THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54656/00          Application no. 61061/00 by Darren WALLER             by Brian VALE against the United Kingdom     against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 30 January 2003 as a Chamber composed of

Mr G. Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above applications lodged on 29 November and 31 August 1999, respectively,

Having regard to the decision of 25 September 2001 to join the applications,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Darren Waller and Mr Brian Vale, are British nationals, born in 1964 and 1949, respectively. Both are currently in prison. They are represented before the Court by Mr E. Abrahamson , a lawyer practising in Liverpool.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

Mr Waller was convicted of attempted murder and sentenced to a discretionary life sentence on 24 September 1996. His tariff was fixed at eight years by the sentencing judge on the same day. He was refused leave to appeal against conviction on 10 April 1997 by a single judge of the Court of Appeal.

Mr Vale was convicted of manslaughter and on 8 September 1994 sentenced to a discretionary life sentence. His tariff was fixed at ten years and, on 3 October 1995, after he was granted leave to appeal against sentence, it was reduced to eight years by the Court of Appeal.

In response to a query by Mr Vale’s representatives as to the means by which he could apply to have his tariff reduced, the Prison Service responded by letter dated 17 February 1999 confirming that the Secretary of State could not interfere with a tariff fixed by a court.

B. Relevant domestic law and practice

The Court refers to the description of the domestic law and practice in its judgment in the case of Stafford v. the United Kingdom ([GC], no. 46295/99, judgment of 28 May 2002, ECHR 2002-IV).

1. Life sentences

English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as detention during Her Majesty’s Pleasure (section 53(1) of the Children and Young Persons Act 1933); in respect of offenders between the age of 18 and 20 years, custody for life (section 8(1) of the Criminal Justice Act 1982), and in respect of offenders aged 21 and over, life imprisonment (section 1(1) of the Murder (Abolition of Death Penalty) Act 1967).

Mandatory life sentences are fixed by law, in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (e.g. manslaughter, rape or robbery). The principles underlying the imposition 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 the danger will subside.

Discretionary life sentences are indeterminate in order that “the prisoner’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large” ( R v. Wilkinson [1983] 5 Cr.App.Rep . 105, p. 108).

2. Tariff

Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s Pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order 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.

Under the relevant provisions of the Criminal Justice Act 1967, the regime applying to the release of discretionary and mandatory life prisoners was the same. Section 61(1) of the 1967 Act provided inter alia that:

“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 custody 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 custody for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England and the trial judge if available.”

For both categories of prisoner, the Secretary of State fixed the tariff element of the sentence, after consulting the judiciary.

The 1991 Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne , Wilson and Gunnell v. the United Kingdom ( judgment of 25 October 1990, Series A no. 190-A).

Pursuant to section 34 of the 1991 Act, the sentencing court was to specify the penal or tariff element of the sentence. After the tariff expired, the prisoner could require the Secretary of State to refer his case to the Parole Board which had the power to order his release if it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner was entitled to an oral hearing, to disclosure of all evidence before the Parole Board and to legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who have written reports about him.

The regime applicable to mandatory life prisoners and prisoners detained during Her Majesty’s Pleasure was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provided insofar 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.”

3. Policy statements

On 10 November 1997 the Secretary of State made the following parliamentary statement ( Hansard (House of Commons Debates) cols. 420-421):

“So far as the procedures for setting and reviewing tariffs of [mandatory life prisoners] are concerned, I am continuing the practice of my predecessor, as described in his answers of 27 July 1993, ... In particular, before setting the tariff, I am continuing to take the advice of the trial judge and the Lord Chief Justice, informing the prisoner of the substance of that advice and inviting representations about it, and giving reasons for any departure on my part from the judicial review.

With regard to the discretion to alter the tariff, I reiterate that the view which I take ... at the beginning of a mandatory life sentence of the period necessary to satisfy the requirements of retribution and deterrence, is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it or by increasing it where I, or a successor in my office, conclude that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.

The procedure for considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of State is minded to increase the tariff, and to be given reasons for any subsequent decision to increase it.

So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence ... Prisoners will continue to be given the opportunity to make representations and to have access to the material before me.

I intend to apply these policies in respect of all tariffs for adult murderers, whether or not they were originally set before 27 July 1993 and whether or not they were originally fixed by me personally, or a Minister acting on my behalf, or by or on behalf of a previous holder of my office.”

On 9 July 1998 the Secretary of State made the following parliamentary statement ( Hansard (House of Commons Debates) cols. 588-589):

“Those convicted of murder [mandatory  prisoners] are now fully informed about the tariff-setting process and may make representations at any time about the length of their tariff. In addition, they may at any time make representations for their tariff to be reduced to take account of exceptional circumstances, including exceptional progress in prison. ...”

COMPLAINTS

The applicants submit that there is no longer any scope for distinguishing between the discretionary and mandatory life regimes. Accordingly, they complain about the fact that they cannot obtain a review of their tariffs downwards whereas a mandatory life prisoner can, and they argue that this amounts to a discriminatory difference in treatment contrary to Articles 5 and 14 of the Convention.

THE LAW

The applicants complain that their tariff cannot be reduced by the Secretary of State as in the case of mandatory prisoners, invoking Articles 5 and 14 of the Convention which provide as relevant:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

...

4. 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

“The enjoyment of the rights and freedoms set forth in [the] 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.”

A. The parties’ submissions

The Government submit that there has been no breach of Article 5 in the applicants’ cases as they were sentenced to life imprisonment after the trial judge had concluded such a sentence was justified in their cases. The judge in sentencing also fixed the period intended to reflect the degree of punishment, retribution and deterrence appropriate to the offences. The applicants’ detention was therefore justified by Article 5 § 1(a). Once their tariff period expires, they will be released on licence if the Parole Board decides that they are no longer a risk in a procedure according with Article 5 § 4 of the Convention.

Although mandatory life prisoners are treated differently from discretionary life prisoners, the Government state that this reflects the part played by the Secretary of State in the mandatory life sentence regime and does not constitute discrimination. The position of discretionary life prisoners was not analogous to that of mandatory life prisoners, inter alia , as their sentence is only imposed if the trial judge is satisfied that they may remain a serious danger to the public for some time to come, the power of the judge to fix tariff is a power exercised in open court, after hearing the parties, at the time of sentencing and the offender may appeal to the Court of Appeal against the life sentence and tariff. Mandatory life sentences are imposed by law however, there is no right of appeal against that sentence and under the current statutory arrangements the Secretary of State retains a discretion as to release. In any event, any difference in treatment has an objective and reasonable justification as for the mandatory life sentence the element of risk is not the decisive factor, the power of the Secretary of State to reduce (or increase) the tariff period reflects his special role in murder cases and the ability to reduce tariff offsets the fact that the offender has no appeal to the Court of Appeal.

The applicants submit that there is no real distinction between mandatory and discretionary life sentences as in respect of both tariff periods are set to reflect retribution and deterrence. However, the tariffs of mandatory life prisoners may be reduced by the Secretary of State who on 10 November 1997 declared that such prisoners could make representations at any time to have their tariff reduced to take account of exceptional circumstances, including exceptional progress in prison. The applicants cannot have their tariff reduced on such a ground and they state that this is discriminatory. The result is that a discretionary life prisoner whose crime was of less gravity than a mandatory life prisoner convicted of murder may serve a longer term all other factors being equal. This inequality of treatment is unjustified and wrong. Accordingly there has been a violation of Article 14 and Article 5 § 4 of the Convention.

While it is suggested by the Government that the discretionary life prisoners are not discriminated against as they have a right of appeal to the Court of Appeal against sentence, this does not address the point that they cannot, unlike mandatory life prisoners, make representations during the course of their sentence to obtain a reduction of tariff on grounds of, for example, exceptional progress in prison. They observe that the Government following the judgment in Stafford (cited above) state that they will be amending current statutory arrangements to bring them into conformity with the Court’s decision. They query whether amendments should incorporate provision for a review by a judicial body on the length of tariff on grounds of exceptional progress and suggest that the Court might be minded to give guidance on the matter.

B. The Court’s assessment

1. Article 5 of the Convention

The Court observes that both applicants were convicted of serious offences and sentenced by the trial judge to sentences of discretionary life imprisonment, with respective minimum periods of detention (tariff) set respectively at eight and ten years. Appeal against sentence and tariff lay to the Court of Appeal, which in the case of the second applicant reduced the tariff to eight years.

The Court further notes that the applicants’ detention after expiry of tariff will be subject to review by the Parole Board which will have the power to release after procedures which provide inter alia for an oral hearing.

In these circumstances, the Court finds no issues of unlawfulness or arbitrariness arising from the applicants’ detention which conforms with the requirements of Article 5 § 1(a). The lawfulness of their detention was reviewed, or was open to review on appeal, by the Court of Appeal and, until the expiry of tariff some time in the future when the possibility of review by the Parole Board becomes available, this satisfies the requirements of Article 5 § 4. No right to early release due to exceptional progress in prison can be derived from either Article 5 § 1 or Article 5 § 4 in the present case.

This part of the applications must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Article 14 of the Convention in conjunction with Article 5

For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands , no. 28369/95, ECHR 2000-X, § 37).

Even though there is no right to release under particular conditions contained in the Convention, an issue may arise under Article 14 in conjunction with Article 5 where procedures relating to the release of prisoners affect individuals in a discriminatory fashion (see nos. 22564/93 and 22761/93, Commission decisions of 14 April 1994, Decisions and Reports (DR) 77, pp. 90 and 98 respectively).

In the present case, the applicants complain that as discretionary life prisoners they do not have the opportunity available to mandatory life prisoners of having their tariff decreased by the Secretary of State on grounds of exceptional progress in prison. The Government have argued that the applicants are not in an analogous position to mandatory life prisoners. The Court notes that it is true that mandatory life prisoners have had their life sentences imposed by operation of law due to the inherent gravity of the offence of murder. This has been the justification over the years for a number of differences in the regime of law and policy applying to the detention and release between the two categories of adult life prisoner. In the most recent case before the Court dealing with mandatory life prisoners, Stafford v. the United Kingdom ( judgment cited above, § 79), the Court found however that there was no distinction between discretionary and mandatory  prisoners as regarded the nature of tariff-fixing, which was in both cases a sentencing exercise.

The applicants may therefore claim to be in a comparable position to mandatory life prisoners as regards this aspect of their detention.

The Court considers however that any difference in treatment between the two categories of life prisoners may be regarded as having reasonable and objective justification.

The power of the judiciary to fix the tariff of discretionary life prisoners was conferred by the Criminal Justice Act 1991 following the findings of this Court in Thynne , Gunnell and Wilson v. the United Kingdom (cited above). While that case made no express findings concerning the conformity of the role of the Secretary of State in what was effectively a sentencing exercise, the subsequent cases concerning the Secretary of State’s fixing of the tariff for juvenile murders detained at Her Majesty’s Pleasure found that procedure to be incompatible with the requirements of Article 6 § 1 of the Convention (see V. v. the United Kingdom [GC], no. 24888/94, ECHR 1999-IX). In the Stafford case (cited above), which did not itself concern Article 6 § 1 of the Convention but found violations of Article 5 §§ 1 and 4, the Court found that the fixing of the tariff for mandatory life prisoners was as much a sentencing exercise as for other categories of life prisoners and referred to the findings of the Court of Appeal in a domestic case that the existing mandatory life sentence regime breached both Articles 6 § 1 and Article 5 § 4 of the Convention (at §§ 46 and 77).

The parties have both noted that changes are to be implemented in the mandatory life imprisonment regime to take into account the Court’s judgment in Stafford . It is not for this Court to make any specific recommendations as to the content of these changes, in particular as to whether it should also lead to changes in other regimes not under direct examination. It would observe that a major problematic area identified in the judgment is the role played by the Executive in decisions about punishment and the continued existence of lawful grounds of detention. The fact that the applicants in this case have, as discretionary life prisoners, been removed from the control of the Secretary of State for sentencing purposes does not, in the Court’s view, disclose any arbitrary or unreasonable difference in treatment. While the Secretary of State may have claimed that he could reduce tariff in exceptional circumstances, he also frequently exercised a power to increase the tariff recommended by the trial court. The applicants in the present case enjoyed the considerable procedural safeguards furnished by the fixing of the tariff by the judge at their trial, after the conclusion of public, adversarial proceedings, and the opportunity to appeal to the Court of Appeal in respect of both sentence and the length of the tariff.

The Court concludes that this part of the applications must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the  applications inadmissible.

Vincent Berger Georg R ess Registrar President