CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23389/94                       by Prem SINGH                       against the United Kingdom         The European Commission of Human Rights sitting in private on 30 June 1994, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            E. BUSUTTIL            G. JÖRUNDSSON            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       Mr.   F. MARTINEZ       Mrs. J. LIDDY       MM.   J.C. GEUS            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            N. BRATZA            J. MUCHA         Mr.   H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 19 November 1993 by Prem Singh against the United Kingdom and registered on 7 February 1994 under file No. 23389/94;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       12 May 1994 and the observations in reply submitted by the       applicant on 15 June 1994;   -      the observations submitted by the parties at the oral hearing on       30 June 1994;         Having deliberated;         Decides as follows:   THE FACTS   a.     The particular circumstances of the case         The applicant is a British citizen born in 1957 and currently detained in HM Prison Morfield. He is represented before the Commission by Messrs Rodney King, solicitors practising in Bristol. The facts as submitted by the parties may be summarised as follows.         In 1973, the applicant, aged 15, was convicted of murder and sentenced to be detained at Her Majesty's pleasure.         In October 1990, after completing the "tariff" part of his sentence, the applicant was released on licence.         On 10 March 1991, the applicant was arrested and interviewed by the police in relation to alleged offences of obtaining by deception.         On 12 March 1991, the Parole Board considered the applicant's case.         On 21 March 1991, the applicant's licence was revoked on the recommendation of the Parole Board. The applicant was given formal notice of the revocation of his licence under section 62 (1) of the Criminal Justice Act 1991. The reasons given were that:         i.    reports indicated that the applicant had lied to and misled            his supervising officers and avoided telling them of a            variety of significant events following his release on            licence;         ii.   his arrest and subsequent appearance in a magistrates court            on several criminal charges including fraud and using            threatening behaviour rendered it impossible for the            Secretary of State to be satisfied that the applicant's            continued presence in the community did not constitute a            risk to the public.         By letter dated 27 August 1991, the Chief Probation Officer clarified that the basis of his recall was not the alleged offences, which were for the court to decide, but rather the circumstances surrounding the offences which demonstrated conclusively that the trust and openness necessary to supervise him in the community were not there. The matters concerning which he had failed to inform his supervisors included his obtaining employment with a pizza firm, having a relationship and being less than honest about his background and circumstances and running up considerable debts.         The applicant made representations to the Parole Board concerning his recall. The Parole Board had before it a number of reports from the probation service and the police. The applicant did not see these reports. On 19 December 1991, the Parole Board declined to make a positive recommendation for the applicant's release.         On 2 March 1992, the criminal charges against the applicant were dismissed when the judge refused to sign the indictments presented by the prosecution out of time. A voluntary bill of indictment was refused on 9 April 1992.         Following the applicant's application for his case to be reconsidered in light of this development, the Secretary of State referred the case back to the Parole Board to seek their advice under section 61 (1) of the 1967 Act. On 30 July 1992, the Parole Board again declined to recommend the applicant's release.         The applicant sought judicial review of the decisions of the Parole Board of 19 December 1991 and 30 July 1992.         On 20 April 1993, the Divisional Court of the High Court quashed the Parole Board's decision of 19 December 1991 on the basis that there had been a breach of the rules of natural justice because of the failure to disclose to the applicant all the reports placed before it. It held that the   applicant was entitled to a fresh hearing under section 39(4) of the Criminal Justice Act 1991. Lord Justice Evans found, inter alia:         "<the applicant's> status is that of a person whose continued       detention can only be justified if the test of dangerousness,       meaning an unacceptable risk of physical danger to the life or       limb of the public, is satisfied."         He commented that the disclosed facts "scarcely seem able to support a positive answer to the question" whether the applicant posed a danger to the life or limb of the public.         The Parole Board reconsidered the applicant's case after he had sight of the reports and the opportunity to make detailed submissions rebutting the allegations made against him.         On 18 June 1993, the Parole Board rejected the applicant's representations and did not recommend release. It gave as its reasons:         "The Panel accepted that <the applicant's> representations       answered some of the matters which were of concern to his       probation officer. However, there was a lack of openness in his       dealings with the Probation Service. The Panel also considered       that the conduct which led to the criminal charges indicated a       serious kind of deceptiveness. His behaviour under supervision       led the Panel to conclude that the nature of his personality had       not changed significantly since the original offence at the age       of 15. His failure to comply with the discipline of licence       supervision, bearing in mind the original offence, gives rise to       considerable concern."         The applicant instituted judicial review proceedings seeking to challenge the Board's decision. These proceedings were withdrawn on or about 7 March 1994 in light of the fact that the applicant had been offered an early review of his case before the Board. The Parole Board considered the applicant's case and has sent its findings to the Secretary of State, whose decision is pending.     b.    The relevant domestic law and practice         Detention at Her Majesty's pleasure         Section 53(1) of the Children and Young Persons Act 1933 (as amended) provides:         "A person convicted of an offence who appears to the Court to       have been under the age of eighteen years at the time the offence       was committed shall not, if he is convicted of murder, be       sentenced to imprisonment for life nor shall sentence of death       be pronounced on or recorded against any such person but in lieu       thereof the court shall ... sentence him to be detained during       Her Majesty's pleasure and, if so sentenced he shall be liable       to be detained in such a place and under such conditions as the       Secretary of State may direct."         Categorisation of detention "at Her Majesty's pleasure"         In the present case on 20 April 1993, Evans LJ in the Divisional Court held as follows in respect of detention "at Her Majesty's pleasure":         "At the time of sentencing, the detention orders under section       53 were mandatory.   It is indeed the statutory equivalent for       young persons of the mandatory life sentence for murder.   But the       sentence itself is closer in substance to the discretionary       sentence of which part is punitive (retribution and deterrence)       and the balance justified only by the interests of public safety       when the test of dangerousness is satisfied.   The fact that the       mandatory life prisoner may be given similar rights as regards       release on licence does not alter the fact that the mandatory       life sentence is justifiable as punishment for the whole of its       period: see R. v. Secretary of State, ex.p. Doody & others [1993]       Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).   The order       for detention under section 53 is by its terms both discretionary       and indeterminate: it provides for detention 'during Her       Majesty's pleasure'. (Section 53(4) which expressly authorised       the Secretary of State to discharge the detainee on licence 'at       any time' was repealed by the Parole Board provisions of the       Criminal Justice Act 1967, but this does not, in my judgment,       alter the nature of the sentence in any material respect.)   I       would decide the present case on the narrow ground that,       notwithstanding Home Office and Parole Board practice, the       applicant should be regarded as equivalent to a discretionary       life prisoner for the purpose of deciding whether Wilson rather       than Payne governs his case."         Release on licence and revocation of licences         i. Provisions in force prior to   1 October 1992         Section 61 (1) of the Criminal Justice Act 1967 provided inter alia:         "The Secretary of State may if recommended to do so by the Parole       Board, release on licence a person serving a sentence of       imprisonment for life or a person detained under section 53 of       the Children and Young Persons Act 1933 (young offenders       convicted of grave crimes), but shall not do so in the case of       a person sentenced to imprisonment for life or to detention       during Her Majesty's pleasure or for life except after       consultation with the Lord Chief Justice of England together with       the trial judge if available."         Section 62 of the 1967 Act provided inter alia:         "1. Where the Parole Board recommends the recall of any person       who is subject to a licence under section 60 or 61 of this Act,       the Secretary of State may revoke that person's licence and       recall him to prison.         2. The Secretary of State may revoke the licence of any such       person and recall him as aforesaid without consulting the Board,       where it appears to him that it is expedient in the public       interest to recall that person before such consultation is       practicable."         3. A person recalled to prison under the foregoing provisions of       this section may make representations in writing with respect to       his recall and shall on return to prison be informed of the       reasons for his recall and of his right to make such       representations...         5. Where the Board recommends the immediate release on licence       of a person whose case is referred to it under this section, the       Secretary of State shall give effect to the recommendation, and       where it is necessary for that purpose to release that person       under subsection (1) of the last foregoing section, the Secretary       of State shall do so without the consultation required by that       subsection...".         ii. Provisions in force from 1 October 1992         On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force.         Section 35 of the 1991 Act provides as relevant:         (2) If recommended to do so by the Board, the Secretary of State       may, after consultation with the Lord Chief Justice together with       the trial judge if available, release on licence a life prisoner       who is not a discretionary life prisoner."         Section 39 provides as relevant:         (1) If recommended to do so by the Board in the case of a long       term or life prisoner who has been released on licence under this       Part, the Secretary of State may revoke his licence and recall       him to prison...         (4) The Secretary of State shall refer to the Board -              (a) the case of a person recalled under subsection (1)            above ...         (5) Where on a reference under subsection (4) above the Board -              (a) directs in the case of a discretionary life prisoner;              or              (b) recommends in the case of any other person,         his immediate release on licence under this section, the       Secretary of State shall give effect to the direction or       recommendation."   COMPLAINTS         The applicant complains of a violation of Article 5 para. 4 of the Convention.   He submits that he should be entitled to have the legality of his continued detention determined by a "court" and that the Parole Board in its powers and procedures fails to offer the requisite safeguards. He considers that his position is akin to that of discretionary lifers after the expiry of the punitive phase of detention and relies on the reasoning of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell (Eur. Court H.R., Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A).   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 19 November 1993 and registered on 7 February 1994.         On 5 April 1994, the Commission decided to communicate the application to the Government, to ask for written observations on the admissibility and merits of the application and to invite the parties to an oral hearing to be held consecutively with the hearing in the case of Abed Hussain v. the United Kingdom, Application No. 21928/93.         The Government's observations were submitted on 12 May 1994 and the applicant's observations in reply were   submitted on 15 June 1994.         On 24 June 1994, the Commission decided to grant legal aid to the applicant.         At the hearing, which took place on 30 June 1994, the parties were represented as follows:   For the Government   Mr. Iain Christie            Agent Mr. David Pannick Q.C        Counsel Mr. Harry Carter             Adviser Ms Helen Bayne               Adviser Ms Joy Hutcheon              Adviser   For the applicant   Mr. Edward FitzGerald        Counsel Mr. Rodney King              Solicitor Mr. John Kilminster          Solicitor Mr. Klaus-Joerg Diwo         Lawyer Ms Kate Akester              Adviser     THE LAW         The applicant, who is serving a sentence of detention at Her Majesty's pleasure, complains of the absence of any procedure under domestic law by which he can have reviewed by a court the lawfulness of his continued detention. He invokes Article 5 para. 4 (Art. 5-4) of the Convention, which provides:         "Everyone who is deprived of his liberty by arrest or detention       shall be entitled to take proceedings by which the lawfulness of       his detention shall be decided speedily by a court and his       release ordered if the detention is not lawful."         The respondent Government submit that detention at Her Majesty's pleasure is to be equated with the term of mandatory life imprisonment for adults and is in effect the equivalent sentence imposed on juveniles. It is therefore to be regarded as a sentence fixed by law in respect of the gravity of the offence concerned. They submit that mandatory and discretionary life sentences differ in fundamental respects, both in nature and applicable procedures. Pursuant to the judgments of the Court, Article 5 para. 4 (Art. 5-4) does not grant an entitlement   to a prisoner serving a mandatory life sentence to periodic judicial assessment of the grounds for his detention after the expiry of his tariff (cf. Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, and Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A). The requirements of Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original trial and appeal proceedings of the applicant.         The Government further consider that the applicant cannot claim any right to special treatment on the basis that he was in fact released on licence and later recalled. In any event when he was recalled, the applicant had the opportunity to make representations to the Parole Board in circumstances where it did have power to order his immediate release and this would, assuming Article 5 para. 4 (Art. 5-4) required a review at this stage, satisfy the requirements of that provision.         The applicant submits that detention at Her Majesty's pleasure is a wholly indeterminate sentence based on the special factor of youth. It should be assimilated to discretionary life sentences for adults in respect of which the European Court of Human Rights has held that Article 5 para. 4 (Art. 5-4) of the Convention requires judicial rather than executive control after the expiry of the punitive or "tariff" part of their sentence. Since the only justification for his detention is risk or "dangerousness", which is a factor susceptible to change, the applicant submits that he should have a review of the lawfulness of his continued detention by a body satisfying the guarantees of Article 5 para. 4 (Art. 5-4) of the Convention. He would also argue that the fact that he had been released from prison and that this liberty was removed from him in itself called for a judicial review of the merits of the case for re-detention.         The applicant submits that the procedure for release on licence of detainees at Her Majesty's Pleasure does not generally satisfy the requirements of Article 5 para. 4 (Art. 5-4) since the Parole Board, save immediately after recall, is unable to order release, the ultimate decision resting with the executive. There is no provision for an oral hearing before the Board or for an applicant to call his own witnesses or to question the witnesses against him. Even though on his recall the Parole Board enjoyed the power to direct his immediate release, the applicant submits that since the Board had initially recommended his recall, it could not be considered as independent or impartial in reviewing whether he should nonetheless be released. Further, given that the Board reached its initial decision refusing release 9 months after the applicant was recalled to prison, the requirement of speed in Article 5 para. 4 (Art. 5-4) was not complied with.         The Commission has taken cognizance of the submissions of the parties concerning the complaints raised by the applicant. It considers that the complaints raise serious issues of fact and law the determination of which should depend on an examination on the merits. The application cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Commission             President of the Commission         (H.C. KRUGER)                          (C.A. NØRGAARD)