THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53236/99 by Neville Charles WAITE against the United Kingdom

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mr T .L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 29 July 1999 and registered on 8 December 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1964 and living in London. He is represented before the Court by Mr S. Creighton , a solicitor practising in London.

A. The circumstances of the case

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

The applicant, then aged sixteen years, was convicted of the murder of his grandmother on 12 October 1981. At his trial, he had unsuccessfully raised the defence of diminished responsibility, based on the fact that he had been addicted to glue sniffing for several years. He was sentenced to detention at Her Majesty’s Pleasure pursuant to section 53(1) of the Children and Young Persons’ Act 1933. His tariff (the portion of sentence representing punishment and deterrence) was set at 10 years.

On 26 January 1994, the applicant, aged 29 years, was released on life licence.

No concerns arose with his supervising probation officer until in April 1997 the applicant told her that he had been having a sexual relationship with MM a 16-year-old youth. MM was regarded as a vulnerable youth and had been provided with the support of a social worker following his involvement in a theft offence.

In June 1997, the applicant was arrested on suspicion of being in possession of prohibited drugs (namely, ecstasy tablets). He was taken to a police station and released on bail. His probation officer sent him a registered letter requesting him to meet her on 20 June 1997. He did not attend the meeting or make any contact by telephone until 23 June 1997, when he agreed to meet her the next day.

On 24 June 1997, however, the applicant made a suicide attempt, taking 30 paracetamol tablets. He was discharged from hospital on 25 June 1997. He met his probation officer on 26 June 1997 and agreed to meet her again on 1 July 1997.  He failed to keep the appointment, telephoning to say that he had overslept.

On 2 July 1997, he met with his probation officer and Mr L. from the Community Drug and Alcohol Services. During this meeting, the applicant admitted that he had been using drugs (LSD, ecstasy and cannabis) since his release from prison and that his use of ecstasy was beyond his control. He obtained the drugs from friends or acquaintances who expected him to do favours for them in return. He stated that he was no longer having a sexual relationship with MM but that MM had been staying with him at his flat. He met with his probation officer again on 4 July 1997.

In her report of 4 July 1997, the probation officer stated:

“Until October 1996 [the applicant’s] response to his Licence, in terms of reporting for appointments, had been exemplary and he appeared to have made good progress in settling into the community, via stable employment and the allocation of his own council flat. It would appear however, that his resignation from his job in September 1996 significantly impacted on the sense of structure and purpose he then had about his day to day life which he now admits he has since found difficult to attain. Until recently, his presentation during our meetings gave no cause for concern. However, he now reports that he had been less than honest about the changes in his functioning as he  feared a recall to prison, particularly given his initial stability and progress. In addition to his now admitted drug use, it would appear that [the applicant’s] anxieties about his future are limited to: (a) his previous unsafe sexual practices and the possible consequences of this on his health; (b) his wish to have a long-term and supportive monogamous relationship; (c) his growing sense of loneliness and isolation despite a wide social network... and (d) a sense of stagnation about the course of his life, particularly in finding alternative employment to date, despite extensive efforts. These issues, alongside [the applicant’s] behaviour over the past month, clearly indicate that he is vulnerable and that close monitoring of his situation at this time is crucial.”

She concluded that he posed a risk to himself and that there are “no indications that he is a risk to the public in terms of dangerousness.”

On 4 July 1997, the Assistant Chief Probation Officer prepared a report that stated:

“[The applicant] had demonstrated, and recently admitted, that his behaviour has been both self-destructive (through drug misuse, relationships with others and a suicide attempt) and that he posed a risk to a minor. ... The area of risk to the public stems from his relationship with a minor.”

She noted that there had been an openness about long-standing problems and some degree of insight coming out of the crisis of recent weeks that suggested that the applicant could work on them. She concluded that a final recommendation was difficult given the area of risk to himself and proposed that a psychiatric report be prepared concerning his current level of functioning and future prognosis and specifically an assessment of self-harm.

On 11 July 1997, the Parole Board considered the applicant’s case and recommended his recall to prison.

On 21 July 1997, the Secretary of State accepted the recommendation, revoked the applicant’s licence and recalled him to prison. He was informed that the reasons for his recall were

“1. You have recently disclosed that you have been misusing drugs since your release in 1994, and following your arrest in June [1997] there is also a possibility that you will be convicted of the possession of, and intent to supply, illegal drugs.

2. You have been associating with a minor and you have admitted that your relationship was of a sexual nature.

3. You have breached your licence conditions by not maintaining contact with your supervising officer in accordance with her instructions and by not being open and honest with her.

4. You attempted suicide.

The Parole Board and the Secretary of State took the view that for your own safety and the safety of others it was inappropriate to allow you to remain at liberty.”

On 29 July and 5 August 1997, the applicant submitted written representations to the Parole Board concerning his recall to prison. He admitted inter alia that before his arrest in June 1997 he had been taking 10 to 20 ecstasy tablets a day and that he had not been honest about his drugs abuse with his probation officer. He stated that his relationship with MM was now platonic and that he had terminated sexual contacts on discovering that he was 16. He stated that he had not been involved in drug dealing and hoped to be able to deal with his drug problem, now it was out in the open, with the assistance of the probation service within the community.

On 5 September 1997, the Parole Board considered the applicant’s case. There was no oral hearing. It decided:

“The index offence involved the brutal murder of [the applicant’s] grandmother, when he was 16. After constructive progress in prison, which included work on one of the key risk factors - drug abuse - he was released on licence in January 1994. In July 1997, [the applicant] was recalled to prison for drug misuse, including the possibility that he will be convicted of intention to supply, having a sexual association with a minor, breach of licence conditions and attempted suicide.

The Panel has considered all the relevant reports and taken careful note of [the applicant’s] representations... In spite of the considerable attempts by the Local Probation Service to enforce [the applicant’s] licence, his behaviour in recent months demonstrates that he is at risk not just to himself but to other members of the community. Irrespective of whether [the applicant] is convicted of an offence, he has admitted extensive illegal drug abuse and the concerns about his sexual involvement with a minor were sufficient to merit a case conference. Furthermore, the incidents of self harm indicate the need for thorough psychiatric assessment. It is in the interests of public safety and [the applicant’s] longer term well being that the recall be confirmed. A full assessment of the factors underlying the breakdown of the licence needs to be made, together with plans to tackle what appears to be deep rooted problems of drug abuse and social isolation.

The Panel noted that [the applicant] has shown a willingness to co-operate with Probation and has demonstrated an ability to comply with the terms of his licence. Twelve months should be sufficient time for him to be assessed to stabilise and to tackle the problems identified.”

On 14 October 1997, the applicant was informed that the Parole Board had considered his recall on the papers and upheld the decision to revoke his life licence. He was told that he would be informed of the date of the next review once the Crown Prosecution Service had made a decision regarding the case against him for drugs possession.

On 17 November 1997, the applicant was informed that the Crown Prosecution Service had decided not to prosecute him for the alleged drugs offence and that his case would be reviewed by the Parole Board in October 1998.

A number of reports were prepared to assist the Parole Board in the coming review.

In his report of 10 June 1998, Mr B., the Principal Case Officer stated:

“[The applicant’s] misuse of illegal substances for many years remains a major risk concern. However he acknowledges this and had taken steps to challenge this issue. If he can display the same harmony in the community as he has in the custodial setting there is no purpose served by his retention in custody. However constructive supervision and support will initially be required.”

His probation officer stated in a report of 29 June 1998:

“... provided that he is given the necessary support and receives sustained input to encourage his current anti-drugs attitude and drug-free status, he can safely be released into the community.”

In a report of 23 June 1998, a forensic psychologist noted that “the major risk factor contributing to his committing the original offence ... was drugs abuse.”

In July 1998, the applicant received his parole dossier. On seeking legal advice prior to his Parole Board review, the applicant was advised that the Prison Service had failed to apply the procedure applicable to his recall under the interim arrangements implemented pending the entry into force of the Crime Sentences Act 1997. He should under those administrative provisions have received an oral hearing concerning his recall, though this was not a statutory entitlement.

An application for legal aid was made on 16 July 1998 and legal aid granted on 7 September 1998.

On 9 September 1998, the Prison Service informed the applicant:

“We have now looked into the circumstances surrounding the revocation of [the applicant’s] life licence in July 1997. While we accept that, due to an oversight, the procedures did not follow the interim arrangements for dealing with HMP detainees, there is, in our view, no question that [the applicant’s] recall to prison was or is in any way unlawful or invalid...

Under the circumstances, we see no reason or justification for any declaration or order directing his release or authorising compensation.”

On 30 September 1998, the applicant applied for judicial review. Leave was granted on 6 October 1998. The full hearing of his case was not scheduled to take place until 1999.

An oral hearing was held by the Parole Board on 27 October 1998, at which the applicant was present and represented, following which it directed the applicant’s release. In its decision it stated:

“In reaching its decision the panel took account of the following:

( i ) the absence of any violence or threat of violence since the index offence either in prison or when on licence for three and a half years;

(ii) your acceptance of an inappropriate lifestyle when previously released on licence and your frank acknowledgement of your drug abuse during that time;

(iii) the fact that since recall you have been drug free;

(iv) reports of your increased maturity and strong motivation to keep clear of drugs and the drug scene in future;

(v) the greater relevance of the proposed community based drugs rehabilitation and relapse prevention programme that is available through drug link;

(vi) the agreement of the Inner London Probation Service to provide an approved probation hostel place for up to twelve weeks to assist in your reintroduction to the community and the help you will receive in obtaining employment;

(vii) your acceptance of the need to be totally honest with your supervising probation officer in future...”

The applicant was released on 17 November 1998.

In advice dated 8 January 1999, counsel advised that since he had been released no further purpose could be served by continuing with the judicial review application. There was no prospect of obtaining any damages for the period spent in detention after recall.

On 6 March 1999, the judicial review proceedings ended by a consent order.

B. Relevant domestic law and practice

1. Detention during Her Majesty’s Pleasure

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. Categorisation of detention “during Her Majesty’s Pleasure”

The notion of detention during Her Majesty’s Pleasure had its origins in an Act of 1800 for “the safe custody of insane persons charged with offence”. 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”.

In 1908, detention during 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.”

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 during 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 Divisional Court accordingly held that the applicant in that case, who was detained during 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.

2. Release on licence and revocation of licences

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.”

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, 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.”

The criterion for determining whether re-detention was justified was that of dangerousness, meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the life or limb of the public (see R v. Secretary of State for the Home Department, ex. parte Prem Singh , unreported, transcript pp. 26F-27B; the Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, at § 39).

Pursuant to section 39 of the 1991 Act, the Secretary of State could, on recommendation of the Parole Board, revoke the licence of such a life prisoner who had been released on licence. In such circumstances, the prisoner had the right to make written representations with respect to his recall and for a review to be carried out by the Board. Where the Board then recommended release on licence, the Secretary of State was under a duty to give effect to that recommendation (section 39(5)).

3. Recent Developments

In light of the judgments of the Court in the cases of Singh v. the United Kingdom and Hussain v. the United Kingdom (Singh v. the United Kingdom judgment of 21 February 1996, loc. cit., p. 280, and Hussain v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252), the Secretary of State announced, on the 23 July 1996, the introduction of interim measures taking effect from 1 August 1996 which changed the procedure under which the cases of prisoners detained during Her Majesty’s Pleasure were reviewed by the Parole Board.

Pursuant to these measures, the review took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross-examine witnesses. Prisoners also normally received full disclosure of all material relevant to the question of whether they should be released prior to the hearing. Pending amendment of section 53(2) of the 1991 Act, the Parole Board did not, however, have power to direct the release of any prisoner (save in circumstances provided for in section 39 of the 1991 Act above).

On 1 October 1997, the Crime (Sentences) Act 1997 came into force, giving statutory effect to the interim arrangements. Section 28(5) further provided that the Secretary of State was under a duty to release a prisoner detained during Her Majesty’s Pleasure where so directed by the Parole Board.

COMPLAINTS

The applicant complains under Article 5 about the grounds for his recall. He claims that the decision to recall him for his own safety (due to the risk of suicide) was not a legitimate ground for detention. The decision to recall on the ground that he was charged with a criminal offence was also not justified. The charges were dropped, another person pleading guilty to the offence and he received no opportunity to have his case considered by the Parole Board until after 15 months of detention.

Furthermore, the decision to recall him on grounds of his relationship with a 16-year-old boy breached Articles 5 and 8 of the Convention in conjunction with Article 14. He was engaged in a consensual homosexual relationship, with there being no suggestion that it was abusive. If he had been engaged in a relationship with a 16 year old girl, this would have been lawful and constituted neither a criminal offence nor grounds for recall to prison.

The applicant complains under Article 5 § 4 that he was not given an oral hearing before a proper tribunal empowered to determine whether his recall to prison was justified and to direct his release. He further complains that the delay of 15 months in reviewing his continued detention was excessive.

The applicant finally complains under Article 5 § 5 and 13 that there is no possibility in English law to obtain compensation.

THE LAW

The applicant complains of the circumstances of his recall to prison in July 1997 and the procedures adopted in that regard. He invokes Articles 5 §§ 1, 4 and 5, 13 and 14 of the Convention.

Article 5 of the Convention provides as relevant:

“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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 of the Convention provides:

“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.”

The parties’ submissions

The Government submit that on his recall to prison the applicant had access to a court satisfying the requirements of Article 5 § 4 of the Convention. The Parole Board which authorised his continuing detention was independent of the executive and the parties and had the power to direct the Secretary of State to order the applicant’s release. While minors and persons of unsound mind were entitled to an oral hearing, with representation, this was not always the case. An oral hearing was not essential to the fairness of the proceedings in the applicant’s case as he did not dispute the facts that led to his recall, he had been provided with all the materials before the Board and made written representations to the Board and on the basis of the facts admitted the Board was bound to conclude that public protection required that he be confined. The review took place approximately six weeks after recall and was therefore prompt.

As regarded the complaints under Article 5 § 1, the Government submit that the applicant’s detention after recall was justified by his original sentence for murder. There was a causal link between that sentence and his recall as his admitted failure to keep appointments with his probation officers, his abuse of drugs and unstable behaviour were sufficient grounds to conclude that he constituted a danger to the public. The circumstances of his recall also bore sufficient similarity to the original offence to cause concern.

Concerning the complaints made under Article 14, the Government submit that the applicant was not discriminated against on the basis of his sexual orientation. They point out that his association with MM was known from April 1997 and did not lead by itself to his recall to prison. The reference to that relationship in the reasons for recall had to be read in context, namely the fact that MM was aged 16 and a vulnerable individual was relevant to the question of whether he posed to a risk to the public when taken in association with his drug abuse and unstable behaviour. Furthermore, the applicant was not recalled to prison simply due to that relationship. The principal reason was his admitted drug abuse in circumstances where the original murder offence had been committed under the influence of “glue sniffing”.

As there were no breaches of the provisions of Article 5, the Government submitted that no issues arose under Article 5 § 5. In any event, he could have applied for judicial review and even if an oral hearing had taken place, the result would have been no different and no damage arose warranting compensation.

The applicant submitted that he did not disagree that the Parole Board was a court for the purposes of Article 5 § 4 when deciding whether or not to confirm recall of a prisoner following revocation of a licence. The critical issue was whether this provision was violated by the failure to afford the applicant an oral hearing with adversarial procedures before the Board in September 1997. He argues that issues arose concerning his character and mental state, e.g. his psychological state resulting in his previous suicide attempt and the significance of his drugs abuse which rendered an oral hearing essential to the fairness of the proceedings (relying on Hussain v. the United Kingdom and Singh v. the United Kingdom judgments of 21 February 1996, Reports of Judgments and Decisions 1996-I). Since he did not receive an oral hearing until October 1998 the requirement of a prompt review was not satisfied.

Under Article 5 § 1, the applicant argued that there was no sufficient connection between his recall to prison and the circumstances of the original offence. His failure to keep appointments was not an adequate ground for recall, while the misuse of drugs bore no similarity to his behaviour prior to the original offence, which was located in a climate of authoritarian family relationships, bullying and lack of support. His attempt at suicide was an illegitimate ground for detention, showing no danger to the public, while his relationship with MM was supportive rather than abusive.

The applicant noted that the Government appeared to concede that if his homosexual relationship did form a basis for recall that there had been a violation of Article 8, referring to the case of Sutherland v. the United Kingdom (no. 25186/94, [GC] judgment of 27 March 2001). He disputes their assertion that this was not a reason for his recall, pointing out that it was included in the grounds of the decision and would not have figured there if it had been irrelevant. The relationship had the taint of illegality because of the discriminatory laws existing as to the age of consent for homosexual activity and it was very unlikely that a mutually supportive relationship with a 16 year old girl would have been advanced as a ground of recall.

Finally, the applicant submitted under Article 5 § 5 that judicial review would have offered him no prospect of obtaining damages, as events showed. He should have been given an oral hearing and it could not be argued that it would have served no purpose, when he was released in October 1998 after he had been given such a hearing with witnesses and representation. Similarly, he had no effective remedy under Article 13 in respect of his complaints.

The Court’s assessment

The Court has examined the applicant’s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa Deputy Registrar President