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Judgments - R (On The Application of Black) (Respondent) v Secretary of State for Justice (Appellant)


SESSION 2008-09

[2009] UKHL 1

on appeal from:[2008] EWCA Civ 359




R (on the application of Black)(Respondent) v Secretary of State for Justice (Appellant)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood



David Pannick QC

Parishil Patel

(Instructed by Treasury Solicitors )


Tim Owen QC

Hugh Southey

(Instructed by Bhatt Murphy )

Hearing dates:

21 and 22 OCTOBER 2008






R (on the application of Black) (Respondent) v Secretary of State for Justice (Appellant)

[2009] UKHL 1


My Lords,

1.  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

2.  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.”

3.  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).”

4.  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.

5.  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".

6.  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".

7.  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.

8.  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.

9.  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.

10.  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 is so, I shall first refer to the Strasbourg cases that deal with determinate sentences.

11.  In Mansell v United Kingdom (Application No 32072/96) (unreported) 2 July 1997 the Commission ruled the applicant’s claim inadmissible. It is not, however, clear from the decision what that complaint was. The applicant had been sentenced for indecent assault to a “longer than normal” sentence to protect the public pursuant to section 2(2)(b) of the Criminal Justice Act 1991. This resulted in his receiving a sentence of five years imprisonment rather than the 2 ½ that the sentencing judge said would have been normal. He was eligible for parole after half of this sentence, namely after 2 ½ years but the Parole Board ruled that his case was not suitable for parole. He had unsuccessfully sought judicial review of the Board’s decision on the ground that he should have been afforded an oral hearing, but this was not the only complaint that he sought to raise at Strasbourg. He is also reported as complaining that he should have been considered for parole after 15 months, that is at the stage that he would have been eligible for consideration had he received a normal sentence, and that the Home Secretary should not have enjoyed a right of veto over the decision of the Parole Board.

12.  The Commission gave the following reasons for ruling the applicant’s complaint inadmissible:

“In the present case, the Commission must determine whether the applicant was entitled, under article 5 para. 4 (article 5-4) of the Convention, to a further review of the lawfulness of his detention after the expiry of the first two and a half years of his sentence.

The sentence imposed on the applicant was a fixed term sentence of five years. There is no question of the sentence being imposed because of the presence of factors which ‘were susceptible to change with the passage of time, namely mental instability and dangerousness’ (above-mentioned Thynne, Wilson and Gunnell judgment, p 29, para 73). Rather, there was an element of ‘simple’ punishment as well as an element of deterrence. It is true that the latter part of the sentence was imposed pursuant to section 2 of the Criminal Justice Act 1991, which provides for sentences in the case of violent or sexual offences to be longer than ‘normal’ in order to protect the public from serious harm. Such an ‘increased’ sentence is, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the ‘increase’ has a statutory basis. In particular, nothing in the sentencing procedure indicates that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed.

It follows that the judicial control required by article 5 para 4 (article 5-4) of the Convention was incorporated in the original conviction and sentence, and that article 5 para 4 (article 5-4) of the Convention does not apply to the parole proceedings in which the applicant was denied an oral hearing.”

It is to be noted that there is no discussion of the reasons for the grant of parole.

13.  In Ganusauskas v Lithuania (Application No 47922/99) (unreported) 7 September 1999 the ECtHR dismissed as manifestly ill-founded the applicant’s claims that his rights under article 5.1 and 5.4 had been violated. The applicant had been released on licence after serving half a six year prison service under a law which permitted the release of a prisoner on licence after serving half his sentence. There was then a series of court hearings which resulted in the order for his release being quashed. He sought to attack aspects of these court hearings. The court held that there was nothing to suggest that the link between the original conviction and the re-detention was broken, so that there was no basis for asserting a violation of article 5.1. In rejecting the claim in respect of article 5.4 the court said simply this:

“The court notes that article 5 § 4 only applies to proceedings in which the lawfulness of detention is challenged. The necessary supervision of the lawfulness of detention ‘after conviction by a competent court', as in the present case, is incorporated at the outset in the applicant’s original trial and the appeal procedures against the conviction and sentence (see, the De Wilde, Ooms and Versyp v Belgium judgment of 18 June 1971, Series A no 12, p 40, § 76). It follows that this part of the application is also to be rejected as being manifestly ill-founded pursuant to article 35 §§ 3 and 4 of the Convention.”

14.  The final decision of the ECtHR in relation to a determinate sentence that calls for consideration is Brown v United Kingdom (Application No 968/04) (unreported) 26 October 2004. The applicant had been sentenced to eight years imprisonment for supplying heroin and released on licence after serving two-thirds of this sentence. He was recalled for breach of the residence conditions of his bail. The Parole Board then considered whether he should be released again and concluded that he should not. He sought to attack this decision by judicial review, but was refused permission. He complained that his recall to detention violated article 5.1 because there was no link between the renewed detention and the original sentence for supplying drugs. He also contended that he was entitled to a court-like review of the justification for his continued detention pursuant to article 5.4. The relevant part of the judgment of the court was as follows:

“1. . . The court recalls that the applicant was sentenced to a determinate prison sentence of eight years after conviction by a competent criminal court and accordingly, his detention fell within sub-paragraph 1 (a) above. The applicant seeks to argue that after his release on licence he was lawfully at large and his situation was analogous to the situation applicable to the conditional liberty allowed to those on life licence (for example, Weeks v United Kingdom, judgment of 2 March 1987, Series A, no 114) and restricted patients on release from hospital (for example, X v United Kingdom, judgment of 5 November 1981, Series A, no 46) and therefore that his recall had to be properly linked to the basis of his original conviction and in conformity with the varying requirements of article 5.

The court considers however that there is a crucial distinction between the cases cited by the applicant and the circumstances of his own case. Discretionary and mandatory lifers, after the expiry of the punitive element of their sentence, are detained on the basis of risk - the justification for their continued detention is whether it is safe for the public for them to live in the community once more. Similarly the recall of restricted patients is based on factors arising from their mental health. The applicant however has been sentenced to a fixed prison term by a court as the punishment for his offence. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of article 5 § 1(a) of the Convention.

Article 5 § 1 does provide that at all times detention must be ‘in accordance with the law'. The court notes that the basis for the applicant’s recall was considered by the Parole Board, which found that he was in breach of the terms of his licence, and that its decision was in turn subject to judicial review. In the judicial review proceedings the applicant’s arguments concerning the lawfulness of his recall and the Parole Board’s procedure were rejected by the High Court and the Court of Appeal. On the whole bound to respect domestic courts’ interpretation of domestic law (see for example, Benham v United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 41), the court detects no arbitrariness or other feature that would justify it departing from their assessment.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 §§ 3 and 4 of the Convention.

2. The applicant complains of lack of a court review of the justification of his continued detention after recall, invoking article 5 § 4 of the Convention which 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'.

The court recalls that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures (see, mutatis mutandis, V v United Kingdom, no 24888/94, ECHR 1999-IX, § 119; Stafford v the United Kingdom, § 87). No new issues of lawfulness concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5 § 4 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 §§ 3 and 4 of the Convention.”

15.  I would make the following observations on this judgment. The court considered whether the applicant’s recall had been “in accordance with the law” and referred to the fact that the Parole Board had considered this question, as had the High Court and the Court of Appeal, adding that the court detected “no arbitrariness". This seems to have come close to recognising that there was an issue as to the lawfulness of the applicant’s recall. If so, it is hard to see why the court did not accept that article 5.4 applied to that issue, albeit that there would seem no ground for finding that the requirements of article 5.4 would not have been satisfied. There was, however, no consideration of the question of whether, under our sentencing regime, the possibility of release on licence gives rise to rights that are relevant to the lawfulness of detention under a determinate sentence. I now turn to that question.

The sentencing regime

16.  It has long been part of the English sentencing regime that when a judge sentences a defendant to a determinate sentence of imprisonment there neither is nor is intended to be any expectation on the part of the sentencing judge or the prisoner that the prisoner will serve in prison the whole of the sentence imposed. It is part of our penal policy that, in normal circumstances, prisoners should be released on licence before they have served the full term of their sentences. This implication of our sentencing regime is something that the judge is required to explain when he imposes a sentence of imprisonment. Furthermore, when a judge imposes a determinate sentence he does not do so on the basis that the seriousness of the offences requires that the prisoner should be detained for the full period of the sentence. Rather he has regard to the penal effect of the sentence as a whole, having regard to the fact that part of it is likely to be served under release on licence. This has been the position since there was a significant change to the statutory provisions governing the release of prisoners before serving the full term of their sentences as a result of sections 32 to 40 of the Criminal Justice Act 1991. On that occasion Lord Taylor of Gosforth CJ issued Practice Statement (Crime: Sentencing) [1992] 1 WLR 948 that included the following guidance:

“7. It has been an axiomatic principle of sentencing policy until now that the court should decide the appropriate sentence in each case without reference to questions of remission or parole.

8. I have consulted the Lords Justices presiding in the Court of Appeal (Criminal Division) and we have decided that a new approach is essential.

9. Accordingly, from 1 October 1992, it will be necessary, when passing a custodial sentence in the Crown Court, to have regard to the actual period likely to be served, and as far as practicable to the risk of offenders serving substantially longer under the new regime than would have been normal under the old.

10. Existing guideline judgments should be applied with these considerations in mind.”

17.  The sentencing regime in respect of sentences of more than 12 months was again changed significantly by the Criminal Justice Act 2003. One aspect of the change being that the conditions of licences were made more exacting and that the licence conditions remained in force for the whole length of the sentence. In these circumstances the Sentencing Guidelines Council issued guidance to sentencers that included the following:

“Since there are so many factors that will vary, it is difficult to calculate precisely how much more demanding a sentence under the new framework will be. The Council’s conclusion is that the sentencer should seek to achieve the best match between a sentence under the new framework and its equivalent under the old framework so as to maintain the same level of punishment. As a guide, the Council suggests the sentence length should be reduced by in the region of 15%". (New Sentences: Criminal Justice Act 2003, para 2.1.9)

18.  In these circumstances it cannot be suggested that the imposition of a determinate sentence renders the detention of the defendant lawful for the full period of the sentence. It will provide the legal foundation for detention during the term of the sentence provided that other conditions, such as those governing recall of a defendant released on licence, are satisfied. The law provides, however, circumstances in which a person sentenced to a determinate sentence is entitled to be released. Article 5.4 must apply so as to enable him to seek a determination of whether those conditions are satisfied should this be in issue.