THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33744/96

by Paul WALSH

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 26 January 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 26 September 1996 by Paul WALSH against the United Kingdom and registered on 12 November 1996 under file no. 33744/96;

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

Having regard to the observations submitted by the respondent Government on 7 April 1998 and the observations in reply submitted by the applicant on 5 June 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1964, and currently serving a sentence of detention during Her Majesty ’ s pleasure at HM Prison Kingston, Hampshire. He is represented before the Court by Mr. S. Reynolds, a solicitor practising in Fareham, Hampshire.

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

A. Particular circumstances of the case

On 3 February 1983, the applicant, who was aged 17 at the date of the offence, was convicted of murder and sentenced to be detained during Her Majesty ’ s pleasure (HMP). The trial judge recommended a tariff period [1] for the sentence of 12 years. The Lord Chief Justice recommended a tariff of 14 years. In the event, the Secretary of State imposed a tariff of 15 years. After deducting the period spent on remand, this would expire on 4 October 1997. The applicant was not informed of these matters pursuant to the practice at the time.

In 1985, the applicant was classified as a high security risk under security category “A” due to continued violent behaviour and escape attempts. Following a trial in March 1987, the applicant was convicted of grievous bodily harm and assault occasioning actual bodily harm in respect of another prisoner. He was sentenced to six years three months ’ imprisonment to run concurrently with his life sentence.

In November 1991, the applicant was decategorised to Category “B”.

On 15 February 1994, the Secretary of State wrote to the applicant informing him of the original tariff that was fixed in 1983 and inviting him to make representations as to the review of the length of his tariff. The applicant ’ s solicitors did not indicate their intention to make representations until 17 November 1995. Those representations were submitted on 18 October 1996. On 13 January 1997, the applicant was informed of the Secretary of State ’ s decision to reduce the tariff part of his sentence to 14 years, which meant that the tariff had in fact expired on 4 October 1996.

Meanwhile, on 23 July 1996, following the decision of the Court in Singh and Hussain (see Eur. Court HR, Singh v. the United Kingdom and Hussain v. the United Kingdom judgments of 21 February 1996, Reports 1996-I, p. 252 and p. 280), the Secretary of State announced the introduction of interim measures for tariff-expired HMP detainees whereby the review before the Parole Board would be in the form of an oral hearing at which a prisoner would be entitled to legal representation. He stated that it would be necessary for primary legislation to be enacted to allow the Parole Board to make the final decision rather than the Secretary of State, but that in the meantime he would follow the recommendations of the Parole Board.

On 1 August 1996, the Parole Board commenced a review of the applicant ’ s case under the old procedure. Since he was still under tariff at that point, the review was with a view to what should happen on the expiry of tariff. The Parole Board did not recommend release on license but suggested a further review in 12 months. The Secretary of State notified the applicant on 7 January 1997 of his decision that the applicant should not be released. However, he stated that the next review should be in 12 months rather than the normal 2 years, under the interim measures. In the notification, the following reasons appeared:

“The panel did not yet consider that should be moved to open conditions as yet. The panel has taken into account the facts of the original offence, ’ s> extremely violent and undisciplined behaviour during the first ten years of his sentence, his further conviction during that period of causing grievous bodily harm. The panel has noted the good progress that he has made in more recent years and the optimistic tone of the current reports, but considers that needs to demonstrate continuing good progress in addressing the key areas of concern, (coping skills, use of violence when provoked and social skills). Until he does so he is not ready for open conditions.”

The Secretary of State decided also that the applicant should be reclassified from security category “B” to “C”. The applicant was transferred to a new prison on 8 January 1997.

In July 1997, reports were collected for the applicant ’ s next Parole Board review. An oral hearing was expected to have occurred on or about 20-21 May 1998.

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, 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 ’ 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 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 continued or re-detention is justified is that of dangerousness, meaning a consideration of whether the offender 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, at § 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 the 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. Pending amendment of section 53(2) of the 1991 Act, the Parole Board does not, however, have power to direct the release of any prisoner. This remains the prerogative of the Secretary of State subject to consultation with the judiciary as required by section 53(2) of the 1991 Act.

COMPLAINTS

1. The applicant invokes Article 5 § 4 of the Convention. The applicant complains:

a) that the determination of the tariff period of his sentence by the Secretary of State was as an administrative act which does not comply with the requirements of Article 5 § 4. In particular, the applicant complains that he was not given full access to all the documentation which was before the Secretary of State when determining the tariff period of his sentence, and that he was not given any opportunity to make any oral representations to the Secretary of State with regard to the determination of his tariff. The applicant submits that the determination of his tariff period was both secretive and unfair;

b) that he has not at any stage following his detention and prior to the expiry of the tariff period applicable to his sentence been able to challenge the lawfulness of his continued detention in breach of Article 5 § 4. The applicant submits that the rationale for the imposition of a sentence of detention at Her Majesty ’ s Pleasure, namely the rehabilitation of the offender, is such that the applicant ’ s continued detention should be reviewed at all stages of his detention and not merely after the tariff period has expired;

c) that since the expiry of the tariff period he has not been able to take proceedings, in order to challenge the lawfulness of his continued detention, satisfying the requirements of Article 5 § 4.

2. The applicant complains that he has been denied the right to an effective remedy in breach of Article 13.

3. In his observations in reply to the Government, the applicant has invoked Article 3 of the Convention, complaining that the entire system by which he was imprisoned as a minor and developed to adulthood as a convicted prisoner did not consider his needs as a developing individual and was inhuman.

PROCEDURE

The application was introduced on 26 September 1996 and registered on 12 November 1996.

On 4 November 1997, the Commission decided to communicate the application to the respondent Government.

The Government ’ s written observations were submitted on 7 April 1998.

The applicant replied on 27 May 1998.

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.

THE LAW

The applicant complains of the role played by the Secretary of State in the fixing of his tariff, of the failure to provide him with an effective review of the continued lawfulness of his detention before and after the expiry of that tariff, that the system pursuant to which he was detained as a minor was inhuman and that he has no effective remedies in respect of his complaints. He invokes the following provisions:

Article 3 of the Convention:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 5 § 4 of the Convention:

"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 13 of the Convention:

"Everyone whose rights and freedoms as set forth in this 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."

i. As regards the applicant ’ s complaint about the Secretary of State ’ s role in fixing his tariff, the Government submit that this has been lodged out of time, invoking Article 35 § 1 of the Convention (formerly Article 26). They also add that the applicant could have applied for judicial review of the Secretary of State ’ s decision to increase the tariff above the recommendation of the judge. The applicant appears to argue that since the review of the tariff instituted by the Secretary of State culminated in January 1997 his complaint is within time or, alternatively, that since his tariff expired after the introduction of his application he must be considered as victim of a situation of continuing breach. He disputes that judicial review can be regarded as an effective remedy in respect of his complaints.

The Court recalls that Article 35 § 1 of the Convention provides that it "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken". Where there is no final decision taken in the process of exhaustion of domestic remedies, the time-limit runs from the act complained of, or, in appropriate cases, from the date of knowledge of the act or its effect or prejudice on the applicant (see eg. No. 12015/86, dec. 6.7.88, DR 57 p. 108).

The Court notes the applicant ’ s complaint impugns the compatibility of the involvement of the Secretary of State in fixing the punitive part of his sentence (the tariff). It is not disputed that the Secretary of State had informed the applicant of the tariff originally set by him on 14 February 1994. From that moment at the latest, the applicant was aware of the factual basis of his complaint. Though, as he points out, the tariff did not expire until 4 October 1996, this does not disclose a situation in which he can complain of an allegedly continuing breach over that period. The fact that he participated in the subsequent review of that tariff does not, in the Court ’ s view, effect the running of the six month time-limit, in particular, since the review by the Secretary of State of his own decision cannot be considered as an effective remedy in respect of a complaint that his role in that process was contrary to the Convention. Nor does the Court consider that judicial review would have furnished the applicant with an effective remedy in that respect, since notwithstanding the power of the domestic courts to quash an unlawful decision taken by the Secretary of State, a complaint based solely on his participation in the procedure would appear to fall outside the scope of their examination.

In these circumstances, the Court finds that the relevant date for the calculation of the six month time-limit was 14 February 1994, whereas the application was submitted on 26 September 1996. It therefore rejects this aspect of the applicant ’ s complaints as out of time pursuant to Article 35 §§ 1 and 4 of the Convention.

ii. In respect of the applicant ’ s complaint that he has not received a review of the lawfulness of his continued detention as required by Article 5 § 4 of the Convention, the Government dispute that Article 5 § 4 can be interpreted as requiring a review before the expiry of tariff, stating that until the expiration of the punitive element of the sentence, the justification for the detention is to be found in the original conviction and sentence. Insofar as concerns the period after the expiry of the tariff, the Government submit that the applicant received a Parole Board hearing promptly, as the procedure began six months after he was informed after the expiry of his tariff and he was to be provided with an oral hearing on or about 20/21 May 1998. They further submit that in any case the applicant has failed to exhaust domestic remedies since he could apply for judicial review in respect of any alleged misapplication by the Secretary of State of his policy on the interim changes and his failure to apply them to the Parole Board review of the applicant in August 1996.

The applicant disputes that the Court ’ s case-law in the Singh and Hussain cases (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) precludes the application of Article 5 § 4 to detention before the expiry of tariff, pointing out that these cases concerned post-tariff detainees. He maintains that he did not receive an appropriate review of his detention until the procedure was modified in light of the above Court judgments, and that the Secretary of State was dilatory and grudging in bringing changes into effect. He submits that judicial review would not be an effective remedy since the courts have no power to direct release, which is the only effective redress appropriate for his complaints.

As regards the Government ’ s submission of non-exhaustion, the Court recalls that Article 5 § 4 presupposes the existence of a procedure in conformity with its requirements without the necessity of instituting separate legal proceedings in order to bring it about. It is also unpersuaded that the applicant ’ s possibility of obtaining a new style procedure by challenging by way of judicial review the Secretary of State ’ s implementation of interim measures was sufficiently certain to be regarded as satisfying the requirements of Article 5 § 4. It therefore does not find that the applicant ’ s complaint can be rejected for non-exhaustion of domestic remedies.

As regards the merits of the complaint, the Court has taken cognizance of the submissions of the parties. It considers that the complaint raises serious issues of fact and law the determination of which should depend on an examination of the merits. This aspect of 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.

iii. The applicant also invoked Article 13 of the Convention, alleging no effective remedies were available in respect of his complaints. The Government have referred, as above, to the possibility of applying for judicial review of the decisions taken by the Secretary of State in his case.

The Court notes that these complaints rely essentially on the same factual and legal issues raised under Article 5 § 4 (above ii). In these circumstances, and for the same reasons, this aspect of the application must also be declared admissible.

iv. In his observations in reply to the Government, the applicant has invoked, for the first time, Article 3 of the Convention, stating that the way in which the system treated him as an offender detained as a minor and through his development to adulthood was inhuman. The Government have not had the opportunity to comment on this allegation.

Even assuming that these complaints, raised at a late stage and apparently concerning events dating some considerable time in the past, comply with six-month time-limit imposed by Article 35 § 1 of the Convention, the Court observes that the applicant has provided no details of the conditions of his detention, which are alleged to have been inhuman. The Court finds that his complaint in this respect is unsubstantiated and must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE the applicant ’ s complaints concerning the alleged lack of a proper review of his continued detention, without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President

[1] The minimum period  to be served in respect of the requirements of retribution and deterrence.