Scottish Human Rights Law Group

Article 5(4) – the right to court proceedings to challenge the lawfulness of detention

The petitioner challenged the compatibility with Article 5(4) of a decision by the Scottish Ministers to revoke his licence discharging him from prison without first consulting the parole board (although the decision was subsequently affirmed by the parole board). 

The petitioner had been released in 1998 after serving 13 of 29 years for assault, robbery and prison breaking but was arrested in July 1999 and charged with being concerned in the supply of cannabis.   In dismissing the challenge the court held that looking at the system as a whole, the decision to continue the petitioner’s detention was that of the parole board in affirming the decision of the Scottish Ministers.  In any event the petitioner had been sentenced to a determinate sentence in relation to which (in contrast to a discretionary (life) sentence)  there were no factors susceptible to change with the passage of time which might require periodic review of the lawfulness of detention.   Accordingly the petitioner’s rights under Article 5(4) for a court to determine the lawfulness of his detention were satisfied by his  original trial and sentence procedure in 1985. 

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