Indeterminate prison sentences have been in effect for some years and remain controversial. The aim of them is to protect the public from dangerous criminals. However, when they were first brought in, they applied to certain offences, which meant that they were imposed based on the offence committed and not on whether the convicted defendant was in fact thought to be a danger to the public

In the case of James,[1] the European Court considered a prison sentence which was determinate for the protection of the public. The applicants had been convicted of crimes and given mandatory indeterminate sentences because of the nature of their crimes, rather than by the exercise of judicial discretion. An indeterminate sentence includes  minimum term fixed by the judge and then there i the opportunity for release. However, the applicants had not been able to demonstrate that they were rehabilitated, because they did not have access to the necessary courses to satisfy the Parole Board. Thus they were unable to obtain early release.

The House of Lords had held that there was no breach of Article 5(1),[2] unless there should be a lengthy period without effective review by the Parole Board.

However, the European Court disagreed. The lack of availability of the courses meant that, once the prisoners had served the minimum term, their indefinite detention was arbitrary. Thus, there was no possibility of effective review of there detention. The system of mandatory indeterminate sentences has since been amended so that now such sentences are always discretionary and therefore only applied where the defendant is actually a danger to the public[3].