Practice and Procedure


PUBLISHED July 31, 2003

A longer-than-normal sentence imposed under s.2(2)(b) Criminal Justice Act 1991 (re-enacted as s.80(2)(b) Powers of Criminal Courts (Sentencing) Act 2000) was a single determinate sentence and the product of a judicial decision, and was not subject to the requirements of periodic review under Art.5(4) European Convention on Human Rights.Appeal by the defendant ('G') from a decision of the Court of Appeal in which it was held that Art.5(4) of the European Convention on Human Rights did not apply to a determinate custodial sentence received by G. After pleading guilty to two offences of violence, a sentence was passed under s.2(2)(b) Criminal Justice Act 1991 (since re-enacted as s.80(2)(b) Powers of Criminal Courts (Sentencing) Act 2000) which was longer than would be commensurate with the seriousness of the offences. The judge was of the opinion that such a sentence was necessary in order to protect the public, and in particular one of G's victims, from harm by G. The first defendant ('P') declined to grant G an oral hearing and to review his sentence in accordance with Art.5(4). G successfully obtained judicial review of that decision but the Court of Appeal overturned the first instance decision and held that Art.5(4) did not apply. That court held that, although a decision depriving a person of his liberty taken by an administrative body was subject to Art.5(4), there was nothing to indicate that the same applied when the decision was made by the court where the supervision required by Art.5(4) was incorporated in the decision. An increased sentence under s.2(2)(b) was no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the increase had a statutory basis. The decision to impose the longer term was plainly a judicial decision, subject to appeal, and the supervision required by Art.5(4) was incorporated into the decision. No aspect of the sentence was left to the executive, P being accepted to be a judicial body, and a determinate sentence such as G's did not require periodic review pursuant to Art.5(4). G argued that where the only reason for continued detention was danger to the public, something which could diminish or disappear with the passage of time, therefore there must be provision for periodic review of the lawfulness of detention as to whether the justification for detention continued to exist.HELD: The Court of Appeal had been correct. Sentences of the type imposed on G fell squarely within Art.5(1)(a), permitting lawful detention after conviction by a competent court, and were not subject to Art.5(4). On review of the sentence by P, G was entitled to the same rights as any other long-term prisoner serving a determinate sentence and had no other or greater rights, and in considering whether to release G after serving half his sentence, P was bound to apply the same criteria as it would to any other long-term prisoner serving a determinate sentence. The structure of sentencing under s.2(2)(b) was entirely a judicial exercise and was therefore subject to all the safeguards afforded by Art.6(1).Appeal dismissed.

[2003] UKHL 42