CEDH · CASELAW;REPORTS;ENG — 11 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 23389/94                                 Prem Singh                                   against                             the United Kingdom                           REPORT OF THE COMMISSION                        (adopted on 11 October 1994)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-55). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 19-35). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 36-55). . . . . . . . . . . . . . . . . . . . . . 6   III.   OPINION OF THE COMMISSION       (paras. 56-82). . . . . . . . . . . . . . . . . . . . . . . .11         A.   Complaint declared admissible           (para. 56). . . . . . . . . . . . . . . . . . . . . . . .11         B.   Point at issue           (para. 57). . . . . . . . . . . . . . . . . . . . . . . .11         C.   Article 5 para. 4 of the Convention           (paras. 58-82) . . . . . . . . . . . . . . . . . . . . . 11              1.     Applicability of Article 5 para. 4 to release                  on licence (paras. 59-66). . . . . . . . . . . . .11              2.     Compliance with the requirements of Article 5                  para. 4 (paras. 67-81) . . . . . . . . . . . . . .13         CONCLUSION       (para. 82). . . . . . . . . . . . . . . . . . . . . . . . . .16   APPENDIX I:       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .17   APPENDIX II:      DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION   . . . . . . . . 18   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Prem Singh, a British citizen born in 1957 and currently serving a sentence of imprisonment in HM Prison Morfield. He is represented by Mr. Rodney King, a solicitor practising in Bristol, and Mr. Edward FitzGerald, counsel practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Iain Christie, Foreign and Commonwealth Office, as Agent.   4.     The case concerns the complaints of the applicant that he is unable to obtain a review by a court of the lawfulness of his continued detention at Her Majesty's pleasure contrary to Article 5 para. 4 of the Convention.   B.     The proceedings   5.     The application was introduced on 25 January 1994 and registered on 7 February 1994.   6.     On 5 April 1994, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application with a view to holding a hearing consecutive to that in the case of Abed Hussain v. the United Kingdom, No. 21928/93.   7.     The Government submitted their written observations on 12 May 1994.   The applicant submitted his written observations in reply on 16 June 1994.   8.     At the hearing which was held on 30 June 1994, the Government were represented by   Mr. Iain Christie, as Agent, Mr. David Pannick Q.C., Counsel, and Mr. Harry Carter, Ms Helen Bayne and Ms Joy Hutcheon as Advisers. The applicant was represented by Mr. Edward FitzGerald, Counsel, Mr. Rodney King, Solicitor, and Mr. John Kilminster, Solicitor.   9.     On 30 June 1994, the Commission declared the application admissible.   10.    The parties were then invited to submit any additional observations on the merits of the application.   11.    On 26 July 1994, the Government submitted further observations.   12.    On 10 August 1994, the applicant made further submissions.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, 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                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  J. MUCHA   15.    The text of the Report was adopted by the Commission on 11 October 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    In 1973, the applicant, aged 15, was convicted of murder and sentenced to be detained at Her Majesty's pleasure.     20.    In October 1990, after completing the "tariff" part of his sentence, the applicant was released on licence.   21.    On 10 March 1991, the applicant was arrested and interviewed by the police in relation to alleged offences of obtaining by deception and threatening behaviour. These concerned allegations that he had obtained a loan and overdraft facilities without disclosing that he had been to prison and that he had misstated his qualifications. The allegation of threatening behaviour related to an allegation that the applicant had threatened a bystander who had witnessed a road accident in which the applicant had been involved.   22.    On 12 March 1991, the Parole Board considered the applicant's case.   23.    On 21 March 1991, the applicant's licence was revoked by the Secretary of State 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.   24.    By letter dated 27 August 1991, the Chief Probation Officer clarified that the basis of the applicant's 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.   25.    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.   26.    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.   27.    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.   28.    The applicant sought judicial review of the decisions of the Parole Board of 19 December 1991 and 30 July 1992.   29.    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."   30.    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.   31.    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. In his representations to the Board, the applicant submitted, inter alia, that he had informed his supervising officer that he was seeking evening employment and explained that he was thereafter too pre-occupied with coping with the death of his father to mention the details. He submitted a statement from his girlfriend corroborating that he had not deceived her concerning his criminal record and supporting his account of obtaining work with a pizza firm in an interview in her presence, when he was not asked about previous convictions and did not give false information on the subject. He provided a statement from his landlady indicating that while he had left his accommodation without paying all the rent due (when he left in haste to join his family on the news of the death of his father), he had left his belongings intending to return and had rung her to explain. He had further paid the outstanding rent on his return.   32.    On 18 June 1993, the Parole Board decided not to 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."   33.    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 recommended to the Secretary of State that he be released subject to six months on a Pre-release employment scheme. It stated:         "The panel were unanimous. On the evidence presented to       them, they considered <the applicant> no longer constituted       a danger to life or limb of committing life threatening       offences to justify his continued detention since his       recall in March 1991..."   34.    By memorandum dated 21 July 1994 from the Home Office, the applicant was informed that the Secretary of State was not prepared to accept this recommendation and had not agreed to his release.   35.    The applicant was informed in a written document of the reasons for the Secretary of State's rejection of the Parole Board recommendation. It was stated, inter alia, that:         "... the Secretary of State notes with concern that you       were recalled to prison in March 1991. He notes that you       were considered to be an acceptable risk when you were       released in 1990 but that your relationship with your       supervising probation officer quickly broke down. You       seemed unable to trust the Probation Service and had       constantly misled them and avoided informing them of a       variety of significant events occurring in your life since       your release. You also appeared before Bristol magistrates       on several criminal charges including fraud and using       threatening behaviour, although these charges were not       proceeded with at the Crown Court on technical grounds.         You were thus recalled to prison following serious breaches       in the trust placed in you as a life licensee...         The Secretary of State is not yet satisfied that you are       not a risk to the general public. He is not satisfied that       if released on licence for a second time you would be       willing to comply with your life licence. He is concerned       that you have not had the opportunity to show that you can       sustain your recently restored relationship with the       Probation Service and with authority in general and that       you need to be tested in the more challenging environment       of an open prison.         For the reasons set out above, the Secretary of State       believes that you should be transferred to an open prison       for further testing. Your next formal review by the Parole       Board will begin in October 1995."   B.     Relevant domestic law and practice         1. Detention at Her Majesty's pleasure   36.    The notion of detention at Her Majesty's pleasure had its origins in an Act of 1800 for "the safe custody of insane persons charged with offences".   Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty's pleasure" and described their custody as being "during His Majesty's pleasure".   37.    In 1908, detention at His Majesty's pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which 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."         2. Categorisation of detention at Her Majesty's pleasure   38.    Mandatory life sentences are imposed in respect of the offence of murder committed by adults (Murder (Abolition of Death Penalty) Act 1967). Persons convicted of certain violent or sexual offences eg. manslaughter, rape, robbery may be sentenced to life imprisonment at the discretion of the trial judge. The principles underlying the passing of a discretionary life sentence are:         i. that the offence is grave and         ii. that there are exceptional circumstances which demonstrate       that the offender is a danger to the public and that it is not       possible to say when that danger will subside.   39.    The sentence of "custody for life" is imposed where the offence of murder is committed by an individual between the ages of 18 and 21 (section 8 (1) of the Criminal Justice Act 1982).   40.    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."   41.    The Court accordingly held that the applicant in the case, detained at Her Majesty's pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence.         3. Release on licence and revocation of licences   42.    Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained at Her Majesty's pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991 Act).         i. Prior to   1 October 1992   43.    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."   44.    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...         4. The Secretary of State shall refer to the Board the case       of a person recalled under subsection (1) of this section       who makes 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...".   45.    A statement of policy issued by the Secretary of State on 13 November 1983 indicated that detention following expiry of the "tariff" depended on whether the person was considered no longer to pose a risk to the public.   46.    In a parliamentary written answer to the House of Commons on 23 July 1987, the Secretary of State stated that in respect of discretionary life prisoners the tariff would be fixed in accordance with the judicial view which would be sought as soon as practicable after sentence. In respect of mandatory life prisoners, he stated that he would take into account the judicial view as to "tariff" as one factor amongst others, including the need to maintain public confidence in the system of justice.         ii. From 1 October 1992   47.    On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force.   48.    The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190).   49.    Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that he be detained. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel and to be legally represented. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him.   50.    For the purposes of the 1991 Act, persons detained at Her Majesty's pleasure or serving mandatory sentences of life imprisonment or custody for life are not regarded as discretionary life prisoners. In relation to these prisoners, the Secretary of State continues to decide the length of the tariff. The view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 AER 92).   51.     As regards release on licence, these categories of prisoners are subject to section 35 of the 1991 Act, which 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."   52.    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...         (3) A person recalled to prison under subsection (1) or (2) above              (a) may make representations in writing with            respect to his recall; and              (b) on his return to prison, shall be informed            of the reasons for his recall and of his right            to make representations.         (4) The Secretary of State shall refer to the Board -              (a) the case of a person recalled under subsection (1)            above who makes representations under subsection (3)            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."   53.    On 27 July 1993, the Secretary of State made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he         "will consider not only, (a) whether the period served by       the prisoner is adequate to satisfy the requirements of       retribution and deterrence and (b) whether it is safe to       release the prisoner, but also (c) the public acceptability       of early release. This means I will only exercise my       discretion to release if I am satisfied that to do so will       not threaten the maintenance of public confidence in the       system of criminal justice."   iii.   Composition of the Parole Board   54.    The Parole Board consists of 8O members. The panels which sit to consider prisoners detained at Her Majesty's pleasure consist of four members. Members are allotted to panels as case papers become available on an apparently random basis.   55.    In the case of the applicant, the composition of the Parole Board when it ordered his recall in March 1991 and declined to direct his release on 19 December 1991 and 18 June 1993 was different, save that the same consultant psychiatrist sat on the latter two occasions.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   56.    The Commission has declared admissible the applicant's complaint that he is unable to obtain the review by a court of the lawfulness of his continued detention at Her Majesty's pleasure.   B.     Point at issue   57.    The issue to be determined is whether there has been a violation of Article 5 para. 4 (Art. 5-4) as regards the lack of review by a court of the lawfulness of the applicant's continued detention.   C.     Article 5 para. 4 (Art. 5-4) of the Convention   58.    Article 5 para. 4 (Art. 5-4) 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."         1. Applicability of Article 5 para. 4 (Art. 5-4) to release on       licence   59.    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 as no longer constituting a risk and that this liberty was removed from him in itself called for a judicial review of the merits of the case for re-detention.   60.    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. They point out that in the case of Wynne (Eur. Court H.R. 18 July 1994, to be published in Series A no. 294-A, para. 36) the Court found that the intervening event of recall after release was not a factor which could by itself give rise to an entitlement to an Article 5 para. 4 (Art. 5-4) review where the sentence was determinate in character.   61.    The Commission recalls that in its case-law the Court has distinguished between mandatory and discretionary sentences of life imprisonment. Mandatory life imprisonment is imposed because of the inherent gravity of the offence (ie. in cases of murder) and applied automatically regardless of considerations pertaining to the dangerousness of the offender. No right to review of subsequent release on licence arises in such cases. The discretionary life sentence however has a special indeterminate character and has been developed as a measure to deal with mentally ill and unstable offenders. The discretionary sentence serves a preventative rather than a punitive purpose and because of the presence of factors (eg. dangerousness, instability) which are susceptible of change with the passage of time, new issues of lawfulness of continued detention may arise which require the possibility of recourse to a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., Weeks judgment, loc. cit.; Thynne, Wilson and Gunnell judgment loc. cit. and Wynne judgment, loc.cit.).   62.    The Commission notes that sentences of detention at Her Majesty's pleasure are imposed automatically in the cases of murder by juveniles (under eighteen years). To that extent, the detention has a similarity with the mandatory sentence imposed in respect of murder by adults. The adult sentence however is fixed at the term of life: detention at Her Majesty's pleasure is on its face indeterminate. Though impliedly a sentence of detention may authorise detention for life, the Commission considers that a distinction must be drawn between a sentence which is fixed by the judiciary at a maximum of life leaving a discretion to the executive as to whether the individual is released earlier and a sentence which has no fixed term and the limits of which are to be defined by the executive.   63.    The Commission has had regard to the origins of the term "detention at Her Majesty's pleasure" which applied in 1800 to the detention of insane offenders and in which context it had a clearly preventative purpose. Juveniles under eighteen have been excluded from the regime of mandatory life imprisonment and also from the notion of "custody for life" which applies to offenders between 18 and 21. The application of the term of detention at Her Majesty's pleasure to juveniles would appear to the Commission to reflect an intention of imposing a distinct regime of detention geared to the special considerations which apply in dealing with very young offenders who are potentially dangerous but who still have formative years ahead of them and may change with maturation.   64.    The applicant has submitted that if this type of detention is regarded as equivalent to a mandatory life sentence fixed punitively to reflect the gravity of the offence this would raise issues under Article 3 (Art. 3) of the Convention in respect of the inhumanity of imposing life sentences on children (which he also points out is forbidden under Article 37 para. a of the United Nations Convention on the Rights of the Child). The Commission considers it unnecessary to examine this issue. It finds that detention at Her Majesty's pleasure is, by its nature and objective, a term of indeterminate detention based primarily on considerations of a preventative, rather than punitive character.   65.    The Commission recalls that the applicant was sentenced at the age of 15 and   spent the following 17 years in prison - over half of his life and a significant part of his adolescence and young adulthood. The element of his sentence attributed to the purpose of retribution expired in or about 1990 and consideration of risk and dangerousness would appear to be the determining factor in his continuing detention. His release and subsequent recall to prison were determined primarily with regard to considerations of risk. Since, therefore, issues may arise with the passage of time relating to the justification for the applicant's continued detention, the Commission finds that he is entitled under Article 5 para. 4 (Art. 5-4) to have the lawfulness of that detention decided by a court.   66.    Having regard to this finding, the Commission also finds it unnecessary to determine whether the applicant should have the opportunity of a review on the ground solely that he had been released and then recalled to prison. This is however a factor which may be of relevance in assessing the nature of the procedure which should be available.         2. Compliance with the requirements of Article 5 para. 4       (Art. 5-4)   67.    The Government have taken the view that the requirements imposed by Article 5 para. 4 (Art. 5-4) as to the supervision of lawfulness of the applicant's detention were satisfied by the original trial and appeal procedure. However they have pointed out that 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.   68.    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.   69.    The Commission recalls that the Court in the Weeks and Thynne, Wilson and Gunnell cases (loc. cit. above) found that neither the Parole Board (pre-1992) nor the possibility of judicial review satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the Convention in respect of prisoners serving terms of discretionary life imprisonment. The Court held in the Weeks case (loc. cit.) that the Parole Board which could only recommend release lacked the necessary power of decision. Further, in view of the failure to provide prisoners with full disclosure of the adverse material before the Board the procedures did not allow the proper participation of the person adversely affected by the contested decision and could not be regarded as judicial in character. The Court did not find it necessary to rule on whether an oral hearing would be required.   70.    The Commission has found above that when considering whether to recommend the release of a person detained at Her Majesty's pleasure the Parole Board is dealing with issues relating to the lawfulness of a deprivation of liberty of an individual. In this context, the "court" required by Article 5 para. 4 (Art. 5-4) should have the power to order release and it is essential that the procedures followed should afford proper guarantees that enable an individual to participate effectively in the proceedings before it (see eg. Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33 at p. 24, para. 60). Where questions arise involving, for example, the assessment of character or personal attitudes, it may be essential for the proper and fair examination of the issues that the detained person be given the opportunity to participate in an oral hearing and, if there are disputed issues of fact, the possibility to have witnesses examined and cross-examined and their credibility established in person (see mutatis mutandis   Eur. Court H.R., Kremzow judgment of 21 September 1993, Series A. 268-B at p. 16, para. 67). These considerations, in the Commission's