Lexploria

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 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

Menu

BAXTER v. THE UNITED KINGDOM

BAXTER v. THE UNITED KINGDOM

LEXI