THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 32340/96

by Brian CURLEY [Note1]

against the United Kingdom [Note2]

The European Court of Human Rights ( Third Section) sitting on 1 December 1998 as a Chamber composed of

Mr J.-P. Costa, President,

Mr N. Bratza,

Mr L. Loucaides,

Mrs F. Tulkens,

Mr W. Fuhrmann ,

Mr K. Jungwiert,

Mr K. Traja , Judges,

with Mrs S. Dollé, S ection 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 3 May 1996 by Brian CURLEY [Note3] against the United Kingdom and registered on 22 July 1996 under file No. 32340/96;

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 15 July 1997 and the observations in reply submitted by the applicant on 26 September and 7 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1961 and at the time of the introduction of the application was serving a sentence of detention during Her Majesty's pleasure at HM Prison Foston Hall, Derbyshire. He is represented before the Court by Mr. S. Creighton , a solicitor practising in London.

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

A. Particular circumstances of the case

In 1979, 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, which was set at 8 years, expired in 1987.

Following the expiry of his tariff, the applicant's case was the subject of review by the Parole Board on a number of occasions.  Following the fourth review in January 1991 the applicant absconded from prison.  Following his recapture on 6 July 1993 it was decided that his case should be reviewed again in January 1995.

At this, the fifth review, the Parole Board recommended that the applicant be given a provisional release date of 12 months hence during which time he spend 6 months in a Category D open prison followed by 6 months in a Pre-Release Employment Scheme Hostel.

The Parole Board's recommendation was not accepted by the Secretary of State who directed that the applicant be transferred to a Category D prison and his case be subject to further review in 12 months.  The applicant was notified of the Secretary of State's decision by letter of 17 November 1995.  By letter dated 6 December 1995 the applicant made representations against that decision.  These were rejected by the Secretary of State by letter dated 2 January 1996.

The applicant sought leave to apply for judicial review of the Secretary of State's decision. Leave was refused by a single judge of the High Court on 26 April 1996.  The applicant was advised by counsel who represented him at the hearing that there was no tenable basis for appeal against the decision refusing leave.

On 12 August 1996 the applicant was notified that, pursuant to interim measures introduced by the Secretary of State on 23 July 1996, the applicant's case would be referred back to the Parole Board for review in the form of an oral hearing at which the applicant would be entitled to legal representation.  That review took place on 7 February 1997 and by letter dated 14 February 1997 the Parole Board recommended the applicant's release. The Home Secretary followed the recommendation and released the applicant on 7 May 1997.

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 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, 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 complains that he has not been able, since the expiry of the tariff period applicable to his sentence, to take proceedings satisfying the requirements of Article 5 § 4 of the Convention.  In particular the applicant complains that any recommendation by the Parole Board for his release has been subject to the approval of the Secretary of State. In addition, the applicant complains that the interim measures introduced in compliance with the Court's judgments in Singh and Hussain , constitute a continuing breach of Article 5 § 4 since they do not allow a court to direct release and do not satisfy the requirements of a "speedy" review. He complains in particular that the review of his detention did not satisfy that latter requirement.  

2. The applicant also complains of a violation of Article 3 of the Convention. In particular, he complains that notwithstanding that the "tariff" period for his sentence was set at 8 years he has effectively served a period of 17 years in detention since his childhood in the absence of any proper or adequate procedure to determine whether he should be released. He submits that this treatment amounts to inhuman, or degrading punishment within the terms of Article 3 of the Convention.

3. The applicant finally complains under Article 5 § 5 of the Convention in that he does not have an enforceable right to compensation. 

PROCEDURE

The application was introduced on 3 May 1996 and registered on 22 July 1996.

On 9 April 1997, the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 15 July 1997.

The applicant replied on 26 September and 7 October 1997.

On 16 September 1997, the Commission granted the applicant legal aid.

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 that he has not been able, since the expiry of the tariff period applicable to his sentence, to take proceedings satisfying the requirements of Article 5 § 4 of the Convention. In particular, the applicant complains that any recommendation by the Parole Board for his release has been subject to the approval of the Secretary of State. The applicant further complains that the effect of such a long period of detention (17 years) in the absence of any proper or adequate procedure to decide upon his release is such as to constitute inhuman or degrading punishment in violation of Article 3 of the Convention. Finally, the applicant complains of a violation of Article 5 § 5 of the Convention in that he does not have an enforceable right to compensation.

Article 3 of the Convention provides:

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

Article 5 §§ 4 and 5 of the Convention provides:

"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."             

The Government accept that prior to 1 August 1996 the applicant was unable to obtain a review of the lawfulness of his detention by a court which satisfied the requirements of Article 5 § 4. To that extent, the Government concede the admissibility of the applicant's complaint in relation to the review of his case which was initiated in January 1995 and finally determined by refusal of leave to apply for judicial review on 26 April 1996.

The Government deny, however, that any separate issue arises under Article 5 § 4 on account of the delay which the applicant alleges occurred in reviewing his case under the new procedures put in place in the light of the European Court of Human Rights judgments in Singh and Hussain v. the United Kingdom (Eur. Court HR, Singh and Hussain judgments , op. cit.). The Government explain that, following the delivery of those judgments on 21 February 1996, they  introduced new interim administrative arrangements with effect from 1 August 1996 and that by letter dated 12 August 1996 the applicant was offered the opportunity of having his case considered under the new arrangements. However, the reports on the applicant were nearly two years out of date and thus the Prison Service Lifer Unit requested the preparation of up to date reports before carrying out the review. The applicant's representative consented to this procedure.

The applicant maintains his complaints. In addition, he submits that the interim arrangements introduced following the Court's judgments in Singh and Hussain do not constitute an adequate review for the purposes of Article 5 § 4 since they do not allow for a court to direct release and they make no provision for a speedy determination. As a consequence, the applicant contends they constitute a continuing breach of Article 5 § 4 of the Convention.

The applicant further submits that review of his detention did not satisfy the requirements of a "speedy" review as provided for by Article 5 § 4 of the Convention. In particular, he submits that he was notified of the Parole Board's recommendation made in August 1995 in November 1995 and the next Parole hearing took place after some eighteen months of the above Parole Board's recommendation and some 12 months after the decision of the Court in Singh and Hussain v. the United Kingdom (Eur. Court HR, Singh and Hussain judgments , op. cit.).

The applicant also invokes Article 3 of the Convention in that the effect of such a long period of detention in the absence of any proper or adequate procedure to decide upon his release was such as to constitute inhuman or degrading punishment in violation of Article 3 of the Convention.

Finally, the applicant has invoked Article 5 § 5 of the Convention, in respect of the lack of compensation for what he regards as unlawful detention.

The Court has taken cognizance of the submissions of the parties concerning the complaints raised by the applicant. It considers that the complaints raise serious issues of fact and law the determination of which should depend on an examination 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 [Note4]

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.

[Note4] “President” is also put if the Chamber is not presided over by the Section President (Section Vice President or other judge according to seniority).