CEDH · CASELAW;REPORTS;ENG — 3 septembre 1996

.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. 24835/94                                 Raymond BAXTER                                     against                               the United Kingdom                             REPORT OF THE COMMISSION                        (adopted on 3 September 1996)                              TABLE OF CONTENTS                                                                  page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 16-35). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 16-22). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 23-35). . . . . . . . . . . . . . . . . . . . . . 4     III.   OPINION OF THE COMMISSION       (paras. 36-49). . . . . . . . . . . . . . . . . . . . . . . . 7         A.   Complaint declared admissible           (para. 36). . . . . . . . . . . . . . . . . . . . . . . . 7         B.   Point at issue           (para. 37). . . . . . . . . . . . . . . . . . . . . . . . 7         C.   Article 5 para. 4 of the Convention           (paras. 38-48). . . . . . . . . . . . . . . . . . . . . . 8             CONCLUSION           (para. 49). . . . . . . . . . . . . . . . . . . . . . . .10       APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 11   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 Raymond Baxter, a British citizen born in 1955 and currently serving a sentence of imprisonment in HM Prison Long Lartin. He is represented by Mr. Michael Pringsheim, a solicitor practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Martin Eaton, 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.   The application raises issues under Article 5 para. 4 of the Convention.   B.     The proceedings   5.     The application was introduced on 20 April 1994 and registered on 5 August 1994.   6.     On 28 November 1994, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the applicant's complaints under Article 5 para. 4 of the Convention.   7.     The Government submitted their written observations on 13 March 1995.   The applicant submitted his written observations in reply on 25 May 1995.   8.     On 28 November 1995, the Commission declared the application admissible.   9.     The parties were then invited to submit any additional observations on the merits of the application.   No further observations were submitted.   10.    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   11.    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:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS   12.    The text of the Report was adopted by the Commission on 3 September 1996 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   13.    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.   14.    The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   15.    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   16.    The applicant was convicted of murder in 1971 at the age of fifteen. He was sentenced to detention at Her Majesty's pleasure (see below, Relevant domestic law and practice).   17.    In 1978, the Parole Board recommended the applicant's release subject to the satisfactory completion of six months in open conditions and six months on a pre-release employment scheme. He was released on 8 January 1980.   18.    In 1985, the applicant, following a guilty plea, was convicted of rape and sentenced to 10 years' imprisonment. The trial judge did not revoke the applicant's licence. Pursuant to this sentence his earliest date of release was calculated as 5 January 1992 and his parole eligibility as 6 September 1988.   19.    On 4 February 1986, following the recommendation of the Parole Board, the Secretary of State revoked the applicant's licence, pursuant to section 62 of the Criminal Justice Act 1967. On application by the applicant for a review of the revocation, the Parole Board, without giving the applicant sight of the documents before it or an oral hearing, decided not to recommend his release. The applicant had the opportunity of submitting written representations.   20.    The applicant's case was reviewed by the Parole Board in 1991 but it declined to recommend his release. His case was again reviewed in 1994. This review was conducted under the open reporting arrangements introduced in April 1993 and the applicant had full disclosure of the papers which were considered by the Board, to which he had the opportunity to make written representations.   21.    By letter dated 30 August 1994, the applicant was informed as follows:         "The Secretary of State has referred your case to the       Parole Board which has not recommended your release on       licence for the following reasons:         `The Panel considered that <the applicant> presents too       high a risk for release on licence or for open conditions,       because his lack of explanation for both offences gives       rise to grave concern...The Panel noted that no work had       been done on his sadistic sexual motivations for these       offences. They felt that he would benefit from a period at       Grendon as recommended by Dr Sugarman in his report of 8       April 1994, failing this attendance at a sex offenders       training programme is essential.'"   22.    The applicant was informed that his next Parole Board review would begin in August 1996.     B.     Relevant domestic law and practice         1. Detention at Her Majesty's pleasure   23.    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".   24.    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   25.    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.   26.    In the case of ex parte Prem Singh 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."   27.    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   28.    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   29.    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."   30.    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.   31.    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   32.    On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force. It 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-A).   33.    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.   34.    For the purposes of the 1991 Act, persons detained at Her Majesty's pleasure or serving mandatory sentences of life imprisonment 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).   35.     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."     III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   36.    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   37.    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 of (Art. 5-4) the Convention   38.    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 procedures   39.    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.   40.    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, with no distinction in law and practice from that applied to adults. 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; Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A and Wynne judgment of 18 July 1994, Series A no. 294-A). The requirements of Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original trial and appeal proceedings of the applicant.   41.    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 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; Thynne, Wilson and Gunnell judgment and Wynne judgment, loc.cit.).   42.    The Commission recalls that in two previous applications, Abed Hussein v. the United Kingdom and Prem Singh v. the United Kingdom, the Court has issued judgments concerning similar complaints (Eur. Court HR judgments of 21 February 1996, to be published in Reports 1996). In Prem Singh, the Court noted that sentences of detention at Her Majesty's pleasure are imposed automatically in the cases of murder by juveniles under eighteen years but considered that:         "60 ... the decisive issue in the present context is whether the       nature and, above all, the purpose of that sentence are such as       to require the lawfulness of the continued detention to be       examined by a court satisfying the requirements of Article 5       para. 4 (Art. 5-4).         61.   It is recalled that the applicant was sentenced to be       detained at Her Majesty's pleasure because of his young age at       the time of the commission of the offence. In the case of young       persons convicted of serious crimes, the corresponding sentence       undoubtedly contains a punitive element and accordingly a tariff       is set to reflect the requirements of retribution and deterrence.       However an indeterminate term of detention   for a convicted young       person, which may be as long as that person's life, can only be       justified by considerations based on the need to protect the       public.              These considerations, centred on an assessment of the young       offender's character and mental state and of his or her resulting       dangerousness to society, must of necessity take into account any       developments in the young person's personality and attitude as       he or she grows older. A failure to have regard to the changes       that inevitably occur with maturation would mean that young       persons detained under section 53 would be treated as having       forfeited their liberty for the rest of their lives, a situation       which, as the applicant and the Delegate for the Commission       pointed out, might give rise to questions under Article 3       (Art. 3) of the Convention.         62.   Against the foregoing background the Court concludes that       the applicant's sentence, after the expiration of his tariff, is       more comparable to a discretionary life sentence...              The decisive ground for the applicant's continued detention       was and continues to be his dangerousness to society... a       characteristic susceptible to change with the passage of time .       Accordingly, new issues of lawfulness may arise in the course of       detention..."   43.    The Commission recalls that the applicant in the present case was sentenced at the age of 15 and spent approximately 20 years in prison - over half of his life and a significant part of his adolescence and his entire young adulthood, excluding a period of release between 1980 and 1985. The element of his sentence attributed to the purpose of retribution has expired and consideration of risk and dangerousness would appear to be the determining factor in his continuing detention. 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.         2. Compliance with the requirements of Article 5 para. 4       (Art. 5-4)   44.    The applicant submits that the procedure for release on licence of detainees at Her Majesty's pleasure does not 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. An applicant also has no right to an oral hearing before the Board or to call his own witnesses or to question witnesses against him.   45.    The Government have made no submissions on the point, taking 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.   46.    The Commission recalls that the Court in the Abed Hussein and Prem Singh cases has held that the Parole Board's lack of power to order release of a prisoner and the lack of adversarial proceedings before the Board prevent it from being regarded as a court or a court- like body for the purposes of Article 5 para. 4 (Art. 5-4) (loc. cit. Prem Singh judgment at   para. 66, Abed Hussain judgment at para. 57). The Court had regard in that context to the crucial importance of the right to liberty, where a substantial period of imprisonment might be at stake and to the consideration that where questions arise as to an applicant's mental state, personality, or level of maturity, fairness may render it essential for the applicant to be present at an oral hearing, involving legal representation and the possibility of calling and questioning witnesses (para. 67 and 58 respectively).   47.    The Commission notes that, since October 1992, a new Parole Board has been instituted which has the power to make decisions and which pursuant to its rules has the power to hold oral hearings. Introduced in view of the findings of the Court with regard to discretionary life prisoners, these changes have not however been applied to other categories of prisoners. The Parole Board as it presently functions in respect of the applicant still has no decision-making power. Its procedure has however been modified pursuant to the case of Prem Singh (see paras. 33-34 above) to provide for the disclosure of the documents before the Parole Board. There is no provision for oral hearing or for examination and cross-examination of witnesses.   48.    Consequently, the Commission finds that the applicant does not have the possibility of obtaining a review of the lawfulness of his continued detention before a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.         CONCLUSION   49.    The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.             H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission