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The
specifically left the issue of his further detention to the Home Office, but with the recommendation that he be left at liberty. decision to continue the detention of the applicant was taken by the Parole Board and not a "court" within the meaning of Art. 5(1)(a).
In the case of X v. United Kingdom (judgment of 5 November 1981) the European Court of Human Rights suggested, in the context of Art. 5(1)(a), that the enjoyment of a lengthy period of liberty on conditional release might give rise to some doubt as to the continued applicability of this paragraph.
It is submitted that for the detention to be "lawful" within the meaning of Art. 5(1)(a), the detention must follow and be dependent A minor conviction, not sufficiently upon the previous conviction.
serious to warrant a sentence of detention, could not be used to justify the reimposition of an earlier sentence imposed as a result of an unrelated previous conviction. In the present case the period of release on licence was of such length that it was no longer open to the Home Office to rely on the 1967 conviction to justify his further detention some ten years later, after fifteen months of liberty. 1977 convictions were substantially different in kind from those of 1967. The court itself, after a full hearing, at which the applicant was legally represented, recommended that he should not be detained and imposed a non-custodial sentence first.
The
Apart from the period during which the applicant was unlawfully at liberty from November 1979 until June 1980 the applicant has remained in detention since October 1977.
Article 5(4)
The sentence of life imprisonment imposed on the applicant in 1967 was determined by his alleged immaturity and emotional instability. In the applicant's submission, this is assimilable to, although not the equivalent of, "unsoundness of mind".
The European Court of Human Rights, in the cases of Winterwerp the Netherlands and X v. United Kingdom has held that in
cases of mental illness there must be procedure for periodic review of a judicial character of the continued detention of a mental patient in order to see whether the conditions justifying detention have changed.
It is submitted that this safeguard ought also to apply when a sentence of indeterminate detention is based on the change of a mental state falling short of mental illness. He submits that "immaturity" and "emotional instability" are psychological qualities which, by their very nature, change over a period of time and are subjectively assessable with the assistance of suitable qualified medical practitioners.
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