Source: All England Reporter
Publisher Citation: [2002] All ER (D) 60 (Jul)
Neutral Citation: [2002] EWCA Civ 951
Court: Court of Appeal, Civil Division
Judge:

Kennedy, May and Tuckey LJJ
Representation David Pannick QC and Eleanor Grey (instructed by the Treasury Solicitor) for the Secretary of State.
  Edward Fitzgerald QC and Philippa Kaufmann (instructed by Irwin Mitchell, Sheffield) for the claimant.
Judgment Dates: 4 July 2002

Catchwords

Human rights - Liberty - Detention - Lawfulness - Custodial sentence including element of prevention - Judge imposing longer sentence than commensurate with offence as offender danger to public - Whether convention rights requiring periodic review of lawfulness of detention whilst serving preventative element of sentence - s 2(2)(b) - European Convention on Human Rights, art 5(4).

The Case

A sentence imposed by a judge pursuant to his powers under s80(2)(b) of the to impose a sentence longer than it would otherwise be, because the judge was of the opinion that it was necessary to protect the public from serious harm from the offender, was a determinate sentence as it could not exceed the statutory maximum for the index offence. It did not, therefore, hand over to the executive the decision as to when the offender should be released. Moreover, the decision to impose the longer term was plainly a judicial decision every aspect of which was subject to appeal so that the supervision required by art5(4) was incorporated into the decision.

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