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You are here: BAILII >> Databases >> European Court of Human Rights >> SINGH v. THE UNITED KINGDOM - 23389/94 [1996] ECHR 9 (21 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/9.html Cite as: [1996] ECHR 9

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In the case of Singh v. the United Kingdom (1),

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 (2),

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:

_______________

Notes by the Registrar

1. The case is numbered 56/1994/503/585. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) (1 October 1994) and

thereafter only to cases concerning States not bound by that

Protocol (P9). They correspond to the Rules that came into force

on 1 January 1983, as amended several times subsequently.

_______________

PROCEDURE

1. 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. 23389/94) against the United Kingdom lodged with

the Commission under Article 25 (art. 25) on 25 January 1994 by

a British citizen, Mr Prem Singh.

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.

2. 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).

3. The President of the Court decided that in the interests

of the proper administration of justice this case and the case

of Hussain v. the United Kingdom (no. 55/1994/502/584) 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).

4. 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 3 May. The Secretary to the

Commission informed the Registrar that the Delegate would submit

his observations at the hearing.

5. 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,

Mr R. King, Solicitor.

The Court heard addresses by Mr Bratza, Mr Fitzgerald and

Mr Pannick.

AS TO THE FACTS

I. Circumstances of the case

6. Mr Prem Singh was born in 1957 and is currently resident

in Wakefield, West Yorkshire.

7. On 19 February 1973, the applicant - then aged 15 - was

convicted at Leeds Crown Court of the murder of a 72-year-old

woman. He had broken into her home, strangled her, cut her

throat and had sexual intercourse with her at around the time of

her death. Mr Singh 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 29 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".

8. In October 1990, having served the punitive part of his

sentence ("tariff" - see paragraph 33 below), Mr Singh was

released on licence.

9. On 11 March 1991 the applicant was arrested and

interviewed at Southmead police station, Bristol, in connection

with a number of alleged offences involving deception, and one

of using threatening behaviour. He denied the allegations.

10. On 12 March 1991 the Parole Board considered Mr Singh's

case, and on 21 March 1991 his life licence was revoked by the

Secretary of State on its recommendation.

On 21 March 1991 the applicant received a formal notice

of the reasons for this decision, which he was entitled to by

virtue of section 62 (3) of the Criminal Justice Act 1967 (see

paragraph 43 below). It informed him that the Secretary of State

had revoked his licence in the light of:

"(i) Reports indicating that you had lied to and misled

your supervising officers and avoided telling them of a

variety of significant events following your release on

licence.

(ii) Your arrest and subsequent appearances before

Bristol Magistrates on several criminal charges including

fraud and using threatening behaviour, set against the

circumstances surrounding the offence for which you were

given a life sentence in 1973, make it impossible for the

Secretary of State to be satisfied that your continued

presence in the community did not constitute a risk to

the public."

11. On 27 August 1991, having complained to the Avon

Probation Service about its recommendation, Mr Singh received a

more detailed explanation of his recall in a letter from the

chief probation officer. The reason given for his recall was not

the alleged offences (which were a matter for the court), but

rather his failure to provide accurate information about his

circumstances to his supervising probation officer. The letter

cited specifically his failure to inform her about the purchase

of a motor vehicle; getting a job and giving false information

to his employers about his age and character; having a

relationship and not telling his girlfriend all about his

background; and falling into arrears with his rent.

12. Mr Singh denied the accuracy of most of these

allegations, and asked the Parole Board to review the merits of

the revocation of his licence. Under section 62 (4) of the

Criminal Justice Act 1967 (now section 39 (4) of the Criminal

Justice Act 1991 - see paragraph 43 below), the Parole Board was

empowered at this stage to take a binding decision for Mr Singh's

immediate release.

13. The Parole Board considered the applicant's case on

27 August and 19 December 1991. It had before it a number of

reports from the probation service and the police, none of which

was disclosed to the applicant. On 19 December 1991 the Board

decided against recommending Mr Singh's immediate release. He

was not told the reasons for this decision.

14. On 2 March 1992 the criminal charges against Mr Singh

(see paragraph 9 above) were dismissed because the prosecution

had presented the indictment out of time.

Mr Singh asked for his case to be reconsidered in the

light of this development, and the Secretary of State accordingly

referred it back to the Parole Board, under the procedure set out

in section 61 (1) of the Criminal Justice Act 1967 (see

paragraph 34 below). On 30 July 1992 the Board again declined

to recommend Mr Singh's release.

15. The applicant then sought judicial review (see

paragraph 47 below) of the two decisions of the Parole Board of

19 December 1991 and 30 July 1992.

On 20 April 1993 the Divisional Court quashed the Parole

Board's decision of 19 December 1991 on the ground that there had

been a breach of natural justice because of the Board's failure

to disclose to Mr Singh all the reports before it. The court

held that the applicant was entitled to a fresh consideration by

the Parole Board under the terms of section 39 (4) of the

Criminal Justice Act 1991, at which the Board would be empowered

to order (not merely to recommend) his release (see paragraph 43

below). Lord Justice Evans found, inter alia, that:

"[Mr Singh'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"

(R. v. Secretary of State for the Home Department, ex

parte Prem Singh, unreported, transcript pp. 26F-27B)

He further commented that the disclosed facts "scarcely

seem able to support a positive answer to [this question]".

16. As a result of the Divisional Court's decision, Mr Singh

received a complete file of the documents which were before the

Parole Board. This included a number of detailed probation

reports alleging deception of his supervising officers by

Mr Singh, and also several hundred pages of witness statements

obtained by the police in connection with the criminal charges

which had been dismissed (see paragraphs 9 and 14 above).

17. With the help of his solicitor, Mr Singh made written

representations to the Parole Board. He denied the allegations

contained in the letter from the chief probation officer that he

had deceived his supervising probation officer (see paragraph 11

above) and supported his case with witness statements from his

girlfriend and landlady.

18. On 18 June 1993 the Parole Board considered Mr Singh's

case. He was not permitted to be present at the review and had

no opportunity to give oral evidence or to question those who had

made allegations against him.

The Board decided not to recommend release, and gave the

following reasons:

"The Panel accepted that Mr Singh's representations

answered some 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 and

behaviour 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."

19. Mr Singh applied for judicial review of this decision,

but he withdrew his application on or about 7 March 1994 because

he had been offered an early review of his case by the Parole

Board.

20. In June 1994 the Parole Board reconsidered Mr Singh's

case in accordance with section 35 (2) of the Criminal

Justice Act 1991 (see paragraph 35 below). Mr Singh entered

detailed representations and the file before the Board was

disclosed to him; it contained recent reports from probation

officers, from a psychologist working with Mr Singh and from the

Local Review Committee (see paragraph 46 below). All the reports

which made a specific recommendation were in favour of the

applicant's release as soon as possible via a pre-release hostel.

21. As the applicant was informed on 21 July 1994 the Parole

Board unanimously recommended his release subject to six months

in a pre-release employment scheme. The reasons given were as

follows:

"On the evidence presented to [the panel], they

considered Prem Singh no longer constituted a danger to

life or limb of committing further life threatening

offences to justify his continued detention since his

recall in March 1991."

22. The applicant was also informed on 21 July 1994 that the

Secretary of State was "not prepared to accept this

recommendation and [did not agree] to [the applicant's] release".

The Secretary of State so decided in exercise of his statutory

powers (see paragraph 43 below).

23. By a communication of 8 September 1994 the applicant was

given the reasons for the Secretary of State's decision. These

were that Mr Singh had misled the probation service after his

release in October 1990 and had appeared before the magistrates

on several criminal charges, although these had subsequently been

dismissed on technical grounds. Thus, he had been recalled to

prison "following serious breaches of the trust placed in [him]

as a life licensee". The Secretary of State was unable to assess

accurately whether he was still a threat to the public, because

he had spent the three and a quarter years since his recall in

a closed prison. He considered that Mr Singh's relationship with

the probation service needed to be tested in the "more

challenging environment of an open prison". For these reasons,

he believed that Mr Singh should be transferred to an open prison

for further testing. His next formal review by the Parole Board

would begin in October 1995.

24. Mr Singh applied for judicial review of the Secretary of

State's decision.

On 16 March 1995 the Divisional Court quashed the

Secretary of State's decision and ordered him to reconsider it.

The court found, inter alia, that the correct test to be applied

was whether Mr Singh constituted a danger to the "life or limb"

of the public, and that the reasoning process of the Secretary

of State had been flawed because he had not properly explained

how the findings he had made related to the test of dangerousness

(R. v. Secretary of State for the Home Department, ex parte

Prem Singh (no. 2), unreported).

25. In September 1995 Mr Singh joined a pre-release

employment scheme. His provisional date for release is

18 March 1996.

II. Relevant domestic law and practice

A. Categorisation of detention in the case of murderers

26. 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 29 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

27. 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".

28. 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).

29. 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 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."

30. In the case of R. v. Secretary of State for the Home

Department, ex parte Prem Singh (20 April 1993, cited above at

paragraph 15) 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 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' ... 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."

(transcript, pp. 24C-25B)

The court accordingly held that the applicant 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.

31. However, in a statement in Parliament made on

27 July 1993 (see paragraph 38 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 Her

Majesty's pleasure under section 53 (1) of the Children

and Young Persons Act 1933 ..."

32. 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 special

status because he was sentenced to detention [during Her

Majesty's pleasure] rather than to life imprisonment,

despite what was said by Evans LJ when giving judgment in

Reg. v. Parole Board, ex parte Singh (Prem)

(20 April 1993, unreported). The issues in that case

were very different from those with which we are

concerned. If Hickey had not been sent to hospital he

could hope to benefit from the provisions of

section 35 (2) of the 1991 Act [on mandatory life

prisoners] ... It will be recalled that in Hickey's case

the offence was murder, so the sentence was mandatory not

discretionary."

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 35 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

33. 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

34. 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.

35. 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 26

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.

36. 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).

37. 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.

38. 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 by

the prisoner is adequate to satisfy the requirements of

retribution and deterrence and, (b) whether it is safe to

release the prisoner, but also (c) the public

acceptability of early release. This means that I will

only exercise my discretion to release if I am satisfied

that to do so will not threaten the maintenance of public

confidence in the system of criminal justice".

39. 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 15; 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

40. 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).

41. 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 45 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.

42. 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. Revocation of licences

43. Recall to prison of a person released on licence was

governed by section 62 of the 1967 Act which reads:

"(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 ...

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

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

section who makes representations under the last

foregoing subsection and shall in any event so refer the

case of a person returned to prison after being recalled

under subsection (2) of this section.

(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 ...

..."

44. Section 39 of the 1991 Act has added that a person

recalled to prison shall be informed of the reasons for his

recall and of his right to make representations in writing.

E. Parole Board and Local Review Committees

45. Section 59 of the 1967 Act set out the constitution and

functions of the Parole Board:

"(1) For the purposes of exercising the function

conferred on it by this Part of this Act as respects

England and Wales there shall be a body known as the

Parole Board ... consisting of a chairman and not less

than four other members appointed by the Secretary of

State.

...

(4) The following provisions shall have effect with

respect to the proceedings of the Board on any case

referred to it, that is to say -

(a) the Board shall deal with the case on

consideration of any documents given to it by the

Secretary of State and of any reports it has called

for and any information whether oral or in writing

that it has obtained; and

(b) if in any particular case the Board thinks it

is necessary to interview the persons to whom the

case relates before reaching a decision, the Board

may request one of its members to interview him and

shall take into account the report of that

interview by that member ...

(5) The documents to be given by the Secretary of State

to the Board under the last foregoing subsection shall

include -

(a) where the case referred to the Board is one of

release under section 60 or 61 of this Act, any

written representations made by the person to whom

the case relates in connection with or since his

last interview in accordance with rules under the

next 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 a

psychiatrist;

(c) a person appearing to the Secretary of State to

have knowledge and experience of the supervision or

after care of discharged prisoners;

(d) a person appearing to the Secretary of State to

have made a study of the causes of delinquency or

the 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.

46. 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.

F. Judicial review

47. 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

48. Mr Singh applied to the Commission on 25 January 1994.

He relied on Article 5 para. 4 (art. 5-4) of the Convention,

complaining that he should be entitled to have the lawfulness of

his continued detention determined by a court and that the Parole

Board in its powers and procedures failed to offer the requisite

safeguards.

49. The Commission declared the application (no. 23389/94)

admissible on 30 June 1994. In its report of 11 October 1994

(Article 31) (art. 31), it expressed the unanimous opinion that

there had been a violation of Article 5 para. 4 (art. 5-4) of the

Convention.

The full text of the Commission's opinion is reproduced

as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the

printed version of the judgment (in Reports of Judgments and

Decisions - 1996), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

50. 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

51. 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 33 above) had been established.

52. 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

53. Mr Singh complained that he had not been able either on

his recall to prison in 1991 or at reasonable intervals

thereafter to have the case of his continued detention during Her

Majesty's pleasure (see paragraph 26 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 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."

54. 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 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

55. 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 26 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 27 and 29 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 29 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 and of any re-detention

determined by a court at reasonable intervals.

56. 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.

57. 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 31 and 35 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 38 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 55) 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.

58. 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 40) or to

that in the more recent Wynne case (cited at paragraph 55).

59. 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 31 and 35 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.

60. 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).

61. 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.

62. 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 paragraphs 15

and 30 above).

The decisive ground for the applicant's continued

detention was and continues to be his dangerousness to society,

as the Divisional Court restated on 16 March 1995 (R.

v. Secretary of State for the Home Department, ex parte

Prem Singh (no. 2) - see paragraph 24 above), 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 as well as to have the lawfulness of any re-detention

determined by a court (see, mutatis mutandis, the above-mentioned

Thynne, Wilson and Gunnell judgment, p. 30, para. 76).

B. Whether the available remedies satisfied the

requirements of Article 5 para. 4 (art. 5-4)

63. 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 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.

64. 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".

65. 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).

66. 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 paragraphs 15 and 30 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).

67. 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).

68. 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.

69. 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

70. 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 before a court with the powers and procedural guarantees

satisfying that provision (art. 5-4) the case of his continued

detention during Her Majesty's pleasure or of his re-detention

following the revocation of his licence.

III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

71. Article 50 (art. 50) of the Convention provides as

follows:

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with 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 this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

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. Damage

72. The applicant adopted the terms of the claim for

compensation in the case of Hussain v. the United Kingdom

(judgment of 21 February 1996, Reports of Judgments and Decisions

1996-I, p. 272, para. 65) and, additionally, sought compensation

for the "material and moral damages" caused by the Parole Board's

failure to recommend his release in the 1991 and 1993 proceedings

and by the Secretary of State's denial of the Parole Board's

recommendation for release in July 1994. He quantified his claim

at £100,000 or, if the Court were only to find a causal link

between the violation found and his continued detention as

of July 1994, at £25,000.

73. The Court notes that, had the Parole Board's

recommendations been binding on the Secretary of State, the

applicant would have joined a pre-release employment scheme

in July 1994. On the basis of the evidence before it, however,

it cannot speculate as to what the applicant's conduct would have

been and whether he would have been eventually released. As to

the moral damage allegedly suffered, 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

74. For the legal costs and expenses in bringing his case

before the Convention institutions, the applicant claimed the sum

of £22,058.73 inclusive of value added tax.

75. The Government found the sum claimed excessive.

76. In the light of the criteria emerging from its case-law,

the Court holds that the applicant should be awarded the amount

of £13,000 less 15,421 French francs already paid by way of legal

aid in respect of fees and travel and subsistence expenses.

C. Default interest

77. 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 5

para. 4 (art. 5-4) of the Convention in that the

applicant, after the expiry of his punitive period, was

unable to bring before a court the case of his continued

detention or of his re-detention following the revocation

of his licence;

2. Holds that the present judgment constitutes in itself

sufficient just satisfaction for any non-pecuniary damage

sustained;

3. Holds

(a) that the respondent State is to pay to the applicant,

within three months, in respect of legal costs and

expenses, £13,000 (thirteen thousand pounds sterling),

less 15,421 (fifteen thousand four hundred and

twenty-one) French francs already paid by way of legal

aid, 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% shall be

payable from the expiry of the above-mentioned three

months until settlement;

4. Dismisses the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

21 February 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar