EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 23389/94

                              Prem Singh

                                against

                          the United Kingdom

                        REPORT OF THE COMMISSION

                     (adopted on 11 October 1994)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.  The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

      B.  The proceedings

          (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1

      C.  The present Report

          (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 19-55). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.  Particular circumstances of the case

          (paras. 19-35). . . . . . . . . . . . . . . . . . . . . . 3

      B.  Relevant domestic law and practice

          (paras. 36-55). . . . . . . . . . . . . . . . . . . . . . 6

III.  OPINION OF THE COMMISSION

      (paras. 56-82). . . . . . . . . . . . . . . . . . . . . . . .11

      A.  Complaint declared admissible

          (para. 56). . . . . . . . . . . . . . . . . . . . . . . .11

      B.  Point at issue

          (para. 57). . . . . . . . . . . . . . . . . . . . . . . .11

      C.  Article 5 para. 4 of the Convention

          (paras. 58-82) . . . . . . . . . . . . . . . . . . . . . 11

           1.    Applicability of Article 5 para. 4 to release

                 on licence (paras. 59-66). . . . . . . . . . . . .11

           2.    Compliance with the requirements of Article 5

                 para. 4 (paras. 67-81) . . . . . . . . . . . . . .13

      CONCLUSION

      (para. 82). . . . . . . . . . . . . . . . . . . . . . . . . .16

APPENDIX I:      HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .17

APPENDIX II:     DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION  . . . . . . . . 18

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is Prem Singh, a British citizen born in 1957 and

currently serving a sentence of imprisonment in HM Prison Morfield. He

is represented by Mr. Rodney King, a solicitor practising in Bristol,

and Mr. Edward FitzGerald, counsel practising in London.

3.    The application is directed against the United Kingdom.  The

respondent Government are represented by Mr. Iain Christie, Foreign and

Commonwealth Office, as Agent.

4.    The case concerns the complaints of the applicant that he is

unable to obtain a review by a court of the lawfulness of his continued

detention at Her Majesty's pleasure contrary to Article 5 para. 4 of

the Convention.

B.    The proceedings

5.    The application was introduced on 25 January 1994 and registered

on 7 February 1994.

6.    On 5 April 1994, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application with a view to

holding a hearing consecutive to that in the case of Abed Hussain

v. the United Kingdom, No. 21928/93.

7.    The Government submitted their written observations on

12 May 1994.  The applicant submitted his written observations in reply

on 16 June 1994.

8.    At the hearing which was held on 30 June 1994, the Government

were represented by  Mr. Iain Christie, as Agent, Mr. David Pannick

Q.C., Counsel, and Mr. Harry Carter, Ms Helen Bayne and Ms Joy Hutcheon

as Advisers. The applicant was represented by Mr. Edward FitzGerald,

Counsel, Mr. Rodney King, Solicitor, and Mr. John Kilminster,

Solicitor.

9.    On 30 June 1994, the Commission declared the application

admissible.

10.   The parties were then invited to submit any additional

observations on the merits of the application.

11.   On 26 July 1994, the Government submitted further observations.

12.   On 10 August 1994, the applicant made further submissions.

13.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

14.   The present Report has been drawn up by the Commission  in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   J.C. GEUS

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 J. MUCHA

15.   The text of the Report was adopted by the Commission on

11 October 1994 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

16.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

17.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

19.   In 1973, the applicant, aged 15, was convicted of murder and

sentenced to be detained at Her Majesty's pleasure.

20.   In October 1990, after completing the "tariff" part of his

sentence, the applicant was released on licence.

21.   On 10 March 1991, the applicant was arrested and interviewed by

the police in relation to alleged offences of obtaining by deception

and threatening behaviour. These concerned allegations that he had

obtained a loan and overdraft facilities without disclosing that he had

been to prison and that he had misstated his qualifications. The

allegation of threatening behaviour related to an allegation that the

applicant had threatened a bystander who had witnessed a road accident

in which the applicant had been involved.

22.   On 12 March 1991, the Parole Board considered the applicant's

case.

23.   On 21 March 1991, the applicant's licence was revoked by the

Secretary of State on the recommendation of the Parole Board. The

applicant was given formal notice of the revocation of his licence

under section 62 (1) of the Criminal Justice Act 1991. The reasons

given were that:

      i.   reports indicated that the applicant had lied to and misled

           his supervising officers and avoided telling them of a

           variety of significant events following his release on

           licence;

      ii.  his arrest and subsequent appearance in a magistrates court

           on several criminal charges including fraud and using

           threatening behaviour rendered it impossible for the

           Secretary of State to be satisfied that the applicant's

           continued presence in the community did not constitute a

           risk to the public.

24.   By letter dated 27 August 1991, the Chief Probation Officer

clarified that the basis of the applicant's recall was not the alleged

offences, which were for the court to decide, but rather the

circumstances surrounding the offences which demonstrated conclusively

that the trust and openness necessary to supervise him in the community

were not there. The matters concerning which he had failed to inform

his supervisors included his obtaining employment with a pizza firm,

having a relationship and being less than honest about his background

and circumstances and running up considerable debts.

25.   The applicant made representations to the Parole Board concerning

his recall. The Parole Board had before it a number of reports from the

probation service and the police. The applicant did not see these

reports. On 19 December 1991, the Parole Board declined to make a

positive recommendation for the applicant's release.

26.   On 2 March 1992, the criminal charges against the applicant were

dismissed when the judge refused to sign the indictments presented by

the prosecution out of time. A voluntary bill of indictment was refused

on 9 April 1992.

27.   Following the applicant's application for his case to be

reconsidered in light of this development, the Secretary of State

referred the case back to the Parole Board to seek their advice under

section 61 (1) of the 1967 Act. On 30 July 1992, the Parole Board again

declined to recommend the applicant's release.

28.   The applicant sought judicial review of the decisions of the

Parole Board of 19 December 1991 and 30 July 1992.

29.   On 20 April 1993, the Divisional Court of the High Court quashed

the Parole Board's decision of 19 December 1991 on the basis that there

had been a breach of the rules of natural justice because of the

failure to disclose to the applicant all the reports placed before it.

It held that the  applicant was entitled to a fresh hearing under

section 39(4) of the Criminal Justice Act 1991. Lord Justice Evans

found, inter alia:

      " status is that of a person whose continued

      detention can only be justified if the test of dangerousness,

      meaning an unacceptable risk of physical danger to the life or

      limb of the public, is satisfied."

30.   He commented that the disclosed facts "scarcely seem able to

support a positive answer to the question" whether the applicant posed

a danger to the life or limb of the public.

31.   The Parole Board reconsidered the applicant's case after he had

sight of the reports and the opportunity to make detailed submissions

rebutting the allegations made against him. In his representations to

the Board, the applicant submitted, inter alia, that he had informed

his supervising officer that he was seeking evening employment and

explained that he was thereafter too pre-occupied with coping with the

death of his father to mention the details. He submitted a statement

from his girlfriend corroborating that he had not deceived her

concerning his criminal record and supporting his account of obtaining

work with a pizza firm in an interview in her presence, when he was not

asked about previous convictions and did not give false information on

the subject. He provided a statement from his landlady indicating that

while he had left his accommodation without paying all the rent due

(when he left in haste to join his family on the news of the death of

his father), he had left his belongings intending to return and had

rung her to explain. He had further paid the outstanding rent on his

return.

32.   On 18 June 1993, the Parole Board decided not to recommend

release. It gave as its reasons:

      "The Panel accepted that representations

      answered some of the matters which were of concern to his

      probation officer. However, there was a lack of openness in his

      dealings with the Probation Service. The Panel also considered

      that the conduct which led to the criminal charges indicated a

      serious kind of deceptiveness. His behaviour under supervision

      led the Panel to conclude that the nature of his personality had

      not changed significantly since the original offence at the age

      of 15. His failure to comply with the discipline of licence

      supervision, bearing in mind the original offence, gives rise to

      considerable concern."

33.   The applicant instituted judicial review proceedings seeking to

challenge the Board's decision. These proceedings were withdrawn on or

about 7 March 1994 in light of the fact that the applicant had been

offered an early review of his case before the Board. The Parole Board

considered the applicant's case and recommended to the Secretary of

State that he be released subject to six months on a Pre-release

employment scheme. It stated:

      "The panel were unanimous. On the evidence presented to

      them, they considered no longer constituted

      a danger to life or limb of committing life threatening

      offences to justify his continued detention since his

      recall in March 1991..."

34.   By memorandum dated 21 July 1994 from the Home Office, the

applicant was informed that the Secretary of State was not prepared to

accept this recommendation and had not agreed to his release.

35.   The applicant was informed in a written document of the reasons

for the Secretary of State's rejection of the Parole Board

recommendation. It was stated, inter alia, that:

      "... the Secretary of State notes with concern that you

      were recalled to prison in March 1991. He notes that you

      were considered to be an acceptable risk when you were

      released in 1990 but that your relationship with your

      supervising probation officer quickly broke down. You

      seemed unable to trust the Probation Service and had

      constantly misled them and avoided informing them of a

      variety of significant events occurring in your life since

      your release. You also appeared before Bristol magistrates

      on several criminal charges including fraud and using

      threatening behaviour, although these charges were not

      proceeded with at the Crown Court on technical grounds.

      You were thus recalled to prison following serious breaches

      in the trust placed in you as a life licensee...

      The Secretary of State is not yet satisfied that you are

      not a risk to the general public. He is not satisfied that

      if released on licence for a second time you would be

      willing to comply with your life licence. He is concerned

      that you have not had the opportunity to show that you can

      sustain your recently restored relationship with the

      Probation Service and with authority in general and that

      you need to be tested in the more challenging environment

      of an open prison.

      For the reasons set out above, the Secretary of State

      believes that you should be transferred to an open prison

      for further testing. Your next formal review by the Parole

      Board will begin in October 1995."

B.    Relevant domestic law and practice

      1. Detention at Her Majesty's pleasure

36.   The notion of detention at Her Majesty's pleasure had its origins

in an Act of 1800 for "the safe custody of insane persons charged with

offences".  Section 1 provided that defendants acquitted of a charge

of murder, treason or felony on the grounds of insanity at the time of

the offence were to be detained in "strict custody until His Majesty's

pleasure" and described their custody as being "during His Majesty's

pleasure".

37.   In 1908, detention at His Majesty's pleasure was introduced in

respect of offenders aged ten to sixteen and then extended to cover

those under eighteen in 1933. The provision in force at present is

Section 53 (1) of the Children and Young Persons Act 1933 (as amended)

which provides:

      "A person convicted of an offence who appears to the Court to

      have been under the age of eighteen years at the time the offence

      was committed shall not, if he is convicted of murder, be

      sentenced to imprisonment for life nor shall sentence of death

      be pronounced on or recorded against any such person but in lieu

      thereof the court shall ... sentence him to be detained during

      Her Majesty's pleasure and, if so sentenced he shall be liable

      to be detained in such a place and under such conditions as the

      Secretary of State may direct."

      2. Categorisation of detention at Her Majesty's pleasure

38.   Mandatory life sentences are imposed in respect of the offence

of murder committed by adults (Murder (Abolition of Death Penalty) Act

1967). Persons convicted of certain violent or sexual offences eg.

manslaughter, rape, robbery may be sentenced to life imprisonment at

the discretion of the trial judge. The principles underlying the

passing of a discretionary life sentence are:

      i. that the offence is grave and

      ii. that there are exceptional circumstances which demonstrate

      that the offender is a danger to the public and that it is not

      possible to say when that danger will subside.

39.   The sentence of "custody for life" is imposed where the offence

of murder is committed by an individual between the ages of 18 and 21

(section 8 (1) of the Criminal Justice Act 1982).

40.   In the present case on 20 April 1993, Evans LJ in the Divisional

Court held as follows in respect of detention "at Her Majesty's

pleasure":

      "At the time of sentencing, the detention orders under section

      53 were mandatory.  It is indeed the statutory equivalent for

      young persons of the mandatory life sentence for murder.  But the

      sentence itself is closer in substance to the discretionary

      sentence of which part is punitive (retribution and deterrence)

      and the balance justified only by the interests of public safety

      when the test of dangerousness is satisfied.  The fact that the

      mandatory life prisoner may be given similar rights as regards

      release on licence does not alter the fact that the mandatory

      life sentence is justifiable as punishment for the whole of its

      period: see R. v. Secretary of State, ex.p. Doody & others [1993]

      Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).  The order

      for detention under section 53 is by its terms both discretionary

      and indeterminate: it provides for detention 'during Her

      Majesty's pleasure'. (Section 53(4) which expressly authorised

      the Secretary of State to discharge the detainee on licence 'at

      any time' was repealed by the Parole Board provisions of the

      Criminal Justice Act 1967, but this does not, in my judgment,

      alter the nature of the sentence in any material respect.)  I

      would decide the present case on the narrow ground that,

      notwithstanding Home Office and Parole Board practice, the

      applicant should be regarded as equivalent to a discretionary

      life prisoner for the purpose of deciding whether Wilson rather

      than Payne governs his case."

41.   The Court accordingly held that the applicant in the case,

detained at Her Majesty's pleasure, should be afforded the same

opportunity, as would be given a discretionary life prisoner, to see

the material before the Parole Board when it decided upon whether he

should be released after his recall to prison on revocation of his

licence.

      3. Release on licence and revocation of licences

42.   Persons sentenced to mandatory and discretionary life

imprisonment, custody for life and those detained at Her Majesty's

pleasure have a "tariff" set in relation to that period of imprisonment

they should serve to satisfy the requirements of retribution and

deterrence. After the expiry of the tariff, the prisoner becomes

eligible for release on licence. Applicable provisions and practice in

respect of the fixing of the tariff and release on licence have been

subject to change in recent years, in particular, following the coming

into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991

Act).

      i. Prior to  1 October 1992

43.   Section 61 (1) of the Criminal Justice Act 1967 provided, inter

alia:

      "The Secretary of State may if recommended to do so by the Parole

      Board, release on licence a person serving a sentence of

      imprisonment for life or a person detained under section 53 of

      the Children and Young Persons Act 1933 (young offenders

      convicted of grave crimes), but shall not do so in the case of

      a person sentenced to imprisonment for life or to detention

      during Her Majesty's pleasure or for life except after

      consultation with the Lord Chief Justice of England together with

      the trial judge if available."

44.   Section 62 of the 1967 Act provided inter alia:

      "1. Where the Parole Board recommends the recall of any person

      who is subject to a licence under section 60 or 61 of this Act,

      the Secretary of State may revoke that person's licence and

      recall him to prison.

      2. The Secretary of State may revoke the licence of any such

      person and recall him as aforesaid without consulting the Board,

      where it appears to him that it is expedient in the public

      interest to recall that person before such consultation is

      practicable.

      3. A person recalled to prison under the foregoing provisions of

      this section may make representations in writing with respect to

      his recall and shall on return to prison be informed of the

      reasons for his recall and of his right to make such

      representations...

      4. The Secretary of State shall refer to the Board the case

      of a person recalled under subsection (1) of this section

      who makes representations...

      5. Where the Board recommends the immediate release on licence

      of a person whose case is referred to it under this section, the

      Secretary of State shall give effect to the recommendation, and

      where it is necessary for that purpose to release that person

      under subsection (1) of the last foregoing section, the Secretary

      of State shall do so without the consultation required by that

      subsection...".

45.   A statement of policy issued by the Secretary of State on

13 November 1983 indicated that detention following expiry of the

"tariff" depended on whether the person was considered no longer to

pose a risk to the public.

46.   In a parliamentary written answer to the House of Commons on

23 July 1987, the Secretary of State stated that in respect of

discretionary life prisoners the tariff would be fixed in accordance

with the judicial view which would be sought as soon as practicable

after sentence. In respect of mandatory life prisoners, he stated that

he would take into account the judicial view as to "tariff" as one

factor amongst others, including the need to maintain public confidence

in the system of justice.

      ii. From 1 October 1992

47.   On 1 October 1992, Part II of the Criminal Justice Act 1991 (the

1991 Act) came into force.

48.   The 1991 Act instituted changes to the regime applying to the

release of discretionary life prisoners following the decision of the

Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment

of 25 October 1990, Series A no. 190).

49.   Pursuant to section 34 of the 1991 Act, the tariff of a

discretionary life prisoner is fixed in open court by the trial judge

after conviction. After the tariff has expired, the prisoner may

require the Secretary of State to refer his case to the Parole Board

which has the power to order his release if it is satisfied that it is

no longer necessary for the protection of the public that he be

detained. Pursuant to the Parole Board Rules 1992 which came into force

on 1 October 1992, a prisoner is entitled to an oral hearing, to

disclosure of all evidence before the panel and to be legally

represented. There is provision enabling a prisoner to apply to call

witnesses on his behalf and to cross-examine those who have written

reports about him.

50.   For the purposes of the 1991 Act, persons detained at Her

Majesty's pleasure or serving mandatory sentences of life imprisonment

or custody for life are not regarded as discretionary life prisoners.

In relation to these prisoners, the Secretary of State continues to

decide the length of the tariff. The view of the trial judge is made

known to the prisoner after his trial as is the opinion of the Lord

Chief Justice. The prisoner is afforded the opportunity to make

representations to the Secretary of State who then proceeds to fix the

tariff and is entitled to depart from the judicial view (R. v.

Secretary of State for the Home Department, ex parte Doody [1993] 3 AER

92).

51.    As regards release on licence, these categories of prisoners are

subject to section 35 of the 1991 Act, which provides as relevant:

      "(2) If recommended to do so by the Board, the Secretary of State

      may, after consultation with the Lord Chief Justice together with

      the trial judge if available, release on licence a life prisoner

      who is not a discretionary life prisoner."

52.   Section 39 provides as relevant:

      "(1) If recommended to do so by the Board in the case of a long

      term or life prisoner who has been released on licence under this

      Part, the Secretary of State may revoke his licence and recall

      him to prison...

      (3) A person recalled to prison under subsection (1) or (2) above

           (a) may make representations in writing with

           respect to his recall; and

           (b) on his return to prison, shall be informed

           of the reasons for his recall and of his right

           to make representations.

      (4) The Secretary of State shall refer to the Board -

           (a) the case of a person recalled under subsection (1)

           above who makes representations under subsection (3)

           above...

      (5) Where on a reference under subsection (4) above the Board -

           (a) directs in the case of a discretionary life prisoner;

           or

           (b) recommends in the case of any other person,

      his immediate release on licence under this section, the

      Secretary of State shall give effect to the direction or

      recommendation."

53.   On 27 July 1993, the Secretary of State made a statement of

policy in relation to mandatory life prisoners, stating, inter alia,

that before any such prisoner is released on licence he

      "will consider not only, (a) whether the period served by

      the prisoner is adequate to satisfy the requirements of

      retribution and deterrence and (b) whether it is safe to

      release the prisoner, but also (c) the public acceptability

      of early release. This means I will only exercise my

      discretion to release if I am satisfied that to do so will

      not threaten the maintenance of public confidence in the

      system of criminal justice."

iii.  Composition of the Parole Board

54.   The Parole Board consists of 8O members. The panels which sit to

consider prisoners detained at Her Majesty's pleasure consist of four

members. Members are allotted to panels as case papers become available

on an apparently random basis.

55.   In the case of the applicant, the composition of the Parole Board

when it ordered his recall in March 1991 and declined to direct his

release on 19 December 1991 and 18 June 1993 was different, save that

the same consultant psychiatrist sat on the latter two occasions.

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

56.   The Commission has declared admissible the applicant's complaint

that he is unable to obtain the review by a court of the lawfulness of

his continued detention at Her Majesty's pleasure.

B.    Point at issue

57.   The issue to be determined is whether there has been a violation

of Article 5 para. 4 (Art. 5-4) as regards the lack of review by a

court of the lawfulness of the applicant's continued detention.

C.    Article 5 para. 4 (Art. 5-4) of the Convention

58.   Article 5 para. 4 (Art. 5-4) provides:

      "Everyone who is deprived of his liberty by arrest or detention

      shall be entitled to take proceedings by which the lawfulness of

      his detention shall be decided speedily by a court and his

      release ordered if the detention is not lawful."

      1. Applicability of Article 5 para. 4 (Art. 5-4) to release on

      licence

59.   The applicant submits that detention at Her Majesty's pleasure

is a wholly indeterminate sentence based on the special factor of

youth. It should be assimilated to discretionary life sentences for

adults in respect of which the European Court of Human Rights has held

that Article 5 para. 4 (Art. 5-4) of the Convention requires judicial

rather than executive control after the expiry of the punitive or

"tariff" part of their sentence. Since the only justification for his

detention is risk or "dangerousness", which is a factor susceptible to

change, the applicant submits that he should have a review of the

lawfulness of his continued detention by a body satisfying the

guarantees of Article 5 para. 4 (Art. 5-4) of the Convention. He would

also argue that the fact that he had been released from prison as no

longer constituting a risk and that this liberty was removed from him

in itself called for a judicial review of the merits of the case for

re-detention.

60.   The respondent Government submit that detention at Her Majesty's

pleasure is to be equated with the term of mandatory life imprisonment

for adults and is in effect the equivalent sentence imposed on

juveniles. It is therefore to be regarded as a sentence fixed by law

in respect of the gravity of the offence concerned. They submit that

mandatory and discretionary life sentences differ in fundamental

respects, both in nature and applicable procedures. Pursuant to the

judgments of the Court, Article 5 para. 4 (Art. 5-4) does not grant an

entitlement  to a prisoner serving a mandatory life sentence to

periodic judicial assessment of the grounds for his detention after the

expiry of his tariff (cf. Eur. Court H.R., Weeks judgment of 2 March

1987, Series A no. 114, and Thynne, Wilson and Gunnell judgment of

25 October 1990, Series A no. 190-A). The requirements of

Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original

trial and appeal proceedings of the applicant. They point out that in

the case of Wynne (Eur. Court H.R. 18 July 1994, to be published in

Series A no. 294-A, para. 36) the Court found that the intervening

event of recall after release was not a factor which could by itself

give rise to an entitlement to an Article 5 para. 4 (Art. 5-4) review

where the sentence was determinate in character.

61.   The Commission recalls that in its case-law the Court has

distinguished between mandatory and discretionary sentences of life

imprisonment. Mandatory life imprisonment is imposed because of the

inherent gravity of the offence (ie. in cases of murder) and applied

automatically regardless of considerations pertaining to the

dangerousness of the offender. No right to review of subsequent release

on licence arises in such cases. The discretionary life sentence

however has a special indeterminate character and has been developed

as a measure to deal with mentally ill and unstable offenders. The

discretionary sentence serves a preventative rather than a punitive

purpose and because of the presence of factors (eg. dangerousness,

instability) which are susceptible of change with the passage of time,

new issues of lawfulness of continued detention may arise which require

the possibility of recourse to a body satisfying the requirements of

Article 5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., Weeks judgment,

loc. cit.; Thynne, Wilson and Gunnell judgment loc. cit. and Wynne

judgment, loc.cit.).

62.   The Commission notes that sentences of detention at Her Majesty's

pleasure are imposed automatically in the cases of murder by juveniles

(under eighteen years). To that extent, the detention has a similarity

with the mandatory sentence imposed in respect of murder by adults. The

adult sentence however is fixed at the term of life: detention at Her

Majesty's pleasure is on its face indeterminate. Though impliedly a

sentence of detention may authorise detention for life, the Commission

considers that a distinction must be drawn between a sentence which is

fixed by the judiciary at a maximum of life leaving a discretion to the

executive as to whether the individual is released earlier and a

sentence which has no fixed term and the limits of which are to be

defined by the executive.

63.   The Commission has had regard to the origins of the term

"detention at Her Majesty's pleasure" which applied in 1800 to the

detention of insane offenders and in which context it had a clearly

preventative purpose. Juveniles under eighteen have been excluded from

the regime of mandatory life imprisonment and also from the notion of

"custody for life" which applies to offenders between 18 and 21. The

application of the term of detention at Her Majesty's pleasure to

juveniles would appear to the Commission to reflect an intention of

imposing a distinct regime of detention geared to the special

considerations which apply in dealing with very young offenders who are

potentially dangerous but who still have formative years ahead of them

and may change with maturation.

64.   The applicant has submitted that if this type of detention is

regarded as equivalent to a mandatory life sentence fixed punitively

to reflect the gravity of the offence this would raise issues under

Article 3 (Art. 3) of the Convention in respect of the inhumanity of

imposing life sentences on children (which he also points out is

forbidden under Article 37 para. a of the United Nations Convention on

the Rights of the Child). The Commission considers it unnecessary to

examine this issue. It finds that detention at Her Majesty's pleasure

is, by its nature and objective, a term of indeterminate detention

based primarily on considerations of a preventative, rather than

punitive character.

65.   The Commission recalls that the applicant was sentenced at the

age of 15 and  spent the following 17 years in prison - over half of

his life and a significant part of his adolescence and young adulthood.

The element of his sentence attributed to the purpose of retribution

expired in or about 1990 and consideration of risk and dangerousness

would appear to be the determining factor in his continuing detention.

His release and subsequent recall to prison were determined primarily

with regard to considerations of risk. Since, therefore, issues may

arise with the passage of time relating to the justification for the

applicant's continued detention, the Commission finds that he is

entitled under Article 5 para. 4 (Art. 5-4) to have the lawfulness of

that detention decided by a court.

66.   Having regard to this finding, the Commission also finds it

unnecessary to determine whether the applicant should have the

opportunity of a review on the ground solely that he had been released

and then recalled to prison. This is however a factor which may be of

relevance in assessing the nature of the procedure which should be

available.

      2. Compliance with the requirements of Article 5 para. 4

      (Art. 5-4)

67.   The Government have taken the view that the requirements imposed

by Article 5 para. 4 (Art. 5-4) as to the supervision of lawfulness of

the applicant's detention were satisfied by the original trial and

appeal procedure. However they have pointed out that in any event when

he was recalled, the applicant had the opportunity to make

representations to the Parole Board in circumstances where it did have

power to order his immediate release and this would, assuming

Article 5 para. 4 (Art. 5-4) required a review at this stage, satisfy

the requirements of that provision.

68.   The applicant submits that the procedure for release on licence

of detainees at Her Majesty's pleasure does not generally satisfy the

requirements of Article 5 para. 4 (Art. 5-4) since the Parole Board,

save immediately after recall, is unable to order release, the ultimate

decision resting with the executive. There is no provision for an oral

hearing before the Board or for an applicant to call his own witnesses

or to question the witnesses against him. Even though on his recall the

Parole Board enjoyed the power to direct his immediate release, the

applicant submits that since the Board had initially recommended his

recall, it could not be considered as independent or impartial in

reviewing whether he should nonetheless be released. Further, given

that the Board reached its initial decision refusing release 9 months

after the applicant was recalled to prison, the requirement of speed

in Article 5 para. 4 (Art. 5-4) was not complied with.

69.   The Commission recalls that the Court in the Weeks and Thynne,

Wilson and Gunnell cases (loc. cit. above) found that neither the

Parole Board (pre-1992) nor the possibility of judicial review

satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention in respect of prisoners serving terms of discretionary life

imprisonment. The Court held in the Weeks case (loc. cit.) that the

Parole Board which could only recommend release lacked the necessary

power of decision. Further, in view of the failure to provide prisoners

with full disclosure of the adverse material before the Board the

procedures did not allow the proper participation of the person

adversely affected by the contested decision and could not be regarded

as judicial in character. The Court did not find it necessary to rule

on whether an oral hearing would be required.

70.   The Commission has found above that when considering whether to

recommend the release of a person detained at Her Majesty's pleasure

the Parole Board is dealing with issues relating to the lawfulness of

a deprivation of liberty of an individual. In this context, the "court"

required by Article 5 para. 4 (Art. 5-4) should have the power to order

release and it is essential that the procedures followed should afford

proper guarantees that enable an individual to participate effectively

in the proceedings before it (see eg. Eur. Court H.R., Winterwerp

judgment of 24 October 1979, Series A no. 33 at p. 24, para. 60). Where

questions arise involving, for example, the assessment of character or

personal attitudes, it may be essential for the proper and fair

examination of the issues that the detained person be given the

opportunity to participate in an oral hearing and, if there are

disputed issues of fact, the possibility to have witnesses examined and

cross-examined and their credibility established in person (see mutatis

mutandis  Eur. Court H.R., Kremzow judgment of 21 September 1993,

Series A. 268-B at p. 16, para. 67). These considerations, in the

Commission's view, take on particular force when an applicant has

already been released as no longer posing a risk and is then recalled

to prison on the basis of allegations of misconduct, which may or may

not be well-founded.

71.   The Commission notes that since October 1992, a new Parole Board

has been instituted which has the power to direct release 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 do not however apply to other categories of

prisoners. The Parole Board as it presently functions in respect of the

applicant still has no decision-making power, save when considering

release immediately after a prisoner has been recalled to prison. The

Board's procedure has however been modified pursuant to the finding of

the Divisional Court in an application for judicial review by this

applicant (paras. 29 and 39) following which the material before the

Board is disclosed to prisoners detained at Her Majesty's pleasure.

There is no provision for oral hearing or for examination and

cross-examination of witnesses.

72.   The procedures applicable in the Board's examination of the

applicant's case following his recall to prison have accordingly varied

with the circumstances. The Commission has therefore examined whether

the Parole Board has on any of these occasions satisfied the

requirements of Article 5 para. 4 (Art. 5-4).

73.   On 19 December 1991, immediately following the applicant's

recall, the Board had the power to direct his release pursuant to

section 62 (5) of the Criminal Justice Act 1967. However, the documents

before it were not disclosed to the applicant. When the Board examined

the case on 30 July 1992 following the applicant's acquittal, it did

not have the power to direct release and there was also no disclosure

of documents. The Commission finds that on each of these occasions the

Board did not satisfy the requirements of Article 5 para. 4 (Art. 5-4),

given  the procedural shortcoming in failing to make available the

material before the Board either taken alone or combined with the lack

of power to direct release.

74.   Following the decision of the Divisional Court (see paras. 29 and

39 above) the Parole Board's decision of 19 December 1991 was quashed

and in the procedure which culminated in its decision of 18 June 1993,

it had power to direct release pursuant to section 39(5) of the

Criminal Justice Act 1991 which had come into force. The applicant also

had sight for the first time of the relevant material before the Board

for the purpose of making written representations concerning the

allegations against him.

75.   The applicant has submitted that, notwithstanding the power to

release and access to documents, this review was inadequate for the

purposes of Article 5 para. 4 (Art. 5-4) since there was still no

provision for an oral hearing at which witnesses could be examined or

cross-examined. He has also challenged the independence and

impartiality of the Board in reconsidering the original decision to

recall him to prison and the speediness of the review, which took place

more than two years after his recall.

76.   The Commission notes that in the present case when the applicant

was recalled to prison, it was against a background of allegations of

misconduct and deception. The applicant considered that he had

explanations for the alleged shortcomings in his behaviour and, inter

alia, submitted statements from his girlfriend and landlady which

contradicted the factual basis for the assessment of his conduct as

disclosing unreliability and deceptiveness. It appears to the

Commission that in the circumstances of this case the opportunity for

the Board to hear the relevant witnesses, and for the applicant to be

able to cross-examine the witnesses against him, would have been

necessary for a proper and fair resolution of the issues arising as to

the applicant's bona fides.

77.   Further, the Commission recalls that the Board in its review of

18 June 1993 was reconsidering its original decision to revoke the

applicant's licence. The Commission has held in the context of

Article 26 (Art. 26) of the Convention that the opportunity of

requesting an authority to reconsider a decision taken by it does not

generally constitute an effective remedy for the purposes of exhaustion

of domestic remedies (see eg. No. 11932/86, Dec. 9.5.88, D.R.56 p.

199). While it appears that the composition of the Board may have

differed on both occasions, the Commission considers that a prisoner

would have legitimate grounds to fear that the principal issue in the

case - whether his continued presence in the community constituted a

risk - was prejudged. It is not apparent from the material before the

Commission that the Board recommends recall on the basis that this is

a provisional view based on prima facie evidence and subject to fresh

consideration in light of a prisoner's representations. The Commission

notes that the reasons given to the applicant for his recall were

framed in unconditional findings and assessments as to his conduct and

the resulting risk. Pursuant to the relevant statutory provisions, a

review of the decision to recall was only undertaken on the applicant's

request, such reviews not being required automatically (see paras. 43

and 51).

78.   While it would not necessarily raise an issue of structural

independence where, for example, the same judicial instance

(differently constituted) reconsidered the merits of a case, the

Commission considers that the function and powers of the Parole Board

as it currently operates in relation to the detainees at Her Majesty's

pleasure vary significantly. The Commission has found above that the

Board fails to have the characteristics of a `court-like body' when it

exercises a merely advisory function. Similarly, the procedure by which

it recommended recall had, in the Commission's view, an executive or

administrative character.

79.   The Commission is therefore of the opinion that the review

conducted by the Parole Board on 18 June 1993 lacked the necessary

judicial guarantees and did not afford the applicant an effective

opportunity of influencing the outcome of the proceedings. It

accordingly is unnecessary to decide whether the requirement of

speediness imposed by Article 5 para. 4 (Art. 5-4) was complied with.

80.   Since the review of 18 June 1993,  the Parole Board has ceased

to have the power to direct the applicant's release.

81.   Consequently, the Commission finds that the applicant did not

have, and continues to lack, 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

82.   The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

Secretary to the Commission            President of the Commission

      (H.C. KRÜGER)                         (C.A. NØRGAARD)

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

31.03.93              Introduction of the application

27.05.93              Registration of the application

Examination of admissibility

05.04.94              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits with a view to holding a hearing

12.05.94              Government's observations

16.06.94              Applicant's reply

27.06.94              Commission's grant of legal aid

30.06.94              Hearing on admissibility and merits

30.06.94              Commission's decision to declare the application

                      admissible

Examination of the merits

30.06.94              Commission's deliberations

26.07.94              Government's observations on the merits

10.08.94              Applicant's further submissions

11.10.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report