THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36525/97

by Stephen L. DOWNING

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 29 June 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 April 1997 by Stephen L. DOWNING against the United Kingdom and registered on 17 June 1997 under file no. 36525/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 8 October 1998 and the letter submitted by the applicant on 4 February 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1956 and detained in HM Prison Littlehey , Cambridgeshire.

He is represented before the Court by Mr J. Atkins , a legal executive practising in Newton Abbott.

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

A. Particular circumstances of the case

On 15 February 1974, the applicant then aged 17 was convicted of murder and sentenced to be detained during Her Majesty's pleasure. The "tariff" part of the applicant's sentence corresponding to punishment and deterrence, which was set at 16 years, expired in 1989.

The applicant's case was reviewed by the Parole Board in October 1990, in January 1993 and January 1996. The applicant was interviewed by a member of the Parole Board in person, but that member was not part of the panel which decided his case and the member submitted the applicant’s point of view to the panel. The applicant did not have an oral hearing.

The file prepared in respect of the third review contained reports which strongly recommended that the applicant be transferred from a Category C (closed) to a Category D (open) prison. However, following allegations that the applicant had made obscene telephone calls to two women (a probation officer and a woman at the firm of solicitors then representing him) and that his diary contained inappropriate sexual references to female members of the prison staff, and on the basis of further psychological and psychiatric reports sought as a result of those allegations, the Parole Board decided on 9 January 1996 that the applicant was not suitable for release or transfer to an open prison. The next review was recommended to take place 18 months later.

On 3 April 1996, the applicant applied for leave to apply for judicial review of this decision on the grounds that it was reached without giving him an oral hearing. Leave was granted on 22 May 1996. His application was dismissed by the Divisional Court on 24 October 1996 on the grounds that a person detained during Her Majesty's pleasure could not derive a right to an oral hearing in the post-tariff period. Leave to appeal to the Court of Appeal was refused.

Following a change in domestic procedure announced made by the Home Secretary, the applicant became eligible to an oral hearing some time between October and December 1997. The hearing took place on 5 November 1997. The Panel of the Parole Board declined to order the applicant’s release.

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, 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 so 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 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 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.

3. 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 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 the prisoner should be confined.  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 Parole Board and to legal representation. He is 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 has, however, been preserved within section 35 of the 1991 Act.  Section 35 of the 1991 Act provides 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 index for determining whether re-detention is justified is 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; and Eur. Court HR, Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 292, § 39).

4. Recent Developments

In light of the judgments of the European Court of Rights in the cases of Singh v. the United Kingdom and Hussain v. the United Kingdom  (Eur. Court HR, Singh v. the United Kingdom of 21 February 1996, Reports 1996-I p. 280, and Eur. Court HR, 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 is now in the form of an oral hearing at which prisoners are entitled to legal representation and to examine and cross-examine witnesses. Prisoners will also normally receive full disclosure of all material relevant to the question of whether they should be released prior to the hearing.

Section 28 of the Crime (Sentences) Act 1997 was enacted pursuant to the Court’s decisions in Hussain and Singh (see Eur. Court HR, Singh and Hussain v. the United Kingdom judgments op cit.) and came into force on 1 October 1997. The power of release no longer remains the prerogative of the Secretary of State. Once the tariff has expired detainees during Her Majesty’s pleasure are treated in the same way as discretionary life prisoners.

Section 28 provides so far as is relevant:

“(1) A life prisoner is one to whom this section applies if -.....

(b) he was under 18 at the time when he committed the offence for which his sentence is imposed. …

(5) As soon as, in the case of a life prisoner to whom this section applies-

(a) he has served the part of his sentence specified in the order or direction...and

(b) the Parole Board has directed his release under this section,

it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above.....unless-

(a) the Secretary of State has referred the prisoner’s case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the

public that the prisoner should be so confined.

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time-

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference ... .”

COMPLAINT

The applicant complains that he has not had the opportunity since the expiry of his tariff of obtaining a review of the lawfulness of his continued detention by a body complying with the requirements of Article 5 § 4 of the Convention, in particular in that he was denied an oral hearing on the expiry of his tariff.

PROCEDURE

The application was introduced on 18 April 1997 and registered on 17 June 1997.

On 1 July 1998, the European Commission of Human Rights decided to communicate the applicant’s complaint concerning Article 5 § 4 to the respondent Government. The Government’s written observations were submitted on 8 October 1998, after an extension of the time-limit fixed for that purpose.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 21 January 1999, the Court granted the applicant legal aid. The applicant replied to the Government’s observations on 4 February 1999, also after an extension of the time-limit.

THE LAW

The applicant complains that he has not had the opportunity since the expiry of his tariff of obtaining a review of the lawfulness of his continued detention by a body complying with the requirements of Article 5 § 4 of the Convention, in particular in that he was denied an oral hearing on the expiry of his tariff.

Article 5 § 4 of the Convention 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 Government accept that the applicant’s situation is in material respects indistinguishable from the cases of Hussain and Singh v. the United Kingdom (see Eur. Court HR, Singh and Hussain judgments , op. cit.). The Government submit that as a result of those judgments the law was changed by the Crime (Sentences) Act 1997. This Act provided, inter alia , that a direction by the Parole Board that a person in the applicant’s position should be released is binding on the Secretary of State.

The Government submit that the applicant’s complaints focus essentially on the decisions of the Parole Board in 1996. They contend that the applicant has now had an oral hearing and can therefore no longer be considered a victim of a violation of Article 5 § 4. Further, as the applicant’s complaint is that he should have been allowed an oral hearing before the Parole Board in 1996, the Government submit that he has suffered no detriment as he had now had a hearing and the Parole Board had determined that he was not suitable for release. The Government consider that that the application is therefore manifestly ill-founded and should be declared inadmissible.

The applicant does not make any further submissions but acknowledges that he has been granted the right of an oral hearing. However he was deprived of this right contrary to Article 5 § 4 of the Convention for 8 years after the expiration of his tariff period. He submits, therefore, that there should still be a finding of a violation.

The Court has taken cognisance of the submissions of the parties concerning the complaint raised by the applicant. It considers that the complaint raises 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 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa

           Registrar President