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Cite as: [2003] ScotCS 275

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Dempsey, Re Petition for Judicial Review [2003] ScotCS 275 (04 November 2003)

OUTER HOUSE, COURT OF SESSION

P940/03 

 

 

 

 

OPINION OF LORD BRODIE

in the Petition of

STEPHEN DEMPSEY

for

Judicial Review of decisions of the Parole Board for Scotland

________________

 

Petitioner: J.J. Mitchell, Q.C.; S.P.L Wolffe, Advocate; Drummond Miller, W.S.

First Respondent: Di Rollo Q.C.; C.H.S. MacNeill, Advocate; Anderson Strathern, W.S.

Second Respondents: J.D.M.H. Mure, Advocate; Solicitor to the Scottish Executive

 

4 November 2003

The Application

[1]     This is an application, at the instance of a long-term prisoner who was released on licence and who was then recalled to prison on revocation of that licence, for judicial review of what are claimed to be decisions of the Parole Board for Scotland, these being decisions (a) not to direct the immediate re-release of the petitioner on licence (the "decision of 4 November 2002"), and (b) to refuse to re-consider whether it should direct the petitioner's immediate release, having been requested to do so (the "decision of 16 June 2003"). The release of prisoners on licence and the revocation of such licences are matters which are governed by the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended ("the 1993 Act"). It is the petitioner's contention that, in consequence of the decisions of which he complains, he has been and continues to be deprived of his liberty in contravention of his rights as guaranteed by article 5 of the European Convention on Human Rights ("the Convention"). He avers that these decisions were accordingly unlawful in terms of section 6 of the Human Rights Act 1998. The petitioner names as first respondent, the Parole Board for Scotland, and, as second respondents, the Scottish Ministers.

Procedure

[2]    
The petition came before me for a first hearing on 4 July 2003. Mr Jonathan Mitchell Q.C. and Mrs Wolffe, Advocate, appeared on behalf of the petitioner. Mr Di Rollo Q.C and Mr MacNeill, Advocate, appeared on behalf of the first respondent. Mr Mure appeared on behalf of the second respondents. Answers had previously been lodged on behalf of the second respondents. Answers were lodged at the bar for the first respondent. The hearing took the form of a debate on the first respondent's first and fifth pleas-in-law and the second respondents' first plea-in-law. The motions made by counsel on behalf of the respective respondents were for dismissal of the petition. In the event that I did not dismiss the petition, Mr Mitchell's motions on behalf of the petitioner, were for declarator that the petitioner is entitled to take proceedings, compliant with article 5 (4) of the Convention, by which the lawfulness of his detention can be speedily decided, for declarator that, as yet, he has not had the benefit of that entitlement, and, pending such proceedings being taken, for interim liberation of the petitioner. As appears from the answers for the respective respondents, no question arose as to jurisdiction or competency. The hearing was not completed on 4 July 2003. It was adjourned until 9 July 2003 and heard on that and the two subsequent days. While the case was at avizandum, a judgment was pronounced by the Court of Appeal in R (Smith) v Parole Board, on 31 July 2003 and by the House of Lords in R (Giles) v Parole Board [2003] 3 WLR 736 (on appeal from the decision of the Court of Appeal reported at [2003] 2 WLR 196), also on 31 July 2003. The first respondent enrolled for a further hearing with a view to addressing the court on these additional authorities. That further hearing took place on 9 October 2003 when I heard counsel for each of the parties.

Article 5 of the Convention

[3]     Article 5 of the Convention is entitled "Right to Liberty and Security". It provides:

    "(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;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

    (2). Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

    (3). Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

    (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.

    (5). Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

The Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended

[4]    
The 1993 Act (as amended but without the amendment effected, as from 23 June 2003, by the Criminal Justice (Scotland) Act 2003) provides, inter alia, as follows:

"1....    

(2) As soon as a long-term prisoner has served two-thirds of his sentence, the [Scottish Ministers] shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provision of this Act.
    (3) After a long-term prisoner has served one-half of his sentence the [Scottish Ministers] shall, if recommended to do so by the Parole Board under this section, release him on licence.

...

  17. (1) Where-

 (a) a long-term or life prisoner has been released on licence under this Part of this Act, the [Scottish Ministers] shall revoke that licence and recall him to prison-

 (i) if recommended to do so by the Parole Board; or

 (ii) if revocation and recall are, in the opinion of the [Scottish Ministers], expedient in the public interest and it is not practicable to await such recommendation;

...

    (2) A person recalled under subsection (1) above shall, on his return to prison, be informed of the reasons for his recall.
    (3) The [Scottish Ministers] shall refer to the Parole Board the case of a person recalled under subsection (1) above.

    (4) Where on a reference under subsection (3) above the Parole Board directs a prisoner's immediate release on licence, the [Scottish Ministers] shall under this section give effect to that direction.

(4AA) Where the Parole Board directs the release of a prisoner under subsection above it may recommend that the Scottish Ministers insert, vary or cancel conditions in the prisoner's licence.

...
    (5) On the revocation of the licence of any person under the foregoing provisions of this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.
...

27. (1) In this Part of this Act, except where the context otherwise requires-

...

"long-term prisoner" means a person serving a sentence of imprisonment for a term of four years or more; "

The Facts

[5]    
Having regard to the terms of the petition, the answers, the documentary productions, and the explanations given in the course of submissions, for the purposes of the debate, I took the relevant factual history to be as follows.

[6]    
The petitioner is Stephen Dempsey. His date of birth is 10 November 1961. The first respondent is the Parole Board for Scotland. The second respondents are the Scottish Ministers. The petitioner is presently detained in HM Prison Maghaberry in Northern Ireland. On 21 December 1999 the petitioner pled guilty, at a sitting of the High Court of Justiciary in Edinburgh before Lady Cosgrove, to a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to five years imprisonment, back-dated to 19 November 1999, which was the date when he was first detained by the police. The petitioner is accordingly a long-term prisoner in terms of the 1993 Act. The petitioner avers that his sentence is due to expire on 18 November 2004. Two-thirds of that sentence expired on 19 March 2003. It is the practice that a judge of the High Court, having sentenced a long-term prisoner, will prepare a report for the use of the first respondent on the circumstances in which sentence was imposed. The report is thereafter available to the prisoner and his advisers. Lady Cosgrove's report on the petitioner is lodged as production 7/8.

[7]    
On 28 July 2000, on an application by the petitioner, the second respondents, in terms of paragraph 1(1)(b) of Schedule 1 to the Crime (Sentences) Act 1997 (the "1997 Act"), ordered the transfer of the petitioner (who was then detained in HM Prison Shotts) to HM Prison Maghaberry. That transfer was subject to the condition that the petitioner should be treated, for the purposes of the 1997 Act (as mentioned in paragraph 6(2) of Schedule 1 to the Act), as if he were still subject to the provisions applicable for those purposes under the law of Scotland. The petitioner's transfer was accordingly a restricted transfer in terms of paragraph 6(1)(a) of Schedule 1 to the 1997 Act. A copy of the order for restricted transfer is lodged as production 7/1. The purposes of the 1997 Act (as mentioned in paragraph 6(2) of Schedule 1 to the Act) in relation to the transfer of a person in terms of paragraph 1(1)(b) of Schedule 1 to the Act (which is the case of the petitioner) are the purposes of his detention under and release from his sentence and, where applicable, the purposes of his supervision and possible recall to prison following his release on licence. The order for restricted transfer provided that, for all other purposes, the petitioner should be subject to the Rules and Regulations governing prisons in Northern Ireland. In the result, despite his transfer to and subsequent detention in a prison in Northern Ireland, for the purposes of release from custody, release on licence and liability to be recalled to prison for breach of a condition of licence, the petitioner has remained subject to the law of Scotland and, in particular, the provisions of the 1993 Act. On 20 May 2002 the petitioner was released on licence under section 1(3) of the 1993 Act (as read with The Prisoners and Criminal Proceedings (Scotland) Act 1993 (Release of Prisoners etc) Order 1995 SI 1995/911). A copy of that licence, with an acknowledgement of the conditions of licence signed by the petitioner, is lodged as production 7/2. One of the licence conditions, numbered 6, is that "You shall be of good behaviour and shall keep the peace."

[8]    
On 4 June 2002 the petitioner appeared in court in Belfast charged with theft and abduction and the making of an unwarranted demand with menaces, contrary to section 20 of the Theft Act (Northern Ireland) 1969. The offences were alleged to have been committed between 27 May and 1 June 2002. The petitioner was remanded in custody to HM Prison Maghaberry. A copy of the warrant remanding him in custody is lodged as production 7/3. By letter dated 23 July 2002 (production 6/4) the second respondents referred the petitioner's case to the first respondent on the question as to whether he should be recalled to custody under section 17 of the 1993 Act. The first respondent considered the petitioner's case on 13 August 2002 and, on that date, recommended to the second respondents that the petitioner's licence be revoked and the petitioner be recalled to HM Prison Maghaberry. By recall order under section 17 (1) of the 1993 Act, dated 15 August 2002 (production 7/4), the second respondents revoked the petitioner's licence and recalled him to prison. In terms of the section 17 (1), the second respondents have no discretion in the matter of revocation and recall where there has been a recommendation by the first respondent, as was the case here.

[9]    
By letter dated 15 August 2002 (production 7/5), the second respondents advised the petitioner of the revocation of his licence and his recall to custody and invited him to make written representations in connection with his recall. The letter further advised the petitioner that even if he did not submit representations, the second respondents would nevertheless refer his case to the first respondent so that it could consider his suitability for immediate release. The letter advised the petitioner that on such a reference he would have the various rights provided under the Parole Board (Scotland) Rules 2001, SSI2001/315, (the "2001 Rules"), including the right to make representations to the first respondent and to request an interview with a member of the first respondent. Included with the letter was a form of Revocation of Licence with reasons for recall stated within it in the following terms:

"You were released on parole but indicated from the outset that you were not happy with the conditions on your licence. It is now alleged that within 7 days of your release, you committed a serious crime involving the kidnapping of a 16 year old boy and demanded money from the boy's father. Although there are no further details available to the Board surrounding this offence, information available to the Board clearly suggests that you remain at risk of harming others and as such should be recalled to custody."

[10]    
The second respondents referred the matter of the petitioner's recall to custody for consideration by the first respondent under section 17(3) of the 1993 Act on 2 September 2002. They intimated the referral to the petitioner by letter dated 2 September 2002 (production 7/6). By letter dated 12 September 2002, the petitioner advised of his wish to be interviewed by a member of the first respondent. He was accordingly interviewed by a member of the first respondent, Dr John Baird, on 3 October 2002. A copy note of that interview, dated 7 October 2002, is lodged as part of production 6/1. Following that interview, the petitioner made written representations against recall. These representations are included in production 6/4. They were sent under cover of letter dated 18 October 2002. On 4 November 2002 the first respondent considered the petitioner's recall to custody and decided not to order his immediate re-release. This was intimated to the petitioner by letter dated 20 November 2002. That letter advised the petitioner that he was liable to be held in custody until the expiry of his sentence on 18 November 2004 but that it was expected that a further review of his suitability for early release on licence would be completed by 4 November 2003.

[11]    
The first respondent did not offer the petitioner or his representatives the opportunity of challenging the allegation against him, leading evidence or making representations at an oral hearing. Neither the petitioner nor his representatives requested such an opportunity.

[12]    
The charges in respect of which the petitioner was remanded in custody on 4 June 2002 have not yet gone to trial. It would appear that no statutory time limits as to the bringing of a case to trial on indictment apply in Northern Ireland. Should the charges go to trial, it may be that this will not be before the late spring or early summer of 2004 although, equally, the trial date may be earlier than that. On 20 May 2003, on intimation on behalf of the Police Service of Northern Ireland that it no longer opposed bail, the court in Belfast consented to the petitioner being released on money bail in the sum of £1,000 and sureties amounting to £10,000, subject to certain conditions. A copy of the relative Endorsement for Bail, dated 10 June 2003, is lodged as production 7/9. The petitioner is willing and able to meet the requirements necessary for his release on bail. In the light of the decision of the court consenting to bail, solicitors acting for the petitioner wrote, by letter dated 6 June 2003 (production 6/6), to the second respondents calling upon "the Board to review our client's case forthwith". By letter dated 16 June 2003 (production 6/5), the second respondents intimated their inability to comply with this request (the request being construed as a request directed at the second respondents immediately to refer the petitioner's case to the first respondent). It is what appears in this letter (production 6/5) which the petitioner refers to as the "decision of 16 June 2003". At the hearing on 9 October 2003 I was advised that there had been recent developments in relation to the review of the petitioner's case by the first respondent. It was not, however, suggested that they were in any way material to the issues that I had to decide upon.

Submissions by Counsel

[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.

[14]    
Mr Di Rollo explained that, in terms of 27(1) of the 1993 Act, the petitioner was a "long-term prisoner". In terms of section 1(2) of the 1993 Act, as soon as a long-term prisoner has served two-thirds of his sentence, the second respondents shall release him on licence, unless he has before that time been so released, in relation to that sentence, under any provision of the Act. In terms of section 1(3) of the 1993 Act (prior to its amendment by section 28 of the Criminal Justice (Scotland) Act 2003) after a long-term prisoner has served one-half of his sentence the second respondents shall, if recommended to do so by the first respondent under the section, release him on licence. There was no requirement upon the second respondents to release a long-term prisoner (or to consider his release) until he had served two-thirds of his sentence, unless the first respondent previously made a recommendation. However, once that had been done, as had occurred in this case, section 1(2), as Mr Di Rollo put it, "falls out of consideration": it can have no application to a prisoner who has been released on licence prior to his serving two-thirds of his sentence. In terms of section 17(1) of the 1993 Act, where a long-term or life prisoner has been released on licence under Part I of the Act, the second respondents shall revoke that licence and recall him to prison, either if recommended to do so by the first respondent, or, alternatively, if revocation and recall are, in the opinion of the second respondents, expedient in the public interest and it is not practicable to await such recommendation. In the petitioner's case there had been a recommendation to revoke made by the first respondent, in terms of section 17(1)(a)(i). In terms of section 17(2) a person recalled under subsection (1) must be informed of the reasons for his recall. Here, the petitioner had been informed of the reasons for his recall. In terms of section 17(3), the second respondents must refer the case of a person recalled under subsection (1) to the first respondent. Here, that had happened. In terms of section 17(4), had the first respondent directed the petitioner's immediate release on licence, the second respondents would have been obliged to give effect to that direction. Mr Di Rollo observed that there was no averment in the petition to the effect that the first respondent had failed to follow any of the provisions of the statute or the 2001 Rules. Accordingly, as the first respondent had not given a direction under section 17(4), the petitioner, as a long-term prisoner whose licence had been revoked, was liable to be detained in pursuance of his sentence.

[15]    
In relation to the petitioner's contention that there had been a contravention of article 5 of the Convention, it was Mr Di Rollo's submission that any complaint founded on article 5(1) or article 5(4) was ill-founded because the sentence imposed on the petitioner was a determinate sentence providing for a period of imprisonment for five years by way of punishment. Mr Di Rollo accepted that the purpose of article 5 was to protect the citizen against arbitrary detention. This was not a case of arbitrary detention. The basis upon which the petitioner was held in custody and the deprivation of liberty which that entailed was his conviction by a competent court and the sentence imposed consequent upon that conviction. Mr Di Rollo referred to the opinion of Lady Paton in Varey v The Scottish Ministers 2001 SC 162. In Varey, following the judgement of the European Court of Human Rights in De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373, Lady Paton had accepted that in the case of a prisoner sentenced to a determinate period of imprisonment, the guarantee of article 5(4) is satisfied by the original trial and sentence procedure, and that article 5(4) confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of a release licence. That, submitted Mr Di Rollo, was a correct statement of law, upon which he founded. For a convenient summary of the jurisprudence of the European Court of Human Rights, Mr Di Rollo referred to paragraphs 12 to 18 of the judgment of Kennedy LJ in the Court of Appeal in R (Giles) v Parole Board [2003] 2 WLR 196 at 202H to 208F. He further referred to the observation by May LJ in the same case, supra at 209A, that all the European authorities which had been referred to by Kennedy LJ conclude that the requirement of article 5(4) that there be an appropriate procedure to determine the continued lawfulness of detention, concern sentences which were indeterminate and where the decision whether to release the prisoner lay with the executive. At the resumed hearing submissions as to the effect of the decision of the House of Lords when Giles came before it on appeal were made by Mr MacNeill. He emphasised that the appellant's contentions there: R ( Giles) v Parole Board [2003] 3 WLR 736 at 739D, which had been rejected by the House of Lords, were broadly the same as Mr Mitchell's in the present case. The issue in Giles, as it had been identified by Lord Hope at paragraph 21 of his opinion (supra at 744E), was whether a decision by a judge to take into account the need to protect the public from serious harm from the offender when he imposes a determinate sentence is compatible with article 5(4) of the Convention. The general rule was that detention in accordance with a determinate sentence imposed by a court is regarded as justified under article 5(1)(a) without the need for any further reviews of the detention to be carried out under article 5(4): Lord Hope at paragraphs 26 and 51, supra at 746B and 755B; Lord Hutton at paragraph 74, supra at 763G. There were exceptions to that general rule. These were cases where the review that article 5(4) required could not be said to be incorporated into the original decision by the court. However, a determinate sentence the length of which had been fixed by reference to the need to protect the public, such as had been imposed in Giles, fell within the general rule: supra at 755E. The sentences in Giles had been imposed by virtue of power conferred by section 2(2)(b) of the Criminal Justice Act 1991 but, as Lord Hope pointed out at paragraph 19 of his opinion (supra at 743H), although in Scotland there are no statutory rules about the general approach which is to be taken as to determining the length of custodial sentences, the need to protect the public from harm from further offending is a factor that can legitimately be taken into account by a Scottish judge as part of the sentencing exercise. Mr MacNeill then turned to consider the decision of the Court of Appeal, dated 31 July 2003, in Smith v The Parole Board [2003] EWCA Civ 1269. This decision was more in point than that in Giles in that the claimant in Smith, like the petitioner, had been released on licence and then had his licence revoked and had been recalled to prison. As appeared from paragraph 23 of the judgment of Kennedy LJ, a distinction had to be made as between being at liberty and having a right to liberty. A prisoner released on licence, such as the petitioner, was at liberty as a matter of privilege rather than right. The statutory right to be released was of the nature of a right to a chance. As was to be seen from Smith, the authoritatively stated position in England was that article 5(4) was not engaged by the revocation of the licence of a prisoner serving a determinate sentence.

[16]     Should he be wrong in his submission that article 5(4) did not impose any additional requirements in relation to determinate sentences in that the supervision required by article 5(4) is incorporated into the original sentence of the court, Mr Di Rollo did not concede that the procedure which had been followed in the present case was not article 5(4) compliant. He did not, however, intend to develop this contention at this hearing. Rather, he proposed to deal with the applicability of article 5 to prisoners subject to a determinate sentence as a preliminary issue. If it were to be necessary to advance an argument that what had been afforded to the petitioner fully satisfied anything required by article 5(4), he would wish to defer that argument to a second hearing.

[17]    
Looking to the terms of the petition, Mr Di Rollo submitted that there was no specific attack on anything other than by reference to article 5. There had been no decision by the first respondent on 16 June 2003. The reference in paragraph 14 of the petition to the first respondent's decisions being unlawful and contrary to natural justice was entirely without further specification. Under reference to the decision in Rea v Parole Board for Scotland 1993 SLT 1074, Mr Di Rollo accepted that the first respondent must act fairly but it was not, he said, exactly the same as a court. It therefore did not require to follow the procedure that a court might be expected to follow. Other than the complaint about the absence of an oral hearing, which was an article 5 point, the first respondent had no notice of what, if any, case was made against it.

[18]    
In any event, Mr Di Rollo continued, a complaint such as the petitioner was making in the present case should be made expeditiously. If an attack was to be made on the first respondent's decision on 4 November 2002 it should have been made shortly thereafter. Mr Di Rollo did not accept that the question as to whether the petitioner was lawfully detained subsequent to 4 November 2002 would have been academic, standing his having been remanded in custody in Northern Ireland. The recommendation by the first respondent was that he was liable to serve the remainder of his sentence irrespective of what happened in Northern Ireland. The time to complain about the decision on 4 November 2002 was in November 2002: Hanlon v Traffic Commissioner 1988 SLT 802. That had not happened. The first respondent's fifth plea-in-law should therefore be upheld. Since 4 November 2002 the first respondent had made no decision and taken no action in the matter. The first respondent had done nothing on 16 June 2003 and therefore, at least in a question with the first respondent, there was nothing to review. For these reasons, the petition should be dismissed. If the petition were not dismissed, the court should order a second hearing in order to determine whether the procedures adopted by the first respondent in relation to the petitioner had or had not complied with the requirements of article 5(4).

[19]    
Mr Mure, for the second respondents, adopted the submissions that had been made on behalf of the first respondent. He observed that no order appeared to be sought against the second respondents in respect of their action in June 2003. Had it been the case that the petitioner was complaining of a failure by the second respondents to refer his case to the first respondent, in breach of the petitioner's rights under article 5 of the Convention, that would have been a devolution issue in terms of Schedule 6 to the Scotland Act 1998 and would have required intimation accordingly.

[20]    
Mr Mure then drew attention to the averment in the petition that the petitioner had become entitled to be released on licence on 19 March 2003, in terms of section 1(2) of the 1993 Act. That was not so. The obligation to release on licence on completion of two thirds of the sentence only applies if the prisoner has not previously been released. Here the petitioner had been released on 20 May 2002 and, accordingly, the provision in section 1(2) for release on licence had no application. In any event, the petitioner having been released on licence and that licence having been revoked, in terms of section 17(5), the petitioner is liable to be detained. As Lord Johnston held in Moore v The Scottish Ministers, 23 March 2000, unreported, with revocation of a licence, there is no licence upon which the petitioner can claim liberty. Agreeing with Mr Di Rollo, Mr Mure submitted that article 5 was satisfied by the petitioner's original right to trial, the imposition of sentence by Lady Cosgrove, and the right to appeal that sentence. The petition does not suggest that the original conviction and sentence were in breach of any rights. With pronouncement of the original sentence, the petitioner's right to liberty was lost. When the High Court of Justiciary pronounces a determinate sentence, that is a deprivation of liberty for the currency of the period of the sentence, cf. R (Smith) v Parole Board supra, Kennedy LJ at paragraph 23. Accordingly, any subsequent detention authorised by section 17 of the 1993 Act is in pursuance of the original sentence imposed by the court. The act of recall is an administrative act, not intended to impose a punishment, rather it is done to avoid a risk to public safety. It is implicit in the original sentence that if the prisoner is released on licence and then breaches the conditions of his licence, he can then be recalled to prison. The decision in Varey v The Scottish Ministers was in point. Mr Mure reminded me that counsel for the claimant in Giles had argued that a longer than commensurate sentence presented a direct analogy with a discretionary life sentence in that it had both a punitive element and a protective element. Giles was therefore presented as one of the exceptional cases rather than simply as a determinate sentence case. This explained a skewing of the argument away from the proposition, supported by what was said in the judgment of Kennedy LJ in Smith, that once a determinate sentence is imposed, for the duration of the sentence a prisoner such as the claimant in that case or the petitioner in the present case has no liberty of which to be deprived. Lord Hope had dealt with the European Court's decision in Weeks v United Kingdom (1987) 10 EHRR 293 at paragraph 29 of his opinion in Giles ([2003] 3 WLR 736 at 747B). Mr Mure did not accept that what had been said by Kennedy LJ at paragraph 23 of his judgment in Smith was just a throwback to the argument which had failed in Weeks (that the applicant's recall to prison 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 his original sentence of life imprisonment) but in a sense it did not matter precisely how the status of the petitioner was analysed. There might be two ways of looking at it: either that he does not have his liberty because it has been taken away at point of sentence or, alternatively, that all considerations bearing on his liberty have been taken into account for a determinate period of time. The second alternative was the more legal and less philosophical approach. It provided a crisp test which avoided the court becoming bogged down in a philosophical question as to the nature of liberty. There is no challenge made to the reasonableness of the first respondent taking into account the allegation of kidnapping as bearing on the issue of risk to the public. The fact that the Northern Ireland court set bail is not determinative. When the matter goes back to the first respondent in November 2003 it will be for the first respondent to consider the matter from its own perspective, having regard to the requirements of the legislation: Varey v The Scottish Ministers supra at 175E to F. Mr Mure referred to Banks v Secretary of State for the Home Department [2002] EWHC 381; and R (West) v Parole Board [2002] EWHC 769, 26 April 2002 (Turner J), and [2003] 1 WLR 705 (Court of Appeal). In Banks Simon Brown LJ had endorsed an earlier refusal of the application for judicial review by Collins J on the basis that article 5 is not breached by a recall to custody "to serve a sentence still in being" and referred with approval to Lady Paton's decision in Varey as authority for the proposition that article 5(4) is satisfied by the original trial process and any appeal. The approach of Simon Brown LJ in Banks was followed by Turner J in R (West) v Parole Board. West had been appealed, but not in relation to the article 5 (4) point. The petitioner in the present case, Mr Mure submitted, had failed to appreciate the distinction between cases where a prisoner is held at the state's pleasure by virtue of an indeterminate disposal, on the one hand, and where he is held by virtue of a determinate sentence, on the other. Where a prisoner, subject to a determinate sentence, is released on licence, protection of the public is not the only criterion for consideration. Release on licence is a matter of trust. A prisoner on licence is still serving his sentence. He is not at liberty and therefore revocation of his licence and recall to prison does not amount to a deprivation of liberty. The House of Lords in Giles had rejected the approach of the claimant's counsel which had sought to slice up a sentence into parts: punitive and protective (the "salami approach", as Mr Mure put it). If it is correct to reject this approach where a longer than commensurate sentence has been imposed specifically in order to protect the public then it is even more clearly correct to reject it in the present case. In relation to Smith, Mr Mure was content to adopt, as a proper encapsulation of the position, the argument for the Parole Board recorded at paragraph 20 of the judgment: a determinate sentence is imposed under a statutory regime which envisages release on licence within the period of sentence and recall within that period, but the whole period is authorised by the sentencing judge. It is the "tariff" period, and in that period the prisoner is not entitled to any further protection under Article 5. The wording of the relevant statutory provision (section 39(6) of the Criminal Justice Act 1991 in England, and section 17(5) of the 1993 Act in Scotland) illustrates the point because when recalled the prisoner is "detained in pursuance of his sentence" not in pursuance of any decision of the Parole Board or the first respondent.

[21]     It was unclear, said Mr Mure, upon what basis the petitioner claimed to be entitled to an oral hearing. As appeared from rule 15 of the 2001 Rules, there was no explicit requirement for there to be an oral hearing. The petitioner had taken advantage of his right to make representations. There are no primary facts averred or otherwise pointed to in the petition which would require to be established by oral rather than written evidence. The first respondent was the master of its own procedure. There had, however, been no request for an oral hearing. In the absence of such a request the petitioner could not complain that he had not been afforded an oral hearing : R (West) v Parole Board [2003] 1 WLR 705 at 713F. The petition should be refused.

[22]     In reply, Mr Mitchell, on behalf of the petitioner, said that the key to the analysis of the present case was the question as to whether, as a matter of fact, the petitioner was at liberty once he was released on licence. He referred to the judgement of the European Court of Human Rights in Weeks v United Kingdom supra, where, at paragraph 40, the question as to whether the applicant in that case, who had been sentenced to life imprisonment, had regained his liberty on being released on licence, is described as a question of fact, depending upon the actual circumstances of the regime to which he was subject. If, as a matter of fact, he was at liberty after having been released on licence, the petitioner had been deprived of liberty on his recall to prison. Article 5 of the Convention, submitted Mr Mitchell, required this to be justified and the petitioner was entitled to take proceedings to have the lawfulness of his detention decided, as was provided for by article 5(4). One had to look to the post-sentence reality. When the court pronounces a sentence of five years imprisonment it does not mean that the prisoner will be detained for five years. Although nominally a sentence of sixty months, nothing within the sentence imposed on the petitioner by Lady Cosgrove justified detention beyond forty months without a later decision by a competent body. The petitioner's right to be released was conditional but recall to custody was conditional on a further decision. What cannot be said when the court imposes a sentence which in itself can only justify a certain period of detention is that after the expiry of that period the prisoner has no right in terms of article 5(4). There may be borderline cases but when it comes, as a matter of fact, to a deprivation of liberty that requires review. In the circumstances of the present case, that meant that there should be an oral hearing. Mr Mitchell accepted that the oral hearing might be before the first respondent but the petitioner had not been afforded an oral hearing by the first respondent. He had accordingly been denied the rights guaranteed by article 5 of the Convention. On the delay point, Mr Mitchell submitted that until he was granted bail in Northern Ireland there was no practical point in the petitioner coming to this court. He was entitled to leave over coming to court until it first mattered to him. On the point that a prisoner sentenced to a determinate sentence had been accorded his rights under article 5(4) and that the original sentence of the court was authority for detention over the whole period of imprisonment imposed, Mr Mitchell submitted that there was no reason why a prisoner who had been sentenced to a determinate sentence should be treated any differently from a prisoner who had been sentenced to an indeterminate sentence. He gave the example of two prisoners convicted of identical (very serious) offences, one having received a discretionary life sentence with a punishment part of twenty years, the other having received a determinate sentence of thirty years imprisonment. It was clear on authority that in the event of recall from licence, the first prisoner would be entitled, in terms of article 5(4), to take proceedings in order to obtain a decision upon the lawfulness of his continuing detention. The first prisoner would, as Mr Mitchell put it, have "a whole bundle of rights under article 5". Why should the position be different with the second? A five-year sentence, such as imposed on the petitioner, was in fact a composite sentence. The actual deprivation of liberty was for no more than two-thirds of the five-year period with a right to be released on expiry of forty months. Given the mandatory terms of section 1(2) of the 1993 Act, on no view could it be said that the original sentence of the court is the causal event in relation to such periods of detention as there may be after that two-thirds point. The assertion of the respondents that in the case of a determinate sentence it is the original order of the court which justifies detention for the whole determinate period, simply begs the question as to what truly is the determinate sentence when a Scottish court sets a term of imprisonment at five years. It was Mr Mitchell's submission that the determinate sentence should be regarded as that period which the prisoner will actually serve in prison. The determinate period here, in Mr Mitchell's submission, was initially a period of thirty months, after which the prisoner might be released on licence, followed by a period of 10 months at the discretion of the executive. The last 20 months, however, could not be justified by reference to the sentence of the court. Thus, if, subsequent to release at forty months, the prisoner is recalled to prison that is a deprivation of liberty and the prisoner is entitled to take article 5(4) proceedings at that point. The petitioner's position was that on his release on licence he was, as a matter of fact, at liberty. Mr Mitchell did not understand that that was disputed by the respondents, as a matter of fact. Rather, their approach was a philosophical one: the petitioner did not, notwithstanding his release on licence, have a right to liberty. Article 5(4) refers to the lawfulness of detention being decided "by a court" but Mr Mitchell accepted that the first respondent was capable of acting as an independent court-like body (cf Varey v The Scottish Ministers supra at 175B). He was not suggesting that a prisoner who was recalled to custody need come before a court in the traditional sense. Nor (notwithstanding what might appear on the face of the petition), at least for the purposes of the present petition, was he suggesting that the immediate decision by the first respondent to recommend revocation of a prisoner's licence and recall to custody need be made subject to the requirement of an oral hearing. It was, however, a different matter when the issue of continuation of detention came to be looked at in the fullness of time. He was not attacking what had been decided on 13 August 2002. What was attacked was what had happened on 4 November 2002 and in June 2003. It was ludicrously overly formal for the respondents to take the point that the letter of 6 June 2003 had been addressed to the second respondents rather than to the first respondent. Mr Mitchell accepted that the first respondent may not have applied its collective mind to the matter but, by service of the petition, it had been made aware of the petitioner's claim that he was entitled to a decision as to the lawfulness of his continuing detention, in accordance with article 5(4).

[23]    
Mr Mitchell explained that until recently, the jurisprudence of the European Court of Human Rights had related only to discretionary life sentences. That was the position as at the date of the decision in Varey, which Mr Mitchell accepted as accurately stating the law on the authorities as they then stood. Now, with the decision in Stafford v United Kingdom (2002) 35 EHRR 32, the jurisprudence has been reformulated and, in consequence, so Mr Mitchell submitted, a person who has been released by administrative act is a person who is at liberty. The ratio in Varey had been rendered obsolete. As the European Court of Human Rights had held in Stafford in relation to a mandatory life prisoner after the expiry of the punishment element in his sentence (the "tariff"), so it was with a long term prisoner who has completed two-thirds of his sentence: on no view can the sentencing judge be regarded as the source of authority for any continuing detention. Mr Mitchell submitted that the analysis of Elias J in Sim v The Parole Board [2003] 2 WLR 1374 (the only United Kingdom case in point, according to Mr Mitchell) was applicable. When R (Giles) v Parole Board was in the Court of Appeal Kennedy and May LJJ had agreed that the critical question was whether the sentence was one which handed over to the executive (an expression used to comprehend the Secretary of State and the Parole Board) determination of the issue as to when the offender was to be released. Unless it was to be said that the petitioner should have been released on 19 March 2003, this is what the sentence imposed on the present petitioner had done. In Mr Mitchell's submission, the decision of the House of Lords in Giles had been misunderstood, both by counsel for the respondents in the present case and by the Court of Appeal in Smith. The claimant in Giles had been released on licence at a point between half way and two-thirds of the way through his sentence. He was never brought back to prison. His claim to be entitled to an oral hearing by the Parole Board was accordingly no longer a live issue when his application came before the court. Unlike the present petitioner, the claimant in Giles had not got to the two-thirds point in his sentence when he had applied for judicial review. He accordingly did not have an entitlement to be released. What was relied on by the claimant in Giles was what Mr Mitchell described as a "metaphysical Parole Board right" (to have his eligibility for release considered by way of oral hearings on the expiry of the punitive part of his sentence and at regular intervals thereafter). The fallacy in Smith had been repeated in the arguments of the respondents in the present case. Giles was not authority for the proposition that where, for example, a sentence of sixty months had been pronounced, the protection of article 5(4) only begins to bite in month sixty-one. The issue in Giles was defined in paragraph 21 in the opinion of Lord Hope (supra at 744E). It has nothing to do with the final third of a determinate sentence by which time, as Lord Bingham acknowledged at paragraph 6 of his opinion (supra at 740D), the prisoner is entitled to release. Mr Mitchell did not claim that the decision in Giles supported his argument. In his submission, it simply did not impact upon it. Turning to give a more detailed consideration of Smith, Mr Mitchell submitted that the statement of law to be found in paragraph 23 in the judgment of Kennedy LJ was contrary to what had been said by the European Court of Human Rights in Weeks. The error of the Court of Appeal lay in looking at what Mr Mitchell described as the nominal, rather than the true, position. The Court of Appeal had failed to notice that what was in issue in Smith was the true and not the nominal state of affairs. The error is demonstrated in paragraph 33 of the judgment where Kennedy LJ accepted the contention of counsel for the Parole Board that the claimant had no surviving right to liberty at the time of his recall to prison, because that had been lost when he was originally sentenced. The argument for the claimant is misrepresented by Holman J at paragraph 52. It had never been contended on behalf of the claimant that his position while on licence was exactly the same as someone who was not subject to a sentence of imprisonment. The emphasis in Smith was on the nominal, not the real. The idea appeared to be that an incantation of particular words was sufficient to define a period of detention. That is contrary both to what was said by the European Court of Human Rights both at paragraphs 39 and 40 in its judgment in Weeks v United Kingdom supra and at paragraphs 78 to 80 in its judgment in Stafford v United Kingdom supra.

[24]     It was Mr Mitchell's submission that, in the circumstances, for proceedings to comply with article 5(4) there required to be an oral hearing. He referred to Singh v United Kingdom (the case of Singh v United Kingdom is substantially the same as that of Hussain v United Kingdom and they are reported together as Hussain v United Kingdom (1996) 22 EHRR 1) and Waite v United Kingdom, Application 53236/99, 10 December 2002. Here, there had been no attempt by the first respondent to analyse upon what basis it was said that the petitioner had been involved in the kidnapping. The petitioner disputed that he had been so involved. While there would remain what Mr Mitchell described as "a hanging allegation", its strength could be tested at an oral hearing. It could be weighed against the assessment made of the petitioner's character. It would be speculative to say that an oral hearing would make no difference.

Decision

Mora

[25]     I shall deal first with the respondents' contentions that the petitioner's attack upon the first respondent's decision on 4 November 2002 comes too late, and that nothing further having occurred since then, other than an exchange of correspondence in June 2003 between the petitioner's solicitors and the second respondents' Justice Department, Parole & Life Sentence Review Division (and no devolution issue having been raised as to the conduct of the second respondents), there is nothing further to review.

[26]    
The first respondent's fifth plea-in-law is in these terms: "Review of the decisions of the first respondent in August and November 2002 being barred by mora, taciturnity and acquiescence, the prayer of the petition, in so far as directed against those decisions should be dismissed." It became clear in the course of Mr Mitchell's submissions that he was not in fact seeking review of the first respondent's decision on 13 August 2002. That is not a position which is apparent from perusal of the petition. The reference in the first respondent's plea to August is therefore understandable, but given Mr Mitchell's position, Mr Di Rollo only required to direct his argument to the decision of 4 November 2002. In doing so he referred to the decision of Lord Prosser in Hanlon v Traffic Commissioner 1988 SLT 802. My attention was not drawn specifically to any averments supporting the plea, although I note that in answer 8 in the Answers for the first respondent it is averred that: "... prior to the presentation of this petition the petitioner made no complaint as to the lawfulness or otherwise of the decisions to revoke his licence and not immediately release him." Mr Mitchell's response was to submit that until granted bail in Northern Ireland there was no practical point in the petitioner coming to court in Scotland. The petitioner, he submitted, was entitled to come to court once it mattered to him, and need not do so before then.

[27]    
On Mr Mitchell's approach, the petitioner has not been guilty of any material delay whatsoever in that, having been admitted to bail, subject to conditions, on 20 May 2003, his solicitors requested review of the decision not to direct the petitioner's re-release by letter of 6 June 2003 and, having received the second respondents' letter of 16 June 2003, presented this petition later in the same month. If anything, that suggests expedition rather than delay. This is not, however, a characterisation that I would accept. In my view the starting point is 4 November 2002 and not 20 May 2003. Agreeing with Mr Di Rollo, I do not consider the decision by the first respondent on 4 November 2002, which the petitioner now attacks as having been reached in contravention of his article 5 rights, to have been of purely academic concern to the petitioner simply because at that time he had been remanded in custody by the court in Belfast. The decision of 4 November 2002 was adverse to the petitioner's interests. It continued what the petitioner submits was a deprivation of liberty effected by the revocation of his licence and the consequent recall to custody on 15 August 2002. It had the practical result of preventing the petitioner being released in the event of the proceedings in Northern Ireland being discontinued against him or resulting in his acquittal or (as happened on 20 May 2003) he being granted bail. I consider that it can be said that there has been delay on the part of the petitioner in presenting this application for judicial review. That, however, does not determine the matter. It is no doubt desirable that if administrative decisions are to be challenged by means of judicial review, this should be done expeditiously. It does not follow that a failure to act expeditiously will necessarily result in an application for judicial review being dismissed. The plea taken by the first respondent is one of mora, taciturnity and acquiescence. The application of that plea in the context of an application for judicial review was considered by Lord Prosser in Hanlon v Traffic Commissioner supra, to which I was referred. Lord Prosser said this, at 804L to 805C:

"[The cases referred to] show that bar will very largely be a matter of circumstances, and I do not think that it would be helpful for me to try to produce a further formulation of the principle which is to be applied. On behalf of the petitioners it was emphasised that delay in itself will not suffice to produce bar. It was moreover contended that there would only be such bar where there was conduct on the part of the party indicating that he had truly abandoned an objection open to him in law; that this had occurred when he was in knowledge of the full circumstances giving rise to his right to object; and that his conduct had been relied upon and produced a material change of circumstances. ... I do no think that these propositions can really be disputed ..."

[28]    
In the case which was before him Lord Prosser held that the petitioners had been barred by acquiescence from pursuing their application for judicial review but in the present case there is nothing averred, and nothing has been brought to my attention in the course of submissions, which would begin to satisfy the requirement that the petitioner's conduct had been relied on by any party and had produced a material change in circumstances. I shall therefore repel the first respondent's fifth plea-in-law upon that basis.

The "decision" of 16 June 2003

[29]    
Paragraph 3 (b) of the petition refers to "said decision of 16 June 2003" as something which the petitioner seeks to have reduced. Paragraph 3(d) refers to "said decision of 4 November 2002 and 16 June 2003" as something which the petitioner seeks to have suspended. There are no previous references in the petition to explain what might be meant by these expressions, although in paragraph 8 it is averred that agents for the petitioner wrote to "the Respondent" asking for an immediate review of his detention standing the decision of the court in Belfast. The averments continue: "[that] request was refused on 16 June 2003." Once reference is made to the productions, it appears that what is complained of is what is contained in the letter of 16 June 2003 (production 6/5), this being characterised as a decision. The petition does not, however, commit itself to as to who is said to be the decision-maker. While it appeared from Mr Mitchell's submissions that the decision-maker under attack is the first respondent, the letter of 16 June 2003 is written on the letterhead of the Scottish Executive Justice Department and signed by a person whom I take to be an officer of the Scottish Executive, that is the second respondents. It was to the Scottish Executive that the petitioner's agents' letter of 6 June 2003, asking for review, was addressed. During his submissions, Mr Mitchell described the petition as "not a model of the draftsman's art". I see no reason to challenge the accuracy of that description. Mr Mitchell nevertheless sought to dismiss the objection made by the respective respondents' counsel that nothing had been done on 16 June 2003, and, certainly, nothing had been done by the first respondent, which might be reviewed, as an empty point; an example of ludicrously over formalising. The first respondent, Mr Mitchell said, had been apprised of the petitioner's position by service of the petition, although, having said that, he immediately conceded that the first respondent might not have applied its collective mind to the question raised in the petitioner's solicitor's letter of 6 June 2003 (production 6/6).

[30]    
I do not regard the point taken by both respondents' counsel as an example of ludicrous over-formality. I accept that no later than the date of the service of the petition upon it, the first respondent can be taken to be aware of the petitioner's wish that the first respondent "review" his case. That is what was called for in the letter of 6 June 2003 from the petitioner's agents. The petitioner's wish for a review of his case may fairly readily be interpreted as a wish that the first respondent reconsider whether it should direct the petitioner's immediate release on licence, whether on the same conditions as were imposed on 20 May 2002 or on other conditions. It is averred in the answers on behalf of the first respondent that a review of the petitioner's status is scheduled for November 2003. For the purpose of assessing the relevancy of the petition I shall proceed upon the basis that there will not be a review until then. However, I do not find the petitioner relevantly to have averred that the first respondent made any decision on 16 June 2003. There is, on the material put before me, no "said decision of 16 June 2003". There was certainly no decision on that date by the first respondent, as Mr Mitchell came very close to conceding when he accepted that the first respondent might not have applied its collective mind to the question raised in the petitioner's solicitor's letter of 6 June 2003. I did not understand Mr Mitchell to seek to characterise what appears in the letter of 16 June 2003 as being a decision of the second respondents. As there was no decision of the first respondent on or about 16 June 2003, I agree with the submission made by counsel for the respective respondents that there is simply nothing to review which is associated particularly with that date. That may, however, not matter very much as far as the thrust of the petition is concerned. The first respondent did make a decision on 4 November 2002, confirming the deprivation of liberty of which the petitioner complains (in the sense that the first respondent did not direct that he be released). As I have already indicated, in my opinion the petitioner is entitled to submit that decision to judicial review, notwithstanding the passage of time between the date of the decision and the date of presentation of this petition. I would regard all the argument that I heard as being relevant to that application. It is the petitioner's contention that, by virtue of article 5 of the Convention, his continuing detention in custody is unlawful, at least in the absence of the opportunity to take proceedings through which the lawfulness of his detention can be decided speedily by a court (or "court-like" body) and his release ordered if the detention is not lawful. It is his further contention that, in the circumstances, for proceedings to comply with article 5(4), they must include an oral hearing which affords to the petitioner the opportunity to lead evidence and to challenge any evidence which might be adverse to his position. Through counsel, the first respondent and the second respondents dispute this. The petitioner continues to be detained in custody. He has not had the opportunity to take the particular sort of proceedings which he claims to be entitled to take. Having heard his counsel in submission, this appears to be of what he was complaining in his agents' letter of 6 June 2003. This is a complaint that can be, and indeed was, in submission before me, made under reference to the first respondent's decision on 4 November 2002. I would add this. The petition is for judicial review of what (on a favourable reading) are averred to have been decisions of the first respondent. The argument that I heard was made upon that basis. Had it been otherwise, a question of competency would have arisen. It is by no means immaterial that an application for judicial review focuses upon a particular decision which is challenged as unlawful, as opposed to something else, a state of detention in contravention of a Convention right, for example (cf Davidson v Scottish Ministers 2002 SC 205, Lord Marnoch at 208C to 209C, Lord Hardie at 217A to C, Lord Weir at 223A to D).

Domestic illegality

[31]     I use the expression "domestic illegality" to comprehend everything that might provide a basis for the petitioner's second plea-in-law, which is: "The decisions of the First Respondent being unlawful and contrary to natural justice declarator and reduction should be granted as craved." For present purposes, I distinguish domestic illegality from contravention of Convention rights. It had been submitted on behalf of both respondents that whatever might be said about the petitioner's complaint that his rights in terms of article 5 of the Convention had been contravened, there were no averments which were sufficiently specific as to be relevant, which supported the petitioner's second plea-in-law. I agree with that submission. I did not understand Mr Mitchell to argue against it. The petitioner's attack on the first respondent's decision of 4 November 2002, as developed by Mr Mitchell, included no allegation whatsoever of failure to observe the requirements of purely domestic law. The complaint relates solely to an allegation of contravention of article 5 of the Convention. It is to that complaint, and the response made on behalf of the respondents, that I must now turn but I would record that whatever view is taken of the article 5 complaint, the petitioner's second plea-in-law would fall to be repelled.

Article 5

[32]    
Parties were agreed that the purpose of article 5 of the Convention is to protect the individual from arbitrary arrest and detention. Article 5(1) provides that no one shall be "deprived of liberty" save in the cases there specified and "in accordance with a procedure prescribed by law". As was stressed by the European Court of Human Rights in Weeks v United Kingdom (1987) 10 EHRR 293, at paragraph 40, the article applies to "everyone". Accordingly, all persons, whether at liberty or in detention, are entitled to the protection of article 5, that is to say they are entitled not to be deprived or not to continue to be deprived of their liberty, other than in the cases specified in article 5(1). One of cases specified is that which appears in article 5(1)(a): the lawful detention of a person after conviction by a competent court. Lord Hope describes the requirements of article 5(1)(a) in R (Giles) v Parole Board [2003] 3 WLR736 at 745F in these terms:

"Article 5(1)(a) is concerned with the question whether the detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387, 402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means (i) that it must be lawful under domestic law, (ii) that it must conform to the general requirements of the Convention as to the quality of the law in question - its accessibility and the precision with which it is formulated and (iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 38E; McLeod v United Kingdom (72/1997/865/1065), para 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements."

[33]     The petitioner in the present case was deprived of his liberty on 21 December 1999 when he was sentenced to five years' imprisonment. That was a lawful detention after conviction by a competent court. It was in accordance with a procedure prescribed by law. It was therefore compliant with article 5(1). The petitioner does not contend otherwise. He makes no complaint in respect of his detention up to 20 May 2002, when he was released on licence and, in his counsel's submission, restored to liberty. His complaint relates to the period after 13 August 2002 when, in terms of section 17(1)(a)(i) of the 1993 Act, the first respondent recommended that he be recalled to custody. On 15 August 2002 the second respondents revoked the petitioner's licence and recalled him to prison, as they were bound to do on receipt of the first respondent's recommendation. As at that date the petitioner was already remanded in custody by order of the court in Belfast but it was Mr Mitchell's contention that the revocation of the petitioner's licence and his recall to custody constituted a fresh deprivation of the petitioner's liberty, which, if it were to comply with article 5(1) of the Convention, required to be justified by something more than the sentence imposed by Lady Cosgrove on 21 December 1999. I note at this stage that while it was his position that the petitioner had been deprived of his liberty no later than on 15 August 2002, Mr Mitchell expressly disavowed any attack upon what had been decided or done on 13 or 15 August 2002 (that, he explained, was "for another day"). What he sought to attack was what had been done or decided, or, at least, said to have been done or decided, on 4 November 2002 and in June 2003. I would further note that Mr Mitchell did not suggest that the fresh deprivation of liberty which he said had been suffered by the petitioner in August 2002 was not capable of being justified, as article 5 compatible, by reference to the criteria which are referred to in the reasons given by the first respondent in the minute of its meeting of 4 November 2002, part of production 6/3. Indeed, in discussing what purpose might be served by the oral hearing before the first respondent for which he contended, Mr Mitchell gave the example of testing the strength of the allegation of kidnapping in respect of which the petitioner had been remanded for trial in Northern Ireland. Moreover, Mr Mitchell specifically stated that he did not quarrel with the proposition that, in the light of there being serious allegations against the petitioner, the first respondent would, in principle, be entitled to find that the need to protect the public outweighed the petitioner's right to liberty and that therefore the petitioner might continue to be detained. I took this as consistent with Mr Mitchell's acceptance, with an eye to what had been said by the European Court in Weeks, that the freedom enjoyed by the petitioner when released on licence was more circumscribed in law and more precarious than the freedom enjoyed by "the ordinary citizen". Mr Mitchell did not argue, as had been put forward as one line of argument in a case relied on by him, R (Sim) v Parole Board supra, that a system whereby a prisoner who is released on licence may then be recalled and further detained, can never be compliant with article 5(1) because such a system means that the prisoner can be subject to a significant additional period of imprisonment without a separate finding of guilt by a court which satisfies article 6 of the Convention. When discussing the judgment of Turner J in R (West) v The Parole Board [2002] EWHC (Admin) 769, Mr Mitchell described as a fallacy the proposition that recall from licence was the imposition of a fresh criminal sanction for some supposed conduct on the part of the prisoner which infringed some provision of the general law. When discussing the same case on appeal (reported [2003] 1 WLR 705) he expressly dissociated himself from any suggestion that recall from licence involves the determination of a criminal charge. I therefore took Mr Mitchell to accept, as in my opinion follows from the decisions of the European Court of Human Rights in Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and in Weeks, that article 5(1) does not necessarily prohibit the recall, simply by administrative action, of a prisoner released on licence. A prisoner released on licence has, like everyone else, a right to "liberty and security of person". His position, however, is not the same as "the ordinary citizen" (to borrow the language of Weeks). I did not understand Mr Mitchell to take issue with that. When he came to deal with the line of argument in Sim to which I have referred above, at paragraph 37 of his judgment ([2003] 2 WLR 1374 at 1390E), Elias J said this:

"In my judgment there is no infringement of article 5 (1) when a prisoner on licence is detained whether following breach of the terms of the licence or because other information raises fresh fears that he may commit further offences. There is not in those circumstances a severing of the causal link between the sentence for the original conviction and the subsequent detention. On the contrary, the sentencing judge will have appreciated at the time of imposing the original extended sentence that there is a possibility that further imprisonment may arise if there can be no effective supervision of the prisoner in the community, or if that supervision is failing to achieve its objectives. Such detention is linked to the original sentence; indeed, it is necessary to make the extended licence period effective. If the very principle of recall were unlawful, there would be no sanction for breaches of the licence which demonstrated that the risk of further offending could not be controlled by supervision in the community, and the objective of the sentence would thereby be defeated."

In this passage Elias J was considering the position of a prisoner sentenced to an extended sentence and recalled to custody under the applicable English statutory provisions. As Mr Di Rollo warned, there is a risk of being misled if it is too readily assumed that what is true under the statutory regime which in force in England is equally true under the different regime which is in force in Scotland. Nevertheless, nothing said by Mr Mitchell indicated to me that he would dispute what appears in the above passage as an accurate statement of the law as to the application of article 5(1) to a recall to custody made in terms of section 17 of the 1993 Act. In any event, in my respectful opinion, what was said by Elias J in paragraph 37 of his judgment in Sim in relation to recall from licence in England is equally true in relation to recall from licence in Scotland.

[34]     Article 5 (4) provides that "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. As Lord Hope puts it in R (Giles) v Parole Board supra at 746A.

"Article 5(4), on the other hand, is concerned with the need for the detention to be reviewed in order that it may be determined whether it is lawful both in terms of domestic law and in terms of the Convention. Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful."

[35]    
In the present case parties were agreed that, as had been held by Lady Paton in Varey v Scottish Ministers supra at 175B, the first respondent was capable of fulfilling the function of a "court" for the purposes of article 5 (4). In common with the rights provided by articles 5(2) and (3) and (5), the provisions of article 5(4) are essentially ancillary to the more fundamental rights provided by article 5(1). Although I have described the rights conferred by article 5(4) as ancillary to the rights conferred by article 5(1), they are clearly additional to them: De Wilde, Ooms and Versyp v Belgium (No 1) [1970] 1 EHRR 373 at paragraph 73. Individuals have both article 5(1) rights and article 5(4) rights. The authors of Clayton and Tomlinson The Law of Human Rights, at paragraph 10.145, describe article 5 (4) as the "habeas corpus" provision of the Convention, enabling a person to test the validity of his detention before a "court" and to obtain his release if the detention is found to be unlawful. That the lawfulness of a detention must be tested by a "court" means that article 5(4) requires there to be provided "the fundamental guarantees of procedure applied in matters of deprivation of liberty": De Wilde, Ooms and Versyp supra at paragraph 76. Thus, article 5(4) is not simply a guarantee of access to a procedure, it is a guarantee of access to an adequate and, as Mr Mitchell emphasised, fair, procedure. It is the petitioner's complaint, as developed by Mr Mitchell in his submissions, that he has not been allowed to test the validity of his detention by a procedure which is adequate and fair. It is his contention that he is entitled to such a procedure by virtue of article 5(4). Without conceding that there was anything inadequate or unfair about the procedure that the first respondent did in fact adopt in coming to its decision of 4 November 2002, the respondents dispute this.

[36]    
A necessary component in Mr Mitchell's argument was that, immediately prior to 13 August 2002, the petitioner was, in at least some sense, at liberty, circumscribed and precarious as that state might be. It was submitted by Mr Mure, on behalf of the second respondents, that a prisoner released on licence, as the petitioner was on 20 May 2002, is not at liberty. It would follow from that that the subsequent revocation of licence and recall to custody of which the petitioner complains would not amount to a deprivation of liberty in that the petitioner had nothing of which to be deprived. This analysis is not without its attraction. It gets support from the judgment of Kennedy LJ in Smith v The Parole Board supra. In a passage at paragraph 23, Kennedy LJ said this:

"...the decision to recall is not an infringement of the right to liberty in the case of a prisoner serving a determinate sentence who has been released on licence because his right to liberty for the period up to the end of his sentence was lost when he was sentenced. There being no right to liberty which has been infringed there can be no right to take proceedings to decide whether the detention is lawful. That has already been decided."

He returned to the point at paragraph 33, in relation to an argument made under reference to article 6 of the Convention:

"In my judgment the Parole Board was not concerned with the determination of the claimant's civil rights and obligations because, as [counsel for the Parole Board] contends, he had no surviving right to liberty. That had been lost when he was originally sentenced."

The other two members of the Court of Appeal agreed with Kennedy LJ. Mr Mitchell described what had been said by Kennedy LJ as "pungent and elegant". He did not accept that it was correct. It contradicted what had been said in Weeks. Nothing similar is to be found in the language used in the opinions of the House of Lords in Giles. It is with some diffidence that I question the correctness of a statement which appears to have the approval of all three members of the Court of Appeal but it appears to me that it must, at the very least, be put into a context the parameters of which are set by the judgment of the European Court of Human Rights in Weeks v United Kingdom supra. I shall have the occasion to return to the judgment in Weeks at paragraph [42] below but, for present purposes I would observe that in Weeks, in what it described as its central submission, the United Kingdom government argued that the applicant's recall to prison 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 his sentence of life imprisonment. On this ground alone the applicant was said to be precluded from claiming a contravention of article 5(1) or 5(4). The government drew a distinction between liberty, properly understood, and a life prisoner being permitted to live on licence outside prison. In the latter case, the government explained, the prisoner was still serving his sentence, albeit outside prison as a result of a privilege granted to him by the Home Secretary, but his right to liberty had not been restored to him. The European Court was not convinced, as it explained at paragraph 40 of its judgment as follows :

"It is true that in terms of English law, except in the event of a free pardon or an exercise of the Royal Prerogative commuting the sentence, a person sentenced to life imprisonment never regains his right to liberty, even when released on licence ... This is not to say, however, that Mr. Weeks lost his 'right to liberty and security of person', as guaranteed by article 5 of the Convention, as from the moment he was sentenced to life imprisonment in December 1966. Article 5 applies to 'everyone'. All persons, whether at liberty or in detention, are entitled to the protection of article 5, that is to say, not to be deprived, or to continue to be deprived, of their liberty save in accordance with the conditions specified in [article 5(1)] and, when arrested or detained, to receive the benefit of the various safeguards provided by paragraphs 2 to 5 [of article 5] so far as applicable.

Whether Mr. Weeks regained his 'liberty', for the purposes of article 5 of the Convention, when released on licence ... is a question of fact, depending upon the actual circumstances of the regime to which he was subject ... He was lawfully 'at large', to use the terms of [the relevant statutory provision] ... when outside prison on licence. Admittedly, for persons sentenced to life imprisonment, any release ... is granted as an act of clemency and is always conditional ... The freedom enjoyed by a life prisoner, such as Mr. Weeks, released on licence is thus more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen. Nevertheless, the restrictions to which Mr. Weeks' freedom outside prison was subject under the law are not sufficient to prevent its being qualified 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. ... It must therefore be determined whether the fresh deprivation of liberty suffered by Mr Weeks consequent upon that decision complied with article 5(1)(a)."

I take two things from this passage. First, the article 5(1) "right to liberty and security of person" is never lost: it is enjoyed by "everyone". Second, whether an individual has, on any particular occasion, been deprived of his liberty (which may or may not contravene his right to liberty and security of person) is a question of fact. Accordingly, if a prisoner is released on licence and then recalled to prison on revocation of his licence, it may be proper, from the perspective of article 5, to describe him as having been deprived of his liberty. It is a separate question as to whether or not there has been a consequential breach of his rights under article 5(1) and yet a further question as to whether his rights under article 5(4) have been duly respected. If the Court of Appeal in Smith is correctly to be understood as having said something different then I must respectfully disagree. Accordingly, for the purposes of the present case, I accept that the petitioner has relevantly averred that he was deprived of his liberty on or about 13 or 15 August 2002 in a sense that is relevant to his complaint in terms of article 5.

[37]     As I have recorded above, I heard argument as to the effect of the petitioner having been released on licence in terms of section 1(3) of the 1993 Act, as opposed to being released in terms of section 1(2). It was both averred and argued on behalf of the petitioner that, in terms of section 1(2) he had become entitled to be released on licence on 19 March 2003, notwithstanding his release on licence on 20 May 2002, in terms of section 1(3). This was disputed on behalf of the respondents on the basis that the obligation upon the second respondents to release on licence on completion of two thirds of a prisoner's sentence only applies if the prisoner has not previously been released. On the respondents' approach, a prisoner who has been released on licence in terms of section 1(3) of the 1993 Act (prior to its amendment by the Criminal Justice (Scotland) Act 2003), never becomes entitled to release on licence in terms of section 1(2). Even if that is so, I am not satisfied that that, of itself, is fatal to the petitioner's argument, given that I have accepted the submission on behalf of the petitioner that he has sufficiently averred that he has been deprived of his liberty by the revocation of his licence and his recall to prison. Mr Mitchell's argument depends on a distinction which he seeks to draw as between the earlier part of the petitioner's sentence which is served in custody and the later part during which the prisoner may and latterly must be released on licence. In my opinion, it makes no difference to that argument that the petitioner was released in terms of section 1(3) rather than in terms of section 1(2). Mr Mitchell is still entitled to say that, in terms of the statutory provisions, the petitioner, having been sentenced to five years imprisonment, was entitled to be released on licence no later than at the end of forty months. That he was released earlier than two-thirds of the way through his five year sentence does not alter the nature of the right which he had once a long-term sentence was imposed upon him to be released on licence no later than the end of forty months and does not prevent Mr Mitchell pointing to that right when making his submissions as to the character of the sentence which was pronounced in respect of the petitioner by Lady Cosgrove. I do not understand it to have been submitted by Mr Mitchell that, having been released on licence in terms of section 1(3) and recalled on revocation of that licence, the petitioner had, as it were, a fresh right to be released in terms of section 1(2) as soon as the two-thirds point was reached. Had such a submission been made I would have rejected it. As was submitted by Mr Mure, the petitioner having been released on licence and that licence having been revoked, in terms of section 17(5) the petitioner is liable to be detained. As Mr Mure further submitted under reference to Moore v The Scottish Ministers supra, with revocation of a licence, there is no licence upon which the petitioner can claim liberty. This is what the petitioner complains of, not because his continuing detention results from any failure in compliance with the terms of the 1993 Act but, rather, because, so he submits, it results (strictly, may result) from a failure to comply with article 5 of the Convention.

[38]    
The petitioner's Convention rights are accordingly in issue. As is provided by section 2(1) of the Human Rights Act 1998, this court must therefore take into account, inter alia, any judgment of the European Court of Human Rights and any decision of the European Commission of Human Rights, whenever made, so far as, in its opinion, they are relevant to the present proceedings. In this regard Mr Mure stressed the importance of the qualification in section 2 (1) "so far as ...relevant to the proceedings". He then drew my attention to what had been said, in the Court of Appeal by Buxton LJ and, in the House of Lords, by Lord Bingham, in their respective judgment and opinion, in R (Anderson) v Home Secretary [2003] 1 AC 837. Both in the Court of Appeal and in the House of Lords it had been argued that the court should not follow a decision of the European Court. In the Court of Appeal the argument was advanced on behalf of the claimant, Mr Anderson. In the House of Lords the argument was advanced on behalf of the Home Secretary. This alteration in the positions of the parties arose from the issuing, between the date of the hearing before the Court of Appeal and the hearing before the House of Lords, of the decision of the European Court in Stafford v United Kingdom (2002) 35 EHRR 1121. At paragraph 88 of his judgment in Anderson Buxton LJ observed that a domestic court may take into account the jurisprudence of the European Court of Human Rights either by applying it or declining to apply it, on a reasoned basis. However, for the reasons given in his judgment, it was his opinion that, other than in an exceptional case, it is the duty of the domestic court to adopt the first of these alternatives: to apply, to the best of its ability, that jurisprudence; rather than to decline to do so. As Mr Mure pointed out, paragraph 18 of the opinion of Lord Bingham was to the same effect:

"While the duty of the House under section 2 (1) (a) of the Human Rights Act 1998 is to take into account any judgement of the European Court, whose judgments are not strictly binding, the House will not without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand Chamber ..."

Mr Mure emphasised that Lord Bingham regarded it as being a strong reason to follow the European Court in Stafford was that its judgment rested on "a clear and accurate understanding of the tariff-fixing process and the Home Secretary's role in it", whereas whatever else might be said about Stafford (a case strongly founded on by Mr Mitchell before me) it did not contain a clear and accurate discussion of release on licence and recall as provided in Scotland by the 1993 Act. Be that as it may, as far as deference to the European Court is concerned, I was not faced with the contentions which were before the Court of Appeal and then again, but from the opposite side of the bar, before the House of Lords, in Anderson. It was not suggested, on behalf of any party, that I should decline to follow any decision of the European Court. Rather, I did not understand it to be controversial that my task was, with the assistance of counsel, to endeavour to understand and faithfully apply the principles to be derived from the whole of the jurisprudence of the European Court to which I had been referred. That is what I shall attempt to do. I therefore now turn to such of the authorities which make up that jurisprudence as appear to me to be relevant, bearing in mind the importance of their respective factual contexts. The majority of these authorities are to be found discussed in the judgement of Kennedy LJ in R (Giles) v Parole Board [2003] 2 WLR 196, to which I was referred by Mr Di Rollo for what he described as a convenient summary of the Strasbourg jurisprudence. The same cases were again referred to and reviewed in the opinion of Lord Hope when Giles came before the House of Lords.

[39]     In his judgment in Giles in the Court of Appeal Kennedy LJ identifies the case of De Wilde, Ooms and Versyp v Belgium (No 1) [1970] 1 EHRR 373 as the starting point for a consideration of the European jurisprudence. The applicants in De Wilde had been detained as vagrants by an order of a magistrate before whom they had appeared, and placed "at the disposal" of the Government for a fixed period of time. In principle, their detentions therefore fell within case (e) of article 5(1) and, accordingly, the Court held that there was no reason to find that the detentions were incompatible with article 5(1). However, the applicants further complained of contraventions of article 5(4). At paragraph 73 of its judgement the Court said this:

"Although the Court has not found in the present cases any incompatibility with paragraph (1) of article 5 ... this finding does not dispense it from now

proceeding to examine whether there has been any violation of paragraph (4). The latter is, in effect, a separate provision, and its observance does not result eo ipso from the observance of the former: 'everyone who is deprived of his liberty', lawfully or not, is entitled to a supervision of lawfulness by a court; a violation can therefore result either from a detention incompatible with paragraph (1) or from the absence of any proceedings satisfying paragraph (4), or even from both at the same time."

[40]    
One judicial determination (providing that it is indeed judicial and not merely administrative) may, however, satisfy both the requirements of article 5(1) and article 5(4). At paragraph 76 of its judgement in De Wilde, the Court said this:

"At first sight, the wording of article 5(4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. The two official texts do not however use the same terms, since the English text speaks of 'proceedings' and not of 'appeal', 'recourse' or 'remedy' (compare articles 13 and 26). Besides, it is clear that the purpose of article 5(4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected; the word 'court' ('tribunal') is there found in the singular and not in the plural. 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; this is so, for example, where a sentence of imprisonment is pronounced after 'conviction by a competent court' (article 5(1)(a) of the Convention). It may therefore be concluded that article 5(4) is observed if the arrest or detention of a vagrant, provided for in paragraph (1)(e), is ordered by a 'court' within the meaning of paragraph (4). It results, however, from the purpose and object of article 5, as well as from the very terms of paragraph (4) ('proceedings', 'recours'), that in order to constitute such a 'court' an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty. If the procedure of the competent authority does not provide them, the State could not be dispensed from making available to the person concerned a second authority which does provide all the guarantees of judicial procedure. In sum, the Court considers that the intervention of one organ satisfies article 5(4), but on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question."

However, "the intervention of one organ" will not always satisfy article 5(4), even where the organ is a competent court. As Mr Mitchell pointed out, the European Court of Human Rights has required that for a period of detention to be justified (in the sense of satisfying article 5(1) and article 5(4)) by a conviction by a competent court, the period of detention must be "after" the conviction not only in point of time, but also by way of causal connection. It was put this way in Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at paragraph 35:

"...the word 'conviction', for the purposes of article 5 (1), has to be understood as signifying both a 'finding of guilt' after 'it has been established

in accordance with the law that there has been an offence' ... and the imposition of a penalty or other measure involving deprivation of liberty. ...The word 'after' does not simply mean that the 'detention' must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'..."

The applicant in Van Droogenbroeck had been sentenced, on 20 October 1970, by a criminal court in Bruges, to two years' imprisonment for theft, and attempted theft. The court had also ordered that he be "placed at the Government's disposal" for a period of ten years. The European Commission of Human Rights described being placed at the Government's disposal in the following terms (Report of the Commission paragraph 64, a passage quoted by Lord Hope in his opinion in R (Giles) v Parole Board supra at 749F):

"The most significant feature of detention ordered in connection with placing at the Government's disposal is, as has already been pointed out, the relative indetermination of its duration. Depending on the case and the relevant administrative decisions, it may vary from nothing to ten years. No minimum duration is fixed by the law or the court; the detention may continue for a maximum period of 10 years, without the court which ordered the measure exercising the least control over it. In fact, the administration is responsible for adjusting the penalty to the circumstances of the individual."

The history of the applicant in Van Droogenbroeck following the expiry of the initial period of two years in prison was complicated. It included periods when the applicant was at liberty, when he was in "semi-custodial care" and periods when he was serving sentences of imprisonment other than that imposed in 1970, but there were periods, including periods between 1977 and 1980, when the applicant was detained on the authority of the court order of 20 October 1970 placing him at the Government's disposal. The applicant complained that this deprivation of liberty contravened his rights as guaranteed by article 5(1) and article 5(4). For the European Court that raised the question as to whether there was a sufficient connection, for the purposes of article 5, between the decision of the criminal court in Bruges on 20 October 1970 and the deprivation of liberty at issue. The Court set out its reasons for answering that question in the affirmative and concluding that there had not been a violation of the applicant's article 5(1) rights, at paragraphs 39 and 40 of its judgment, as follows:

"39. ... This question must receive an affirmative reply since the Minister's discretion [as to the implementation of the order placing a convicted person at the Government's disposal] is exercised within a framework set both by the [relevant statute] and by the sentence pronounced by the 'competent court'. In this respect, the Court notes that, according to Belgian case-law, a judgment which sentences the person concerned to imprisonment and, by way of a supplementary or accessory penalty, places him at the Government's disposal pursuant to [the relevant statute] constitutes 'an inseparable whole'... . There are two components to the judgment: the first is a penalty involving deprivation of liberty which the offender must undergo for a period specified in the court decision, and the second is the placing of the offender at the Government's disposal, the execution of which may take different forms ranging from remaining at liberty under supervision to detention. The choice between these forms of execution is a matter for the discretion of the Minister of Justice. Nevertheless he does not enjoy an unlimited power in making his decision: within the bounds laid down by [the relevant statute], he must assess the degree of danger presented by the individual concerned and the short- or medium-term prospects of reintegrating him into society.

40. In fact, sight must not be lost of ... the objectives of this statute, that is to say not only 'to protect society against the danger presented by recidivists and

habitual offenders' but also 'to provide [the Government] with the possibility of endeavouring to reform [them]' ... . Attempting to achieve these objectives requires that account be taken of circumstances that, by their nature, differ from case to case and are susceptible of modification. 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 the court or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5... ."

The Court concluded paragraph 40 of its judgment with the observation that 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. However, when it came to consider the applicant's complaint under reference to article 5(4), the Court in Van Droogenbroeck found that there had been a violation of the applicant's right to have the lawfulness of his detention during the period when he was at the disposal of the Government decided by a court. The respondent government had founded on the passage in paragraph 76 of the decision in De Wilde which is quoted above, but the Court pointed out, under reference to its decision in X v United Kingdom (1981) 4 EHHR 188, that this passage "speaks only of 'the decision depriving a person of his liberty'; it does not purport to deal with an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise." Quoting a passage from its judgment in Winterwerp v Netherlands (1979) 2 EHHR 387 (a case of the detention of a person on the grounds that he was of unsound mind) at paragraph 55, the Court said

"...the reasons initially warranting confinement of this kind may cease to exist. It would be contrary to the object and purpose of article 5 ... to interpret paragraph 4 ... as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court. The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals."

And, in passages which are quoted by Kennedy LJ in R (Giles) v Parole Board supra at 203, the Court in Van Droogenbroeck continued, at paragraph 47:

"...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 [Belgian] 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."

and at paragraph 49:

"In the instant case, the Convention required an appropriate procedure allowing a court to determine 'speedily', on application by Mr. Van Droogenbroeck, whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the [relevant statute]. 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."

[41]     The applicants in De Wilde had been placed at the Government's disposal by reason of their being vagrants. The applicants in Winterwerp and X v United Kingdom had been detained as being persons of unsound mind. The applicant in Van Droogenbroek was placed at the Government's disposal by reason that he was a recidivist who had manifested a persistent tendency to crime. The objective of these detentions can therefore be seen to have been protective, whether of the persons detained or the general public, rather than punitive. They shared the feature of placing an individual in the hands of the executive for a very long or indeterminate period of time. It is to be observed that in Van Droogenbroek the Court stressed, at paragraph 47 of its judgment, that the system under consideration in that case: the placing of recidivists at the disposal of the Government, while classified by Belgian law as a penalty which formed an "inseparable whole" with the principal penalty, "is fundamentally different from that - on which the Court does not have to express an opinion on this occasion - of the conditional release of prisoners sentenced by a court to a period of imprisonment imposed by the court as being appropriate to the case."

[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:

"As regards the nature and purpose of the discretionary life sentence under English law, the Government's main submission was that it is impossible to disentangle the punitive and the security components of such sentences. The Court is not persuaded by this argument: the discretionary life sentence has clearly developed in English law as a measure to deal with mentally unstable and dangerous offenders; numerous judicial statements have recognized the protective purpose of this form of life sentence. Although the dividing line may be difficult to draw in individual cases, it seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they 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. This view is confirmed by the judicial description of the 'tariff' as denoting the period of detention considered necessary to meet the requirements of retribution and deterrence."

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:

"... the court finds that the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the Van Droogenbroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows 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."

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:

"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 viewed as essentially punitive in nature."

And, accordingly, at paragraph 36:

"... the Court sees no cogent reasons to depart from the finding in the Thynne Wilson and Gunnell case that, as regards mandatory life sentences, the guarantee of article 5(4) was satisfied by the original trial and appeal proceedings and confers no additional rights to challenge the lawfulness of continuing detention or re-detention following revocation of the life licence. Accordingly, in the circumstances of the present case, there are no new issues of lawfulness which entitle the applicant to a review of his continued detention under the original mandatory life sentence."

[45]    
In Hussain v United Kingdom (1996) 22 EHRR 1 (and the parallel case of Singh reported with it), however, the Thynne Wilson and Gunnell approach was extended to a mandatory sentence of detention at Her Majesty's pleasure imposed on the applicant on his conviction for murder in terms of section 53(1) of the Children and Young Persons Act 1933. It was the opinion of the Court, expressed at paragraph 53, 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".

Although the sentencing court had no discretion in the matter, at paragraph 54 the Court 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."

[46] Mansell v United Kingdom (Application No. 32072/96) was a decision of the European Commission of Human Rights on the admissibility of the applicant's complaint. On 17 December 1992 the applicant had been convicted on three counts of indecent assault on men. In sentencing the applicant, the judge stated that although the sentence of two and a half years would normally be appropriate for an act of indecent assault, for reasons of protection of the public, in his judgment the proper sentence in this case was five years imprisonment. The Court of Appeal reviewed the sentence and determined that in sentencing the applicant for a sentence "longer than normal", the judge was acting pursuant to section 2(2)(b) of the Criminal Justice Act 1991. The applicant claimed, under reference to article 5(4) of the Convention, that his longer than normal sentence should have attracted a special form of parole review from the moment that he had served the period he would have served under the normal punitive sentence. He argued that he was in the same position as a discretionary life prisoner in that his sentence consisted of a punitive part and a preventive part in which his danger to the public and therefore the lawfulness of his detention should be properly reviewed. Only an oral hearing could ensure that his mental state was fairly assessed. He claimed that his review should have been before a panel of the Parole Board operating like a discretionary lifer panel and affording him an oral hearing. The European Commission found the complaint to be manifestly ill-founded. It took the view that the sentence imposed on the applicant was a fixed term sentence of five years. There was 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". Rather, there was an element of "simple" punishment as well as an element of deterrence. While it was true that the latter part of the sentence was imposed pursuant to section 2 of the Criminal Justice Act 1991, which provided 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 was, however, no more than the usual exercise by the sentencing court of its ordinary sentencing powers, even if the "increase" had a statutory basis. In particular, nothing in the sentencing procedure indicated that the fixed term sentence of five years imprisonment was anything other than a sentence which was imposed as punishment for the offences committed. It followed that the judicial control required by article 5(4) of the Convention was incorporated in the original conviction and sentence, and that article 5(4) of the Convention did not apply to the parole proceedings in which the applicant was denied an oral hearing.

[47]     In so far as relevant, that is how the European jurisprudence stood at the date of Lady Paton's opinion in Varey v The Scottish Ministers 2001 SC 162. The petitioner in that case had been serving a sentence of 29 years imprisonment for a variety of offences. He had been initially sentenced in 1984. In 1998 he had been released on licence, one of the conditions of which was that he be of good behaviour. In July 1999 he was arrested and charged with being concerned in the supplying of cannabis resin. On 7 July 1999 the Scottish Ministers revoked his licence and recalled him to custody. Although unnecessary for the purposes of making her decision, Lady Paton gave consideration to the contention, made on behalf of the petitioner under reference to the decision in Weeks v United Kingdom, that in doing so, having regard to section 57(2) of the Scotland Act 1998, the Scottish Ministers had acted ultra vires in that they had contravened the petitioner's rights under article 5 of the Convention. It was argued that there was not a sufficient causal connection between the petitioner's conviction in 1984 and the deprivation of his liberty in 1999. In response, counsel for the Scottish Ministers submitted that Weeks related exclusively to discretionary life sentences and not to determinate sentences such as those imposed on the petitioner. Lady Paton rejected the argument for the petitioner. At paragraph 35 of her opinion she said:

"I accept that discretionary life sentences stand in a category of their own, as explained in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, Wynne v United Kingdom (1994) 19 EHRR 333, T v United Kingdom [[2000] 2 All ER 1024], and Mansell v United Kingdom [App no 32072/96 (unreported) 2 July 1997]. Their exceptional nature, and the purpose underlying their imposition, have recently been emphasised by Parliament in section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, in terms of which a sentencing judge is directed to specify what period of the discretionary life sentence reflects (a) the seriousness of the offence or of the offence combined with other offences associated with it; and (b) any previous conviction - in effect, what is to be the 'punitive period': cf O'Neill v H.M. Advocate, 1999 S.L.T. 958, 1999 SCCR 300. I also accept that, when assessing whether a prisoner is entitled to challenge the lawfulness of his continuing detention or re-detention following revocation of his licence, it is appropriate both in principle and on authority to regard determinate sentences such as those imposed upon the petitioner as falling within the same category as mandatory life sentences. It follows therefore that, in the petitioner's case, the guarantee of article 5(4) was satisfied by the original trial and sentence procedure, and that article 5(4) confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of a release licence."

[48]     Parties before me were agreed that Lady Paton had accurately stated the law as at the date of her opinion: 11 August 2000. In R (Banks) v Secretary of State for the Home Department [2002] EWHC 381 (Admin), a renewed application to apply for judicial review, Simon Brown LJ took what Lady Paton had said in Varey as authority for the proposition that where detention follows conviction and a consequent determinate sentence and where that sentence was based on the seriousness of the offence, article 5(4) is satisfied by the original trial process and any appeal. Simon Brown LJ described Lady Paton's equation of mandatory life sentences with determinate sentences as "understandable in the light of current Strasbourg jurisprudence - although that may change shortly."

[49]    
The change anticipated by Simon Brown LJ when giving judgment in Banks was effected by the decision of the European Court of Human Rights in Stafford v United Kingdom supra. Mr Mitchell described Stafford as a reformulation of the relevant jurisprudence. The applicant there had been sentenced to a mandatory life imprisonment for murder in 1967. He was released on licence in 1979 (as matters then stood that meant that, as at that date, the Secretary of State was satisfied that the "tariff" applicable to the applicant, that is the minimum period which a life prisoner must serve to satisfy the requirements of retribution and deterrence, had expired). Soon afterwards, in breach of his licence, the applicant left the United Kingdom and went to South Africa. In 1989 he returned to the United Kingdom. He was arrested. His licence was revoked and he was recalled to prison. He was again released on licence in 1991. In 1993 he was arrested and remanded in custody on counterfeiting charges. In 1994 he was convicted on these charges and sentenced to six years imprisonment. In 1996 the Parole Board recommended the applicant's release on life licence. The Secretary of State rejected the Board's recommendation. On 1 July 1997, but for the revocation of the applicant's life licence, he would have been released (on licence) on the expiry of two-thirds of his six-year determinate sentence for counterfeiting. The applicant challenged the decision of the Secretary of State to reject the Parole Board's decision. He was successful at first instance, before Collins J, on the ground that it was ultra vires the Secretary of State to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public. However the decision of Collins J was reversed on appeal. On 22 December 1998 the applicant was released on licence by the Secretary of State but, prior to that, on 24 July 1998, the applicant had lodged an application with the European Commission of Human Rights. The application was transmitted to the European Court of Human Rights. The applicant alleged violations of article 5(1) and article 5(4) of the Convention. He claimed that to detain a post-tariff mandatory life prisoner by reference to concerns about the prisoner which bore no necessary relationship to the nature of the criminal conduct which resulted in the imposition of the sentence in the first place, produced a form of detention which had no sufficient connection with the object of the legislature and the sentence of the court, such as amounted to an arbitrary detention in breach of article 5(1). As the only legitimate basis for his continued detention concerned factors of risk, factors susceptible to change, he was entitled to review of his continued detention by a body satisfying the requirements of article 5(4). The Court upheld the applicant's complaints and in doing so departed from the distinction it had drawn in Wynne v United Kingdom between mandatory and discretionary life sentences. Having reviewed the authorities, it concluded that as a matter of domestic law, it was now established that there was no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards tariff-fixing. It is a sentencing exercise in each case. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The finding in Wynne that the mandatory life sentence constituted punishment for life could no longer be regarded as accurately reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. Once the punishment element of a mandatory life sentence (as reflected by the tariff) has been satisfied, the grounds for continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness. The Court held that the applicant in Stafford must be regarded as having exhausted the punishment element for his offence of murder as at his release in 1979. Accordingly, when his sentence for the later offence expired in July 1997, his continued detention under the mandatory life sentence could not be regarded as justified as punishment for the original murder. In contrast to the recall to prison of the applicant in Weeks, the continued detention of the applicant in Stafford was not justified by the government on the grounds of mental instability and dangerousness to the public from the risk of further violence. What was relied on was the risk of non-violent offending. The Court could not accept that a decision-making power by the executive to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction accorded with the spirit of the Convention. It therefore concluded that the applicant's continued detention after 1 July 1997 was not justified in terms of article 5(1)(a) and that there accordingly had been a violation of article 5(1). Turning to the question of violation of article 5 (4), the Court reiterated its assessment of tariff-fixing by the Secretary of State as being a sentencing exercise, "not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment" (Stafford v United Kingdom supra at paragraph 87). After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence for murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirement of article 5(4). It could no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of the compatability of subsequent detention of mandatory life prisoners with the provisions of article 5(1). From 1 July 1997 to the date of his release on 22 December 1998, the lawfulness of the applicant's continued detention was not reviewed by a body with power to release or with a procedure containing the necessary judicial safeguards, including, for example, the possibility of an oral hearing. There had therefore been a violation of article 5(4).

[50]    
I have summarised the Stafford judgment at some length because of the prominence given to it by Mr Mitchell in his submissions. It is an important judgment in that the European Court reverses the position it had taken in Wynne v United Kingdom, following what Lord Bingham in R (Anderson) v Home Secretary supra at 878E describes as a careful and comprehensive reconsideration of its case-law in relation to mandatory life sentences. However, I would agree with what was said about Stafford by Mr Mure: it is no more than the drawing to a close of an evaluation by the European Court of Human Rights of a particular class of prisoner, that class being made up of prisoners whose detention is composed of a tariff period followed by a further period which is referable to risk to the public. In the reported cases these two periods have been described as a punitive element followed by a protective or security element. Where there is a purely protective or security element, as in the case of the English life sentences which have been considered by the Court, then, to borrow the language used in Hussain at paragraph 54 of the judgment, "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." In Stafford the Court held that that situation arose in relation to a mandatory life sentence. I am not persuaded that it decided more than that. It is true that Stafford nevertheless requires there to be some revision of the statement of the relevant law as it appears in Varey v The Scottish Ministers. In her opinion in that case Lady Paton placed determinate sentences in the same category as mandatory life sentences. She placed discretionary life sentences in a category of their own. It is agreed that she was right to do so in the light of the then current Strasbourg jurisprudence. Stafford altered that jurisprudence. Now, mandatory and discretionary life sentences are to be regarded as falling within one and the same category. It does not follow that determinate sentences should now be regarded as following mandatory life sentences into that same category. Prior to Stafford, mandatory life sentences had been regarded as "essentially punitive in nature": Wynne v United Kingdom supra at paragraph 33. In aggregating determinate sentences with mandatory life sentences, I take Lady Paton to have been recognising that a determinate sentence is a punitive disposal by the sentencing judge, as opposed to a provision for detention for "protective" or "security" purposes, with the result that when a determinate sentence is imposed the guarantee of article 5(4) is satisfied by the original trial and sentence. That, as I would understand it, is because the whole period of detention under a punitive disposal can properly be said, to use the language of Van Droogenbroeck (repeated in Weeks), to "result from", "follow and depend upon" or "occur by virtue of" the conviction, even where, as was the case in Varey, what is in issue is a fresh deprivation of liberty due to the petitioner's recall to custody, following his release on licence and the recall of that licence. I have already noted that Lady Paton's opinion was cited with approval in Banks. The judgment of Simon Brown LJ in that case includes the following, at paragraph 5:

" [Counsel for the claimant] relies on a number of decisions of the European Court of Human Rights in submitting that [article 5 (4)] is engaged whenever prisoners are recalled from licence. He is wrong. These cases all concern indeterminate sentences ... The other case on which he relies, ...is X v United Kingdom... Cases like the present are entirely different. Where detention follows conviction and a determinate sentence and where, as here, the sentence is based, as plainly it was, on the seriousness of the offence, article 5(4) is satisfied by the original trial process and any appeal."

The approach of Simon Brown LJ in Banks was expressly followed by Turner J in R (West) v The Parole Board [2002] EWHC 769 (Admin).

[51]     The claimant in R (Giles) v Parole Board was sentenced on 10 January 1997, in terms of section 2 (2) (b) of the Criminal Justice Act 1991, to consecutive terms of four and three years imprisonment which were longer than that which was commensurate with the seriousness of the offences, in order to protect the public from serious harm. As a prisoner serving sentences which totalled seven years, the claimant was entitled, in terms of section 33(2) of the Criminal Justice Act 1991, to be released on licence on the expiry of two-thirds of his sentence. What is referred to as his estimated date of release was therefore 9 September 2001. In December 2000 prior to the first review of his case by the Parole Board he sought confirmation that he would be treated in the same way as a discretionary life sentence prisoner (a) in being granted an oral hearing, and (b) in application of the same test to determine whether he should continue to be detained. The Parole Board gave no such confirmation and on 1 March 2001 the claimant sought judicial review. He argued, under reference to article 5(4), that once a defendant sentenced under section 2(2)(b) of the 1991 Act has served the part of his sentence imposed purely for purposes of punishment and is about to begin serving the balance of the sentence imposed for purposes of public protection, he should enjoy the substantive and procedural rights held to be necessary where discretionary life sentence prisoners have served the punitive (or "tariff") term imposed by the trial judge or, on appeal, by the Court of Appeal. This was because that, as with a prisoner sentenced to a discretionary life sentence who has served the punishment part of his sentence, the only justification for the continued detention of a prisoner who has served the part of his sentence which is commensurate with the seriousness of the offence is the need to protect the public. A prisoner's danger to the public, however evident at the time of sentence, may diminish or disappear. Thus, so went the argument, his danger to the public, and the justification for continued detention, should be the subject of periodic review (in which the prisoner should have the right to participate) to ensure that a prisoner is not detained on the ground of his danger to the public when he is no longer such a danger. On 23 May 2001 Popplewell J gave permission to apply for judicial review and in October 2001 Elias J granted a declaration to the effect that article 5(4) did apply to the continuing detention of persons sentenced under section 2(2 (b) of the 1991 Act and, accordingly, the Parole Board required to consider the continued justification for the claimant's detention after he had served the part of his sentence which was commensurate with the seriousness of the offences by way of an oral hearing of an adversarial nature.

As at the dates of the hearings before Popplewell J and Elias J the issue raised in the application was strictly moot because the claimant had been released on licence on 17 May 2000, in terms of the power conferred by section 35(1) of the Criminal Justice Act 1991 to release a long-term prisoner after he has served one half of his sentence. This point was taken in argument on behalf of the Parole Board and the Secretary of State for the Home Department but rejected by both Popplewell J and Elias J, rightly in the opinion of Lord Bingham when the case came before the House of Lords ([2003] 3 WLR at 740B) because of the important point of principle raised. The decision of Elias J was reversed by the Court of Appeal. The Court of Appeal considered that what had been imposed by the sentencing judge was a determinate sentence. It held that the protection required by article 5 (4) was incorporated in the original decision by the sentencing judge and that therefore it was unnecessary for the Parole Board, in reviewing the preventative phase of a longer than commensurate sentence imposed under section 2(2)(b) of the Criminal Justice Act 1991, to do so by way of an oral hearing. In a passage to which I was referred by Mr Di Rollo and which was quoted with approval by Lord Bingham when the case was before the House of Lords, May LJ said this at paragraph 19 of his judgment (R (Giles) v Parole Board [2003] 2 WLR 196 at 208G):

" A sentence under section 2(2)(b) of the Criminal Justice Act 1991 ... is a single determinate sentence, the product of a judicial decision. ... 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. ... All the European authorities to which Kennedy LJ has referred [in giving the leading judgment in the Court of Appeal], which conclude that article 5(4) of the European Convention [on] 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)."

The House of Lords unanimously upheld the decision of the Court of Appeal. It rejected the analogy which the appellant sought to draw between prisoners sentenced to a longer than commensurate sentence in terms of section 2(2)(b) of the Criminal Justice Act 1991 and life sentence prisoners. In an opinion with which Lord Bingham, Lord Steyn, Lord Hutton and Lord Scott agreed, Lord Hope held that a longer than commensurate sentence fell within the general or 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).

At paragraph 51 of his opinion ([2003] 3 WLR 736 at 755 B), to which my particular attention was drawn by Mr MacNeill, having reviewed the Strasbourg jurisprudence, Lord Hope concluded:

"It is plain from this summary that the basic rule which the European Court laid down in De Wilde Ooms and Versyp v Belgium 1 EHRR 373 continues to apply. Where the prisoner has been lawfully detained within the meaning of Article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the determination have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary."

In Lord Hope's opinion Giles was not a case for departure from the basic rule. Lord Hutton agreed, saying at paragraph 74 (supra at 763 G):

"The jurisprudence of the European Commission and the European Court has recognised that article 5(4) has no application where a prisoner is serving or has served a fixed term sentence."

In argument, Mr Mitchell sought to minimise the importance of the decision of the House of Lords in Giles. He stressed that the claimant in that case was not actually complaining of a deprivation of liberty at all. His concern was with what Mr Mitchell described as a "metaphysical Parole Board right" which he claimed to have at a stage in his sentence prior to being entitled to be released on licence. While this may be an accurate enough summary of the particulars of Mr Giles's claim, the decision in Giles cannot be simply dismissed as dependent upon or limited to its facts. As I have already noted, Lord Bingham considered that an important point of principle was raised as to the impact of article 5(4) upon a determinate sentence imposed, in part, for the purpose of protecting the public. That is reflected in the terms of the opinions. I read them as intended to have general application. The decision of the European Court in Stafford is noticed in the Opinion of Lord Hope (although not in the other opinions) but it gets no discussion. I am accordingly reinforced in my view that there is nothing in Stafford to contradict the view of the relationship between determinate sentences and article 5(4), which I see as having been adopted by Lady Paton in Varey and applied by the English High Court in West and the Court of Appeal in Banks, in Giles and, most recently, in Smith v The Parole Board [2003] EWCA Civ.1269.

[52] The claimant in Smith v The Parole Board supra was sentenced to a term of imprisonment on 8 May 1998 which, on appeal, was reduced to six and a half years. He was made the subject of an extended licence, pursuant to section 44 of the Criminal Justice Act 1991. The effect of that was to extend the licence from the point at which it would normally have expired (after three-quarters of the sentence) to the end of the sentence. Taking into account the period spent in custody prior to conviction, the appellant was released on licence after serving two-thirds of his sentence on 7 November 2001. On 4 February 2002 the Parole Board recommended revocation of the claimant's licence because he was abusing drugs and on 6 February 2002 the Secretary of State acted in accordance with that recommendation. Thereafter, the claimant made written representations to the Parole Board. On 3 April 2002 the Parole Board by letter rejected the claimant's representations. It said that his use of drugs was a major concern and "his inability or unwillingness to desist from drug use represented too great a risk to public safety." On 30 December 2002 the claimant began proceedings for judicial review of the decision to determine the issue of revocation of his licence and recall to prison by way of written representations only and without an oral hearing. He founded inter alia on article 5 of the Convention. It was argued on his behalf that once released into the community on licence, the claimant enjoyed the right to liberty enshrined in article 5(1). He had a statutory right to be released after serving two-thirds of his sentence. When once again deprived of his liberty by recall to prison, he was entitled to take proceedings pursuant to article 5 (4). The Court of Appeal disagreed. In the opinion of Kennedy LJ, expressed at paragraph 23 of his judgment (quoted at paragraph [36] above), the claimant's right to liberty had not been infringed by recall to prison. His right to liberty for the period up to the end of his sentence was lost when he was sentenced. As there was no right to liberty to be infringed, there could be no right to take proceedings to decide whether the detention is lawful. Brooke LJ was of the same opinion (paragraph 42): the claimant was deprived of his liberty when he was lawfully detained after conviction by a competent court in accordance with a procedure prescribed by law. This was a case which was concerned with the loss of liberty during the fixed term of a determinate sentence. It was not concerned with the continued detention of a prisoner serving an indeterminate sentence after the tariff period of his sentence has expired. In respect of the argument on behalf of the claimant that when the Parole Board came to consider matters relating to revocation of a prisoner's licence it was concerned not with punishment but with protection of the public, Brooke LJ found it difficult to discern any distinction between the case before him and Giles (paragraph 47). In both cases the original sentence of the court included a term which the offender had to serve or might have to serve in prison in order to protect the public from serious harm. Holman J also agreed with Kennedy LJ. He focused in his judgment on what he described as the twin pillars of the argument advanced by the claimant's counsel. Holman J found both pillars to be ill-founded. The first pillar was that a long-term prisoner has a statutory right to be released after he has served two-thirds of his sentence. That right was founded on section 33(2) of the Criminal Justice Act 1991, as amended, which placed the Secretary of State under a duty: "As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence." Holman J accepted that that duty created a correlative right in the prisoner that he will be released (as the claimant had in fact been). But, he continued, neither the release nor the right was unqualified. What was critical was that it was a release on licence. The sentence, however, remained in force until its full term had expired. When counsel had spoken of "a right to be released", what he was really contending for is a right to be released and thereafter to remain at liberty in the community with all the same rights as a person who is not still subject to a sentence of imprisonment. In the view of Holman J it was plain from the legislation that a long-term prisoner who is released on licence during a determinate sentence is not in that position and does not enjoy that right until the expiry of the licence. The second pillar of counsel's argument was that after release on licence the considerations governing recall were not the same as those which governed the original sentence. Punishment played no part and the focus came to be upon dangerousness and risk to the public. This was similar to the considerations which were applicable when deciding whether to release or to recall a prisoner serving an indeterminate sentence after the expiry of the punitive or tariff part of a life sentence, to whom an oral hearing must be, and now is, afforded. The same principles, so it was argued, should accordingly apply to a case such as that of the claimant. In the view of Holman J, this argument, too, was fallacious. Although "the question" might be the same (namely, dangerousness and risk), the context in which the question is considered was quite different. A prisoner serving a determinate sentence who is released on licence is still serving the punitive or tariff term fixed by the original sentencing court. A life prisoner, ex hypothesi, is not, and quite different considerations apply. As the House of Lords had made clear in Giles, the critical distinction is between cases where the length of the detention is fixed by the court and those where decisions about its length are left to the executive. Counsel's argument had sought to blur that distinction by focusing instead on the common ground of dangerousness and risk. Article 5 was not engaged by the position of the claimant.

[53]     The decision of the national court on which Mr Mitchell relied as pointing in a different direction is that of Elias J in R (Sim) v The Parole Board [2003] 2 WLR 1374. In Sim the claimant had been sentenced to a custodial term of 30 months together with an extension period of five years pursuant to section 58 of the Crime and Disorder Act 1998. He was released from prison halfway through the custodial part of his sentence but was recalled by the Secretary of State during the licence period following breaches of the conditions of his licence. The Parole Board made a recommendation confirming that recall. The case was referred to the Parole Board. The Board refused to direct the claimant's release on the ground that the risk of the claimant re-offending if he was released was high. The claimant brought a claim for judicial review of the Board's refusal to direct his release on the ground, inter alia, that the Board wrongly took into consideration hearsay evidence, and made certain factual findings on the basis of that evidence, when both fairness and compliance with article 5(4) required that it should have called relevant witnesses to establish the material facts in dispute. Accordingly, as in the present case, it was argued that article 5(4) was engaged by the recall to custody of a prisoner, sentenced to a determinate sentence, and, moreover, that article 5(4) required evidence which might be relied on as a basis for the continued detention of the prisoner to be led at an oral hearing. A point of distinction between the facts in Sim and those in the present case is that in Sim the claimant had been sentenced to an extended sentence. It will be recollected that at the outset of his submissions Mr Di Rollo emphasised that the present case was not a case of an extended sentence. In Sim, it was the final conclusion of Elias J that the Parole Board's decision to continue the detention of the claimant was justifiable and involved no unfairness but this was only because he considered that the procedure adopted by the Board satisfied article 5. The first of the conclusions listed by him at paragraph 65 of his judgment (supra at 1401F) is as follows:

"The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of article 5; it is not a sufficient response to say the detention is justified by the original sentence. Accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with article 5(4) (as indeed they currently are.)"

As is clear from his judgment, Elias J had before him all the European, and indeed all the English, authorities to which I have referred earlier in this opinion and which had been decided before the date of the hearing in Sim. He gave particular attention to the decision of the Court of Appeal in Giles on which counsel for the defendants before him had particularly relied (Elias J did not, of course, have the judgment of the House of Lords in that case). He dealt with the competing arguments under reference to Giles in the Court of Appeal as follows (supra at 1387E):

"Mr. Giffin and Ms Steyn [counsel for the respective respondents] said that the factors held to exclude an article 5(4) supervision in that case are equally applicable here. In this case too - and Mr Giffin placed considerable emphasis on this - the sentence is a determinate one, all aspects of which are appealable. Furthermore, it does not permit the executive to determine the time of release. Mr. Giffin also put particular weight on the fact that it was, he submitted, the 'usual exercise by the court of its ordinary sentencing function.'

Mr. Fitzgerald [counsel for the claimant] submits that the factors which persuaded the Court of Appeal in Giles do not apply to the same extent here. When passing an extended sentence, the judge does not predetermine the period of actual custody; he merely predetermines the period of compulsory supervision in the community after the initial custodial term has been completed. Thereafter his detention is indeed at the discretion of the executive, albeit under the supervision of the Parole Board. The period of detention is not determined by the sentencing court at all, neither initially nor later. The length of the period to be served in prison, as opposed to the period for which the prisoner is at risk of prison, is no more determined here than it is in the case of discretionary or mandatory life sentences, and yet they are subject to article 5(4) controls once the tariff or minimum period has been exhausted. The fact that there is a maximum period for which the licence can operate does not affect that fact.

I agree with these submissions of Mr. Fitzgerald. They are, as I have indicated, supported by the fact that the domestic law does in fact confer upon the Parole Board the very supervision which article 5(4) requires. In contrast, it does not so provide for longer than commensurate sentences. Moreover, in my judgment Mr. Giffin is not right to assert that it is part of the ordinary sentencing powers of the judge to impose an extended licence period. As Kennedy LJ's judgment indicates, judges have always been able to increase a custodial sentence to reflect a preventive element, even absent the [relevant statutory powers]. By contrast, the judge has no general sentencing power to extend the licence period otherwise applicable; that has been a matter fixed by Parliament and it can only be extended by the judge in the case of an extended sentence because of express statutory authority. Mr. Giffin also commented that it would be absurd if there is supervision of an extended sentence but not the more draconian longer than commensurate sentence. If it is an absurdity, it is one reflected in the current legislation. But I do not accept that it is; the difference is that in the latter case the judge has stipulated a period of custody at the time of sentence; he takes the view that it is necessary to meet the objectives of penalty, deterrence and prevention. By contrast, the judge passing an extended sentence hopes and expects that the risk to the public can be managed by appropriate supervision. He recognises that if that turns out to be wrong it may lead to further detention, but he has not stipulated for that extended period to be part of the custodial term. Moreover, the factors which cause the recall may themselves change over time, and the sentencing judge has not sought to cater for that fact in his original sentence in the way that he has in a longer than commensurate sentence.

Accordingly, I conclude that the principles adopted by the European jurisprudence for ensuring the continued legality of those released on licence are applicable to prisoners who are recalled during the period when they are on extended licence. There is a strong justification for this. It is undesirable that a person should lose such a fundamental human right as his liberty, for a period which could be as long as 10 years, not because of what he has done but because of the risk of what he might do, without periodic supervision to ensure that the public interest really does require the continuation of such a draconian sanction. It must be remembered that the material circumstances here, unlike where a longer than commensurate sentence is imposed, are that the sentencing judge has formed the view that the risks to the public can be supervised in the community; they are not such as to justify continued detention from the outset. Even if that expectation proves to be unfounded and further detention is required, in my judgment article 5 requires that this is a matter that should be kept under consideration. That, of course, is no more than Parliament currently requires also."

[54]     I take what was said by Elias J in Sim to be an accurate statement as to the inter-relation of article 5 (4) and an extended sentence pronounced in terms of the applicable English statutory provisions. The conclusions in Sim are specific to these provisions (cf Smith v The Parole Board supra at paragraph 22). They have no necessary application to the sentence which was imposed upon the petitioner by Lady Cosgrove. Nevertheless, it respectfully appears to me that the approach of Elias J provides a useful illustration of how the question as to whether article 5(4) is, on the one hand, engaged, or, on the other, excluded (by reason of prior satisfaction at the stage of conviction) can be addressed in any particular case and that is by looking at the salient features of the particular custodial disposal under consideration with a view to determining whether or not, to use the words of Elias J, there is sufficient causal connection between the conviction and the deprivation of liberty in issue to meet the requirements of the Convention.

[55]    
Central to Mr Mitchell's argument was his analysis of the structure of a long-term sentence, as is provided by the 1993 Act. He described it as a composite sentence. He recognised the power of the second respondents, as conferred by section 3, to release a prisoner at any time on licence, on compassionate grounds, but, pointing to subsections (3) and (2) of section 1, Mr Mitchell analysed a long-term sentence as determinate for only half or, in any event, no more than two-thirds of the period stated by the judge. Thereafter, in his submission, the sentence is under administrative control (which expression, as used by Mr Mitchell, comprehended control by the first and the second respondents). The criterion that decides whether the prisoner is to be detained, and if so for how long, in the latter half or one third of the period is need to protect the public from risk. After the two-thirds point, when the prisoner has the right to be released, on no view, submitted Mr Mitchell, can it be said that the original sentence of the court is the causal event in respect of any deprivation of liberty. The first respondent has become the sentencing authority. The repeated assertion made on behalf of the respondents that the sentence imposed on the petitioner was a determinate sentence which did not engage article 5(4), begged the question as to what truly was the determinate sentence of the court. Where what was in issue was a deprivation of liberty, a determinate sentence referred to that period which the prisoner will in fact serve in prison assuming that he does not die before the period has expired.

[56]    
I am not persuaded that Mr Mitchell's analysis of a long-term sentence is a correct one. In particular, I do not accept that a sentence of, for example, five years imprisonment is a composite sentence made up of a determinate element followed by an element during which the prisoner is placed at the disposal of the executive. In contrast to what Elias J found to be the case in R (Sim) v Parole Board supra at 1388A, Lady Cosgrove did no more than exercise the "ordinary sentencing powers of the judge" (cf Mansell v United Kingdom supra). The sentence imposed by her was one of imprisonment for five years, not more, and not less. The petitioner avers, correctly in my opinion, that his sentence will not expire until 18 November 2004. In contrast with the life sentences considered in the line of authority leading up to Stafford, it was not and cannot now be divided into a punitive element and a protective or security element or into other component parts. In his opinion in Giles in the House of Lords, Lord Hutton, at paragraph 61 ([2003] 3 WLR at 758D) quoted the following passage from the judgment of Lawton LJ in R v Sargeant (1974) 60 Cr App R 74 at 77 and 78:

"What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing. ....We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period."

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:

"In imposing a determinate sentence in a case like this, the sentencing judge would not assess specific periods for retribution, deterrence, protection of the public and so on, and then aggregate them. He would simply use his judgment to decide what, in light of the circumstances overall, should be the appropriate sentence. In some cases, where the likelihood of the accused's re-offending was remote, the risk element would scarcely come into account."

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.

[57]    
The process by which a judge will decide on what custodial sentence he or she will pronounce, as described by the Lord Justice Clerk in Ansari v HMA, has this further consequence. Although they are not reflected in quantified portions of the sentence, the sentencing judge will apply all of the principles which are relevant to the particular case with a view to achieving the objectives considered to be appropriate in the circumstances. In R (Sim) v Parole Board supra, at paragraph 31, Elias J refers to the judge who imposes a longer than commensurate sentence as having "stipulated a period of custody at the time of sentence [because] he takes the view that it is necessary to meet the objectives of penalty, deterrence and prevention." (supra at 1388B). Elias J took the instance of a longer than commensurate sentence because that was what was in issue in Giles and he wished to distinguish Giles from the case which was before him, but he might have said exactly the same about a commensurate determinate sentence, such as was imposed on the petitioner in the present case. The period stipulated by the judge at the time of sentence is fixed by reference to all relevant sentencing objectives, including protection of the public. Therefore, if the protection of the public is a relevant consideration in a particular case the sentencing judge must be held to have taken that into account in fixing the stipulated period. What may be described as the protective element, the security element or the risk element, is incorporated into the decision of the sentencing court. That means that the lawfulness of whatever part of a determinate sentence as a prisoner may come to serve in custody which is referable to considerations of public protection has been decided upon by a court, as is required by article 5(4); the court in question being the court which imposed the sentence. It is no doubt true that the factors which give rise to risk to the public are susceptible to change over the passage of time. However, as is observed by Lord Hutton at paragraph 73 of his opinion in R (Giles) v Parole Board supra at 763F, there are a number of factors, in addition to dangerous propensities, which a judge might rationally take into account in deciding upon the appropriate length of a sentence and yet which are also susceptible to change over the passage of time. Having considered all available relevant information, the rational judge can and will take susceptibility to change into account. Again under reference to longer than commensurate sentences, that is recognised by Elias J in Sim.

[58]    
The implications for article 5(4) of a protective element being incorporated in the court's decision at the point of sentencing is considered by Lord Hope in his opinion in R (Giles) v Parole Board supra at 748H. At paragraph 33, having noticed that in Hussain and Stafford the European Court had held that prisoners detained at Her Majesty's pleasure or subject to a mandatory life sentence are entitled to have the issue of their dangerousness to society, a characteristic susceptible to change with the passage of time, decided by a court at reasonable intervals, he went on to pose the question:

"But does article 5(4) give rise to the same requirement where, as happens in the case of a determinate sentence, the length of the sentence is determined by the sentencing court at the outset - where, in other words, the length of time that is needed to satisfy the protective element is incorporated in the court's decision and is not left to the executive?"

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:

"I would hold that the present case falls within the basic rule. The review which article 5(4) requires was incorporated in the sentence which the judge passed under subsection (2)(b). This is because he fixed the period of the

sentence which was needed to protect the public from serious harm. He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate. As he was able to take this decision at the outset there is no risk that detention for the minimum period fixed by the sentence will become arbitrary. The appellant has no further right under article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially."

[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:

"We are not persuaded that this is a matter which the courts ought to take into account. It is for the court to decide what the appropriate 'gross' sentence should be. The question for the courts and the appeal courts is whether a particular gross sentence in that sense is excessive and it is then a matter for others, in terms of what Parliament has said, to work out its practical effects."

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 our view it is not appropriate to start converting the period which is recommended into some other possible sentence which may vary depending upon what Parliament decides to do from time to time in relation to matters of remission. When imposing sentence, it has been the practice of the court to impose the sentence which the court thinks is appropriate and not to take into account possibilities of remission, parole or anything of that nature. These are executive matters for the executives (sic) to decide and not for the court to decide. Accordingly, we consider that what we have to look at is the period of eight years and not some notional higher figure. Looked at on that basis, we are entirely satisfied that the nature of the present offence, involving, as it did, a possible danger to life, was one which required a substantial custodial sentence on any view and we cannot say that the period of eight years chosen by the sentencing judge was excessive."

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".

[62]    
As is indicated by the passage from paragraph 87 of the judgment of the European Court in Stafford v United Kingdom which is quoted at paragraph [49] above, when a prisoner is released on licence that is implementation of the sentence which the court has pronounced. Clearly, the same can be said of his being kept in custody prior to such release. In my opinion, the same can be said of the revocation of the licence and the recall of the prisoner to custody on his breaching a licence condition: that is something done in implementation of the original sentence. Consistent with that, a prisoner cannot be detained simply by virtue of a recall to custody beyond the expiry date of the period pronounced by the court as being his sentence. In my opinion, the deprivation of liberty which I accept the petitioner suffered after 13 August 2002 was not only authorised by the sentence of five years imprisonment imposed by Lady Cosgrove on 21 December 1999 but it resulted from, followed and depended upon and occurred by virtue of that sentence.

[63]    
I accept, as Mr Mitchell submitted, that it also depended upon an assessment by the first respondent that the petitioner was in breach of his licence. As it happens the first respondent, like the Parole Board in England, as is referred to by Lord Bingham in Giles at paragraph 10, is a judicial body: see also Varey v Scottish Ministers supra at 175B. However, I do not consider that article 5 of the Convention requires that an assessment as to whether the petitioner is in breach of his licence, or, assuming that he is in breach of his licence, whether that is sufficient reason for his remaining in custody on a revocation of the licence and a return to prison, be made by a court or a court-like body. I see these as questions which arise as part of the implementation of a sentence which is both authorised by and results from a judgment of the court. No further intervention by the court is required by article 5. As a prisoner sentenced to a determinate sentence, the petitioner's entitlement under article 5(4) to have the lawfulness of his detention decided upon was satisfied by Lady Cosgrove's sentence. The decision, incorporated within that sentence, applies to the whole of the term of the sentence. This is a case which falls within the basic rule laid down by the European Court in De Wilde, Ooms and Versyp v Belgium supra. In so concluding I see myself as doing no more than restating the position, in relation to Scottish determinate sentences, which was adopted by Lady Paton in Varey v The Scottish Ministers and, in relation to English determinate sentences, by the High Court, the Court of Appeal and the House of Lords in Banks v Secretary of State for the Home Department, R (West) v Parole Board, R (Giles) v Parole Board, Smith v The Parole Board and, indeed, R (Sim) v Parole Board.

[64]    
I recognise that domestic law requires more than I have found to be required by article 5 (cf R (Sim) v Parole Board supra at 1387H where Elias J explains that his view of what article requires is confirmed by what domestic law requires). In terms of the 1993 Act and the 2001 Rules, there is in place a procedure whereby the deprivation of the petitioner's liberty must be and has in fact been reviewed by the first respondent. That procedure is flexible, in that, in terms of Rule 15 the first respondent has power to regulate its own procedure as it thinks fit. It would have been open to the first respondent, for example, to proceed by way of an oral hearing, albeit that the rule allows and, it might be said, envisages, the first respondent proceeding by way of written information and written representations. The first respondent in agreeing not to direct the petitioner's immediate release on 4 November 2002, having found there to be an indication that the petitioner had breached the condition of his licence that he be of good behaviour, went on to express the view that in the light of the evidence to it the petitioner must be regarded as presenting an unacceptable risk. I take from that that if the risk had not been regarded as unacceptable, consideration would have been given to directing the petitioner's immediate release. It is not, and, in my opinion, could not be said that the first respondent was not entitled to have regard to its assessment of the risk it considered the petitioner to present. Rule 8 of the 2001 Rules allows the first respondent to take into account any matter that it considers to be relevant, including, without prejudice to the generality, certain specified matters. One of the specified matters is the risk of a prisoner committing any offence or causing harm to another person if released on licence. Simply because the first respondent, in exercising the supervisory function required by domestic law, has focused on this particular criterion when deciding not to direct the petitioner's immediate release, does not, in my opinion, result in a failure to comply with article 5. It does not mean that the causal connection with the original sentence has been broken or that the basis of the deprivation of liberty suffered by the petitioner has come to depend upon circumstances liable to change with the passage of time. It does not, to use the language of Van Droogenbroeck v Belgium supra at paragraph 45, open up "an ensuing period of detention in which new issues affecting the lawfulness of the detention might subsequently arise".

[65]    
Mr Mitchell argued that it was anomalous to treat offenders who might have committed identical offences differently. He gave the example of two prisoners, one having received a discretionary life sentence with a punishment part of twenty years, the other having received a determinate sentence of thirty years imprisonment. Why, he asked rhetorically, should they be treated differently if an issue arose in relation to deprivation of liberty after the passage of twenty years from the commencement of their respective sentences? The former prisoner, serving an indeterminate sentence, would have what Mr Mitchell described as "a whole bundle of rights under article 5". The latter, serving a determinate sentence, would not. That, Mr Mitchell implied, was illogical and unfair. At the risk of entering upon what is no more than a recapitulation of what has gone before, there are a number of points that can be made in response to this aspect of Mr Mitchell's argument. Importantly, the distinction as between determinate and indeterminate sentences is a distinction which has been made by the European Court albeit through the process of incremental decision-making outlined above. The decision in Stafford v United Kingdom is the most recent step in that process. Consistent with the terms of section 2(1) of the Human Rights Act 1998, the distinction has been observed and applied by the courts in both Scotland and England. The distinction is not arbitrary. Mr Mitchell's examples of a discretionary life sentence with a punishment part of twenty years and a determinate sentence of thirty years imprisonment are at the extreme in terms of the seriousness of the offence which would call for such disposals. However, they are different disposals arising from different conclusions about the respective offenders being drawn by the sentencing judge. In the case of the discretionary life sentence the sentencing judge will have identified a material risk to the public presented by the offender such that it may never be appropriate to release him on licence, even although he has served that part of his sentence as satisfies the requirements for retribution and deterrence. However, the sentencing judge may be unable to predict for how long that risk will continue to present itself and how material it will continue to be. His sentence therefore defers the questions as to whether and when the offender will be released to a point distant in time when the relevant factors may have changed. Further decisions concerning the offender's liberty will, of necessity, require to be taken at that distant point in time. In the case of a determinate sentence, on the other hand, the sentencing judge will have formed the view that all relevant sentencing objectives, including protection of the public, can be satisfied by the imposition of a sentence of a term of years. The sentencing decision comprehends the whole of that term of years.

Conclusion

[66]    
I heard argument from all parties on the issue of what remedy it might be appropriate and competent for the court to pronounce in the event that I was persuaded that the petitioner's rights under article 5 had been contravened. I have not been so persuaded. Rather, I accept that the petitioner's rights under article 5(1) and article 5(4) were satisfied by the sentence pronounced by Lady Cosgrove on 21 December 1999. It follows from that that, while the first respondent's fifth plea-in-law is repelled, the first pleas in law for both respondents are upheld. I shall therefore dismiss the petition. Questions as to what remedy or remedies might be appropriate and competent are not therefore live. That being so, I do not propose to further discuss the matter of remedy. It appears to me that the question of remedy is best considered at the point when substantive rights and obligations have been established. I record, however, that without departing from his application for interim liberation (a possibly problematic remedy), Mr Mitchell accepted that where his complaint was of not being afforded a proper hearing by the first respondent, were that complaint to be upheld, it did not follow that the petitioner was thereby entitled to be released from custody. Declarator and an order which secured a further hearing for the petitioner would seem to meet the case.

[67]    
Had I come to a different decision, it would have been necessary for me to consider whether the proceedings of the first respondent on and preceding 4 November 2002 complied with article 5(4), it being the respondents' submission that they in fact did. As requested by the first respondent, I would have ordered a second hearing on that issue, having also ordered the petitioner to provide further specification of the circumstances and factual matters in dispute which are founded upon by him as indicating that article 5(4) requires an oral hearing in the present case. Only if that issue were to have been determined in favour of the petitioner would it have been necessary for me to turn to the matter of remedy.

 

 

 


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