Singh v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 23389/94

by Prem SINGH

against the United Kingdom

The European Commission of Human Rights sitting in private on

30 June 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.C. GEUS

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

J. MUCHA

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 November 1993

by Prem Singh against the United Kingdom and registered on

7 February 1994 under file No. 23389/94;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

12 May 1994 and the observations in reply submitted by the

applicant on 15 June 1994;

- the observations submitted by the parties at the oral hearing on

30 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

a. The particular circumstances of the case

The applicant is a British citizen born in 1957 and currently

detained in HM Prison Morfield. He is represented before the Commission

by Messrs Rodney King, solicitors practising in Bristol. The facts as

submitted by the parties may be summarised as follows.

In 1973, the applicant, aged 15, was convicted of murder and

sentenced to be detained at Her Majesty's pleasure.

In October 1990, after completing the "tariff" part of his

sentence, the applicant was released on licence.

On 10 March 1991, the applicant was arrested and interviewed by

the police in relation to alleged offences of obtaining by deception.

On 12 March 1991, the Parole Board considered the applicant's

case.

On 21 March 1991, the applicant's licence was revoked on the

recommendation of the Parole Board. The applicant was given formal

notice of the revocation of his licence under section 62 (1) of the

Criminal Justice Act 1991. The reasons given were that:

i. reports indicated that the applicant had lied to and misled

his supervising officers and avoided telling them of a

variety of significant events following his release on

licence;

ii. his arrest and subsequent appearance in a magistrates court

on several criminal charges including fraud and using

threatening behaviour rendered it impossible for the

Secretary of State to be satisfied that the applicant's

continued presence in the community did not constitute a

risk to the public.

By letter dated 27 August 1991, the Chief Probation Officer

clarified that the basis of his recall was not the alleged offences,

which were for the court to decide, but rather the circumstances

surrounding the offences which demonstrated conclusively that the trust

and openness necessary to supervise him in the community were not

there. The matters concerning which he had failed to inform his

supervisors included his obtaining employment with a pizza firm, having

a relationship and being less than honest about his background and

circumstances and running up considerable debts.

The applicant made representations to the Parole Board concerning

his recall. The Parole Board had before it a number of reports from the

probation service and the police. The applicant did not see these

reports. On 19 December 1991, the Parole Board declined to make a

positive recommendation for the applicant's release.

On 2 March 1992, the criminal charges against the applicant were

dismissed when the judge refused to sign the indictments presented by

the prosecution out of time. A voluntary bill of indictment was refused

on 9 April 1992.

Following the applicant's application for his case to be

reconsidered in light of this development, the Secretary of State

referred the case back to the Parole Board to seek their advice under

section 61 (1) of the 1967 Act. On 30 July 1992, the Parole Board again

declined to recommend the applicant's release.

The applicant sought judicial review of the decisions of the

Parole Board of 19 December 1991 and 30 July 1992.

On 20 April 1993, the Divisional Court of the High Court quashed

the Parole Board's decision of 19 December 1991 on the basis that there

had been a breach of the rules of natural justice because of the

failure to disclose to the applicant all the reports placed before it.

It held that the applicant was entitled to a fresh hearing under

section 39(4) of the Criminal Justice Act 1991. Lord Justice Evans

found, inter alia:

"<the applicant's> status is that of a person whose continued

detention can only be justified if the test of dangerousness,

meaning an unacceptable risk of physical danger to the life or

limb of the public, is satisfied."

He commented that the disclosed facts "scarcely seem able to

support a positive answer to the question" whether the applicant posed

a danger to the life or limb of the public.

The Parole Board reconsidered the applicant's case after he had

sight of the reports and the opportunity to make detailed submissions

rebutting the allegations made against him.

On 18 June 1993, the Parole Board rejected the applicant's

representations and did not recommend release. It gave as its reasons:

"The Panel accepted that <the applicant's> representations

answered some of the matters which were of concern to his

probation officer. However, there was a lack of openness in his

dealings with the Probation Service. The Panel also considered

that the conduct which led to the criminal charges indicated a

serious kind of deceptiveness. His behaviour under supervision

led the Panel to conclude that the nature of his personality had

not changed significantly since the original offence at the age

of 15. His failure to comply with the discipline of licence

supervision, bearing in mind the original offence, gives rise to

considerable concern."

The applicant instituted judicial review proceedings seeking to

challenge the Board's decision. These proceedings were withdrawn on or

about 7 March 1994 in light of the fact that the applicant had been

offered an early review of his case before the Board. The Parole Board

considered the applicant's case and has sent its findings to the

Secretary of State, whose decision is pending.

b. The relevant domestic law and practice

Detention at Her Majesty's pleasure

Section 53(1) of the Children and Young Persons Act 1933 (as

amended) 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."

Categorisation of detention "at Her Majesty's pleasure"

In the present case on 20 April 1993, Evans LJ in the Divisional

Court held as follows in respect of detention "at 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."

Release on licence and revocation of licences

i. Provisions in force prior to 1 October 1992

Section 61 (1) of the Criminal Justice Act 1967 provided inter

alia:

"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 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 to detention

during Her Majesty's pleasure or for life except after

consultation with the Lord Chief Justice of England together with

the trial judge if available."

Section 62 of the 1967 Act provided inter alia:

"1. Where the Parole Board recommends the recall of any person

who is subject to a licence under section 60 or 61 of this Act,

the Secretary of State may revoke that person's licence and

recall him to prison.

2 The Secretary of State may revoke the licence of any such

person and recall him as aforesaid without consulting the Board,

where it appears to him that it is expedient in the public

interest to recall that person before such consultation is

practicable."

3 A person recalled to prison under the foregoing provisions of

this section may make representations in writing with respect to

his recall and shall on return to prison be informed of the

reasons for his recall and of his right to make such

representations...

5 Where the Board recommends the immediate release on licence

of a person whose case is referred to it under this section, the

Secretary of State shall give effect to the recommendation, and

where it is necessary for that purpose to release that person

under subsection (1) of the last foregoing section, the Secretary

of State shall do so without the consultation required by that

subsection...".

ii. Provisions in force from 1 October 1992

On 1 October 1992, Part II of the Criminal Justice Act 1991 (the

1991 Act) came into force.

Section 35 of the 1991 Act provides 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."

Section 39 provides as relevant:

(1) If recommended to do so by the Board in the case of a long

term or life prisoner who has been released on licence under this

Part, the Secretary of State may revoke his licence and recall

him to prison...

(4) The Secretary of State shall refer to the Board -

(a) the case of a person recalled under subsection (1)

above ...

(5) Where on a reference under subsection (4) above the Board -

(a) directs in the case of a discretionary life prisoner;

or

(b) recommends in the case of any other person,

his immediate release on licence under this section, the

Secretary of State shall give effect to the direction or

recommendation."

COMPLAINTS

The applicant complains of a violation of Article 5 para. 4 of

the Convention. He submits that he should be entitled to have the

legality of his continued detention determined by a "court" and that

the Parole Board in its powers and procedures fails to offer the

requisite safeguards. He considers that his position is akin to that

of discretionary lifers after the expiry of the punitive phase of

detention and relies on the reasoning of the European Court of Human

Rights in the case of Thynne, Wilson and Gunnell (Eur. Court H.R.,

Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A

no. 190-A).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 November 1993 and registered

on 7 February 1994.

On 5 April 1994, the Commission decided to communicate the

application to the Government, to ask for written observations on the

admissibility and merits of the application and to invite the parties

to an oral hearing to be held consecutively with the hearing in the

case of Abed Hussain v. the United Kingdom, Application No. 21928/93.

The Government's observations were submitted on 12 May 1994 and

the applicant's observations in reply were submitted on 15 June 1994.

On 24 June 1994, the Commission decided to grant legal aid to the

applicant.

At the hearing, which took place on 30 June 1994, the parties

were represented as follows:

For the Government

Mr. Iain Christie Agent

Mr. David Pannick Q.C Counsel

Mr. Harry Carter Adviser

Ms Helen Bayne Adviser

Ms Joy Hutcheon Adviser

For the applicant

Mr. Edward FitzGerald Counsel

Mr. Rodney King Solicitor

Mr. John Kilminster Solicitor

Mr. Klaus-Joerg Diwo Lawyer

Ms Kate Akester Adviser

THE LAW

The applicant, who is serving a sentence of detention at Her

Majesty's pleasure, complains of the absence of any procedure under

domestic law by which he can have reviewed by a court the lawfulness

of his continued detention. He invokes Article 5 para. 4 (Art. 5-4) of

the Convention, which provides:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness of

his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

The respondent Government submit that detention at Her Majesty's

pleasure is to be equated with the term of mandatory life imprisonment

for adults and is in effect the equivalent sentence imposed on

juveniles. It is therefore to be regarded as a sentence fixed by law

in respect of the gravity of the offence concerned. They submit that

mandatory and discretionary life sentences differ in fundamental

respects, both in nature and applicable procedures. Pursuant to the

judgments of the Court, Article 5 para. 4 (Art. 5-4) does not grant an

entitlement to a prisoner serving a mandatory life sentence to

periodic judicial assessment of the grounds for his detention after the

expiry of his tariff (cf. Eur. Court H.R., Weeks judgment of

2 March 1987, Series A no. 114, and Thynne, Wilson and Gunnell judgment

of 25 October 1990, Series A no. 190-A). The requirements of

Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original

trial and appeal proceedings of the applicant.

The Government further consider that the applicant cannot claim

any right to special treatment on the basis that he was in fact

released on licence and later recalled. In any event when he was

recalled, the applicant had the opportunity to make representations to

the Parole Board in circumstances where it did have power to order his

immediate release and this would, assuming Article 5 para. 4

(Art. 5-4) required a review at this stage, satisfy the requirements

of that provision.

The applicant submits that detention at Her Majesty's pleasure

is a wholly indeterminate sentence based on the special factor of

youth. It should be assimilated to discretionary life sentences for

adults in respect of which the European Court of Human Rights has held

that Article 5 para. 4 (Art. 5-4) of the Convention requires judicial

rather than executive control after the expiry of the punitive or

"tariff" part of their sentence. Since the only justification for his

detention is risk or "dangerousness", which is a factor susceptible to

change, the applicant submits that he should have a review of the

lawfulness of his continued detention by a body satisfying the

guarantees of Article 5 para. 4 (Art. 5-4) of the Convention. He would

also argue that the fact that he had been released from prison and that

this liberty was removed from him in itself called for a judicial

review of the merits of the case for re-detention.

The applicant submits that the procedure for release on licence

of detainees at Her Majesty's Pleasure does not generally satisfy the

requirements of Article 5 para. 4 (Art. 5-4) since the Parole Board,

save immediately after recall, is unable to order release, the ultimate

decision resting with the executive. There is no provision for an oral

hearing before the Board or for an applicant to call his own witnesses

or to question the witnesses against him. Even though on his recall the

Parole Board enjoyed the power to direct his immediate release, the

applicant submits that since the Board had initially recommended his

recall, it could not be considered as independent or impartial in

reviewing whether he should nonetheless be released. Further, given

that the Board reached its initial decision refusing release 9 months

after the applicant was recalled to prison, the requirement of speed

in Article 5 para. 4 (Art. 5-4) was not complied with.

The Commission 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 on the merits.

The application cannot therefore be regarded as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)