CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 février 2016

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THE UNITED KINGDOM   (Application no. 76874/11)               JUDGMENT       STRASBOURG   18 February 2016     FINAL   18/05/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Doherty v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mirjana Lazarova Trajkovska, President,   Ledi Bianku,   Kristina Pardalos   Paul Mahoney,   Aleš Pejchal,   Robert Spano,   Pauliine Koskelo, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 26 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 76874/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Christopher Doherty (“the applicant”), on 14 December 2011. 2.     The applicant, who was born in 1960 and lives in Belfast, was represented by Mr F. Shiels of Madden & Finucane, a firm of solicitors practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 3.     On 20 June 2013 the application was communicated to the Government. In a letter dated 3 July 2013 the Government of Ireland were notified of the application and invited to inform the Court by 25   September 2013 if they wished to exercise their right to intervene pursuant to Article   36 § 1 of the Convention and Rule 44 of the Rules of Court. They did not respond to that letter. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The factual background 4.     On 16 September 1982 the applicant was sentenced to life imprisonment for murder. The life sentence was mandatory. 5.     On 26 April 1996 the applicant was released on licence by virtue of section 23 of the Prison Act (Northern Ireland) 1953. 6.     On 7 March 1997 the applicant’s licence was revoked by order of the Secretary of State following his arrest for alleged sexual offences, which included acts of indecent assault and gross indecency with two of his nieces, who were aged nine and thirteen at the time. 7.     The applicant was subsequently charged with the offences but the charges were withdrawn by the Director of Public Prosecutions on 13   January 1998 because it was not considered to be in his nieces’ best interests to give evidence. B.     Review by the Life Sentence Review Board 8.     After considering representations made on behalf of the applicant, the Secretary of State decided that his life licence should not be reinstated and that his case should be considered by the Life Sentence Review Board. The role of the Board, which consisted largely of senior officials from the Northern Ireland Office, was to advise the Secretary of State on when he should release on licence under section 23 of the 1953 Act prisoners serving terms of imprisonment for life. In considering these cases the Board took into account the nature of the prisoner’s offence, his age and background, his response in prison, and all other relevant factors, including the comments made by the trial judge when passing sentence. 9.     The applicant’s case was reviewed by the Board on 12 November 1998, 3 November 1999, 7 December 1999, 26 April 2000 and 30 October 2000. On each occasion the Board declined to direct his release as it believed that he had committed the conduct alleged against him and that there was a risk he would commit further acts of a similar nature if released. 10 .     The applicant sought permission to apply for judicial review of the Board’s decisions of 7 December 1999 and 30 October 2000 on the grounds, inter alia , that the decisions were contrary to Articles 5 § 4 and 6 of the Convention because the proceedings before the Board had not been “fair” and its function was “administrative rather than quasi-judicial”. 11.     Permission was granted but the application was dismissed on 29   June 2001. Insofar as the applicant had sought to rely on Article 5 § 4 of the Convention, the court, having regard to Wynne v. the United Kingdom , 18 July 1994, Series A no. 294 ‑ A, found that at the relevant time it did not apply to a mandatory life sentence in Northern   Ireland. 12.     The applicant did not seek permission to appeal to the Court of Appeal. C.     Review by Life Sentence Review Commissioners 13.     Following a review in anticipation of the coming into force, in October 2000, of the Human Rights Act 1998, the Life Sentence Review Commissioners (“the LSRC”) replaced the Life Sentence Review Board. Unlike the Board, the LSRC was independent of the Executive and could give legally binding decisions in relation to the release of prisoners. 14.     On 29 November 2001 the applicant’s case was referred to a panel of the LSRC. The panel’s role was first, to establish whether, at the date of recall, there had been a significant risk of the applicant committing serious harm; and secondly, to consider whether the risk currently posed by the applicant was capable of being managed safely in the community, and, if not, whether there were steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community. 15 .     An initial hearing took place on 17 June 2002. At the hearing the applicant’s solicitor indicated that he had no more factual evidence to adduce concerning the allegations of sexual abuse and asked the panel to conduct a paper review of the credibility of those allegations. The panel agreed and, based on the written material, concluded that on the balance of probabilities the applicant had committed the alleged sexual assaults. It therefore set that issue aside and the remainder of the hearing only addressed the question of risk at that point in time. 16 .     In the course of the hearing the applicant dismissed his solicitor. The hearing was then adjourned as the applicant had no legal representative. He instructed new solicitors in late September 2002 but they only obtained a legal aid certificate in April 2003, despite the Chairman of the panel intervening to expedite the process. 17 .     The panel requested submission of evidence and representations by 31 July 2003. An extension was granted at the applicant’s request and the representations were filed on 17 September 2003. In those representations, the applicant submitted, inter alia , that in a recall case the panel was required to conduct a merits review of the recall decision. He therefore argued that the decision arrived at on paper on 17 June 2002 – that on the balance of probabilities he had committed the alleged sexual assaults – had been unlawfully and unfairly arrived at and the question should be revisited by a fresh panel. 18.     At a hearing on 9 January 2004 the Chairman indicated that he would allow the applicant to reopen the issue of whether or not he had committed the alleged assaults. As a consequence, the panel members recused themselves on 12 January 2004 and a new panel, chaired by Mr   Peter Smith QC, was appointed (“the Smith panel”). 19 .     A preliminary hearing date was fixed for 16 March 2004. At the hearing the Secretary of State indicated that he would not be calling the two complainants as witnesses, although he did intend to tender the transcripts of video-recorded interviews with them. The applicant’s representatives asked the Chairman to direct the Secretary of State to call them as witnesses. The Chairman refused this application but made it clear that the applicant could subpoena the complainants and cross-examine them as though they were witnesses for the Secretary of State. He assured the applicant that no adverse inferences would follow if he did not summons the witnesses. 20.     The substantive hearing was fixed for 18 and 19 May 2004. On 12   May 2004 the Prison Service on behalf of the Secretary of State submitted twenty-one witness statements taken by police during the course of the original investigation and sought leave to call one of the complainants as a witness. On 14 May 2004 the Smith panel issued a direction permitting the supplementary material to be appended to the hearing materials and granting the Secretary of State permission to call the complainant. 21.     On 17 May 2004 the applicant’s solicitors wrote to the Smith panel to complain about the late submission of the witness statements and the decision to permit the complainant to be called as a witness. 22.     As a consequence, a further preliminary hearing was held on the morning of 18 May 2004 instead of the substantive hearing originally planned. At the hearing the applicant was told that the complainant would not be attending and it was decided that the Secretary of State should seek to encourage her to attend voluntarily. In the meantime the hearing was adjourned. 23.     On 23 August 2004 the applicant wrote directly to the Smith panel to complain about the delays in his case. 24.     On 21 September 2004 the Smith panel replied to the applicant’s letter, indicating that the Secretary of State was still trying to secure the complainant’s attendance. 25.     On 8 October 2004 the Secretary of State was “forced to conclude that despite our best efforts [the complainant] is reluctant to give evidence voluntarily to the [panel]”. 26 .     On 4 November 2004 the Smith panel indicated that it would not direct the Secretary of State to issue a witness summons to secure the complainant’s attendance. 27.     The hearing began on 21 March 2005. Evidence was heard over 21   and   22 March, 23, 24 and 31 May and 1 June 2005, including video recordings of social services’ interviews with the applicant’s nieces. In addition, both parties submitted written representations. In his representations the applicant argued that the evidence of sexual abuse should not have been admitted as he had been unable to cross-examine the complainants. 28.     Having considered the evidence the Smith panel concluded that the Secretary of State had proved on the balance of probabilities that the applicant had committed the alleged sexual assaults against children and that it was not safe to release him on licence at that point. 29.     The Smith panel dealt with the applicant’s submissions on the unfairness of the proceedings by noting that: “... [counsel for the applicant’s] approach to the issue of [the complainant] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [the complainant] as unfair, while on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against [the applicant] being strengthened. The panel remains of the opinion... that it would have been unreasonable to have directed [the complainant] to be subpoenaed.” D.     Judicial review proceedings 30.     On 3 November 2005 the applicant applied for permission to seek judicial review of the Smith panel’s decision of 3 August 2005 not to direct his release from prison. He contended first, that the procedure before the LSRC had been unfair and in breach of Articles 5 § 4 and 6 of the Convention, as the Smith panel had based a finding against him on the statements of witnesses who had not been available to be challenged by cross-examination. Secondly, he submitted that the Smith panel had misdirected itself on the applicable standard of proof. Thirdly, he argued that there had not been a sufficient “causal connection” between the deprivation of his liberty following his recall and the crime for which he was originally convicted. Finally, the applicant submitted that there had been undue delay by the LSRC in progressing the hearing of the referral and there had accordingly been a breach of Article 5 § 4 of the Convention. 31 .     Permission for judicial review was granted on 9 November 2005. On 23   May 2006 the High Court dismissed the application. With regard to the question of causal connection, it found that the offences of murder and serious sexual assault were both crimes of violence and the applicant had been recalled to prison on the ground that his actions pointed to an actual or potential threat of harm to members of the public. In relation to the issue of procedural fairness, the court found that no unfairness was caused to the applicant by the decision not to call his nieces as witnesses as he had had the option of subpoenaing them himself. Moreover, the court accepted that the panel had applied the correct standard of proof. Finally, in respect of the question of delay, the court found that the Smith panel had not been in breach of its Article 5 § 4 obligations as the applicant’s side “was very largely responsible for the long periods in progressing the matter to the point of a hearing”. Even if the Smith panel had been responsible, the applicant’s detention had not been shown to be unlawful and he had not, therefore, suffered any loss of liberty in consequence of any breach of Article 5 § 4. E.     Court of Appeal proceedings 32.     On 4 July 2006 the applicant filed a notice of appeal against the judgment of the High Court in which he argued that the Smith panel had misdirected itself as to the standard of proof required to establish the allegations against him; that the procedure before the Smith panel had been unfair and in breach of Articles 5 § 4 and 6 of the Convention, most notably because the applicant’s nieces should have been required to give evidence; and finally, that there had not been a “speedy determination” of the lawfulness of his detention. The appeal was heard on 23 April 2007. 33 .     On 6 September 2007 the Court of Appeal delivered its judgment. The court dealt summarily with the issue of delay. Although it noted that the Smith panel was “beset with a number of problems, not the least of which was the obtaining of legal aid for the appellant”, having examined the chronology furnished by the LSRC it was satisfied that it had acted “with appropriate dispatch”. 34 .     On the question of fairness the court observed that the applicant had suffered no disadvantage on account of the decision not to subpoena his nieces. He had had the opportunity to summons them as witnesses and cross ‑ examine them as though they were the Secretary of State’s witnesses. In any case, the court found it inconceivable that evidence of this nature should have been ignored when the safety of the public was at stake. It therefore concluded that there had been no unfairness to the applicant. 35.     However, the Court held that in determining the standard of proof the Smith panel had misdirected itself. The court accordingly quashed the Smith panel’s decision of 3 August 2005 and directed that a fresh decision be taken by a differently constituted panel. 36.     The applicant’s counsel subsequently filed a further written submission with the Court of Appeal, in which he sought a declaration that the applicant’s detention since 2 October 2000 had been in breach of Article   5   §   1 of the Convention. He also sought damages in respect of that violation and an order for bail. 37.     On 5 December 2007, after hearing oral submissions, the court decided not to consider the applicant’s submissions on Article 5 § 1. It noted that this issue had not been raised in the course of the appeal proceedings and, although it had been included in the initial Order 53 statement (a statement lodged with the judicial review application setting out the name and description of the applicant, the relief sought and the grounds on which it was sought), it had not been directly in issue before the High Court and the judge had therefore made no findings on it. 38 .     The LSRC was granted permission to appeal to the House of Lords on the issue of the standard of proof. The applicant cross-appealed on several grounds: that the procedure adopted before the Smith panel had been unfair; that he had been detained unlawfully in breach of Article 5 § 1 of the Convention; and that the delay had caused a breach of Article 5 § 4. F.     Events prior to the House of Lords’ decision 39.     Before the decision of the Court of Appeal the Secretary of State had made a second referral of the applicant’s case to the LSRC as two years had passed since the decision of 3 August 2005. A second panel had been convened to conduct the referral (“the Garrett panel”). However, following the decision of the Court of Appeal this review could no longer take place. Instead, the initial referral to the LSRC, which took place on 29   November 2001, was revived and a third panel was convened to consider afresh the applicant’s recall (“the first Rodgers panel”). 40.     The first Rodgers panel first convened for a hearing on 4 January 2008. It had to consider the same two main issues as the Smith panel: whether there had been a significant risk of the applicant committing serious harm at the date of recall; and whether the risk presently posed by the applicant was capable of being safely managed in the community. 41.     At a hearing on 4 January 2008 the Governor of the Life Management Unit and a senior psychologist at HMP Maghaberry gave evidence to the Rodgers panel on the question of present risk. Following the hearing the applicant’s solicitors wrote to the Northern Ireland Prison Service, asserting that on the basis of the evidence of these two witnesses the risk posed by the applicant could be managed safely in the community. They therefore asked the first Rodgers panel to conclude that there was no significant risk and argued that any further delay in the determination of the case would be in breach of Article 5 § 4 of the Convention. 42.     At a further hearing on 12 March 2008 several witnesses indicated that they no longer believed the applicant would pose a significant risk to the public. Counsel for the applicant therefore contended that a licence should be issued immediately without waiting for a determination of the outstanding factual issue, namely whether or not the applicant had committed the alleged sexual assaults. 43.     However, on 20 March 2008 the first Rodgers panel indicated that it was required to hear all the evidence before taking a decision. 44.     On 1 May 2008 the applicant issued a claim for judicial review challenging this decision of 20 March 2008 by the first Rodger’s panel. He sought an order of mandamus requiring it to come to a decision on the question of his licence; a declaration that his detention since 12 March 2008 had been in breach of Article 5 § 1 of the Convention; and a declaration that the handling of the referral by the Rodgers panel on 12 March 2008 was unlawful and in breach of Article 5 § 4 of the Convention. 45.     At an oral hearing on 9 May 2008 the High Court refused permission to apply for judicial review on the ground that the applicant had not demonstrated an arguable case. In particular, it found the application to be premature, as the first Rodgers panel had not been afforded the opportunity to hear all the relevant evidence in the matter and it would be “incomprehensible” for it to complete its statutory task without doing so. With regard to the issue of delay, the court noted that, while circumstances had prevented the case from proceeding with the expedition which normally attends upon such cases, the evidence as a whole demonstrated that the delays had been necessary and purposeful. 46 .     The applicant filed a notice of appeal against this decision. 47.     In the interim further hearings before the first Rodgers panel took place on 21 and 27 May 2008. G.     The House of Lords’ decision 48.     On 11 June 2008 the House of Lords allowed the LSRC’s appeal, finding that the Smith panel had not failed to adopt and apply the correct standard of proof, and restored its decision of 3 August 2005. At the same time the House of Lords dismissed the applicant’s cross-appeal (see paragraph   38 above). 49 .     Their Lordships considered that the procedure adopted in respect of the subpoenaing of the complainant had not been unfair because it had not disadvantaged the applicant. Likewise, they agreed with the High Court that there had been a sufficient causal connection between the deprivation of the applicant’s liberty and his original conviction. Their Lordships therefore found that there had been no breach of Article 5 § 1 of the Convention. 50 .     In respect of the Article 5 § 4 issue, although their Lordships expressed some “disquiet” at the “extraordinarily long period which elapsed between recall and final decision”, they found “no single gap in the chronology which points to avoidable delay on the part of the Commissioners”. They therefore considered that from 29 November 2001 – when the matter was first referred to the LSRC – until 3 August 2005 – the date of the Smith panel’s decision – the LSRC had taken reasonable steps to proceed to a hearing and that any delays had been mostly out of its control. In particular, Lord Carswell stated that “[32]     It is necessary to bear in mind, first, that the remedy is being sought by the Respondent against the Commissioners, not against the Secretary of State, and that what has to be considered is whether the Commissioners failed to act with proper expedition, not whether the system required overhaul so as to speed up the process in some way. For this reason one must leave out of consideration the period up to November 2001 – over half of the overall lapse of time – when the matter was referred to the Commissioners for consideration. One may observe, however, that a good deal of activity took place between March 1997 and November 2001, involving two determinations by the Life Sentences Review Board and an application for judicial review. ... [35].     I am of the view, on consideration of the foregoing summary [of events between November 2001 and August 2005], that the Commissioners took reasonable steps to proceed to a hearing, and that the delays were mostly outside their control. Some of them were attributable to the respondent’s change of legal representation and to requests from his solicitors to extend time over various steps. Some delays were unavoidable, bearing in mind that the panel consisted of part-time members and dates had to be found when they could all attend and the witnesses were available. I conclude accordingly that the Commissioners did not delay unduly at any stage, notwithstanding the very long time that the proceedings took to reach a determination. I therefore would not favour making any declaration of breach of article 5(4) of the Convention.” H.     Subsequent events 51.     Following the judgment of the House of Lords, the decision of the Smith panel of 3 August 2005 was reinstated and the first Rodgers panel became functus officio . A new panel was appointed; however, in light of the previous involvement of the members of the first Rodgers panel in the applicant’s case those members were appointed to the new panel (the second Rodgers panel). It was not necessary for the second Rodgers panel to re ‑ determine the lawfulness of the applicant’s recall in 1997 as this issue had already been determined by the Smith panel. The sole issue was therefore that of current risk. 52.     A hearing was listed for 7 October 2008. Following the hearing of updated evidence, the second Rodgers panel directed that the applicant be released on licence subject to conditions. 53.     In the meantime, the Court of Appeal had allowed the applicant’s appeal against the High Court’s refusal to grant permission to apply for judicial review of the first Rodgers panel’s decision of 20 March 2008 (see paragraph 46 above). The judicial review application was remitted to the High Court. 54.     On 23 January 2009 the High Court refused the applicant’s application for judicial review. Insofar as the applicant had relied on Article   5 § 1 of the Convention, the court found that the first Rodgers panel had been entitled to refuse to reach a conclusion on risk until they had heard the further evidence as to the basis of the recall. There had therefore remained a causal connection between the original conviction and the risk of harm to the community which justified the detention of the applicant in March 2008. In respect of his Article 5 § 4 arguments, the court found that there had been no absence of consideration or periodic review of the applicant’s detention. 55 .     On 14 June 2011 the Court of Appeal dismissed the applicant’s appeal against this decision. On the Article 5 § 4 issue – namely, whether the evidence of risk before the first Rodgers panel in March 2008 must inevitably have led it to the conclusion that the applicant’s detention was no longer necessary for the protection of the public –, the court noted that the evidence of the witnesses with regard to the risk the applicant posed had not been uniform and the panel had therefore been entitled to reach the decision that it did. Consequently the applicant’s continued detention between March   and October 2008 had not been arbitrary and was rationally connected to the reason for his recall and sentence. 56.     On the advice of counsel given on 20 June 2011 the applicant did not pursue an appeal to the Supreme Court. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Prison Act (Northern Ireland) 1953 57.     Section 23(1) of the Prison Act (Northern Ireland) 1953 (“the 1953 Act”) gives a power to the Secretary of State for Northern Ireland to release prisoners with life sentences on licence. 58.     Under subsection (2) of that section the Secretary of State also has the power to revoke any licence he or she has previously granted. B.     Life Sentence Review Board 59.     Prior to the entry into force of the Life Sentences (Northern Ireland) Order 2001, Northern Ireland did not have a formalised structure of “tariff ‑ setting”. Rather, the Life Sentence Review Board, which was mostly comprised of senior officials from the Northern Ireland Office, advised the Secretary of State on when he should release on licence under section 23 of the 1953 Act prisoners serving terms of imprisonment for life. Reviews were normally carried out after the prisoner had completed three, six and ten years in custody. Further reviews were carried out at intervals until a stage was reached when the Board was prepared to recommend to the Secretary of State that a release date should be set. In considering the case, the Board took into account the nature of the prisoner’s offence, his age and background, his response in prison, and all other relevant factors, including the comments made by the trial judge when passing sentence. 60 .     In In Re McCabe [2007] NICA 35 the Court of Appeal accepted that the Life Sentence Review Board was not an Article 5 § 4-compliant body. C.     Life Sentence Review Commissioners 61 .     The Government conducted a review of Northern Ireland Prisons legislation in anticipation of the coming into effect, in October 2000, of the provisions of the Human Rights Act 1998. The review concluded that the existing procedures for discretionary life sentence prisoners and those sentenced to detention at the Secretary of State’s pleasure could be deemed inconsistent with the requirements of the Convention. The review considered that compliance with the Convention would require that, once the punitive element of the sentence had been completed, each prisoner should have his or her case reviewed periodically by a judicial body. To have judicial character, the body would need to be independent of the Executive (and of the parties concerned); impartial; and able to give a legally binding direction regarding the prisoner’s release. 62.     The review resulted in the adoption of the Life Sentences (Northern Ireland) Order 2001 and the Life Sentence Review Commissioners Rules (Northern Ireland) 2001, which came into effect on 8 October 2001. Part   II of the Life Sentences (Northern Ireland) Order 2001 (“the   2001   Order”) provides for the appointment of the Life Sentence Review Commissioners (“LSRC”) to advise the Secretary of State on any matter referred to them which is connected with the release or recall of life prisoners. 63.     Under Article 5 of the 2001 Order the “tariff”, which is that part of the life sentence considered appropriate to satisfy the requirements of retribution and deterrence, is fixed by the sentencing court. Under Article 6 of the Order, as soon as a life prisoner has completed the tariff the Secretary of State is required to refer his case to the LSRC, who should consider whether or not it is necessary for the prisoner to remain confined in order to protect the public from serious harm. If they are satisfied that it is not necessary they are required to direct his release. The Order imposes a duty on the Secretary of State to release a prisoner on licence if so directed by the LSRC. D.     Requirements for fairness in parole-type proceedings 64.     In Roberts v. Parole Board [2005] UKHL 45 Lord Bingham summarised the requirements of the Convention in the context of parole ‑ type proceedings as follows: “In non-criminal article 5(4) cases the approach of the [European] Court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example, Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Bouamar v   Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10   EHRR   293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain   v   United   Kingdom (1996) 22 EHRR 1, paras 58-60; Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 90-98. It is quite true, as the Board insisted in argument, that the Court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly and McElduff , above, para 72, the Court pointed out that any limitations must not ‘restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired’.” 65.     More recently, in R (Osborn) v Parole Board & 2 other cases [2013] UKSC 61 three prisoners challenged the refusal of the Parole Board to grant them an oral hearing when deciding whether to recommend their release or transfer to open conditions. Two appellants were serving indeterminate sentences, and one had been recalled after breaching the conditions of his licence. In all three cases, the Parole Board had declined to recommend release or transfer after consideration by a single member on the papers, and had refused a request for an oral hearing on the grounds that it could make no possible difference to the ultimate decision because, inter alia , there was no likelihood or reasonable prospect of immediate release or transfer. 66.     The judgment of the court was given by Lord Reed, who held that an oral hearing should be held whenever “fairness” demanded it; the question of “fairness” was a different question from whether the prisoner had a particular likelihood of release or transfer; although it was impossible to lay down universal rules, circumstances in which an oral hearing should be held included where there was a factual dispute or a need for oral mitigation, where it was needed to assess the prisoner’s risk, where it was needed to test the views of those who opposed the prisoner’s release or transfer, or where it would be unfair to allow the paper decision to become final without an oral hearing, such as where findings in the paper decision might have a significant impact on the prisoner’s future care; the common law duty to act fairly was influenced by the requirements of Article 5 § 4 of the Convention and a procedure that satisfied the former should also satisfy the latter; and finally, it was for the court to determine whether a fair procedure had been followed. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 67.     The applicant submitted that from the time of his recall on 7 March 1997 until his release on licence on 7 October 2008 he did not have the lawfulness of his detention reviewed “speedily” by a tribunal according to a process that complied with all the requirements of under Article 5 § 4 of the Convention. 68.     He contended that from the time of his recall until the creation of the LSRC in October 2001 no Article 5 § 4-compliant body had existed in Northern Ireland. In this regard, he relied on In Re McCabe [2007] NICA   35, in which the Court of Appeal had accepted that the Life Sentence Review Board was not an Article 5 § 4-compliant body (see also McCabe v.   the United Kingdom (dec.), no. 17233/08, 26   June 2012, §15). 69 .     Although he appears to have accepted that the LSRC in principle satisfied the requirements of Article 5 § 4, he complained that the panels did not conduct “speedy” reviews of his detention. 70.     The applicant further complained that the reviews of his detention were not conducted “fairly” and in a manner that satisfied Article 5 § 4 of the Convention. In particular, he contended that the Smith panel had determined his “guilt” in respect of the sexual offences to a “decisive extent” on the basis of evidence that he was not able to challenge effectively (namely, the testimonies of the complainants). 71.     Article 5 § 4 of the Convention reads as follows: “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.” 72.     The Government contested those arguments. A.     Admissibility 1.     Exhaustion of domestic remedies and compliance with the six-month rule 73.     The Government argued that the applicant had not sought a remedy from the domestic courts in relation to alleged delay in the review of his detention between March 1997 and November 2001. His first judicial review application, which concerned the decisions of the Life Sentence Review Board of 7 December 1999 and 30 October 2000 (see paragraph   10 above) had concluded in June 2001. As the Human Rights Act 1998 had come into force on 2 October 2000 it would have been open to the applicant to raise a complaint of delay under Article 5 § 4 of the Convention. He did not do so, even though he did raise other Convention grounds (Article 6 and a differently formulated complaint under Article 5 § 4 of the Convention), and he did not appeal the dismissal of his application for judicial review even though an appeal to the Court of Appeal lay as of right. The applicant’s second judicial review application, in which he did raise the issue of delay, was brought against the LSRC (and not the Government generally) and focused solely on the period from November 2001 to August 2005. 74.     In light of the above, the Government invited the Court to find that the applicant had failed to exhaust domestic remedies in respect of his detention between March 1997 and November 2001. In the alternative, the Government submitted that insofar as he now sought to complain about his detention during that period, his complaint was introduced more than six   months after the last domestic decision (being that of 29 June 2001). 75.     The applicant, on the other hand, contended that prior to 2   October 2000 he had no domestic remedy available wherein he could have raised a Convention complaint, and thereafter he could not complain about delay prior to 2 October 2000 as the Human Rights Act 1998 did not have retrospective effect. Consequently, nothing could have been achieved by bringing the proceedings suggested by the Government. 76.     The Court would recall that in the present case the applicant’s complaint in respect of his detention between March 1997 and November 2001 is not that the reviews by the Life Sentence Review Board were not conducted “speedily”, but rather that they did not satisfy the requirements of Article 5 § 4 of the Convention because the Board could not give a binding order directing his release. The applicant did raise this complaint in substance before the domestic courts: in particular, he complained that the Board’s function was “administrative rather than quasi-judicial” (see paragraph 10 above). The domestic court rejected this argument because, following Wynne v. the United Kingdom , cited above, it found that Article 5 § 4 did not apply to mandatory life sentences. It is true that the Court has since moved away from the position adopted in Wynne ; however, it did not do so until 2002, when the Grand Chamber handed down its judgment in Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002 ‑ IV. Consequently, the Court does not consider that the applicant can be faulted for not challenging the decision of 29 June 2001 before the Court of Appeal. 77 .     However, when the applicant brought his second judicial review application on 3 November 2005 he brought it solely against the LSRC and complained only of delay between 29 November 2001 and 3 August 2005. As a consequence, the dismissal of the application for judicial review on 29   June 2001 was the last domestic decision in respect of his complaint that the reviews of his detention between March 1997 and 29 November 2001 were not Convention-compliant. Therefore, insofar as he now seeks to complain to this Court about the absence of an Article 5 § 4-compliant review during that period of detention (see paragraph 68 above), his complaints must be considered to have been lodged out of time. 78.     It follows that this aspect of the complaint must be rejected pursuant to Article 35 § 1 of the Convention. 2.     No significant disadvantage 79.     The Government also contended that the applicant would not have been released any earlier had his detention been considered at more regular intervals. They therefore asked that the Court declare his complaint under Article   5 § 4 inadmissible as he had not suffered any significant disadvantage as required by Article 35 § 3(b) of the Convention. 80.     The Court reiterates that Article 5 § 4 provides certain minimal procedural guarantees to a detainee when a domestic court is adjudicating on whether detention should be imposed, extended or cancelled. One such guarantee is that the adjudication on the lawfulness of detention should be conducted “speedily”. “Speediness” is in itself a virtue of value to be protected regardless of the outcome of the proceedings in question. Therefore, an applicant cannot be said to have suffered no “significant disadvantage” as a result of a failure to conduct a “speedy” adjudication of the detention in question simply because such determination would not have resulted in an earlier release date. 81.     The Court would therefore dismiss the Government’s objection under Article 35 § 3(b) of the Convention. 3.     Manifestly ill-founded 82.     The Government further alleged that the applicant’s complaint under Article   5 § 4 was manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention. However, the Court is satisfied that the applicant’s Article 5 § 4 complaint raises complex issues of fact and law, such that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 83.     Following the judgment in Stafford v. the United Kingdom (cited above), it is clear that the procedural safeguards contained in Article 5 of the Convention apply where an applicant – even one serving a mandatory life sentence – has been recalled to prison following the revocation of his licence. Consequently, the sole issue for the Court to decide in the present case is whether the reviews of the applicant’s detention between 29   November 2001 and 7 October 2008 complied with the requirements of Article 5 § 4 of the Convention. 1.     The applicant’s submissions 84.     The applicant submitted that the State had violated his rights under Article 5 § 4 of the Convention because he did not receive a speedy decision determining the lawfulness of his detention. He further complained that the reviews had not been conducted “fairly” as he had been unable to challenge effectively the testimonies of the complainants. 85.     With regard to the question of delay, the applicant contended that the period of time between 29   November 2001 (referral to the LSRC) and 16   March 2004 (the preliminary hearing before the Smith panel) was essentially “lost time” as during this period no significant progress was made towards producing a determination of the “lawfulness” of his detention. There were lengthy delays caused by the applicant’s solicitor’s difficulties in securing legal aid (most notably between October 2002 and June 2003); however, the applicant was a detained prisoner who could not afford legal representation and it has never been suggested that this was a case in which legal representation was not necessary. 86.     Furthermore, the applicant alleged that the delay between 18   May 2004 and 4 November 2004, during which period the Smith panel was considering whether to subpoena his niece, was inordinate and not consistent with the notion of a “speedy” decision. 87.     In any event, when looked at globally, the applicant contended that the period between 29 November 2001 and 3 August 2005 (the date of the Smith panel’s decision) was a period of inordinate delay for the purposes of establishing the lawfulness of his detention. Indeed, the issue of the lawfulness of his detention had remained unresolved in domestic-law terms until the judgment of the House of Lords on 11 June 2008. 88.     The applicant further submitted that, as of 12 March 2008, the first Rodgers panel had evidence before it to the effect that he could safely be managed in the community. This evidence was given on the assumption that he had committed the historical sexual offences and yet the first Rodgers panel refused to come to a decision on whether his continued detention was justified. 2.     The Government’s submissions 89.     The Government accepted that the determination of the LSRC review was not conducted as quickly as all parties would ideally have wished, but in the very particular circumstances of the case they submitted that there had been no breach of the “speed” provision in Article 5 § 4 of the Convention. 90.     In this regard, the Government drew the Court’s attention to the fact that the applicant had only complained before the domestic courts about delay occasioned by the LSRC. Therefore, they argued that the Court could not consider any delay occasioned by the Northern Ireland Legal Services Commission in deciding whether or not to grant legal aid as the applicant had not exhausted domestic remedies in respect thereof. 91.     The Government submitted that the applicant’s case had been referred to the LSRC on 29 November 2001 and a substantive hearing was held within seven months (in June 2002). The House of Lords expressly found that the steps taken during this seven month period were reasonable. The requirement to abort this hearing date was the result of the applicant’s decision to dismiss his representative (see paragraph 16 above). 92.     Moreover, in respect of the period from 29 November 2001 to 3   August 2005, the High Court, in considering the applicant’s second judicial review application, noted that his side “was very largely responsible for the long periods in progressing the matter to the point of a hearing” (see paragraph 31 above). Likewise, the Court of Appeal found that there had been no avoidable delay on the part of the LSRC (see paragraph 33 above), and the House of Lords accepted that the LSRC had taken reasonable steps to progress to a hearing and that the delays were mostly outside its control (see paragraph 50 above). 93.     Having regard to the applicant’s criticism of the first panel between September 2003 (when a request was made to the Chairman that the panel recuse itself) and March 2004 (when the Smith panel held its first hearing), the Government submitted that it was perfectly proper for the panel to wish to consider the recusal application at an oral hearing and, having done so on 9   January 2004, it had recused itself on 12 January 2004. 94.     Moreover, the Government argued that between May 2004 and November 2004, when the possible attendance of one of the complainants to give evidence was being explored, the applicant’s case had not been stagnant. However, the matter was one of some sensitivity and it was being pursued largely at the applicant’s insistence, even though he could have had the complainant subpoenaed and thereby rendered moot the enquiries carried out during this period. 95.     The Government further submitted that any delay between August   2005 and 7 October 2008 could largely be explained by two factors: first and primarily, the applicant’s judicial review proceedings and associated appeals; and secondly, the fact that the change of circumstances which ultimately led to the applicant’s release only occurred when a number of witnesses gave evidence in March 2008 to the effect that he would no longer pose a significant risk to the public. Up to that point the evidence