R (Giles) v Parole Board

The House of Lords held that a determinate custodial sentence longer than that commensurate with the offence imposed by a sentencing judge under section 2(2)(b) of the Criminal Justice Act 1991 (re-enacted as section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000) falls within article 5(1)(a) of the European Convention on Human Rights and does not, by reason only of its protective element, attract the additional periodic judicial-review protections of article 5(4).

The court relied on Strasbourg authorities distinguishing (i) detention the length of which is fixed by a judicial decision at sentence from (ii) detention the duration of which is left to executive discretion; the latter category can require subsequent judicial review under article 5(4) but the former ordinarily does not. Where a judge fixes a longer determinate term for public protection, the lawfulness of detention for that fixed term is incorporated in the sentence and there is no entitlement to the special review rights enjoyed by prisoners serving discretionary life sentences.

Accordingly, a prisoner sentenced under section 2(2)(b) has no additional Convention right to periodic judicial review of the protective element beyond the statutory parole/release regime for long-term prisoners; Parole Board proceedings under that regime apply but do not attract the article 5(4) entitlement contended for by the appellant.

Background and facts:

• The appellant pleaded guilty to two violent offences (under sections 20 and 47 of the Offences against the Person Act 1861) and was sentenced on 10 January 1997 to consecutive terms of four and three years' imprisonment. The sentencing judge stated that he was imposing a custodial term longer than that commensurate with the offences to protect the public, exercising the power in section 2(2)(b) of the Criminal Justice Act 1991.
• The appellant was a long-term prisoner under the 1991 Act, eligible for Parole Board consideration after serving one half of his sentence and for automatic release on licence after two-thirds. He was released on licence on 17 May 2001.

Procedural posture:

• The appellant sought confirmation from the Parole Board that at review he would have the same oral hearing rights and the same test as discretionary life prisoners; the Board gave no such confirmation.
• Permission for judicial review was granted by Sir Oliver Popplewell (permission) and later Elias J allowed the application (EWHC Admin 834). The Secretary of State appealed and the Court of Appeal (Kennedy, May and Tuckey LJJ) reversed (EWCA Civ 951). The appellant appealed to the House of Lords.

Nature of the claim and issues:

• (i) The appellant sought a declaration that article 5(4) of the European Convention required that, once the punitive (commensurate) part of a determinate sentence imposed under section 2(2)(b) had been served, the protective remainder should be the subject of periodic judicial review with the prisoner entitled to an oral hearing and the same substantive test as discretionary life prisoners.
• (ii) The central issue framed by the House was whether a determinate protective extension fixed by the sentencing judge differs, for article 5(4) purposes, from detention whose duration is left to the executive (for example discretionary life sentences or administrative preventive detention), and thus whether article 5(4) requires further judicial review once the punitive component has been served.

Court's reasoning:

• The House analysed Strasbourg jurisprudence (including De Wilde, Van Droogenbroeck, Weeks, Thynne, E v Norway, Silva Rocha and related authorities) and distilled the governing principle: article 5(4) ordinarily requires judicial review only where decisions as to the continuation or length of detention have been transferred to the executive or where the detention is of a special, indeterminate kind (persons of unsound mind; discretionary life prisoners), because in those contexts the link between the original judicial decision and continued detention may be broken as circumstances change.
• By contrast, where a judge, in open court, fixes the total determinate term at sentence (even if the judge does so having regard to public protection), the lawfulness of detention for that fixed term is incorporated in the sentencing decision under article 5(1)(a) and there is no general Convention obligation to provide additional periodic judicial review under article 5(4). The House emphasised that the operative distinction is whether the executive has been entrusted with the decision about continued detention; it concluded that section 2(2)(b) sentences do not transfer that power to the executive.
• The House therefore rejected the appellant's analogy with discretionary life sentences and held that the appellant was entitled only to the same parole considerations applicable to other long-term determinate prisoners.

Relief sought and disposition:

• The appellant sought a declaration and relief under article 5(4) as described; the House dismissed the appeal and refused the relief on the stated grounds.

Appeal dismissed. The House held that a determinate sentence fixed by a judge under section 2(2)(b) of the Criminal Justice Act 1991 (now section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000) falls within article 5(1)(a) and does not give rise, merely by virtue of its protective element, to an article 5(4) right to further periodic judicial review once the punitive component has been served; the critical distinction is whether the executive, rather than a court, controls continued detention, and no such transfer of responsibility occurred here.

Permission for judicial review granted by Popplewell J (reported: [2001] EWHC Admin 463). Substantive judicial review allowed by Elias J ([2001] EWHC Admin 834; [2002] 1 WLR 654). Secretary of State appealed and the Court of Appeal (Kennedy, May and Tuckey LJJ) allowed the appeal ([2002] EWCA Civ 951; [2003] 2 WLR 196). The appellant's appeal to the House of Lords was dismissed ([2003] UKHL 42).