Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21928/93

by Abed HUSSAIN

against the United Kingdom

The European Commission of Human Rights sitting in private on

30 June 1994, 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

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

J. MUCHA

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 31 March 1993 by

Abed Hussain against the United Kingdom and registered on 27 May 1993

under file No. 21928/93;

Having regard to:

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

Commission;

- the observations submitted by the respondent Government on

6 October 1993 and the observations in reply submitted by the

applicant on 1 December 1993;

- the further observations submitted by the applicant on

15 June 1994;

- the observations submitted by the parties at the oral hearing on

30 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

a. The particular circumstances of the case

The applicant is a Pakistani citizen born in 1962. He is

currently imprisoned at Her Majesty's Prison Doncaster in South

Yorkshire. He is represented before the Commission by Ms. Kate

Akester, a solicitor working for Justice in London and Mr. Edward

FitzGerald, counsel practising in London.

The facts as submitted by the parties may be summarised as

follows.

In December 1978 the applicant, then aged 16, was found guilty

of the murder of his younger brother aged two. He received a mandatory

sentence of detention "at Her Majesty's pleasure" pursuant to section

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

The applicant appealed against both his conviction and sentence.

The Court of Appeal dismissed his appeal on 5 March 1980.

Under the administrative procedures governing such sentences as

that received by the applicant, a tariff period is set to fix the

number of years' detention required to satisfy the requirements of

retribution and deterrence. The applicant's tariff period was set at

fifteen years. The Parole Board has twice considered whether or not to

recommend his release but on both occasions decided against such a

course. These decisions were communicated to the applicant in,

respectively, February 1987 and February 1991.

b. The relevant domestic law and practice

Detention at Her Majesty's pleasure

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

amended) 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."

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."

COMPLAINTS

Article 5 para. 4

The applicant contends that the procedures governing review of

his continued detention fail to comply with the requirements of Article

5 para. 4 of the Convention. In particular he complains that:

(i) he has no right to periodic review of his case to determine

the justification for continuing detention;

(ii) the ultimate decision rests with the executive and not a

judicial body independent of the executive;

(iii) he has no right to an oral hearing or to question the

witnesses against him in person and call his own witnesses;

(iv) he has no acknowledged right to see the reports placed

before the Parole Board and the Home Secretary.

The applicant submits that the sentence under which he is held

should attract the safeguards of Article 5 para. 4 since there is no

distinction in domestic law between a mandatory life sentence and a

discretionary one and, secondly, even if there is, a sentence of

detention "at Her Majesty's pleasure" should be equated with a

discretionary sentence.

Article 14

The applicant also complains of a violation of Article 14 in that

he is irrationally discriminated against on the basis of his status as

a person convicted of murder, because the review procedures governing

continued detention of individuals sentenced to discretionary life

sentences are not subject to the same restrictions as those governing

the applicant's detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1993 and registered

on 27 May 1993.

On 6 July 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the complaints under Article 5 para.

4 of the Convention.

The Government's observations were submitted on 6 October 1993

and the applicant's observations in reply were submitted on

1 December 1993.

On 21 January 1994, the Commission decided to grant legal aid to

the applicant.

On 5 April 1994, the Commission decided to invite the parties to

an oral hearing to be held consecutively with the hearing in the case

of Prem Singh v. the United Kingdom, Application No. 23389/94.

At the hearing, which took place on 30 June 1994, the parties

were represented as follows:

For the Government

Mr. Iain Christie Agent

Mr. David Pannick Q.C Counsel

Mr. Harry Carter Adviser

Ms Helen Bayne Adviser

Ms Joy Hutcheon Adviser

For the applicant

Mr. Edward FitzGerald Counsel

Mr. Jonathan Cooper Counsel

Ms Kate Akester Solicitor

Mr. Rodney King Adviser

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 also complains of discrimination in the

procedures which are applied to persons convicted of murder. He invokes

Articles 5 para. 4 and 14 (Art. 5-4, 14) of the Convention.

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."

Article 14 (Art. 14) provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

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 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 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.

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 on 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) (C.A. NØRGAARD)

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HUSSAIN v. THE UNITED KINGDOM

HUSSAIN v. THE UNITED KINGDOM

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