PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, LAGERGREN, SIR VINCENT EVANS AND GERSING

We share the view of our colleagues that the imposition of a penalty of such severity as life imprisonment in the circumstances of this case (as they appear in the material before the Court) can be comprehended only in the light of the explanation given by Mr. Justice Thesiger and Lord Justice Salmon that, although seemingly "terrible", it was passed with merciful intent. It is true that in this connection the judges emphasised that the sentence was "indeterminate", in that it did not predetermine the period for which Mr. Weeks should remain in custody but left this to the discretion of the Secretary of State. Nevertheless, there can be no doubt whatever that both the sentencing judge and the Court of Appeal were fully aware and must be understood to have intended that, in the absence of the exercise of the Royal Prerogative to pardon Mr. Weeks or to remit or reduce his sentence, he would remain subject thereto with its consequences for the restriction of his liberty for the rest of his life. As a matter of English law therefore and for all practical purposes, the life sentence imposed on Mr. Weeks is indistinguishable from any other sentence of life imprisonment imposed by the English courts. Consequently, we are unable to agree with the majority of the Court that it was in a special category distinguishing it from other life sentences (paragraph 46 of the judgment) and was comparable, for the purposes of Article 5 paras. 1 (a) and 4 (art. 5-1-a, art. 5-4) of the Convention, to the Belgian measure at issue in the Van Droogenbroeck case, that is the placing of a recidivist or habitual offender at the disposal of the Government (paragraph 47 of the judgment).

In the Van Droogenbroeck case, as the Court pointed out, the sentence imposed on the applicant under Belgian law had two components - he was sentenced to two years ’ imprisonment as a penalty for the offences of theft and attempted theft of which he was convicted and, as a recidivist, he was also placed by the court at the Government ’ s disposal for an additional period of ten years pursuant to the "Social Protection" Act of 1964, a measure the execution of which could take different forms ranging from remaining at liberty under supervision to detention (see judgment of 24 June 1982, Series A no. 50, p. 9, para. 9, and p. 21, para. 39). In that case, the Court agreed with the Commission that the Belgian system for the treatment of recidivists which was at issue was "fundamentally different from that ... 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" (ibid., p. 25, para. 47). In our opinion, the measures to which Mr. Weeks was subject fall squarely within the latter category. And it has to be borne in mind that the alternative sentence considered by the British judges was a lengthy determinate sentence.

While, therefore, we agree with the conclusion of the majority of the Court that the applicant ’ s recall to prison in 1977 and his subsequent detention were compatible with sub-paragraph (a) of Article 5 para. 1 (art. 5-1-a) (paragraph 53 of the judgment), we do so for rather different reasons and we do not agree with the conclusion of the majority that there has been a violation of Article 5 para. 4 (art. 5-4). On both aspects of the case, our views are the same as those of the minority in the Commission.

Article 5 para. 1 (a) (art. 5-1-a)

The question at issue is whether the detention of Mr. Weeks following his recall to prison in 1977 was "the lawful detention of a person after conviction by a competent court". We accept that the word "after" in sub-paragraph (a) does not simply mean that the detention must follow the conviction in point of time but "must result from, follow and depend upon or occur by virtue of the conviction" (paragraph 42 of the judgment). It is not disputed that, though severe, the life sentence imposed on Mr. Weeks was one which the British judges could properly give under English law, and in fact gave, for a crime of which he had been convicted after a proper trial. Nor is it contested that his recall to prison in 1977 and subsequent detention were in accordance with domestic law. In the terms of section 62(9) of the Criminal Justice Act 1967, he was re-detained "in pursuance of" his original life sentence. This meant that he continued to serve his sentence, the sentence imposed by the trial court. In our opinion, these elements were enough to satisfy the requirements of Article 5 para. 1 (a) (art. 5-1-a).

Article 5 para. 4 (art. 5-4)

It is well established in the Court ’ s jurisprudence that when the decision depriving a person of his liberty is made by a court at the close of judicial proceedings the supervision required by Article 5 para. 4 (art. 5-4) is incorporated in that decision (see, inter alia, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 40, para. 76). Inasmuch therefore as Mr. Weeks continued to serve the sentence imposed by the trial court, no further provision is required by Article 5 para. 4 (art. 5-4) to enable him to take proceedings to test the lawfulness of his detention.

We accept, of course, that what has just been said relates only to the initial decision (in this case the sentence of imprisonment) depriving a person of his liberty and that the ruling referred to in the De Wilde, Ooms and Versyp judgment does not go beyond this. Further issues of lawfulness could arise concerning decisions taken by the authorities in exercise of their power of release and recall in regard to the execution of the sentence. However, Mr. Weeks did not dispute the lawfulness of his recall or detention in terms of English law. If he had wished to challenge the decisions of the authorities relevant to his recall or re-detention on grounds of "illegality", "irrationality" or "procedural impropriety", he would have had available to him a remedy before the ordinary courts by way of an application for judicial review, which could be granted speedily.

We conclude, therefore, that there was no violation of Article 5 para. 4 (art. 5-4) in the present case.