Scottish Court of Session Decisions

[13] Mr Di Rollo, for the first respondent, began by considering the terms of the petition. He then provided an outline of his submissions in the form of four propositions: first, any complaint based on article 5 (1) or 5(4) of the Convention was ill-founded in that the sentence imposed on the petitioner was a determinate sentence which provided as punishment a period of five years in prison; second, no other relevant complaint was made in the petition, the reference to a failure to observe the requirements of natural justice being lacking in specification; third, in any event, any attack on the first respondent's decision of 4 November 2003 came too late; and, fourth, the first respondent having made no decision in relation to the letter of 6 June 2003 addressed to the second respondents, there was nothing to attack (in other words, there was no decision of 16 June 2003). Mr Di Rollo then turned to the statutory scheme which applied to the petitioner, as someone serving a determinate sentence in excess of four years in length. That scheme was provided by sections 1 and 17 of the 1993 Act and the 2001 Rules. It was fundamental that the court should understand that the petitioner was not serving a life sentence, an indeterminate sentence or an extended sentence. At the point of sentence by Lady Cosgrove the petitioner had suffered a five-year deprivation of liberty. That was the period which would be under consideration if the sentence were appealed: Shovlin v HMA 1999 SCLR 421. With a determinate sentence, one cannot identify when punishment has been completed. In the event of release on licence prior to the end of a determinate period, it does not follow that the licence period is simply for protective or supervisory purposes. Essentially, release on licence is rehabilitation in a phased way.

[42] The applicant in Weeks v United Kingdom (1987) 10 EHHR 293 was sentenced to life imprisonment, when aged only 17, in respect of a relatively minor robbery in 1966. The sentencing judge expressly referred to this as an indeterminate sentence which he had imposed because of his assessment of the applicant as a very dangerous young man. The applicant was released, on licence, in 1976 but recalled to prison in 1977 by order of the Home Secretary. He was released on licence a second time in 1982 but his licence was again revoked and he was returned to prison in 1985. He was re-released on licence in the same year. That licence was revoked in 1986, albeit that the applicant remained at large, having fled to France. He complained of breach of article 5(1) and of article 5(4) in relation to his recall to prison in 1977 and his re-detention in 1985. In resisting the application, the United Kingdom government argued that the applicant's recall to prison in 1977 had not deprived him of his liberty because both his liberty and his right to liberty had been taken away from him for the rest of his life by virtue of the sentence of life imprisonment imposed on him in 1966. The government sought to draw a distinction between liberty, properly understood, and a life prisoner being permitted to live on licence outside prison. As appears from the passage in its judgment which I have quoted at paragraph [36] above, the Court was not convinced. It accepted that the freedom enjoyed by a life prisoner, such as Mr. Weeks, released on licence, is more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen. Nevertheless, the restrictions to which Mr. Weeks's freedom outside prison was subject under the law were not sufficient to prevent it qualifying as a state of "liberty" for the purposes of article 5. Hence, when recalling Mr. Weeks to prison in 1977, the Home Secretary was ordering his removal from an actual state of liberty, albeit one enjoyed in law as a privilege and not as of right, to a state of custody. There had accordingly been a deprivation of liberty. The principles stated in Van Droogenbroeck fell to be applied. The Court recognised, as a matter of generality, that it may be extremely difficult, if not impossible, to disentangle different elements underlying a particular sentence and to determine which of these elements was accorded more importance by the sentencing judge. This was not so in Weeks because the trial court and the Court of Appeal had explained in detail why a life sentence had been imposed. In substance, the applicant was being put at the disposal of the State because he needed continued supervision in custody for an unforeseeable length of time and, as a corollary, periodic reassessment in order to ascertain the most appropriate manner of dealing with him. The measure ordered against Mr Weeks was therefore comparable to the Belgian measure at issue in Van Droogenbroeck. Applying the principles stated in Van Droogenbroeck, the Court held that the formal legal connection between Mr. Weeks's conviction in 1966 and his recall to prison some ten years later was not on its own sufficient to justify the disputed detention in terms of article 5(1). The requisite causal link might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. The Court did not accept the submission on behalf of the applicant that the requisite link had in fact been broken at the stage of his release on licence in 1976, with the result that his full rights under article 5 were restored to him. As a matter of English law, it was inherent in Mr Weeks's life sentence that, whether he was inside or outside prison, his liberty was at the discretion of the executive for the rest of his life. This the sentencing judges must have known and intended. It was not for the European Court, within the context of article 5, to review the appropriateness of the original sentence. Looking to the grounds on which the applicant was re-detained in 1977 and thereafter (indications that he was a danger to himself and to the public), the Court concluded that his recall to prison and subsequent detention were sufficiently connected with his conviction in 1966 and therefore were not incompatible with article 5(1). However, the grounds relied on by the sentencing judges for deciding that the length of the applicant's deprivation of liberty should be at the discretion of the executive were, by their nature susceptible of change with the passage of time. The Court inferred from this that if the decisions not to release or to re-detain were based on grounds inconsistent with the objectives of the sentencing court, Mr Weeks's detention would no longer be a "lawful" detention, as required by article 5(1)(a). It followed that, by virtue of article 5(4), the applicant was entitled to apply to a "court" having jurisdiction to decide speedily whether his detention had become unlawful in this sense (as opposed to a court exercising the more limited jurisdiction of judicial review: cf E v Norway (1990) 17 EHRR 30). The Court accepted that the Parole Board had the necessary qualities of independence and impartiality to allow it to serve as a "court" for the purposes of article 5(4) but was not satisfied that the then powers of the Board and the then procedural guarantees it offered to prisoners were sufficient for article 5(4) compliance. The Court accordingly found that the applicant's rights in terms of article 5(4) had been violated.

[43] The facts in Weeks pointed strongly to the applicant being detained purely for the protection of himself and the public, the punitive element in his sentence having long been exhausted. In Thynne Wilson and Gunnell v United Kingdom (1990) 13 EHHR 666, the Court held that, as a matter of reality if not form, it was a common feature of discretionary life sentences, as they were administered in England, that there was a punitive "tariff" period followed by a period during which continuing detention depended upon an assessment of the risk that the prisoner presented to the public. The matter was put this way in paragraph 73 of the Court's judgment:

Applying the principles stated in Van Droogenbroeck and Weeks, the Court in Thynne Wilson and Gunnell held that article 5 (4) required a regular scrutiny which was wide enough in its scope to bear on all the conditions which, according to the Convention, are essential for the lawful detention of a person subject to the special type of deprivation of liberty ordered in respect of the three applicants. As the applicants had been unable to invoke such scrutiny, there had been a violation of article 5(4). The Court explained its conclusion at paragraph 76 of its judgment in the following terms:

Consistent with the Court's decision in Weeks, no argument had been presented under reference to article 5(1).

[44] The Court in Thynne Wilson and Gunnell distinguished between discretionary and mandatory life sentences. The majority of the Court maintained this distinction in Wynne v United Kingdom (1994) 19 EHRR 333 where an unsuccessful attempt was made to extend the Thynne approach to a mandatory life sentence. Describing the earlier jurisprudence of the Court, the majority said this, at paragraph 33:

And, accordingly, at paragraph 36:

Lord Hutton's purpose in referring to what had been said by Lawton LJ in R v Sargeant was to illustrate that among the objectives a sentencing judge might seek to achieve when selecting a period of custody is the protection of the public, and that without reference to any special statutory powers. As Mr MacNeill indicated Lord Hope made the same point, at paragraphs 19 and 20 of his opinion in Giles supra at 743H to 744D, under reference to what was said by the Lord Justice General (Rodger) in Torbet v HMA 1999 SLT 113 at 115L. However, the passage from R v Sargeant is also useful for its enunciation of what Lawton LJ describes as the classical principles of sentencing and his recognition that in any particular case one or other of these principles may predominate in its influence on the sentencing judge's decision making. There will be cases where one or other of the principles (however they may be described by the sentencing judge) will have little or no application. In Ansari v HMA 2003 SLT 845 the Lord Justice Clerk refers to the element in a sentence attributable to the protection of the public as the risk element. At paragraph 33 of his opinion, (supra at 852 A), he explains the process by which a sentencing judge will decide on what sentence he or she will impose:

Essentially the same point is made by Lord Bingham at paragraph 7 of his judgment in R (Giles) v Parole Board supra at 741A. Looking to her report to the first respondent, production 7/8, and the nature of the offence to which the petitioner pled guilty, it may be supposed that the principles which predominated in Lady Cosgrove's decision as to what sentence was appropriate were the punitive ones of retribution and deterrence, but whether or not that supposition is correct, what cannot be asserted is that at any particular point in the period of five years following on 19 November 1999, the punitive objectives of the sentence imposed on 21 December 1999 have been or will have been exhausted. In this respect this is different case from what the European Court found the position to be in Weeks and Thynne Wilson and Gunnell. I agree with Mr Di Rollo: with a determinate sentence, such as that which was imposed on the petitioner, it is impossible to identify when punishment has been completed.

After a review of the Strasbourg jurisprudence Lord Hope answered that question in the negative and concluded that the case before the House, a longer than commensurate but nevertheless determinate sentence, fell within what he had earlier identified as the basic rule that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4). He expressed his conclusions as follows, at paragraph 52 of his opinion supra at 755E:

[59] Something of the history of the practice of releasing prisoners prior to the expiry of the sentence imposed by the court (variously described as release on ticket of leave, release on licence, remission and parole) is narrated in the dissenting opinion of Lord Reed in Ansari v HMA supra at 853J to 854B (see also the annotations by Dr J J McManus to the Current Law edition of the 1993 Act). As appears from Lord Reed's outline, the practice was established long before the enactment of the 1993 Act. The 1993 Act with its provisions for the release on licence of long-term prisoners followed on the publication of the Report of the Kincraig Committee on Parole and Related Issues in Scotland (Cm 598, 1989). The 1993 Act has been amended on a number of occasions, most recently by the Criminal Justice (Scotland) Act 2003. The rationale of release on licence was only very lightly touched upon in submissions before me. I was not referred to the Kincraig Committee's report. Whether or not Mr Di Rollo was correct to describe release on licence as essentially being a phase in the rehabilitation of the prisoner ("rehabilitation in a phased way" is how Mr Di Rollo put it), I consider that he was correct to say that one cannot conclude that the release on licence period is solely to do with protective or supervisory purposes. That certainly cannot be concluded from consideration of the terms of the 1993 Act. It cannot be concluded from a consideration of the terms of the 2001 Rules. As the Lord Justice Clerk observes in Ansari v HMA supra at 851K, rule 8 of the 2001 Rules provides that risk that a prisoner may commit an offence or otherwise cause harm to any other person should he be released on licence, remain on licence, or be re-released on licence, is only one of the matters which the first respondent may take into account when dealing with that prisoner's case.

[60] Lady Cosgrove, like any other Scottish sentencing judge imposing a long-term sentence, will have been aware when she sentenced the petitioner that the 1993 Act makes provision for early release, on licence, after two-thirds of the sentence, in terms of section 1(2); after half of the sentence, in terms of section 1(3); or at any time, in terms of section 3. That does not, in my opinion, have the result that she was imposing a determinate sentence of only 40 months; or a determinate sentence of only 30 months; or an indeterminate sentence, the length of which was a matter for the discretion of the second respondents (after having consulted the first respondent). Mr Mitchell sought to dismantle the sentence imposed on the petitioner by Lady Cosgrove with a view to persuading me that even if the petitioner's detention in custody after 13 August 2002 can be said to be authorised by Lady Cosgrove's sentence as a matter of domestic law (as it clearly is), it does not, as the decision in Van Droogenbroeck requires for article 5 compliance, also result from, follow and depend upon or occur by virtue of that sentence. This approach, which supposes that the ambit of a judge's sentence is limited by such statutory early release provisions as may be in force, is unsupported by authority. In Van Droogenbroeck the European Court expressly distinguished what was under consideration in that case: the placing of recidivists at the disposal of the government after a period of two years' imprisonment; from the conditional release of prisoners sentenced by a court to an appropriate period of imprisonment, which is the present case. Conditional release, according to the Court in Van Droogenbroeck v Belgium supra at paragraph 47, was something "fundamentally different" from placing at the disposal of the government. In Stafford v United Kingdom supra at paragraph 87, the Court described early or conditional release from a determinate term of imprisonment as being an aspect of the administrative implementation of the sentence of the court. I was referred to the opinion of the court, delivered by Lord Prosser, in Shovlin v HMA 1999 SCCR 421. In that case it was argued that in imposing two consecutive sentences which, taken together, exceeded four years, the sheriff should have had regard to the fact that, in consequence, the appellant became a long-term prisoner and, accordingly, was subject to what the court accepted were more severe provisions in relation to release. The court rejected this argument. Lord Prosser said this, supra at 423B:

To the same effect is what was said by Lord Sutherland, in relation to the designated part of a discretionary life sentence, when delivering the opinion of the court in Robertson v HMA 1997 S.C.C.R. 534. The sentencing judge in that case had, in terms of section 2(2) of the 1993 Act, designated a period of eight years before the statutory provisions for release on licence would apply. It was argued on appeal that the designated period of eight years was the equivalent of at least a twelve year determinate sentence (allowing for early release), and that that would be excessive for the offence in question. The court rejected that submission and, in a passage cited by Lord Reed in the course of his dissenting opinion in Ansari v HMA, said this (Robertson v HMA supra at 541E-F):

In Ansari v HMA supra at 857F, under reference to Robertson, Lord Reed described it as "an axiomatic principle of sentencing that the court should decide the appropriate sentence in each case without reference to questions of remission or parole". "In other words", Lord Reed continued, "the period of imprisonment which the court imposes as a sentence is the period which the court considers that it is appropriate for the prisoner to serve."

[61] It appears to me that the opinions of the court in Shovlin and Robertson affirm what may be no more than self-evident: Lady Cosgrove's sentence was a sentence of five years' duration which will expire only on the fifth anniversary of its commencement date. A sentencing judge is not concerned with the detail of how a sentence is implemented. Article 5 does not require him or her to be. The Convention allows a measure of indeterminacy in sentencing and does not oblige the Contracting States to entrust to the courts the general supervision of the execution of sentences: Van Droogenbroeck v Belgium supra at paragraph 40. As a result of the early release provisions a prisoner will serve only part of his sentence in prison. The sentencing judge is aware of that. The remainder of a sentence may (and unless the licence is revoked, will) be served following release on licence. Again, the sentencing judge is aware of that. He or she is aware that, in terms of section 12 of the 1993 Act a prisoner released on licence must comply with such conditions as may be specified. He or she is aware that, in terms of section 17 of the 1993 Act, the second respondents have power to revoke a licence with the result that the prisoner will be returned to custody. He or she will be aware that, in terms of section 17(5) of the 1993 Act, on revocation of the licence of any person "he shall be liable to be detained in pursuance of his sentence" (emphasis added). I agree with Mr Mure that it is implicit in a long-term sentence that if the prisoner is released on licence and then breaches the conditions of his licence, he then can be recalled to prison. Having regard to what was said in Weeks, I have accepted that the state of being released on licence (being lawfully at large, to borrow language from section 17(5) of the 1993 Act) is sufficiently a state of liberty to make its termination a deprivation of liberty as that expression is used in article 5, but it is nevertheless my opinion that a prisoner is to be regarded as continuing to serve his sentence during a period of release on licence. As is averred by the petitioner, his five-year sentence only expires on the fifth anniversary of its commencement. He is subject to licence conditions. Licence conditions are, to a greater or lesser extent, onerous. They impose constraints upon the extent of the sentenced person's liberty. They form part of the sentence imposed by the sentencing judge (cf Smith v The Parole Board supra at paragraph 20). In the case of the petitioner, Mr Mitchell accepted that his condition, following release on licence, was different from that of the "ordinary citizen".