EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24835/94
Raymond BAXTER
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 3 September 1996)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-35). . . . . . . . . . . . . . . . . . . . . . . . 3
A. Particular circumstances of the case
(paras. 16-22). . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law and practice
(paras. 23-35). . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 36-49). . . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaint declared admissible
(para. 36). . . . . . . . . . . . . . . . . . . . . . . . 7
B. Point at issue
(para. 37). . . . . . . . . . . . . . . . . . . . . . . . 7
C. Article 5 para. 4 of the Convention
(paras. 38-48). . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 49). . . . . . . . . . . . . . . . . . . . . . . .10
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 11
I.INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Raymond Baxter, a British citizen born in 1955
and currently serving a sentence of imprisonment in HM Prison Long
Lartin. He is represented by Mr. Michael Pringsheim, a solicitor
practising in London.
3. The application is directed against the United Kingdom. The
respondent Government are represented by Mr. Martin Eaton, Foreign and
Commonwealth Office, as Agent.
4. The case concerns the complaints of the applicant that he is
unable to obtain a review by a court of the lawfulness of his continued
detention at Her Majesty's pleasure. The application raises issues
under Article 5 para. 4 of the Convention.
B. The proceedings
5. The application was introduced on 20 April 1994 and registered
on 5 August 1994.
6. On 28 November 1994, the Commission decided to communicate the
application to the respondent Government for their written observations
on the admissibility and merits of the applicant's complaints under
Article 5 para. 4 of the Convention.
7. The Government submitted their written observations on 13 March
1995. The applicant submitted his written observations in reply on 25
May 1995.
8. On 28 November 1995, the Commission declared the application
admissible.
9. The parties were then invited to submit any additional
observations on the merits of the application. No further observations
were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
12. The text of the Report was adopted by the Commission on
3 September 1996 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
13. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
16. The applicant was convicted of murder in 1971 at the age of
fifteen. He was sentenced to detention at Her Majesty's pleasure (see
below, Relevant domestic law and practice).
17. In 1978, the Parole Board recommended the applicant's release
subject to the satisfactory completion of six months in open conditions
and six months on a pre-release employment scheme. He was released on
8 January 1980.
18. In 1985, the applicant, following a guilty plea, was convicted
of rape and sentenced to 10 years' imprisonment. The trial judge did
not revoke the applicant's licence. Pursuant to this sentence his
earliest date of release was calculated as 5 January 1992 and his
parole eligibility as 6 September 1988.
19. On 4 February 1986, following the recommendation of the Parole
Board, the Secretary of State revoked the applicant's licence, pursuant
to section 62 of the Criminal Justice Act 1967. On application by the
applicant for a review of the revocation, the Parole Board, without
giving the applicant sight of the documents before it or an oral
hearing, decided not to recommend his release. The applicant had the
opportunity of submitting written representations.
20. The applicant's case was reviewed by the Parole Board in 1991 but
it declined to recommend his release. His case was again reviewed in
1994. This review was conducted under the open reporting arrangements
introduced in April 1993 and the applicant had full disclosure of the
papers which were considered by the Board, to which he had the
opportunity to make written representations.
21. By letter dated 30 August 1994, the applicant was informed as
follows:
"The Secretary of State has referred your case to the
Parole Board which has not recommended your release on
licence for the following reasons:
`The Panel considered that high a risk for release on licence or for open conditions, because his lack of explanation for both offences gives rise to grave concern...The Panel noted that no work had been done on his sadistic sexual motivations for these offences. They felt that he would benefit from a period at Grendon as recommended by Dr Sugarman in his report of 8 April 1994, failing this attendance at a sex offenders training programme is essential.'" 22. The applicant was informed that his next Parole Board review would begin in August 1996. B. Relevant domestic law and practice 1. Detention at Her Majesty's pleasure 23. The notion of detention at Her Majesty's pleasure had its origins in an Act of 1800 for "the safe custody of insane persons charged with offences". Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty's pleasure" and described their custody as being "during His Majesty's pleasure". 24. In 1908, detention at His Majesty's pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which provides: "A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure and, if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct." 2. Categorisation of detention at Her Majesty's pleasure 25. Mandatory life sentences are imposed in respect of the offence of murder committed by adults (Murder(Abolition of Death Penalty) Act 1967). Persons convicted of certain violent or sexual offences eg. manslaughter, rape, robbery may be sentenced to life imprisonment at the discretion of the trial judge. 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. 26. In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in the Divisional Court held as follows in respect of detention "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." 27. The Court accordingly held that the applicant in the case, detained at Her Majesty's pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence. 3. Release on licence and revocation of licences 28. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained at 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). i. Prior to 1 October 1992 29. 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." 30. A statement of policy issued by the Secretary of State on 13 November 1983 indicated that detention following expiry of the "tariff" depended on whether the person was considered no longer to pose a risk to the public. 31. In a parliamentary written answer to the House of Commons on 23 July 1987, the Secretary of State stated that in respect of discretionary life prisoners the tariff would be fixed in accordance with the judicial view which would be sought as soon as practicable after sentence. In respect of mandatory life prisoners, he stated that he would take into account the judicial view as to "tariff" as one factor amongst others, including the need to maintain public confidence in the system of justice. ii. From 1 October 1992 32. On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force. It instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190-A). 33. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is 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 he be detained. 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 and to be legally represented. 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. 34. For the purposes of the 1991 Act, persons detained at Her Majesty's pleasure or serving mandatory sentences of life imprisonment are not regarded as discretionary life prisoners. In relation to these prisoners, the Secretary of State continues to decide the length of the tariff. 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 and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 AER 92). 35. As regards release on licence, these categories of prisoners are subject to section 35 of the 1991 Act, which 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." III. OPINION OF THE COMMISSION A. Complaint declared admissible 36. The Commission has declared admissible the applicant's complaint that he is unable to obtain the review by a court of the lawfulness of his continued detention at Her Majesty's pleasure. B. Point at issue 37. The issue to be determined is: - whether there has been a violation of Article 5 para. 4 (Art. 5-4) as regards the lack of review by a court of the lawfulness of the applicant's continued detention. C. Article 5 para. 4 of (Art. 5-4) the Convention 38. Article 5 para. 4 (Art. 5-4) 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." 1. Applicability of Article 5 para. 4 (Art. 5-4) to release procedures 39. 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. 40. 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, with no distinction in law and practice from that applied to adults. 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; Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A and Wynne judgment of 18 July 1994, Series A no. 294-A). The requirements of Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original trial and appeal proceedings of the applicant. 41. The Commission recalls that in its case-law the Court has distinguished between mandatory and discretionary sentences of life imprisonment. Mandatory life imprisonment is imposed because of the inherent gravity of the offence (ie. in cases of murder) and applied automatically regardless of considerations pertaining to the dangerousness of the offender. No right to review of subsequent release on licence arises in such cases. The discretionary life sentence has a special indeterminate character and has been developed as a measure to deal with mentally ill and unstable offenders. The discretionary sentence serves a preventative rather than a punitive purpose and because of the presence of factors (eg. dangerousness, instability) which are susceptible of change with the passage of time, new issues of lawfulness of continued detention may arise which require the possibility of recourse to a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., Weeks judgment; Thynne, Wilson and Gunnell judgment and Wynne judgment, loc.cit.). 42. The Commission recalls that in two previous applications, Abed Hussein v. the United Kingdom and Prem Singh v. the United Kingdom, the Court has issued judgments concerning similar complaints (Eur. Court HR judgments of 21 February 1996, to be published in Reports 1996). In Prem Singh, the Court noted that sentences of detention at Her Majesty's pleasure are imposed automatically in the cases of murder by juveniles under eighteen years but considered that: "60 ... 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 at 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 person'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 for the Commission pointed out, might give rise to questions under Article 3 (Art. 3) of the Convention. 62. Against the foregoing background the Court concludes that the applicant's sentence, after the expiration of his tariff, is more comparable to a discretionary life sentence... 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..." 43. The Commission recalls that the applicant in the present case was sentenced at the age of 15 and spent approximately 20 years in prison - over half of his life and a significant part of his adolescence and his entire young adulthood, excluding a period of release between 1980 and 1985. The element of his sentence attributed to the purpose of retribution has expired and consideration of risk and dangerousness would appear to be the determining factor in his continuing detention. Since, therefore, issues may arise with the passage of time relating to the justification for the applicant's continued detention, the Commission finds that he is entitled under Article 5 para. 4 (Art. 5-4) to have the lawfulness of that detention decided by a court. 2. Compliance with the requirements of Article 5 para. 4 (Art. 5-4) 44. The applicant submits that the procedure for release on licence of detainees at Her Majesty's pleasure does not 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. An applicant also has no right to an oral hearing before the Board or to call his own witnesses or to question witnesses against him. 45. The Government have made no submissions on the point, taking the view that the requirements imposed by Article 5 para. 4 (Art. 5-4) as to the supervision of lawfulness of the applicant's detention were satisfied by the original trial and appeal procedure. 46. The Commission recalls that the Court in the Abed Hussein and Prem Singh cases has held that the Parole Board's lack of power to order release of a prisoner and the lack of adversarial proceedings before the Board prevent it from being regarded as a court or a court- like body for the purposes of Article 5 para. 4 (Art. 5-4) (loc. cit. Prem Singh judgment at para. 66, Abed Hussain judgment at para. 57). The Court had regard in that context to the crucial importance of the right to liberty, where a substantial period of imprisonment might be at stake and to the consideration that where questions arise as to an applicant's mental state, personality, or level of maturity, fairness may render it essential for the applicant to be present at an oral hearing, involving legal representation and the possibility of calling and questioning witnesses (para. 67 and 58 respectively). 47. The Commission notes that, since October 1992, a new Parole Board has been instituted which has the power to make decisions and which pursuant to its rules has the power to hold oral hearings. Introduced in view of the findings of the Court with regard to discretionary life prisoners, these changes have not however been applied to other categories of prisoners. The Parole Board as it presently functions in respect of the applicant still has no decision-making power. Its procedure has however been modified pursuant to the case of Prem Singh (see paras. 33-34 above) to provide for the disclosure of the documents before the Parole Board. There is no provision for oral hearing or for examination and cross-examination of witnesses. 48. Consequently, the Commission finds that the applicant does not have the possibility of obtaining a review of the lawfulness of his continued detention before a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. CONCLUSION 49. The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention. H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission
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