PARTLY DISSENTING OPINION OF JUDGE DE MEYER

I believe that there was in this case also a breach of the first paragraph of Article 5 (art. 5-1). My reasons for that conclusion are as follows.

1.   The sentence imposed upon the applicant, though formally a life sentence, was in fact an indeterminate sentence.

It was explicitly so qualified, both at the Hampshire Assizes and at the Court of Appeal, by the judges who dealt with his c ase [1] .

They simply meant to enable him to be "released much sooner than if a long term of im prisonment had been imposed" [2] . They wanted to act "in mercy to the boy" [3] . It cannot be assumed that their real intention was to put him on a life-time ’ s leash to be drawn back at any moment.

2.   Life imprisonment in its ordinary sense would indeed have been a punishment too "terrible" [4] for a somewhat aggressive young man of seventeen, guilty of robbing - after menacing his victim with a starting pistol loaded with blank cartridges - a sum of 35 old pence, whi ch he did not even take away [5] . It would have exceeded any reasonable relationship of proportionality with what actually happened. It would have been what the Eighth Amendment to the Constitution of the United States of America calls "cruel and unusual punishment", and what Article 3 (art. 3) of the European Convention on Human Rights terms "inhuman punishment".

3.   The sentence was also unique.

In their answer to one of the questions put by the Court subsequent to the hearing held on 17 March 1986, the respondent Government stated that they "were not aware of any other cases where young people were given life sentences for non-homicide where the circumstances of the offence were comparable to those in the Weeks case" [6] ; they further admitted, referring to recent case-law, that "it is obviously open to question whether, if the criteria now followed by the Court of Appeal had been strictly applied" in the applicant ’ s case, "a life sentence would have been passed and upheld" [7] .

4.   In executing the sentence, special care and caution were therefore required.

In the circumstances of the case, the sentence of life imprisonment, as explained by Mr. Justice Thesiger [8] and by Lord Justice Salmon [9] , entitled the Home Secretary to keep the applicant in prison only for such a period of time as was really necessary.

5.   When the applicant was first released on licence ( 31 March 1976 ), more than nine years had elapsed since he was sentenced at the Hampshire Assizes ( 6 December 1966 ).

Except for his mental breakdown in 1969 and his subsequent stay at Grendon Underwood in 1970, the pleadings, arguments and documents submitted to the Court reveal nothing either about his behaviour while detained, until his escape from Swansea Prison at the end of 1974, or about any consideration which might have been given to his situation by the authorities responsible for the execution of the sentence, before the Parole Board ’ s recommendation that same year.

Neither has anything been submitted to justify why so much precious time was wasted.

In 1974, the applicant ’ s detention had already lasted long enough to have lost any reasonable connection, not only with the offence he was sentenced for, but also with the necessity of protecting the public and promoting his rehabilitation.

It was still technically legal under the terms of the judicial decision on which it was founded and which it was supposed to execute. It had, however, ceased to be lawful, since it had gone far beyond the real object and purpose of that decision.

It could therefore no longer be considered as "the lawful detention of a person after conviction by a competent court".

Neither could it be further justified on any other ground.

6.   The applicant has been involved in a certain number of incidents since 1974 [10] .

These incidents cannot justify the length of his detention until 1974 [11] .

7.   Accordingly, the applicant ’ s detention had ceased to be compatible with Article 5 para. 1 (art. 5-1) of the Convention.

[*]  Note by the Registrar: The case is numbered 3/1985/89/136.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] See paragraphs 14 and 15 of the judgment.

[2] See the remarks of Lord Justice Salmon, quoted in paragraph 15 of the judgment.  See also those of Sir Patrick Mayhew at the hearing of 17 March.

[3] See again the remarks of Lord Justice Salmon as quoted ibid.

[4] See the remarks of Mr. Justice Thesiger, quoted in paragraph 14 of the judgment, and those of Lord Justice Salmon, quoted in paragraph 15 of the judgment.

[5] See paragraph 12 of the judgment.

[6] Document Cour (86) 90, p. 3.

[7] Ibid., p. 4.

[8] See paragraph 14 of the judgment.

[9] See paragraph 15 of the judgment.

[10] See paragraphs 16-23 of the judgment.

[11] See also the remarks of Judge Streeter at Maidstone Crown Court on 3 October 1977 , mentioned in paragraph 19 of the judgment.