 5(4) of the Convention as soon as the punitive part of it has been served.
23. For the Parole Board Mr Pannick QC submits that the requirements of article 5(4) are fully satisfied where the prisoner is serving a determinate sentence which has been fixed by the judge at the time of sentencing. According to his argument there is nothing arbitrary about a sentence which has been imposed for a fixed period by a judge even if the period has been selected partly by reference to factors that may change over time. This is because the decision about the length of the sentence is a judicial decision which is taken in open court in the light of all the information available to the judge at the time of sentencing. It is the judicial nature of the decision which distinguishes these cases from those where decisions as to the length of the detention is in the hands of the executive.
24. The relevant provisions of article 5 of the Convention are the following:
25. The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4): David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 446. Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387, 402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means (i) that it must be lawful under domestic law, (ii) that it must conform to the general requirements of the Convention as to the quality of the law in question - its accessibility and the precision with which it is formulated and (iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, Ex p Evans (No 2)  2 AC 19, 38E; McLeod v United Kingdom (72/1997/865/1065), para 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements.