R (Giles) v Parole Board

A determinate custodial sentence imposed under the Criminal Justice Act 1991 section 2(2)(b) is a single sentence fixed by the sentencing judge. It is not divided into punitive and protective components, and the public-protection rationale does not transfer release decisions to the executive. Where the term is determinate, remains within the statutory maximum and is subject to appeal, the sentencing decision incorporates the supervision required by Article 5(4) of the Convention. Periodic judicial review is required for indeterminate or executive-controlled detention whose lawfulness depends on changing risk or dangerousness. It is not required merely because a determinate sentence was lengthened to protect the public.

The claimant pleaded guilty to unlawful wounding and assault occasioning actual bodily harm. In 1997 the trial judge imposed consecutive terms totalling seven years and stated that section 2(2)(b) applied, without identifying the commensurate sentence. The claimant was released in 2001.

Elias J, sitting in the Administrative Court, granted a declaration that detention after the commensurate period required periodic review under Article 5(4). The Secretary of State appealed. The central issue was whether a determinate public-protection sentence contained a separately reviewable protective period.

The appeal was allowed unanimously. Kennedy LJ gave the leading judgment. May LJ agreed with his reasons, and Tuckey LJ agreed with both judgments. The declaration made below was set aside.

1. Statutory character. Section 2(2)(b) required the sentencing court to decide whether a longer term was necessary to protect the public from serious harm and, if so, what length was required, subject to the permitted maximum. The term substituted for, rather than supplemented, the sentence under section 2(2)(a). It was one determinate sentence, which the statute did not require the judge to divide into punitive and protective parts.
2. Relationship to the offence. The statutory maximum preserved a close link with the index offence, but the statute imposed no further requirement of proportionality or a fixed ratio between the commensurate and public-protection elements. Chapman represented the law on that issue, subject to any qualification arising from the Human Rights Act 1998.
3. Article 5(4). The European authorities, including De Wilde, Ooms and Versyp v Belgium [1970] 1 EHRR 373 and Thynne, Wilson and Gunnell v UK [1990] 13 EHRR 666, concerned detention that became protective after a punitive period and in which release was left to the executive. In such circumstances changing dangerousness could create new issues of lawfulness requiring periodic judicial review.
4. Application. A section 2(2)(b) sentence remained a judicial decision. Its duration was fixed at sentence, every aspect was subject to appeal, and the executive did not determine when release should occur. The supervision required by Article 5(4) was therefore incorporated in the original sentencing decision, despite the fact that the public-protection assessment involved prediction and the offender’s risk might fluctuate.

The successful appellant was awarded costs here and below, to be assessed under section 11 of the Access to Justice Act. Leave to appeal was granted.

• Court of Appeal (Civil Division): Appeal by the Secretary of State allowed; the declaration was set aside.
• Administrative Court: Elias J granted a declaration on 5 October 2001 that post-commensurate detention under section 2(2)(b) required periodic review under Article 5(4).