[2002] EWHC 2805 (Admin)

In the case of a discretionary life prisoner subject to a transfer and restriction order the word "entitled" in Art.5(4) European Convention on Human Rights was not satisfied unless there was a legal right of access to a court that could determine the lawfulness of the detention and direct the prisoner's release if his detention was not justified. The continued detention of discretionary life prisoners who had served the penal part of their sentence should not depend on the exercise of a discretionary power by the executive branch of government. In these circumstances, there had to be a declaration of incompatibility, and it was not possible to interpret the relevant legislation so as to avoid that incompatibility.

QBD (Admin) (Stanley Burnton J)

19/12/2002