Regina v. Parole Board and another (Respondents) ex parte Giles (FC) (Appellant)

A determinate custodial sentence fixed by a competent court falls within article 5(1)(a) of the European Convention on Human Rights, even where its length reflects the need to protect the public. The judicial supervision required by article 5(4) is incorporated in the original sentence.

Further periodic review is required where decisions about the duration of detention pass to the executive and changing circumstances may create new questions of lawfulness. A longer term imposed under section 2(2)(b) of the Criminal Justice Act 1991 is instead a single determinate judicial sentence. At the statutory parole stage, the prisoner has the same rights and is subject to the same release criteria as any other long-term determinate prisoner.

The appellant received consecutive sentences totalling seven years for two violent offences. The sentencing judge acted under section 2(2)(b) of the Criminal Justice Act 1991, imposing a longer term than would have been commensurate with the offences because public protection required it.

Before his first parole review, the appellant sought an oral hearing and the release test applicable to a discretionary life prisoner whose punitive tariff had expired. He contended that article 5(4) of the European Convention on Human Rights required judicial review of whether his continued detention remained justified by dangerousness. Although he had been released on licence before permission was granted, the courts determined the important point of principle.

Elias J accepted the claim in [2001] EWHC Admin 834; [2002] 1 WLR 654. The Court of Appeal allowed the Secretary of State's appeal in [2002] EWCA Civ 951; [2003] 2 WLR 196. The central issue before the House was whether article 5(4) required further judicial review during the protective element of a determinate sentence.

1. Disposition. The House unanimously dismissed the appeal. Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton delivered reasoned speeches. Lord Steyn and Lord Scott of Foscote agreed with their reasons.

2. Character of the sentence. Per Lord Hope and Lord Hutton, a sentence under section 2(2)(b) of the Criminal Justice Act 1991 is a single determinate sentence fixed by a judge as part of the ordinary sentencing exercise. The longer term is substituted for, rather than added to, the commensurate term. Its length is determined at sentence, subject to appeal, and responsibility for deciding its duration is not transferred to the executive.

   Lord Bingham further observed that the legislation does not require the judge to identify separate punitive and protective periods. The suggested division into two successive phases therefore did not reflect the statutory sentencing and release scheme.

3. Articles 5(1)(a) and 5(4). Per Lord Hope, the general rule is that lawful detention under a determinate sentence imposed after conviction by a competent court is justified under article 5(1)(a). The judicial supervision required by article 5(4) is incorporated in the sentencing decision. Once the appeal process is exhausted, article 5(4) does not confer a further right to periodic judicial review of that detention.

4. Scope of the exception. Lord Hope and Lord Hutton distinguished cases involving indeterminate detention, discretionary life sentences, mental disorder or placement at the government's disposal. Subsequent review is required where responsibility for the duration of detention or release has passed to the executive and changing conditions may break the link with the original judicial decision. That risk was absent here because the judge fixed the term and the Parole Board acted as a judicial body within statutory release dates.

5. Application. Per Lord Bingham, the sentence was neither arbitrary nor excessive and fell squarely within article 5(1)(a). The appellant was entitled at the halfway review to the same rights and release criteria as any other long-term prisoner serving a determinate sentence, but no additional oral-hearing right or discretionary-life-prisoner test. Lord Hutton added that public protection may properly influence the length of a proportionate custodial sentence, although purely preventive detention would stand on a different footing.

1. House of Lords: In [2003] UKHL 42, unanimously dismissed the appellant's appeal and affirmed the Court of Appeal's conclusion.
2. Court of Appeal: In [2002] EWCA Civ 951; [2003] 2 WLR 196, allowed the Secretary of State's appeal and rejected the claimed entitlement under article 5(4) of the European Convention on Human Rights.
3. Administrative Court: Elias J granted judicial review in [2001] EWHC Admin 834; [2002] 1 WLR 654, accepting that article 5(4) required the claimed review.
4. Permission stage: Sir Oliver Popplewell granted permission to seek judicial review in [2001] EWHC Admin 463, notwithstanding that the appellant had already been released on licence.