England and Wales Court of Appeal (Civil Division) Decisions

		Neutral Citation Number: [2002] EWCA Civ 951
		Case No: C/2001/2524 QBACF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ELIAS

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th July 2002

B e f o r e :

LORD JUSTICE KENNEDY
LORD JUSTICE MAY
and
LORD JUSTICE TUCKEY
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Between:


	THE QUEEN ON THE APPLICATION OF GILES	Appellant
	- and -
	PAROLE BOARD & SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

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(Transcript of the Handed Down Judgment of
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DAVID PANNICK QC & ELEANOR GREY (instructed by Treasury Solicitor) for the appellant
EDWARD FITZGERALD QC & PHILLIPPA KAUFMANN (instructed by Irwin Mitchell, Sheffield) for the respondent
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Lord Justice Kennedy :

1. This is an appeal by the Secretary of State from a decision of Elias J sitting in the Administrative Court, who on 5^th October 2001 granted a declaration to the claimant in these terms –

“Where a person has been sentenced pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (or its statutory predecessor), once he is detained in circumstances where he would have been released but for the imposition of the additional element of the sentence imposed by virtue of that subsection, his continuing period of detention shall be subject to Article 5(4) of the European Convention on Human Rights such that it will need to be reviewed periodically at reasonable intervals by a procedure compliant with Article 5(4) to determine whether the continued detention remains necessary to protect the public from serious harm.”

Article 5 and this case.

2. Article 5 of the Convention, so far as material, reads as follows:

“(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. It has long been established that where a criminal is convicted or pleads guilty to an offence, and is sentenced to a period of imprisonment which the court considers commensurate with the gravity of his offence, the decision of the sentencing court constitutes the necessary compliance with Article 5(4) – See De Wilde, Ooms and Versyp v Belgium [1970] 1 EHRR 373. However, the position is different where the detention, in a hospital or in a prison, is not to punish but to protect the public from harm that may be caused by the person detained. In such a case Article 5(4) applies. In Thynne, Wilson and Gunnell v UK [1990] 13 EHRR 666 the applicants had all been sentenced to life imprisonment in the United Kingdom for offences for which such a sentence was not mandatory. The European Court of Human Rights held that Article 5(4) applied “after the expiry of the punitive periods of their sentences”. In order to meet the requirements of Article 5(4) sentencing judges now specify the tariff period or minimum term (i.e. the punitive period allowing for remission) after which the offender’s case will be considered at intervals by the Parole Board, which operates in such a way as to comply with Article 5(4). The same procedure is operated in relation to young offenders ordered to be detained for an indefinite period. The issue which arises in this case is whether that procedure should also have been adopted when a sentencing judge invoked the powers given to him by section 2(2)(b) of the Criminal Justice Act 1991, now re-enacted in identical terms in section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000. As this case is concerned with a sentence passed in 1997 I will refer hereafter only to the provisions of the earlier Act.

The 1991 Act.

4. The 1991 Act was preceded by a White Paper “Crime, Justice and Protecting the Public” (1990 Cm 965) which proposed –

“A coherent legislative framework for sentencing, with the severity of the punishment matching the seriousness of the crime and a sharper distinction in the way the courts deal with violent and non-violent crimes”.

It also proposed –

“New powers for the Crown Court to impose longer sentences for violent and sexual offences, if this is necessary to protect the public from serious harm.”

That latter proposal was amplified in paragraphs 3.12 and 3.13 which, so far as material, read –

“3.12 ....... The Court of Appeal has indicated that sentences should be longer if the victims of violent crime are very young or very old and so especially vulnerable.

3.13. The Government proposes to take this approach further by giving the Crown Court power to give custodial sentences longer than would be justified by the seriousness of the offence to persistent violent and sexual offenders, if this is necessary to protect the public from serious harm. There are a small number of offenders who become progressively more dangerous and who are a real risk to public safety. Some will be mentally disordered and can be detained under mental health legislation. For those convicted of the most serious crimes, a sentence of life imprisonment may be justified. ... Some offenders will be convicted of less serious offences but the Crown Court will recognise that they are a serious risk to the public. In these circumstances, the Government considers that an exception should be made to the principle that the length of the individual sentence should be justified by the seriousness of the offence. The Crown Court would be able to give a longer sentence within the maximum penalty for the offence for which the offender has been convicted. For example, an assault causing actual bodily harm might be serious enough to justify a sentence of twelve months, but the Crown Court could give a longer sentence, up to the maximum penalty of 5 years, if it considers this necessary to protect the public from the risk of serious harm from the offender. The Court would, of course, have to state in open court why it was giving a longer sentence and it would be open to the defendant to appeal against his sentence.”

That is the background to section 2 of the 1991 Act, which reads –

“(1) This section applies where a court passes a custodial sentence other than one fixed by law.

(2) The custodial sentence shall be –

(a) 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 one or more offences associated with it; or

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.

(3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it, the court shall –

(a) state in open court that it is of the opinion that sub section (2)(b) above applies and why it is of that opinion; and

(b) explain to the offender in open court and in ordinary language why the sentence is for such a term.

(4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term.”

Part III of the Act deals with early release of prisoners, and provides that as soon as a short-term prisoner (i.e. one serving less than four years imprisonment) has served half of his sentence he must be released (section 33(1)). Others must be released after serving two-thirds of their sentences (section 33(2)), and after a long-term prisoner has served half of his sentence the Secretary of State will release him on licence if required to do so by the Parole Board. That is the effect of section 35(1) read together with the Regulations made under the Act.

Section 2(2)(b) Operation and Limitations.

5. Before turning to the facts of the present case it is worth pausing to consider the wording of section 2(2). The first thing to be noticed is that where the offence is of a violent or sexual nature the court has to form an opinion as to whether a sentence longer than that commensurate with the seriousness of the offence is necessary to protect the public from serious harm from the offender, and if so, secondly, what is the length of sentence required for that purpose. However, thirdly, the sentence cannot exceed the permitted maximum for the offence which has brought the defendant before the court. Fourthly, any sentence passed under section 2(2)(b) is in substitution for the sentence which would otherwise be passed under section 2(2)(a). It is not additional to it, as can be seen from the use of the word “or” at the end of section 2(2)(a).

Extent of relationship to offending.

6. Clearly therefore when the powers under section 2(2)(b) are exercised there remains a close link between the offence which has brought the offender before the court and the sentence imposed, illustrated by the fact that only one sentence is imposed, which the statute does not require the sentencing judge to divide into two parts, and by the fact that the sentence cannot be for any longer term than the statutory maximum for the relevant offence.
7. Over the years since 1991 there has been a certain lack of consistency in judicial pronouncements as to the nature of the relationship between the index offence and the sentence imposed under section 2(2)(b), and in particular as to whether the sentence imposed when section 2(2)(b) is relied upon must be not only less than the maximum for the index offence but also in some way proportionate to it. In Mansell [1994] 15 Cr App R 771 Lord Taylor CJ said at 775 that the judge –

“in each individual case has to try to balance the need to protect the public on the one hand with the need to look at the totality of the sentence and to see that it is not out of all proportion to the nature of the offending.”

In that case the trial judge indicated that under section 2(2)(a) he would have imposed sentence of 2½ years imprisonment, and that was approved by the Court of Appeal, as was his conclusion that in order to protect the public from serious harm a total sentence of 5 years imprisonment was required.

8. In Crow and Pennington [1995] 16 Cr App R 409 Lord Taylor said at 412 that–

“we consider that even where section 2(2)(b) is applied, the sentence should, whilst long enough to give necessary protection to the public for an extended period, still bear a reasonable relationship to the offence for which it is being imposed.”

It does, however, have to be said that there is nothing in the statutory wording, or in the White Paper, other than the reference to the maximum sentence which can be imposed, which indicates that Parliament intended to establish such a relationship, and in Chapman [2000] 1 Cr App R 77 Lord Bingham CJ at 85 E accepted counsel’s submission at 84 D that “there is no necessary ratio between the part of the sentence intended to punish and the part of the sentence intended to protect.” In that case the appellant had pleaded guilty to arson and had been sentenced to life imprisonment. On appeal that sentence was varied to one of ten years of imprisonment, three years being said to be the appropriate determinate term for the offence and seven years being added “for the purposes of public protection under section 2(2)(b)”. The earlier decisions were not referred to in the judgment, but it is clear from the report, and from what we have been told by Mr Fitzgerald QC who appeared in Chapman, that in that case Mansell was referred to in argument. Chapman was followed in Wilson [2000] CLR 503 and in Linford Smith [2001] 2 Cr App R 160 and, despite submissions made by Mr Pannick QC for the appellant to the contrary, I am satisfied that what was said in Chapman does represent the law, subject to any qualification that has to be made in the light of the implementation of the Human Rights Act 1998.

Facts of this Case.

9. The respondent pleaded guilty to unlawful wounding and to assault occasioning actual bodily harm, and on 10^th January 1997 he was sentenced to 4 years imprisonment for the wounding and 3 years consecutive for the assault, a total of seven years. When imposing sentence the trial judge made it clear that he was invoking section 2(2)(b), but he did not indicate what sentence he would otherwise have imposed. Leave to appeal against sentence was refused, and the respondent was released on 17^th May 2001, but the present action has been allowed to continue because the point which it raises is an important one in relation to which the decision of this court is required.

The Argument

10. The case for the respondent, which found favour in the court below, can be summarised thus – as interpreted by the European Court, Article 5(4) requires an investigation of the nature and rationale of the sentence. When the only reason for continued detention is danger to the public or rehabilitation of the offender, something which can change with the passage of time, then there must be provision for periodic review of the lawfulness of detention, because otherwise the detainee has no chance to show that the danger, which constitutes the sole justification for his continued detention, no longer exists. Mr Fitzgerald submits that part of any sentence imposed under section 2(2)(b), whether determinate or indeterminate, is a sentence for which the only justification is that in the opinion of the sentencing court, at the time of sentence, that part of the sentence was necessary to protect the public from serious harm from the offender, otherwise there would only be a commensurate sentence under section 2(2)(a). He further submits that when the offender has served the commensurate sentence (which in practice should always be identified by the sentencer) he becomes entitled to benefit from Article 5(4), the requirements of which are not satisfied by the original decision of the sentencing judge because he may, in the event, be mistaken in his assessment of when the offender will cease to be dangerous.
11. For the appellant Mr Pannick contends that in relation to Article 5(4) there is a distinction to be drawn between determinate and indeterminate sentences passed pursuant to section 2(2)(b). Determinate sentences should be reasonably related to the gravity of the offending which has brought the offender before the court (whether or not the sentencer specifies what he considers that a commensurate sentence would have been) and such sentences cannot exceed the statutory maximum for the index offence, so the whole sentence is pervaded by a punitive element and is justified for the purposes of Article 5(4) by the decision of the sentencing judge. As Mr Pannick points out, many sentences imposed without resort to section 2(2)(b) do contain a preventive element, and he further emphasizes that as long as the sentence remains a determinate sentence, whether or not section 2(2)(b) is invoked, the court does not hand over to the executive the decision as to when the offender should be released.

European Authorities

12. The starting point of a consideration of the European jurisprudence is bound to be the decision in De Wilde to which I have already referred. At paragraph 76 the European Court said –

“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.”

In Van Droogenbroeck v Belgium [1982] 4 EHRR 443 the applicant was sentenced to 2 years imprisonment for theft and attempted theft, and ordered to be “placed at the government’s disposal” for 10 years under the Social Protection Act, as a persistent offender. That Act conferred on the Minister of Justice a wide measure of discretion as to how the penalty should be implemented, ranging from detention to probation, with powers of revocation. At paragraph 40 of its judgment the European Court said –

“At the time of its decision, the court can, in the nature of things, do no more than estimate how the individual will develop in the future. The Minister of Justice, for his part, is able, through and with the assistance of his officials, to monitor that development more closely and at frequent intervals but this very fact means that with the passage of time the link between his decisions not to release or to re-detain and the initial judgment gradually becomes less strong. The link might eventually be broken if a position were reached in which those decisions were based on grounds that had no connection with the objectives of the legislature and of the court or on an assessment which was unreasonable in terms of those objectives. In those circumstances, a detention which was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5.”

At paragraph 47 the court said –

“In this context the nature and purpose of a given type of ‘detention’ are of more importance than is the place which it occupies in the structure of the Convention. The system of placing recidivists and habitual offenders at the Government’s disposal was established with specific objectives in mind. The position taken by the Court of Cassation is that the measure in question, although assimilated to a penalty, is designed not only to protect society but also to provide the executive with an opportunity of endeavouring to reform the individuals concerned.”

The Court went on to describe the disposal order as one which –

“Is striking for its relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands of the protection of society.”

At paragraph 49 the Court said –

“In the instant case, the Convention required an appropriate procedure allowing a court to determine speedily, on the application of Mr Van Droogenbroeck whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the 1964 Act. For the purposes of Article 5(4), this was not simply a question of expediency but one that bore on the very ‘lawfulness’ of the deprivation of liberty at issue.”

13. In Weeks v UK [1987] 10 EHRR 293 the offences were not particularly serious, and punishment was not a significant element in the sentence, but the offender was regarded as a dangerous young man, and the sentencing court accepted its inability to forecast for how long his instability and personality disorders would endure. He therefore received an indeterminate sentence. The European Court regarded his situation as analogous to that of the offender in Van Droogenbroeck.
14. In E v Norway [1990] 17 EHRR 30 the applicant was a Norwegian citizen with a record of offences of violence who complained to the European Court in relation to the adequacy, for the purposes of Article 5(4), of judicial review proceedings in Norway. He was detained under Article 39 of the Norwegian Penal Code, which gave the Ministry of Justice a wide discretion as to which security measure was to be imposed, and for how long. The European Court noted the similarity with the Belgian system which was at issue in the Van Droogenbroeck case and continued in paragraph 52 of its judgment –

“Under such systems the courts cannot at the time of their decisions do more than assess how the person concerned will develop in the future.”

In paragraph 53 the Court said that –

“The Convention required an appropriate procedure allowing a court to determine, on an application by Mr E, whether the Ministry of Justice was entitled to hold that detention remained consistent with the object and purpose of Article 39(1) of the Penal Code. For the purposes of Article 5(4) of the Convention this was not simply a question of expediency but one which was essential for the lawfulness of the deprivation of liberty at issue.”

In Thynne, Wilson and Gunnell v UK [1990] 13 EHRR 666 all three appellants had been separately convicted of serious offences, and had been sentenced as a matter of discretion to life imprisonment. They contended that in English Law a discretionary sentence of life imprisonment had a punitive element and a protective element (although at that time those elements were not usually expressly divided) and that after serving the punitive element they should, pursuant to Article 5(4), have been entitled to take proceedings to determine the lawfulness of their continued detention. At paragraph 68 of its judgment the European Court referred to De Wilde and continued –

“In subsequent cases the Court made it clear that this finding related only to ‘the initial decision depriving a person of his liberty’ and did not purport ‘to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might arise.’”

One of the “subsequent cases” which the Court had in mind was, it seems, Weeks (supra). In Thynne and others the UK Government had argued that it was impossible to disentangle the punitive and security components of a discretionary life sentence (foreshadowing, Mr Fitzgerald submits, part of the case for the appellant before us) but the European Court in paragraph 73 of its judgment rejected that argument, saying that discretionary life sentences “are composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner’s release.” Even though the offenders had committed grave crimes meriting lengthy sentences of imprisonment the Court was satisfied that in each case the punitive element of the discretionary life sentences had expired, and (in paragraph 76 of the judgment) that after the expiry of the punitive periods of their sentences their detention was comparable with that at issue in Van Droogenbroeck and Weeks, from which it followed that –

“At this phase in the execution of their sentences, the applicants are entitled under Article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court.”

That decision led to changes in English law which required sentencing judges to specify the punitive element of discretionary life sentences, and required the Secretary of State to accept recommendations of the Parole Board. In Wynne v UK [1994] 19 EHRR 333 an unsuccessful attempt was made to extend the Thynne approach to a mandatory life sentence. At paragraph 33 of its judgment the European Court said of its own earlier jurisprudence that –

“A clear distinction was drawn between the discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was reviewed as essentially punitive in nature.”

However in Hussain v UK [1996] 22 EHRR 1 the European Court did extend the Thynne approach to a young applicant convicted of murder who had been ordered to be detained during Her Majesty’s Pleasure, saying at paragraph 53 of its judgment that –

“An indeterminate term of detention for a convicted young person, which may be as long as that person’s life, can only be justified by considerations based on the need to protect the public”.

The Court then referred to “the changes that inevitably occur with maturation” and at paragraph 54 concluded that –

“The applicant’s sentence, after the expiration of his tariff, is more comparable to a discretionary life sentence ... the decisive ground for the applicant’s continued detention was and continues to be his dangerousness to society, a characteristic susceptible to change with the passage of time. Accordingly new issues of lawfulness may arise in the course of detention and the applicant is entitled under Article 5(4) to take proceedings to have these issues decided by a court at reasonable intervals.”

A decision on which Mr Pannick now places considerable reliance is Silva Rocha v Portugal [1996] 32 EHRR 333 which was not cited in the court below. In July 1989 the applicant was arrested and remanded in custody in connection with a neighbour’s death. In July 1990, when brought before a criminal court on charges of aggravated homicide and illegal possession of weapons, he was in a mentally disturbed state and was found to be criminally irresponsible and dangerous. He was ordered to be detained in a Psychiatric Asylum for a minimum of three years in accordance with Article 91(2) of the Portuguese Criminal Code. His detention was deemed to have begun when he was remanded in custody, so his case was reviewed in June 1992, and periodically thereafter until September 1993 when there was psychiatric evidence to suggest that he was no longer dangerous, so the court ordered his discharge. He contended that as he was found not be criminally responsible the only reason for his detention was that he represented a danger to society, which could evolve with the passing of time, and that Article 5(4) required judicial review to be available at reasonable intervals, but he could not be discharged until after three years, even if it was established before the expiration of that period that he was no longer dangerous. At paragraph 28 of its judgment the European Court said –

“The case involved a homicide committed by a person who could not be held responsible for his actions and who was at the same time dangerous. The seriousness of the offences together with the risk that he represented for himself as well as for others could reasonably justify his being removed from society for at least three years. For that period the review required by Article 5(4) of the Convention was incorporated in the detention decision taken in this instance by the Oporto Criminal Court. It was therefore not until those three years had elapsed that the applicant’s right to ‘take proceedings by which the lawfulness of his detention shall be decided ... by a court’ at reasonable intervals took effect.”

Mr Pannick submits that the decision in Silva Rocha shows that when an applicant is detained by reason of a factor which may change no right to a subsequent judicial review arises if the original sentence has been imposed by a court for a determinate period which must elapse before there can be any review, and if that period is reasonable in the light of the conduct committed and in the light of the risk which the individual poses to himself and to society. For the respondent Mr Fitzgerald contends that in Silva Rocha the court was really only concerned with the question for how long it was reasonable to postpone the first judicial review.

15. I next refer to the admissibility decision of the European Commission in Mansell v UK 2^nd July 1997, in respect of the conviction referred to earlier in this judgment. In that case the sentencing judge indicated that although a sentence of 2½ years would be commensurate, pursuant to section 2(2)(a), a longer than normal sentence was necessary to protect the public from serious harm from the offender, so a sentence of five years imprisonment was imposed pursuant to section 2(2)(b). Before the Commission the applicant contended that as soon as he had served the period he would have served if sentenced under section 2(2)(a) he should have been entitled to review by the Parole Board as though he was serving a discretionary sentence of life imprisonment. The Commission unanimously rejected that contention, saying –

“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’ (see Thynne paragraph 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 5 years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed.”

16. Mr Fitzgerald submits that the decision of the Commission in Mansell was wrong. It betrays a misunderstanding of the true distinction between section 2(2)(a) and section 2(2)(b), and should not be followed. Mr Pannick submits that the Commission did not misunderstand anything, and that the approach adopted is the one which we should follow in the present case.
17. After the conclusion of argument in the present case the European Court of Human Rights on 28^th May 2002 gave judgment in Stafford v U.K. The case concerned the power of the Secretary of State not to accept a recommendation of the Parole Board to release on licence an offender subject to a mandatory life sentence, whose previous licence had been revoked. What is of some significance for present purposes is that at paragraph 79 of its judgment the Court found that “there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise.” The Court went on to find that “the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner”. From that it followed, as the Court observed in paragraph 80, that “once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness”. Because those elements may change with the course of time “it can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5(1) of the Convention” (paragraph 87 of the judgment).

Conclusion.

18. I confess that I have difficulty in following some of the reasoning of the Commission in Mansell. It said that “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”. That was true of the commensurate element of the sentence, but the only justification for the extra 2½ years was that in the opinion of the court it was necessary to protect the public from serious harm from the offender. In other words he was considered to be dangerous. Similarly in relation to the observation that there was as an element of simple punishment as well as an element of deterrence. That would be true of any commensurate sentence. But the key to the Commission’s decision in Mansell does seem to be in the observation that the increased sentence (under section 2(2)(b)) is no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the increase has a statutory basis, and that I am prepared to accept. Often it is possible for a court to impose a sentence which is commensurate with the seriousness of the offence without regard to the question whether there is a need to protect the public from serious harm from the offender, or perhaps more accurately upon the basis that no such danger exists. For example, a young man with no previous convictions found guilty of raping a woman of similar age may be sentenced to five years imprisonment, but if he can be shown to have carried out a campaign of rape the court may conclude that he represents a more than ordinary danger and a sentence of 15 years or more may be appropriate (see Billam [1986] 82 Cr App R 347) even though from the point of view of the individual victim the offending may be precisely the same. It is certainly possible to argue that for the purposes of section 2(2)(a) the “seriousness of the offence” includes a consideration of other offences committed by the offender, but equally it is clear that the longer determinate term is imposed, at least in part, because in the opinion of the court it is necessary to protect the public from serious harm from the offender. The decision to impose the longer term is plainly a judicial decision, every aspect of which is subject to appeal, and so, as it seems to me, in the words used by the European Court in De Wilde “the supervision required by Article 5(4) is incorporated in the decision”. If that is right in relation to rape, why should the position be any different in relation to any of the other offences within the ambit of section 2(2)(b)? The sentence is not indeterminate. It cannot exceed the statutory maximum for the index offence, and it does not hand over to the executive the decision as to when the offender should be released, which can be contrasted with the position in relation to many discretionary life sentences where the sentencing court concludes that the offender will remain a potential danger for an uncertain period of time (see Hodgson [1967] 52 Cr App R 113). In the type of case with which we are concerned a period of time is fixed precisely because the sentencing judge considers that he or she is in a position to fix it even though it is clear that in many cases the risk which an offender will present to the public is capable of fluctuating with the passage of time. I would therefore allow this appeal, and set aside the declaration granted by the court below.

Lord Justice May:

19. I agree that this appeal should be allowed for the reasons given by Kennedy LJ, whose account of the facts and circumstances of this case I gratefully adopt. The principal reasons which lead me to this conclusion are:

(a) A sentence 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 – is a single determinate sentence, the product of a judicial decision.

(b) Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender,

(i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence;

(ii) it is not intended to be reviewed, other than on appeal; and

(iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner’s release – see paragraph 73 of the European Court’s judgment in Thynne, Wilson and Gunnell v. UK [1990] 13 EHRR 666, to which Kennedy LJ refers in paragraph 13 of his judgment.

(c) All the European authorities to which Kennedy LJ has referred, which conclude that Article 5(4) of the European Convention of Human Rights requires an appropriate procedure allowing a court to determine the continued lawfulness of detention, concern sentences which were indeterminate and where otherwise the decision whether to release the prisoner lay with the executive. Neither applies to sentences under section 2(2)(b).

(d) Section 2(2)(b) applies to violent or sexual offences where the court is of the opinion that it is necessary to protect the public from serious harm from the offender. In some such combined circumstances, an indeterminate sentence may be an available alternative. Even if that is not so, and although the sentence requires an element of judicial prediction, the choice of sentence is a judicial decision that a longer term necessary to protect the public should be determined at the time of sentence.

Lord Justice Tuckey:

20. I agree with both judgments.
Order: Appeal allowed; declaration in court below to be set aside; costs here & below to be recovered by successful appellant; amount to be determined by costs judge in accordance with section 11 of Access to Justice Act; leave to appeal granted. (Order does not form part of the approved judgment)