CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1998

.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. 34127/96                       by D.W.                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 1 July 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 January 1995 by D.W. against the United Kingdom and registered on 11 December 1996 under file No. 34127/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1942 and he currently resides in a probation hostel in Purbrook. Before the Commission, he is represented by Ms. Helen Jones, a solicitor practising in London.   A.    Particular circumstances of the case        The facts of the case, as submitted by the applicant, may be summarised as follows. In April 1975 the applicant was convicted on four counts of buggery and on five counts of indecent assault. He was sentenced to life imprisonment on each of the counts of buggery and to seven years on each of the counts of indecent assault, the sentences to run concurrently. The applicant's sentence was a discretionary life sentence based on the risk it was considered he posed to society. The offences of which he was convicted were committed against schoolboys and were accompanied by beatings and other sadistic acts. The applicant had previous convictions of indecent assault and buggery of young boys. On 29 January 1993 the Home Secretary directed the applicant's release on licence and he was released on 1 February 1993.        In reports dated 10 and 13 of December 1993, the applicant's probation officers expressed concern about his association with two young men (G aged seventeen and W aged eighteen) and about reports of contacts between the applicant and a fourteen year old boy who had absconded from a children's home. The probation officers warned the applicant of the appropriateness of his seeking to establish a parental or supervisory relationship with these young men.        A report dated 16 February 1994 completed by a consultant forensic psychiatrist expressed particular concern about the applicant's refusal to associate with a more age-appropriate group of homosexuals, noted that this concern had been impressed on the applicant and expressed a slim hope that his conversation with the applicant would have some influence on him. The consultant could not say that the applicant was at imminent risk of re-offending. However, he considered that the applicant was failing to make the progress that the consultant would wish. In particular, his failure to accept in an seemingly "arrogant way" that his association with youths constituted a risk and temptation of re-offending meant that, unless he changed his attitude, it was likely that he would fall into further trouble.        On the initiative of his probation officers, the applicant's case was referred to the Parole Board. The latter recommended and consequently, on 17 March 1994, the Secretary of State directed the addition of a condition to the applicant's licence that he should not entertain at his residence male persons under the age of consent nor engage in any activity involving such persons without the permission of his probation officer. The applicant was so informed by letter handed to him on 23 March 1994. The applicant then told G, who had been living in his home unknown to the probation officer, to leave.        On 23 March 1994 G made a report to the applicant's probation officer to the effect that the applicant had asked G to obtain a gun and had suggested that they should both beat up and kill W. The probation officers found out at that stage that G had been living in the applicant's home. The probation officers contacted the Home Office and recommended recall, the recommendation was accepted and on 26 March 1994 the applicant's licence was revoked by the Secretary of State pursuant to section 39(2) of the 1991 Act and he was recalled to prison. The grounds given by the Secretary of State for recall were the information received that the applicant had attempted to procure a gun; allegations received that he had spoken of a plan to attack and possibly kill a young man; earlier events and concerns expressed by probation officers and by the consultant which resulted in the addition of a further condition to his licence; and his having concealed from his probation officers that he had co-habited with G since January 1994. Having regard to all of the circumstances and the offences for which he had received the life sentence, the Secretary of State considered the applicant's "presence in the community no longer constituted an acceptable risk to the safety of others".        On 30 March 1994 the Parole Board confirmed the decision of the Secretary of State. It considered that the pattern of the applicant's conduct since release on licence belied the assurances that he had given to the Parole Board and falsified the belief, then held by the applicant, that he could be released without risk to the public; that his conduct had already led to changes in the conditions of his licence and he had received a warning letter on 23 March 1994; and that his offering accommodation to a boy of seventeen and hiding this fact from his probation officer made recall inevitable.        Pursuant to section 39(4) of the 1991 Act, arrangements were put in train for a formal review of the applicant's recall by the Parole Board. For this review, a considerable body of documentary evidence was placed before the Parole Board, including copies of reports by probation officers, the statement of G, the report of the consultant, the March 1994 recommendation of the Parole Board, statements by the Governor and Chaplain at Winchester prison, written representations by and on behalf of the applicant and testimonials as to the applicant's character. The review took place on 25 July 1994 before a Parole Board differently constituted to the Parole Board which considered his recall in March 1994. The applicant was represented by counsel.        By letter dated 25 July 1994 the Parole Board notified the applicant that it was required to direct his release only if it was "satisfied that it was no longer necessary for the protection of the public that you be confined". The letter noted that the Parole Board had considered his history of offending and in particular his convictions for sexual offences against young boys some involving acts of violence; his history while in hospital and in prison; the reports and statements in the dossier (see the preceding paragraph) before the Parole Board excluding G's statement (which had been disregarded by the Parole Board following submissions by the applicant's counsel); the applicant's representations and other statements submitted by the applicant; the evidence of his probation officer; and the applicant's counsel's submissions.        In rejecting the applicant's representations against recall, the Parole Board stated that it was "wholly convinced, on the totality of the evidence ... heard that you continue to present a very real risk to the public and that there is a substantial risk that if you were released you would again commit serious sexual offences against males under the age of consent." On the evidence the Parole Board was satisfied that by reason of the applicant's association with young men aged 17 with criminal convictions, drug addictions and no settled way of life, the applicant had exposed those persons, young members of the public, and himself to a substantial potential risk. The Parole Board considered that the applicant created an undesirable dependency of those youths on him and it took the view that the risk of these associations leading to serious sexual offences was very high. It noted that the applicant had not been honest and open with his supervising officer; that the applicant had concealed the extent of his associations from that officer; that he did not heed that officer's advice and warnings; and that he had accommodated a minor in his home for a substantial period without disclosing this to his supervising probation officer.        The Parole Board recommended the applicant's further assessment and treatment so that the applicant would gain an understanding and insight into his potential for re-offending with a view to his eventual release. It also recommended that on completion of any such assessment and treatment, the applicant's case should be reviewed again to see whether it would be appropriate to transfer him to open conditions. The Parole Board noted that while its decision not to direct release was binding on the Secretary of State, these recommendations were not.        The applicant applied for leave to take judicial review proceedings and, by judgment dated 18 October 1995, the High Court refused leave. The applicant had challenged the July 1994 decision of the Parole Board on the basis, inter alia, that the Parole Board applied the wrong test and on the basis of the Parole Board's extra- statutory confirmation of his emergency recall in March 1994. The applicant appealed to the Court of Appeal.        On 4 March 1996 Bingham MR gave the main judgment of the Court of Appeal rejecting the same submissions of the applicant. He considered that in March 1994 the Parole Board was acting as an extra- statutory watchdog. That informal confirmation could not in practice pre-empt or unfairly influence the section 39(4) hearing in July 1994 because, inter alia, the members of the Parole Board would appreciate that the initial confirmation was provisional and tentative given on a partial hearing of only one side of the case without the benefit of the full materials and representations which would be available at the later formal review. Accordingly, there would be no reason that those conducting the July 1994 review would feel that to direct the individual's release would be to disagree or implicitly criticise the preliminary decision. The March 1994 decision would be seen as part of the history of the case but, of itself, it would be of no weight at all for the Parole Board in July 1994. Accordingly, Bingham MR considered that the preliminary involvement of the Parole Board in March 1994 presented no danger of bias as regards the July 1994 review.        He also considered that the correct test was applied by the Parole Board in July 1994. It would be subversive of the review regime established by the 1991 Act if the Parole Board confined itself to reviewing the validity of the Home Secretary's reasons for recall. The Parole Board is the primary decision-maker. It must make its own mind up and give its own reasons. It would seriously undermine the integrity of the system if the Parole Board were to defer to the Home Secretary's view unless it were shown to be wrong. In exercising its practical judgment the Parole Board is bound to approach its task under sections 34 and 39 in the same way "balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury." Preponderant weight is given to the need to protect innocent members of the public "against any significant risk of serious injury."   B.    Relevant domestic law and practice        Discretionary life sentences        A sentence of life imprisonment may be passed, in the exercise of the court's discretion, on persons convicted of any of the offences for which life imprisonment is provided by the relevant legislation as the maximum penalty for the offence concerned - a discretionary life sentence. Use of the discretionary life sentence is reserved, broadly speaking, for cases where the offence is a very grave one in itself and it appears that the accused is a person of unstable character likely to commit such offences in the future thus making the accused a danger to the public in respect of his probable future behaviour unless there is a change in his condition (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, para. 50).        Accordingly, the discretionary life sentence is now considered to be made up of two elements - the "tariff" which represents that part of the sentence attributable to deterrence and punishment together with a right to detain for a further period as long as that person constitutes a risk to society. By virtue of section 12(1) and Schedule 2 of the Sexual Offences Act 1956, the maximum penalty for buggery of a boy under the age of 16 years old is life imprisonment.        The Criminal Justice Act 1991        Following the judgment of the Court in Thynne, Wilson and Gunnell (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment, loc. cit.), the Criminal Justice Act 1991 ("the 1991 Act") came into force on 1 October 1992. This Act instituted substantial changes to the regime applicable to discretionary life prisoners.        Pursuant to section 34 of the 1991 Act, the tariff 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 (whose powers are carried out by panels known as the Discretionary Lifer Panels) and the parole board shall not order release unless it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined" (section 34(4)(b) of the 1991 Act).        Section 37(3) of the 1991 Act provides that a licence shall, unless revoked under section 39(1) or (2), remain in force for the duration of the subject's life.        Section 39 of the 1991 Act provides for the recall of prisoners on licence in two different ways. In the first place, if recall is recommended by the Parole Board, the Secretary of State may revoke the prisoner's licence and recall him to prison (section 39(1)). A prisoner so recalled may make representations in writing to the Parole Board (section 39(3)) and, if he does so, the Secretary of State must refer the case to the Parole Board (section 39(4)(a)). Secondly, the Secretary of State may revoke the licence and recall the prisoner without a recommendation from the Parole Board where it appears that it is expedient in the public interest to recall that person before such a recommendation is practicable (section 39(2)). The latter procedure is the emergency procedure to cater for an urgent need to protect the public. In such case, whether the person recalled makes representations or not, the case must be referred to the Parole Board (section 39(4)(b)). In a case referred to the Parole Board in either of the instances noted above and if the Parole Board directs release on licence, the Secretary of State must give effect to that direction (section 39(5)).        The practice has, however, developed for the Parole Board to consider an emergency recall by the Secretary of State immediately thereafter. There is no statutory provision for this procedure and the Secretary of State is not bound by any consequent recommendation of the Parole Board.        The Parole Board Rules 1992        The Parole Board Rules 1992 ("the 1992 Rules") came into force on 1 October 1992. Pursuant to those rules, a prisoner before the Parole Board is entitled to, inter alia, an oral hearing before the Parole Board, to have relevant papers (including prison reports) in advance of the hearing, to comment on the evidence in advance of the hearing, to attend the hearing, to be legally represented and to be legally aided if he qualifies under the normal rules. A prisoner can also apply to call witnesses on his behalf and to cross-examine other witnesses who have written reports about him. A reasoned decision by the Parole Board is delivered within seven days of the hearing.        The 1992 Rules make reference to the extra-statutory practice of the Parole Board's consideration of an emergency recall. The information and reports which must be supplied by the Secretary of State to the Parole Board and to the prisoner for the purposes of the formal review by the Parole Board under section 39(4) of the 1991 Act, according to the 1992 Rules include:        "The details of any memorandum which the Board considered prior      to making its recommendation for recall under section 39(1) of      the <1991> Act or confirming the Secretary's of State's decision      to recall under section 39(2) of the <1991> Act including the      reasons why the Secretary of State considered it expedient in the      public interest to recall that person before it was practicable      to obtain a recommendation from the Board."     COMPLAINTS        The applicant complains about the test applied by the Parole Board in July 1994 in reviewing his recall. He also complains that the Parole Board both confirmed the Secretary of State's initial decision to recall him and subsequently carried out the review pursuant to section 39(4) of the 1991 Act. He invokes Article 5 paras. 1, 4 and 5 of the Convention.     THE LAW        The applicant considers that the test applied by the Parole Board in July 1994 was inappropriate given the recall context of the review. He also complains that the fact that the Parole Board both confirmed the Secretary of State's initial decision to recall him and carried out the subsequent review of that recall under section 39(4) of the 1991 Act meant that the Parole Board which sat in July 1994 was biased. He invokes Article 5 paras. 1, 4 and 5 (Art. 5-1, 5-4, 5-5) of the Convention.        Given that applicant does not dispute that his recall and the revocation of his licence in March 1994 was in pursuance of the discretionary life sentence imposed on him by a competent court, the Commission considers that his complaints should be considered under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention, which read as follows:        "4.   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.        5.   Everyone who has been the victim of arrest or detention in      contravention of the provisions of this Article shall have an      enforceable right to compensation."        In the first place, the applicant complains about the test applied by the Parole Board in reviewing his recall in July 1994. He submits that the purpose of the July 1994 review was to consider the validity of the Secretary of State's decision to revoke his licence after a period of liberty and to recall him to prison. Accordingly, the Parole Board should have been positively satisfied that his re- detention was justified. However, the Parole Board applied the test set out in section 34(4)(b) of the 1991 Act which is designed for an initial release context and which requires the Parole Board to be satisfied that it is not necessary to continue to detain an individual.        The Commission recalls that the basis of the applicant's original detention and for his re-detention was the risk he posed to society, a factor susceptible to change with the passage of time. Accordingly, not only does Article 5 para. 4 (Art. 5-4) require a review of the "lawfulness" of the applicant's re-detention, but the scope of that review must extend to an assessment of the risk posed by the applicant to society, this being the essential condition for the lawfulness of his re-detention (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment, loc. cit, p. 24, para. 76 and   Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, pp. 32-33, para. 69).        In the present case, having considered the evidence and submissions before it in July 1994 in accordance with the 1992 Rules, the applicant's convictions and, in particular, his actions and comportment since he had been released on licence in 1993, the Parole Board was:        "wholly convinced, on the totality of the evidence ... heard,      that you continue to present a very real risk to the public and      that there is a substantial risk that if you were released you      would again commit serious sexual offences against males under      the age of consent".        Although the Parole Board applied that risk assessment to the necessity to continue to maintain the applicant in detention (the test contained in section 34(4)(b) of the 1991 Act) as opposed to the need for his re-detention, the essential decision of the Parole Board pursuant to section 39(5) was to decide, given the assessed risk, whether the applicant's release on licence should be directed or not.        In such circumstances, the Commission considers that the review provided by the Parole Board in July 1994 complied with the State's obligation to provide a review of the lawfulness of the applicant's re- detention bearing on the condition essential for that re-detention.        Secondly, the applicant submits that the two roles of the Parole Board advising the executive (in March 1994) about his recall and subsequently reviewing the merits of the recall decision (in July 1994 under section 39(2)(b) of the 1991 Act) are incompatible rendering the Parole Board in July 1994 biased as far as the question of his recall was concerned. Only the executive had access to the Parole Board during the March 1994 proceedings and the decision of the Parole Board in March 1994 was put before the Parole Board in July 1994. The applicant relies on the Singh judgment (Eur. Court HR, Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions for 1996).        The Commission recalls that the Court in the Singh case, which related to persons detained at Her Majesty's pleasure, based its finding of a violation of Article 5 para. 4 (Art. 5-4) on the lack of an oral hearing before the relevant Parole Board. However, in the Commission's Report in that case (Eur. Court HR, Singh v. the United Kingdom judgment, loc. cit, Comm. Report 11.10.94, pp. 15-16, paras. 77-79), the fact that the Parole Board hearing at issue was a re- consideration of its original decision to revoke Mr. Singh's licence constituted a further reason to conclude that that Parole Board lacked the necessary judicial guarantees.        The Commission observes that the composition of the Discretionary Lifer Panels of the Parole Board, which considered the applicant's recall in March and in July 1994, was different. In addition, and in contrast to the position in the Singh case, the nature of those two hearings were also significantly different. In March 1994 the Parole Board carried out a review of the applicant's emergency recall by the Secretary of State. This was an extra-statutory control, the Parole Board had no power whatsoever to direct the applicant's discharge or his continued detention and, most significantly, the process was carried out in circumstances where an automatic and formal review by the Parole Board of the applicant's recall was already foreseen by section 39(4)(b) of the 1991 Act.        According to the 1992 Rules, that formal review was to include an oral hearing, disclosure of all evidence before the Parole Board, legal representation and the possibility of calling witnesses on the applicant's behalf and of cross-examining those who had prepared reports about him. Accordingly, the Commission considers, as did the Court of Appeal, that the review of the Parole Board in March 1994 constituted a tentative and provisional assessment, considered by the Parole Board to be a prudent exercise in the case of an emergency recall, made pending the formal adversarial hearing before the Parole Board of the applicant's recall which would subsequently and automatically take place.        In such circumstances, the fact that the text of the March 1994 recommendation was before the Parole Board in July 1994 does not provide a basis for doubts as to the fresh nature of the review of the applicant's recall in July 1994. In addition, the review which led to the Parole Board's recommendation of a further condition to the applicant's licence was an assessment of a materially different nature to the July 1994 review of the revocation of the applicant's licence and his recall to prison. Accordingly, the Commission considers that the applicant does not have legitimate grounds to fear that the review of his recall conducted by the Parole Board in July 1994 pursuant to section 39(4)(b) of the 1991 Act was prejudged as a result of the Parole Board's preliminary control of the applicant's recall in March 1994.        The Commission does not therefore consider that the applicant's complaints as regards the test applied by the Parole Board and its involvement in his recall in March 1994 demonstrate that the review conducted by the Parole Board in July 1994 fell short of the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. Moreover, since the Commission has not concluded as to a breach of Article 5 para. 4 (Art. 5-4) of the Convention, the applicant has no right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention in that respect (see, for example, No. 10801/84, Dec. 3.10.88, D.R. 61, p. 62).        In such circumstances, the Commission considers the applicant's complaints under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber