In the case of Hussain v. the United Kingdom,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") and the relevant provisions
of Rules of Court A,
as a Chamber composed of the following judges:
Mr R. Ryssdal,
President,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr A. Spielmann,
Mr N. Valticos,
Mrs E. Palm,
Mr F. Bigi,
Sir John Freeland,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney,
Deputy Registrar,
Having deliberated in private on 28 September 1995 and 26
January 1996, Delivers the following judgment, which was adopted on the
last-mentioned date
PROCEDURE
The case was referred to the Court on 8 December 1994 by
the European Commission of Human Rights ("the Commission") and on 23
December 1994 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government"), within the three-month period laid
down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 21928/93) against the United Kingdom lodged with the Commission under Article 25 (art. 25) on 31 March 1993 by a
Pakistani national, Mr Abed Hussain. The Commission’s request referred to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46);
the Government’s application referred to Article 48 (art. 48). The object of
the request and of the application was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its obligations
under Article 5 para. 4 (art. 5-4) of the Convention. The Commission further
sought a decision as to whether there had been a breach of Article 14 (art. 14)
of the Convention.
In response to the enquiry made in accordance with Rule
33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take
part in the proceedings and designated the lawyer who would represent him (Rule
30).
The President of the Court decided that in the interests
of the proper administration of justice this case and the case of Singh v. the United Kingdom (no. 56/1994/503/585) should be heard by the same Chamber (Rule 21 para. 6)
and that a joint hearing should be held. The Chamber to be constituted included
ex officio Sir John Freeland, the elected judge of British nationality (Article
43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 27 January 1995, in the presence of the Registrar,
the President drew by lot the names of the other seven members, namely Mr F.
Gölcüklü, Mr R. Macdonald, Mr A. Spielmann, Mr N. Valticos, Mrs E. Palm, Mr F.
Bigi and Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21 para.
4) (art. 43).
As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government, the
applicant’s lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Government’s memorial on 13 April 1995
and the applicant’s memorial on 18 April. The Secretary to the Commission
informed the Registrar that the Delegate would submit his observations at the
hearing.
In accordance with the President’s decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on 27 September
1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Christie,
Foreign and Commonwealth Office, Agent,
Mr D. Pannick QC, Mr M. Shaw, Barrister-at-Law, Counsel,
Mr H. Carter, Mr H. Bayne, Mr R. Harrington,
Home Office, Advisers,
(b) for the Commission
Mr N. Bratza, Delegate,
(c) for the applicant
Mr E. Fitzgerald QC,
Mr J. Cooper, Barrister-at-Law, Counsel,
Ms K. Akester, Solicitor.
The Court heard addresses by Mr Bratza, Mr Fitzgerald and Mr
Pannick.
AS TO THE FACTS
I. CIRCUMSTANCES OF THE CASE
Mr Abed Hussain was born in 1962 and is currently detained
in Lindholme prison.
On 12 December 1978, the applicant - then aged 16 - was
convicted at Leeds Crown Court of the murder of his younger brother, aged 2. The
applicant had inflicted severe injuries on the infant while looking after him. He
received a mandatory sentence of detention "during Her Majesty’s
pleasure" pursuant to section 53 (1) of the Children and Young Persons Act
1933 (as amended) (see paragraph 23 below). Its effect was to render the
applicant "liable to be detained in such a place and under such conditions
as the Secretary of State [for the Home Department] may direct".
In passing sentence on the applicant, the judge stated:
"I regard you as someone who has demonstrated himself tobe
a cruel and unfeeling young man. I think you are -certainly for the time being
- a dangerous person."
The applicant appealed against both his conviction and
sentence. The Court of Appeal dismissed his appeal on 5 March 1980.
Mr Hussain was first detained in the youth wing of Liverpool prison and then in a young offenders’ institution before being transferred to an
adult prison.
Under the administrative procedures governing such
sentences as that received by the applicant, a "tariff" period is set
to fix the number of years’ detention necessary to satisfy the requirements of
retribution and deterrence (see paragraph 27 below). In this regard, in 1978
the trial judge wrote to the Secretary of State:
"Over the two or three days immediately preceding thebaby’s
death, [the applicant] had undoubtedly treated himwith very considerable
violence by slapping, kicking andshaking. The baby was covered with over 60
bruises andhis brain and spine were injured. Since [the applicant]denied ever
having laid hands on him, it was not possibleto discover why he had acted with
such violence. [The applicant] is unquestionably an unscrupulous youngliar, but
the most unusual feature of him was hisimpassivity. He demonstrated no feeling
whatsoever forhis brother’s injuries and death. This gave me the impression
that he is very probably avery dangerous young man who is quite unmoved
bybrutality. I am anxious that this aspect of hischaracter should be borne
fully in mind whenever thequestion of release arises. He still has three
youngsiblings and their safety must be a predominantconsideration. I am deeply
concerned at the appearanceof normality this young man gives; it is probably
verymisleading. I cannot recommend any period for his detention. It willhave to
continue until one can say with reasonablecertainty that maturation has
rendered him safe. Thedifficulty is that he is already `old for his years’,
asone police officer described him. Maturation hereinvolves much more than
simply a young boy growing up.I can do no more than sound this sombre note of
warning."
It was not until 1986 that the applicant’s tariff was
set, at fifteen years, by the Secretary of State after a confidential process
of consultation involving the trial judge and the Lord Chief Justice. In the
course of this process, in which the applicant had no sight of any of the documents,
the trial judge recommended a period of ten years "in view of the young
age of [the] prisoner at the time of the offence"; the Lord Chief Justice
agreed but stated that this should be "the absolute minimum". However,
the Secretary of State commented: "I cannot accept the judicial tariff as
matching the gravity of one of the most appalling offences I have
encountered."
He accordingly increased the proposed tariff by five years. The
applicant first learnt about these details through a letter from the Home
Office of 6 October 1994, sent in accordance with the House of Lords’ judgment
of 24 June 1993 (see paragraph 30 below).
In the course of the applicant’s detention the Parole
Board (see paragraph 37 below) has so far considered whether or not to
recommend the applicant’s release on four occasions.
The first Parole Board review took place in December
1986. The reports of progress were positive and, as later disclosed to the
applicant:
"the Local Review Committee [see paragraph 38 below],
whofelt that the risk was acceptable, considered Mr Hussain suitable to be
given a provisional release date."
The Parole Board did not however recommend the applicant’s
release but it did recommend that he be transferred to a less restrictive
category C prison with a further review to commence in August 1990. At the
time, the applicant did not see any of the reports before the Parole Board and
had no opportunity to appear before it.
The second Parole Board review took place in 1990. A Home
Office summary of the review, disclosed later to the applicant, stated:
"The Local Review Committee recommended that Mr
Hussainshould be given a provisional release date ... The Board did not
recommend Mr Hussain’s release, butrecommended his transfer to open conditions
with afurther review to commence eighteen months thereafter.However, the
Secretary of State rejected the Board’srecommendation and directed that he
should move toanother category C prison with a further review tocommence in
October 1992."
Again the applicant did not see any of the reports on him and
was afforded no hearing before the Parole Board. He was given no reasons for
the decisions taken.
In the third review in December 1992, the Parole Board
recommended that the applicant be transferred to open conditions with a further
review in six months’ time. However, the Secretary of State, in exercise of his
statutory powers (see paragraph 29 below), rejected this recommendation,
directing that the applicant remain in close conditions with a further review
to commence in March 1995. The applicant was only informed in March 1993 that
his release had not been recommended and about the date of his next review.
In June 1993, Mr Hussain applied for judicial review (see
paragraph 39 below) in respect of the decision communicated in March 1993 on
the basis that he had not been shown the reports on him placed before the
Board. He relied on the case of Prem Singh (see paragraph 24 below) as
establishing that persons detained during Her Majesty’s pleasure had a right at
common law to disclosure of reports.
On 13 October 1993, the Parole Board gave the High Court
an undertaking to reconsider the applicant’s case immediately and to disclose
their case file to him so that he could make informed representations. The
applicant withdrew his application for judicial review.
At his most recent review in January 1994, the applicant
was shown the reports on him that were before the Parole Board but he was not
given an opportunity to appear in person before the Board. Following this
review, the Secretary of State accepted the Parole Board’s recommendation to
transfer the applicant to open-prison conditions, which transfer took place in
February 1994. The Parole Board will again consider the applicant’s case in
February 1996.
The applicant has been detained for over seventeen years.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Categorisation of detention in the case of murderers
A person who unlawfully kills another with intent to kill
or cause grievous bodily harm is guilty of murder. English law imposes a
mandatory sentence for the offence of murder: "detention during Her
Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1)
of the Children and Young Persons Act 1933 (as amended) - see paragraph 23
below); "custody for life" if the offender is between 18 and 20 years
old (section 8 (1) of the Criminal Justice Act 1982); and "life
imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder
(Abolition of Death Penalty) Act 1965).
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 (for
example manslaughter, rape, robbery). The principles underlying the passing 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 that 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 only so long as public safety may be jeopardised by his being let loose
at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108).
B. Detention during Her Majesty’s pleasure
The notion of detention during Her Majesty’s pleasure has
its origins in statutory form in an Act of 1800 for "the safe custody of
insane persons charged with offences" (Criminal Lunatics Act), which
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 shall be known" 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 between 10 and 16. It was extended to
cover those under the age of 18 at the time of conviction (1933) and further
extended to cover persons under the age of 18 at the time when the offence was
committed (1948).
The provision in force at present is section 53 (1) of
the Children and Young Persons Act 1933 (as amended) ("the 1933 Act")
which provides:
"A person convicted of an offence who appears to thecourt
to have been under the age of eighteen years at thetime the offence was
committed shall not, if he isconvicted of murder, be sentenced to imprisonment
forlife, nor shall sentence of death be pronounced on orrecorded against any
such person; but in lieu thereof thecourt shall ... sentence him to be detained
during HerMajesty’s pleasure and, if so sentenced he shall beliable to be
detained in such a place and under suchconditions as the Secretary of State may
direct."
In the case of R. v. Secretary of State for the Home
Department, ex parte Prem Singh (20 April 1993, unreported) Lord Justice Evans
in the Divisional Court held as follows in respect of detention "during
Her Majesty’s pleasure":
"At the time of sentencing, the detention orders
undersection 53 were mandatory. It is indeed the statutoryequivalent for young
persons of the mandatory lifesentence for murder. But the sentence itself is
closerin substance to the discretionary sentence of which partis punitive
(retribution and deterrence) and the balancejustified only by the interests of
public safety when thetest of dangerousness is satisfied. The fact that
themandatory life prisoner may be given similar rights asregards release on
licence does not alter the fact thatthe mandatory life sentence is justifiable
as punishmentfor the whole of its period: see R. v. Secretary of StateEx. p.
Doody & Others [1993] Q.B. 157 and Wynne v. UK(E.C.H.R. 1st December 1992).
The order for detentionunder section 53 is by its terms both discretionary
andindeterminate: it provides for detention `during HerMajesty’s pleasure’... I
would decide the present case onthe narrow ground that, notwithstanding Home
Office andParole Board practice, the applicant should be regardedas equivalent
to a discretionary life prisoner for thepurpose of deciding whether Wilson
rather than Paynegoverns his case."
(transcript, pp. 24C-25B)
The court accordingly held that the applicant in the case, detained
during Her Majesty’s pleasure, should be afforded the same opportunity as would
be given to a discretionary life prisoner to see the material before the Parole
Board when it decided whether he should be released after his recall to prison
on revocation of his licence.
The Parole Board has changed its policy accordingly.
However, in a statement in Parliament made on 27 July
1993 (see paragraph 32 below), the Secretary of State, Mr Michael Howard,
explained that he included in the category of "mandatory life sentence
prisoners" those
"persons who are, or will be, detained during HerMajesty’s
pleasure under section 53 (1) of the Childrenand Young Persons Act 1933
..."
In R. v. Secretary of State for the Home Department, ex
parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the
Divisional Court (with whom Mr Justice Pill agreed) said:
"I see no reason to regard him as having any specialstatus
because he was sentenced to detention [during HerMajesty’s pleasure] rather than
to life imprisonment,despite what was said by Evans LJ when giving judgment inReg.
v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues
in that casewere very different from those with which we areconcerned. If
Hickey had not been sent to hospital hecould hope to benefit from the
provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It
will be recalled that in Hickey’s casethe offence was murder, so the sentence
was mandatory notdiscretionary."
On appeal the Court of Appeal stated that in respect of a
person sentenced to detention during Her Majesty’s pleasure under section 53
(1) of the 1933 Act for the offence of murder, the relevant provisions on
release were those in section 35 (2) of the Criminal Justice Act 1991 (see
paragraph 29 below), and not those relating to a discretionary life prisoner
(R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All
England Law Reports 479, 488).
C. Release on licence
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 that period of imprisonment they
should serve 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 ("the 1991 Act").
1. General procedure
Section 61 (1) of the Criminal Justice Act 1967
("the 1967 Act") provided, inter alia, that the Secretary of State,
on the recommendation of the Parole Board and after consultation with the Lord
Chief Justice and the trial judge, may "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". In
this respect no difference was made between discretionary and mandatory life
prisoners.
By virtue of section 35 (2) of the 1991 Act, persons
detained during Her Majesty’s pleasure and those life prisoners who are not
discretionary life prisoners (see paragraph 20 above), may be released on
licence by the Secretary of State, if recommended to do so by the Parole Board
and after consultation with the Lord Chief Justice and the trial judge. The
decision on whether to release still lies, therefore, with the Secretary of
State.
The Secretary of State also decides the length of a
prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993
(R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1
Appeal Cases 531, 567G), the view of the trial judge is made known to the
prisoner after his trial as is the opinion of the Lord Chief Justice. The
prisoner is afforded the opportunity to make representations to the Secretary
of State who then proceeds to fix the tariff. Where the Secretary of State
decides to depart from the judicial recommendation he is obliged to give
reasons. As a matter of practice the prisoner is informed of the Secretary of
State’s final decision.
In the second, post-punitive phase of detention the prisoner
knows that "the penal consequence of his crime has been exhausted"
(ibid., 557A).
A statement of policy issued by Sir Leon Brittan, then
Secretary of State for the Home Department, on 13 November 1983 indicated that
release on licence following expiry of the tariff depended on whether the
person was considered no longer to pose a risk to the public.
On 27 July 1993 the Secretary of State, Mr Michael
Howard, made a statement of policy in relation to mandatory life prisoners,
stating, inter alia, that before any such prisoner is released on licence he
"will consider not only, (a) whether the period served
bythe prisoner is adequate to satisfy the requirements ofretribution and
deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the
publicacceptability of early release. This means that I willonly exercise my
discretion to release if I am satisfiedthat to do so will not threaten the
maintenance of publicconfidence in the system of criminal justice".
In a number of recent court cases involving persons
detained during Her Majesty’s pleasure, it has been stated that the correct
test for post-tariff detention was to be whether the offender continued to
constitute a danger to the public (R. v. Secretary of State for the Home
Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the
Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph
24; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no.
2), 16 March 1995).
2. Procedure applicable to discretionary life prisoners
The 1991 Act instituted changes to the regime applying to
the release of discretionary life prisoners following the decision of the
European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the
United Kingdom (judgment of 25 October 1990, Series A no. 190-A).
Pursuant to section 34 of the 1991 Act, the tariff of a
discretionary life prisoner is now fixed in open court by the trial judge after
conviction. 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 panel
(see paragraph 37 below) and to legal representation. There is provision enabling
a prisoner to apply to call witnesses on his behalf and to cross-examine those
who have written reports about him.
For the purposes of the 1991 Act, persons detained during
Her Majesty’s pleasure are not regarded as discretionary life prisoners
(section 43 (2)).
D. Parole Board and Local Review Committees
Section 59 of the 1967 Act set out the constitution and
functions of the Parole Board:
"(1) For the purposes of exercising the functionconferred
on it by this Part of this Act as respectsEngland and Wales there shall be a
body known as theParole Board ... consisting of a chairman and not lessthan
four other members appointed by the Secretary ofState.
...
(4) The following provisions shall have effect withrespect to
the proceedings of the Board on any casereferred to it, that is to say
(a) the Board shall deal with the case onconsideration of any
documents given to it by theSecretary of State and of any reports it has
calledfor and any information whether oral or in writingthat it has obtained;
and
(b) if in any particular case the Board thinks it isnecessary
to interview the persons to whom the caserelates before reaching a decision,
the Board mayrequest one of its members to interview him andshall take into
account the report of that interviewby that member ...
(5) The documents to be given by the Secretary of Stateto the
Board under the last foregoing subsection shallinclude
(a) where the case referred to the Board is one ofrelease under
section 60 or 61 of this Act, anywritten representations made by the person to
whomthe case relates in connection with or since hislast interview in
accordance with rules under thenext following subsection;
(b) where the case so referred relates to a person recalled
under section 62 of this Act, any written representations made under that
section."
As to the constitution of the Parole Board, Schedule 2 to the
1967 Act further provides:
"1. The Parole Board shall include among its members
(a) a
person who holds or has held judicial office;
(b) a registered medical practitioner who is apsychiatrist;
(c) a person appearing to the Secretary of State tohave
knowledge and experience of the supervision orafter care of discharged
prisoners;
(d) a person appearing to the Secretary of State tohave made a
study of the causes of delinquency orthe treatment of offenders."
The Parole Board always counts among its members three High
Court judges, three circuit judges and a recorder. Cases referred to the Board
may be dealt with by three or more members of the Board (Parole Board Rules
1967). In practice, the Board sits in small panels, including, in the case of
life prisoners, a High Court judge and a psychiatrist. The judges on the Board
are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after
consultation with the Lord Chief Justice. With the exception of the new rules
concerning discretionary life prisoners, similar provisions apply under the
1991 Act.
Under section 59 (6) of the 1967 Act the Secretary of
State established for every prison a Local Review Committee with the function
of advising him on the suitability for release on licence of prisoners. It was
the practice to obtain this assessment before referring a case to the Parole
Board. Before the Local Review Committee reviewed a case, a member of the
committee would interview the prisoner if he was willing to be interviewed. The
first review by the Local Review Committee was normally fixed to take place
three years before the expiry of the tariff. Local Review Committees were
abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a
member of the Parole Board.
E. Judicial review
Persons serving a sentence of detention during Her
Majesty’s pleasure may institute proceedings in the High Court to obtain
judicial review of any decision of the Parole Board or of the Secretary of
State if those decisions are taken in breach of the relevant statutory
requirements or if they are otherwise tainted by illegality, irrationality or
procedural impropriety (Council of Civil Service Unions v. Minister for the
Civil Service [1984] 3 All England Law Reports 935, 950-51).
PROCEEDINGS BEFORE THE COMMISSION
Mr Hussain applied to the Commission on 31 March 1993. He
relied on Article 5 para. 4 (art. 5-4) of the Convention, complaining that,
under the current regulations:
(a) he had no right to a periodic
review by a court ofhis continued detention;
(b) the ultimate decision as to his
release lay with theexecutive;
(c) he had no right to an oral
hearing or to question orcall witnesses;
(d) he had no acknowledged right to
see the reportsbefore the Parole Board.
The applicant further complained under Article 14 (art. 14) of
the Convention that he had been irrationally discriminated against on the basis
of his status as a person convicted of murder.
The Commission declared the application (no. 21928/93)
admissible on 30 June 1994. In its report of 11 October 1994 (Article 31) (art.
31), it concluded, unanimously, that there had been a violation of Article 5
para. 4 (art. 5-4) as regards the lack of review by a court of the applicant’s
continued detention and that it was not necessary to examine the issues under
Article 14 (art. 14) of the Convention.
The full text of the Commission’s opinion is reproduced as an
annex to this judgment
FINAL SUBMISSIONS MADE TO THE COURT
At the hearing, the Agent of the Government invited the
Court to conclude that, in the present case, there had been no breach of the
Convention. The applicant, for his part, asked the Court to uphold his
complaints and declare that his rights under Article 5 para. 4 (art. 5-4) had
been violated, both by the denial of a review by a court-like body and by the
denial at any time of an oral hearing at which he could have put his case for
release in person.
AS TO THE LAW
I. SCOPE OF THE CASE
In his memorial to the Court and at the hearing the
applicant complained of the secretive and unfair manner in which his tariff
(see paragraph 27 above) had been established.
The Court notes that this particular complaint was not
dealt with by the Commission in its report or admissibility decision and that,
as pointed out by the Delegate of the Commission, it is uncertain whether it
can be regarded as falling within the compass of the case before the Court as
delimited by the Commission’s decision on admissibility (see, inter alia, the
Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A
no. 172, p. 13, para. 29). In any event, given the fact that the applicant’s
punitive period has now expired, the Court does not consider it necessary to
examine this complaint. The scope of the case before the Court is therefore
confined to the issues under Article 5 para. 4 (art. 5-4) raised in connection
with the applicant’s current situation, that is post-tariff detention.
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4) OF
THE CONVENTION
Mr Hussain complained that he had not been able at
reasonable intervals to have the case of his continued detention during Her
Majesty’s pleasure (see paragraph 20 above) heard by a court. He invoked
Article 5 para. 4 (art. 5-4) of the Convention which provides:
"Everyone who is deprived of his liberty by arrest
ordetention shall be entitled to take proceedings by whichthe lawfulness of his
detention shall be decided speedilyby a court and his release ordered if the
detention isnot lawful."
The Court will first examine whether, having regard to
the particular features of detention during Her Majesty’s pleasure, the
requirements of Article 5 para. 4 (art. 5-4) are satisfied by the original
trial and appeal proceedings or, on the contrary, whether that provision (art.
5-4) confers an additional right to challenge the lawfulness of the continued
detention before a court.
A. Whether the requisite judicial control was incorporated in the
original conviction
In the applicant’s submission, a sentence of detention
during Her Majesty’s pleasure differed from the mandatory life sentence imposed
on adults (see paragraph 20 above), which the Court examined in its Wynne v.
the United Kingdom judgment of 18 July 1994 (Series A no. 294-A), in that the
former is not solely based on the gravity of the offence but takes into account
the age of the offender. The principle that crimes committed by young persons
should not be punished as severely as the crimes of adults is, in the applicant’s
submission, contained in all civilised penal codes. In this respect, the
purpose of a sentence of detention during Her Majesty’s pleasure is not wholly
punitive in character but partly punitive and partly preventive.
In support of his argument the applicant referred to the
historical origins of the expression "during Her Majesty’s pleasure"
(the Criminal Lunatics Act 1800 and the Children’s Act 1908 - see paragraphs 21
and 23 above) in which context it had a clear preventive purpose. He further
referred to the wording of section 53 of the 1933 Act ("a person [under
18] ... shall not, if ... convicted of murder, be sentenced to imprisonment for
life" - see paragraph 23 above) and to the indeterminacy of the very
formula used in the sentence ("during Her Majesty’s pleasure").
In view of the above, the applicant concluded that a sentence
of detention under section 53 was closer in its indeterminacy and preventive
objectives to a discretionary life sentence, as examined by the Court in the
case of Thynne, Wilson and Gunnell cited above than to a mandatory life
sentence. As in that case, after the tariff has expired, the only legitimate
basis for the applicant’s continued detention would be a finding of his
continued dangerousness, a characteristic susceptible to change with the
passage of time (ibid., p. 30, para. 76). This was particularly so in the case
of offenders who could be as young as ten at the time of the commission of the
offence. It follows that at that phase in the execution of his sentence, the
applicant was entitled under Article 5 para. 4 (art. 5-4) to have the
lawfulness of his continued detention determined by a court at reasonable
intervals.
The Commission agreed in substance with the applicant’s
submissions and added that the absence of the word "life" in the
sentence reinforced its indeterminate character. The Commission further noted
the trial judge’s comments with regard to the dangerousness of the applicant
(see paragraph 8 above).
The Government, for their part, contended that the
sentence of detention during Her Majesty’s pleasure has an essentially punitive
character and is imposed automatically on all juvenile murderers on the
strength of the gravity of their offence, regardless of their mental state or
dangerousness. This explains why under the Criminal Justice Act 1991 the same
release procedures govern both mandatory life sentences passed on adults and
sentences of detention during Her Majesty’s pleasure and why the same
administrative policies are applied to both (see paragraphs 25 and 29 above). Furthermore,
after the tariff period has elapsed, not only the prisoner’s dangerousness but
also the acceptability to the public of his early release must be considered
with a view to maintaining public confidence in the system of criminal justice
(see paragraph 32 above).
It was further contended that, apart from the fact that persons
sentenced to detention during Her Majesty’s pleasure would not be detained in a
prison during the early stages of their detention but in a special institution
for young offenders, the sentence was nothing more than the statutory
equivalent for young persons of the mandatory life sentence for adults. In
these circumstances, the issues in the present case were practically identical
to those in the Wynne case (cited above at paragraph 47) where the Court found
that the original trial and appeal proceedings satisfied the requirements of
Article 5 para. 4 (art. 5-4) of the Convention.
The Court notes at the outset that, as has been commonly
accepted, the central issue in the present case is whether detention during Her
Majesty’s pleasure, given its nature and purpose, should be assimilated, under
the case-law on the Convention, to a mandatory sentence of life imprisonment or
rather to a discretionary sentence of life imprisonment. In dealing with this
issue the Court must therefore decide whether the substance of a sentence of
detention under section 53 is more closely related to that at the heart of the
cases of Weeks v. the United Kingdom (judgment of 2 March 1987, Series A no.
114) and Thynne, Wilson and Gunnell (cited above at paragraph 34) or to that in
the more recent case of Wynne v. the United Kingdom (cited at paragraph 47).
It is true, as submitted by the Government, that a
sentence of detention during Her Majesty’s pleasure is mandatory: it is fixed
by law and is imposed automatically in all cases where persons under the age of
18 are convicted of murder, the trial judge having no discretion. It is also
the case that the 1991 Act as well as recent policy statements treat the
sentence at issue in the present case in an identical manner to mandatory life
sentences as regards proceedings for release on licence and recall (see
paragraphs 25 and 29 above).
On the other hand, it is undisputed that, in its statutory
origins, the expression "during Her Majesty’s pleasure" had a clearly
preventive purpose and that - unlike sentences of life custody or life
imprisonment - the word "life" is not mentioned in the description of
the sentence.
Nevertheless, important as these arguments may be for the
understanding of the sentence of detention under section 53 in English law, the
decisive issue in the present context is whether the nature and, above all, the
purpose of that sentence are such as to require the lawfulness of the continued
detention to be examined by a court satisfying the requirements of Article 5
para. 4 (art. 5-4).
It is recalled that the applicant was sentenced to be
detained during Her Majesty’s pleasure because of his young age at the time of
the commission of the offence. In the case of young persons convicted of
serious crimes, the corresponding sentence undoubtedly contains a punitive
element and accordingly a tariff is set to reflect the requirements of
retribution and deterrence. However an indeterminate term of detention for a
convicted young person, which may be as long as that person’s life, can only be
justified by considerations based on the need to protect the public.
These considerations, centred on an assessment of the young
offender’s character and mental state and of his or her resulting dangerousness
to society, must of necessity take into account any developments in the young
offender’s personality and attitude as he or she grows older. A failure to have
regard to the changes that inevitably occur with maturation would mean that
young persons detained under section 53 would be treated as having forfeited
their liberty for the rest of their lives, a situation which, as the applicant
and the Delegate of the Commission pointed out, might give rise to questions
under Article 3 (art. 3) of the Convention.
Against this background the Court concludes that the
applicant’s sentence, after the expiration of his tariff, is more comparable to
a discretionary life sentence. This was, albeit in a different context, the
view expressed by the Divisional Court in its judgment of 20 April 1993 (R. v.
Secretary of State for the Home Department, ex parte Prem Singh - see paragraph
24 above).
The decisive ground for the applicant’s continued detention was
and continues to be his dangerousness to society, a characteristic susceptible
to change with the passage of time. Accordingly, new issues of lawfulness may
arise in the course of detention and the applicant is entitled under Article 5
para. 4 (art. 5-4) to take proceedings to have these issues decided by a court
at reasonable intervals (see, mutatis mutandis, the above-mentioned Thynne,
Wilson and Gunnell judgment, p. 30, para. 76).
B. Whether the available remedies satisfied therequirements of
Article 5 para. 4 (art. 5-4)
The Government accepted that if, contrary to their
submissions, Article 5 para. 4 (art. 5-4) did confer additional rights to
challenge the lawfulness of the applicant’s continued detention, there would
have been a breach of that provision (art. 5-4) but only to the extent that the
Parole Board had no general power to order the release of the applicant after
the expiry of his tariff. In reply to the applicant’s submission that the
importance and the nature of the issue, that is the detainee’s mental state,
called for an oral hearing, including the possibility of calling and
questioning witnesses, the Government recalled that Article 5 para. 4 (art.
5-4) does not confer an absolute right to an adversarial procedure and that to
the extent that fairness did require an oral hearing, this could be secured by
bringing judicial review proceedings.
The Commission found that the Parole Board’s lack of
decision-making power meant that it could not be regarded as a body satisfying
the requirements of Article 5 para. 4 (art. 5-4). As to the need for an oral
hearing, the Delegate of the Commission added that judicial review "is a
very uncertain remedy given the fact that express provision is made for an oral
hearing in the case of discretionary life prisoners, but not in the case of
persons detained during Her Majesty’s pleasure".
The Court recalls that Article 5 para. 4 (art. 5-4) does
not guarantee a right to judicial control of such scope as to empower the
"court" on all aspects of the case, including questions of
expediency, to substitute its own discretion for that of the decision-making
authority; the review should, nevertheless, be wide enough to bear on those
conditions which, according to the Convention, are essential for the lawful
detention of a person subject to the special type of deprivation of liberty
ordered against the applicant (see, inter alia, the above-mentioned Weeks judgment,
p. 29, para. 59, the E. v. Norway judgment of 29 August 1990, Series A no.
181-A, p. 21, para. 50, and the above-mentioned Thynne, Wilson and Gunnell
judgment, p. 30, para. 79).
As in Thynne, Wilson and Gunnell (p. 30, para. 80) and
despite the new policy allowing persons detained under section 53 of the 1933
Act the opportunity to see the material before the Parole Board (see paragraph
24 above), the Court sees no reason to depart from its findings in the case of
Weeks (cited above, pp. 29-33, paras. 60-69) that the Parole Board does not
satisfy the requirements of Article 5 para. 4 (art. 5-4). Indeed, to the extent
to which the Parole Board cannot order the release of a prisoner this is not
contested by the Government. However, the lack of adversarial proceedings
before the Parole Board also prevents it from being regarded as a court or
court-like body for the purposes of Article 5 para. 4 (art. 5-4).
The Court recalls in this context that, in matters of
such crucial importance as the deprivation of liberty and where questions arise
which involve, for example, an assessment of the applicant’s character or
mental state, it has held that it may be essential to the fairness of the
proceedings that the applicant be present at an oral hearing (see, mutatis
mutandis, the Kremzow v. Austria judgment of 21 September 1993, Series A no.
268-B, p. 45, para. 67).
The Court is of the view that, in a situation such as
that of the applicant, where a substantial term of imprisonment may be at stake
and where characteristics pertaining to his personality and level of maturity
are of importance in deciding on his dangerousness, Article 5 para. 4 (art.
5-4) requires an oral hearing in the context of an adversarial procedure
involving legal representation and the possibility of calling and questioning
witnesses.
It is not an answer to this requirement that the
applicant might have been able to obtain an oral hearing by instituting
proceedings for judicial review. In the first place, Article 5 para. 4 (art.
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. In the second place, like the Delegate of the
Commission, the Court is not convinced that the applicant’s possibility of
obtaining an oral hearing by way of proceedings for judicial review is
sufficiently certain to be regarded as satisfying the requirements of Article 5
para. 4 (art. 5-4) of the Convention.
C. Recapitulation
In conclusion, the Court finds that there has been a
violation of Article 5 para. 4 (art. 5-4) of the Convention in that the
applicant, after the expiry of his tariff, was unable to bring the case of his
continued detention during Her Majesty’s pleasure before a court with the
powers and procedural guarantees satisfying that provision (art. 5-4).
III. ALLEGED VIOLATION OF ARTICLE 14 (art. 14) OF
THECONVENTION
Neither in his written memorial nor in his oral pleading
before the Court did the applicant make any reference to his complaint under
Article 14 (art. 14), which had been declared admissible by the Commission (see
paragraph 41 above). In these circumstances, and since no separate issues
appear to arise under that provision (art. 14), the Court sees no reason to
entertain it of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
Article 50 (art. 50) of the Convention provides as
follows:
"If the Court finds that a decision or a measure taken bya
legal authority or any other authority of a HighContracting Party is completely
or partially in conflictwith the obligations arising from the ... Convention,
and if the internal law of the said Party allows only partial reparation to be
made for the consequences of thisdecision or measure, the decision of the Court
shall, ifnecessary, afford just satisfaction to the injuredparty."
The applicant’s claims under this provision (art. 50) were for
compensation for non-pecuniary damage and reimbursement of legal costs and
expenses referable to the proceedings before the Convention institutions.
A. Non-pecuniary damage
The applicant sought compensation for the slow pace at
which he has progressed towards liberty over the last seventeen years and,
alternatively, for the loss of an opportunity to have his case examined by a
fair and independent tribunal and the prejudice, anxiety and delay that this
loss has caused him. He made a claim of £50,000 on the basis that he had had to
serve some five years of additional detention because of the violation of his
rights under the Convention.
In the opinion of the Court, there is no evidence that
the applicant would have regained his freedom had Article 5 para. 4 (art. 5-4)
not been breached. Even assuming that he may have suffered some
"anxiety", the Court shares the Government’s view that, in the
circumstances, the finding of a violation constitutes sufficient just
satisfaction for the purposes of Article 50 (art. 50).
B. Costs and expenses
For the legal costs and expenses in bringing his case
before the Convention institutions, the applicant claimed the sum of £32,459.58
inclusive of value added tax.
The Government found the sum claimed excessive.
In the light of the criteria emerging from its case-law,
the Court holds that the applicant should be awarded the amount of £19,000 less
14,475 French francs already paid by way of legal aid in respect of fees and
travel and subsistence expenses.
C. Default interest
According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date of
adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5para. 4
(art. 5-4) of the Convention in that theapplicant, after the expiry of his
punitive period, wasunable to bring the case of his continued detentionbefore a
court;
2. Holds that it is not necessary to examine the
complaintunder Article 14 (art. 14) of the Convention;
3. Holds that the present judgment constitutes in itself sufficient
just satisfaction for any non-pecuniary damage sustained;
4. Holds
(a) that the respondent State is to pay the applicant, within
three months, in respect of legal costs andexpenses, £19,000 (nineteen thousand
pounds sterling), less 14,475 (fourteen thousand four hundred andseventy-five)
French francs already paid by way of legalaid, to be converted into pounds
sterling at the rate of exchange applicable on the date of delivery of the present
judgment;
(b) that simple interest at an annual rate of 8% shallbe
payable from the expiry of the above-mentioned three months until settlement;
5. Dismisses the remainder of the claim for justsatisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 February 1996.
Rolv
RYSSDAL
President
Herbert PETZOLD
Registrar
