Many of the provisions of the Criminal Law (Insanity) Act, 006 were crafted specifically with the requirements of Article the European Convention in mind

(a) The Convention authorities

In my view, any analysis of the ECHR jurisprudence on the application of Article 5(4) to preventive detention in sentence cases should start with the so-called ‘vagrancy cases’, namely De Wilde Ooms and Versyp v. Belgium (1979-80) 1 EHRR 373. In this case, a Belgian magistrate had placed the three applicants at the disposal of the Government i.e. in preventive detention, pursuant to legislation permitting this course of action in cases of vagrancy and begging. They were released after periods of 7 months, 12 months and 21 months respectively; and claimed violations of Article 5(4).

The Court discussed the meaning of Article 5(4) in some detail, together with its relationship to Article 5(1) (see paragraphs 74-8). It distinguished between two situations. First, where the decision depriving a person of his liberty is one taken by an administrative body; here, there is no doubt that Article 5(4) obliges States to give him a right of recourse to a court. Secondly, when a decision is made by a court at the close of judicial proceedings, the same does not apply:

In the latter case, the supervision required by Article 5(4) (art.5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after ‘convention by a competent court’ (Article 5(1)(a) of the Convention) (art.5.-1-a).

This explains, therefore, why a person sentenced to 10 years, for example, is not entitled under Article 5(4) to keep returning to court for reviews; in such a case, the review required was ‘incorporated’ into the original trial and sentence process.

The next question was whether the arrest or detention of a vagrant under Belgian law was ordered by a ‘court’ within the meaning of Article 5(4):

“…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 with making available to the person concerned a second authority which does provide all the guarantees of a judicial procedure. In sum, the Court considers that the intervention of one organ satisfied Article 5(4) (art.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.”

What fundamental characteristics must the ‘court’ have to fall within the meaning of Article 5(4)? The Court identified the following:

“…independence of the executive and of the parties to the case….also the guarantees of judicial procedure.”

However, the Court also allowed for a degree of flexibility once those fundamental characteristics were present:

“The forms of the procedure required by the Convention need not, however necessarily be identical in each of the cases where the intervention of a court is required. In order to determine whether a proceedings provides adequate guarantees, regard must be had to the particular nature of the circumstances in which the particular proceeding takes place….”

The deprivation of liberty in the present circumstances required a body of a high procedural level:

“The deprivation of liberty complained of by De Wilde, Ooms and Versyp resembles that imposed by a criminal court. Therefore, the procedure applicable should not have provided guarantees markedly inferior to those existing in criminal matters in the members States of the Council of Europe.”

The Court went on to find that the Dutch vagrancy procedures under consideration did not meet the standards imposed by Article 5(4).

In Van Droogenbroeck v. Belgium (1991) 13 EHRR 546, the Applicant was sentenced to two years imprisonment for theft, and placed ‘at the disposal of the Government’ for ten years on grounds of possible recidivism i.e. a form of preventive detention. After the expiry of the initial two years, the Applicant was released but subsequently re-detained for much of the next few years pursuant to executive decision on the basis of the original sentence. The Court was held that there was no violation of Article 5(1) but that there was a violation of Article 5(4). It was held that Article 5(4) may render an initially lawful detention unlawful if the detention ceases to be based on reasons that are plausible and consistent with the objectives of the relevant domestic legislation; and that he must be entitled at reasonable intervals to apply to a court within the meaning of Article 5(4) to determine whether or not the detention remains lawful. None of the remedies available to the applicant under Belgian law adequately met this requirement. The Court’s reasoning was clearly based upon its view of the detention as a form of preventive detention.
The first UK life sentence case that reached the Court was one involving a discretionary life sentence . In Weeks v. United Kingdom (1987) 10 EHRR 293, the applicant had been given a discretionary life sentence for robbery in 1966, when he was aged 17. Armed with a starting pistol loaded with blank cartridges, he had entered a pet shop and stolen 35 pence, which sum was later found on the shop floor. Later that day he gave himself up. It emerged from the evidence that he committed the robbery because he owed his mother £3. The indeterminate life sentence was imposed by the trial judge expressly on the basis that he was considered a danger to the public; and on the basis that this aspect of matters could be reviewed in the future, as he got older. This form of sentence was in accordance with the domestic jurisprudence that in certain cases, a life sentence could be imposed where it appeared ‘from the defendant’s history that he was a person of unstable character likely to commit such offences in the future’ (see paragraph 24). He was released on licence after 10 years, but subsequently re-called on numerous occasions by the Home Secretary. The Court held that Article 5(4) applied to his detention for the same reasons as it had in the Van Drooogenbroek case,
The grounds expressly relied on by the sentencing courts for ordering this form of deprivation of liberty against Mr. Weeks are by their very nature susceptible of change with the passage of time, whereas the measure will remain in force for the whole of his life. In this, his sentence differs from a life sentence imposed on a person because of the gravity of the offence…In this sense, the measure ordered against Mr. Weeks is thus comparable to the Belgian measure in the Van Droogenbroeck case, that is the placing of a recidivist or habitual offender at the disposal of the Government – although in the present case the placement was for a whole lifetime and not for a limited period…The legitimate aim (of social protection and the rehabilitation of offenders) pursued by the measure and its effect on the convicted person are substantially the same in both cases…

Applying the principles stated in the Van Droogenbroeck judgment, the formal legal connection between Mr. Weeks’ conviction in 1966 and his recall to prison some ten years later is not on its own sufficient to justify the contested detention under Article 5 para 1(a) (art.5-1 (a)). The causal link required by the sub-paragraph (a)….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…”. (paras 46-9)

The Court in the Weeks case further held that there was a violation of Article 5(4). Given that Article 5(4) applied, the applicant was entitled to apply to a ‘court’ within the meaning of Article 5(4) for a decision whether his return to custody on any occasion was consistent or not with the objectives of the sentencing court and therefore lawful or unlawful. Under the then applicable English law, the question of release was a matter for the Home Secretary advised by the Parole Board. The Court held that the Parole Board, while sufficiently independent to meet the requirements of a ‘court’ within Article 5(4), did not have other requisite powers in order to fulfill the requirements of a ‘court’ within the meaning of Article 5(4). The first deficiency identified by the Court was that the Board did not have actual power to release the applicant but merely to advise the Home Secretary. The second deficiency identified was a procedural one, namely that the Board did not have the power to fully disclose all relevant documents to the applicant. The Court further held that the remedy of judicial review from the Home Secretary’s decision in respect of the applicant did not satisfy Article 5(4) because the scope of control was limited to such issues as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’.
The next UK case also concerned an indeterminate life sentence. In Thynne, Gunnell v. Wilson (1991) 13 EHRR 666 the applicants had all been sentenced for violent and/or sexual offences to indeterminate life sentences on the basis that a life sentence of indeterminate length was necessary for each of them by way of preventive detention, in view of their dangerousness to the public. They were sentenced in 1975, 1972, and 1965 respectively. The issues for the Court were essentially the same as in the Weeks case. As the Court observed (paragraph 74):

“Each of the applicants was thus sentenced to life imprisonment because, in addition to the need for punishment, he was considered by the courts to be suffering from a mental or personality disorder and to be dangerous and in need of treatment. Life imprisonment was judged to be the most appropriate sentence in the circumstances since it enabled the Secretary of State to assess their progress and act accordingly. Thus the courts’ sentencing objectives were in that respect similar to those in Weeks, but also took into account the much greater gravity of the offences committed.”

For the first time, the Court examined the issue of the fixing of a ‘tariff’ in English law. At this time, the domestic legal position was that a tariff was communicated by the judges to the Secretary of State (in both mandatory and discretionary life sentence cases); this represented the judge’s recommendation as to the date for first review; and the Secretary of State was not bound by the judicial view of the tariff. What is important to recognize is that the Court looked to domestic law for the correct view as to how the sentence should be characterized, and found it to be, under domestic law, a sentence split into two parts; first punitive, then preventive (see paragraph 73):

“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 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 recognised the protective purpose of this form of life sentence….Although the dividing line may be difficult to draw in particular 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 responsibility for determining when the public interest permits the prisoner’s release. The 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.”

Given that Article 5(4) applied to the ‘preventive’ component of each life sentence, the Court applied Weeks to find that Article 5(4) was violated by the absence of access to a ‘court’ within the meaning of Article 5(4) for the applicant once the punitive ‘tariff’ period had expired. Once again it confirmed that neither the Parole Board (with the same powers as it had in Weeks) nor judicial review proceedings satisfied the requirements of Article 5(4).
It may be noted that the Court in the Thynne et al case specifically referred to the mandatory life sentence as falling into a different category of sentence altogether:
“…the objectives of the discretionary life sentence as seen above are distinct from the punitive purposes of the minatory life sentence and have been so described by the courts in the relevant cases…”. (paragraph 74)
Following the decision in Thynne, Gunnell and Wilson, changes to the regime governing discretionary life prisoners were introduced by the Criminal Justice Act, 1991. Pursuant to section 34 of the Act, (i) the tariff of a discretionary lifer is fixed in open court by the trial judge following conviction; and (iii) After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if satisfied that his detention is no longer necessary for the protection of the public. Pursuant to Rules, the prisoner is entitled to an oral hearing; disclosure of all relevant evidence; legal representation; and the right to call witnesses and cross-examine witnesses who have written reports about him. These procedures did not originally apply to either mandatory life prisoners or juveniles detained ‘at HM pleasure’.
The next number of cases before the ECHR involved challenges to the procedures involving juveniles detained ‘at HM pleasure’.
In Hussain v. United Kingdom (1996) 22 EHRR 1, the juvenile applicant (aged 16) was convicted of murder of his 2-year old brother, and sentenced to detention during Her Majesty’s pleasure. The effect of this was that he was liable to detention in such conditions as the Secretary of State might direct. More than six years after his trial, a tariff of 15 years was set by the Secretary of State in consultation with the trial judge and the Chief Justice. It is interesting to note that in its review of domestic law concerning the fixing of tariffs in relation to life sentences and detention at HM pleasure, the Court referred, inter alia, to a statement of policy issued by Sir Leon Brittan (then Secretary of State) in 1983 indicating clearly that release on licence following expiry of the tariff depended on whether the person considered no longer to pose a risk to the public (see paragraph 31).
The Court assimilated the sentence of detention at HM pleasure to the discretionary life sentence in Weeks, and Thynne et al, on the basis that the rationale of the detention was preventive (see paragraphs 53-4):

“In the case of young persons convicted of serious crimes, the corresponding sentence undoubtedly contains a punitive element and accordingly a tariff is set to reflect the requirements of retribution and deterrence. However 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.

These considerations, centred on an assessment of the young offender’s character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any development in the young offender’s personality and attitude as he or she grows older. A failure to have regard to the changes that inevitably occur with maturation would mean that young persons detained under section 53 would be treated as having forfeited their liberty for the rest of their lives, a situation which…might give rise to questions under Article 3 (art.3) of the Convention [i.e. the prohibition on torture and inhuman or degrading treatment]…Against this background the Court concludes 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 could arise in the course of his detention and the applicant was entitled, under Article 5(4), to take proceedings to have this issue determined by a court within the meaning of Article 5(4) at reasonable intervals.

In V v. UK, T v. UK (2000) 30 EHRR 121, two juvenile applicants were convicted of the abduction and murder of a two-year old boy and sentenced to be detained during Her Majesty’s pleasure. A tariff period of 15 years was set by the Secretary of State. It was that there was both a violation of Article 6 and of Article 5(4). Article 6 applied to the fixing of the tariff, which the Court held to be part of the sentencing exercise, which could not lawfully be carried out by the Secretary of State as he was not independent of the Executive as required by Article 6. As in the previous cases, the period of detention after the tariff was subject to Article 5(4) principles because the only justification for the continued detention could be the dangerousness of the applicant, a characteristic subject to change.
The Court examined the mandatory life sentence for murder in respect of murder on two occasions. The decision in Wynne v. UK (1995) 19 EHRR 33 is of particular interest for present purposes. Here the Court held that the mandatory life sentence for murder (adult) did not violate Article 5(4) and distinguished its decisions on indeterminate life sentences (juveniles and adults) from the mandatory life sentence on the basis of domestic UK law as it existed at that time. The applicant was convicted of murder in 1964 and sentenced to life imprisonment. After his release in 1980, he killed another person and was convicted of manslaughter. He received a discretionary life sentence and his life licence was revoked. A tariff was fixed in his case by the Secretary of State. Having served the tariff for murder, he claimed that he was entitled to the protection of Article 5(4) as regards the remainder of his sentence. The Court held that there was no violation of Article 5(4). His detention was based on the mandatory life sentence which remained in force. The rationale that applied to indeterminate life sentences did not apply to the mandatory life sentence (see paragraph 35):

“…the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender…That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff is also established in such cases…does not alter this essential distinction between the two types of life sentence…Against the above background, the Court sees no cogent reasons to depart from the finding in the Thynne, Wilson and Gunnell case that, as regard mandatory life sentence, the guarantee of Article 5(4) (art.5-4) was satisfied by the original trial and appeal proceedings and confers no add ional right to challenge the lawfulness of the continuing detention or re-detention following the revocation of the life sentence…”.

However, in an apparent u-turn, in the more recent case of Stafford v. UK (2002) 35 EHRR 1121, the Court held, inter alia, that Article 5(4) required the post-tariff period of the mandatory life sentence for murder in the UK to be subject to the periodic review by a ‘court’ within the meaning of Article 5(4), as was already the position with the discretionary life sentences. The Applicant had been convicted of murder in 1967 and released on licence in 1979. The question arose as to the lawfulness of a subsequent licence revocation in circumstances where he had been convicted of non-violent offences (fraud). However, it is important to note that the Court specifically said that its new position on the mandatory life sentence in the UK was based on developments in domestic UK law, according to which the law and practice as between discretionary life sentences and mandatory life sentences had become indistinguishable. Even as early as in the Wynne case, the Court had described the situation in UK domestic law as one in which ‘the two types of life sentence may now be converging’; although it took the view that at that time (1994) there was still a ‘substantial gap’ between them in terms of both the underlying theory and the practice (see paragraph 35 of Wynne judgment). By 2002, the theory and practice in the UK concerning both the discretionary and mandatory life sentences had actually converged. This was made clear, in the Court’s view (see paragraph 45) by the domestic decision in R. (Lichniak and Pyrah) v. Secretary of State for the Home Department [2001] 3 WLR, in which the applicants had claimed that the mandatory life sentence for murder violated Articles 3 and 5 of the Convention. The Court of Appeal held that the mandatory life sentence was in reality an indeterminate sentence, rarely involving imprisonment for life , and as such could not be labeled ‘inhuman or degrading’ nor ‘arbitrary’. In R (Anderson v. Taylor) v. Secretary of State for the Home Department, the Court of Appeal took the view that the tariff-fixing exercise served precisely the same function in the case of mandatory life sentences and discretionary life sentences. The court also referred to legislative developments in Scotland and Northern Ireland where the same division between tariff (punitive period) and post-tariff (preventive detention) was made in the case of the mandatory life sentence. The Court’s decision to reach a conclusion different to that in the Wynne case was based on the fact that domestic UK law had altered in the meantime:

“While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases…the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved….Similar considerations apply as regards the changing conditions and any emerging consensus discernible within the domestic legal order of the respondent Contracting State. Although there is no material distinction on the facts between this case and Wynne, having regard to the significant developments in the domestic sphere, the Court proposed to reassess ‘in light of present-day conditions’ what is now the appropriate interpretation and application of the Convention…”. (paragraphs 68-9, emphasis added)

The Court went to summarise the legal developments in the UK and concluded that there had been an ‘evolving analysis’ (para 78) of the role of the Secretary of State concerning life sentences; and that the current position was that:

“…it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers…..”.

In Easterbrook v. UK (2003) 37 EHRR 40, the Court applied the logic of its previous decisions (particularly V v. UK and Stafford v UK, supra) to the issue of tariff-fixing in the case of adult offenders. The applicant was convicted of robbery and sentenced to life imprisonment in 1988. No tariff was fixed by the trial at that time. The Secretary of State issued a certificate to the effect that the CJA 1991 provisions, which provided for judicial guarantees in tariff-fixing and release after the expiry of the tariff, would not apply to the prisoner; he was in effect to be treated as if he were a mandatory life prisoner under the Act. Nine years after his sentence, the Secretary of State then fixed his tariff at 16 years. The Court found that there had been a breach of Article 6(1) of the Convention in two respects; (i) in that the tariff had not been fixed by the sentencing judge but rather the Home Secretary; and (ii) given the delay in the fixing of the tariff which was part of the sentencing exercise.