Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24835/94

by Raymond BAXTER

against the United Kingdom

The European Commission of Human Rights sitting in private on

28 November 1995, following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 April 1994 by

Raymond BAXTER against the United Kingdom and registered on

5 August 1994 under file No. 24835/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

13 March 1995 and the observations in reply submitted by the

applicant on 25 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1955 and currently

serving a sentence of detention at Her Majesty's pleasure at Long

Lartin Prison, Evesham. He is represented before the Commission by Mr.

Michael Pringsheim, a solicitor practising in London.

The facts as submitted by the parties may be summarised as

follows.

a. Particular circumstances of the case

The applicant was convicted of murder in 1971 at the age of

fifteen. He was sentenced to detention at Her Majesty's pleasure.

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.

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.

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.

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.

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 give 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.'"

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

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

pleasure".

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"

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."

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

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

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."

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...".

ii. From 1 October 1992

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

1991 Act) came into force.

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).

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

Majesty's pleasure are not regarded as discretionary life prisoners.

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

decide the length of the tariff.

As regards release on licence, detainees at Her Majesty's

pleasure 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."

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."

COMPLAINTS

The applicant complains that he had never had the opportunity of

obtaining a review of the lawfulness of his continued detention by a

body complying with the requirements of Article 5 para. 4 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 April 1994 and registered

on 5 August 1994.

On 28 November 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

By letter dated 23 December 1994, the Government requested that

the case be adjourned pending the case of Prem Singh v. the United

Kingdom which had been referred to the Court.

On 14 January 1995, the Commission rejected the Government's

request having regard to the fact that the applicant was serving a

sentence of imprisonment.

The Government's observations were submitted on 13 March 1995 and

the applicant's observations in reply were submitted on 25 May 1995

after an extension in the time-limit.

THE LAW

The applicant, who is serving a sentence of detention at Her

Majesty's pleasure, complains of the absence of any procedure under

domestic law by which he can have reviewed by a court the lawfulness

of his continued detention. He invokes Article 5 para. 4

(Art. 5-4) of the Convention which 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."

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.

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 the 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.

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 the witnesses against him.

The Commission has taken cognizance of the submissions of the

parties concerning the complaints raised by the applicant. It considers

that the complaints raise serious issues of fact and law the

determination of which should depend on an examination of the merits.

The application cannot therefore be regarded as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (S. TRECHSEL)

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BAXTER v. THE UNITED KINGDOM

BAXTER v. THE UNITED KINGDOM

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