COMERFORD v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                 Application No. 29193/95

                      by Robert COMERFORD

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 3 July 1995 by

Robert  COMERFORD  against  the  United  Kingdom  and  registered  on

9 November 1995 under file No. 29193/95;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1964 and currently

serving a sentence of detention at Her Majesty's pleasure at HM Prison

Elmley, Sheerness. He is represented before the Commission by

Messrs. B. M. Birnberg & Co., solicitors practising in London.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

A.   Particular circumstances of the case

     In 1980 the applicant then aged 16 was convicted of murder and

sentenced to be detained at Her Majesty's pleasure.  He was released

on licence in 1986.

     In 1988 the applicant was arrested and charged with a number of

offences including burglary.  On the 13 July 1988 he was sentenced on

a guilty plea to 15 months' imprisonment.  The trial judge did not

revoke the applicant's licence.

     On 26 July 1988, 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 18 November 1988,

the Parole Board rejected the applicant's written representations

against the revocation of his licence.

     In May 1990 the applicant's case was reviewed by the Parole Board

who recommended that the applicant be transferred from a Category C

(closed) to a Category D (open) prison.  The Parole Board's

recommendation was accepted by the Secretary of State who directed that

the applicant's case should be reviewed again in 18 months.

     That review was deferred as a result of a series of breaches of

prison rules by the applicant.  When the applicant's case was

eventually reviewed in April 1993, the Parole Board recommended his

release on licence provided the applicant first spend six months in a

hostel providing a pre-release employment scheme.  Before the Parole

Board's recommendation came before the Secretary of State the applicant

in breach of prison rules returned late from his work placement in

consequence of which the Parole Board's recommendation was not

implemented.  Instead the Secretary of State, in or about October 1993,

directed that the applicant's case should be reviewed again in

12 months.

     Prior to that review the applicant again returned late from his

work placement in consequence of which he was transferred from a

Category D to a Category C prison.

      As at the date of registration a further review, initiated in

September 1994, was under way in which the applicant was seeking a

recommendation from the Parole Board that he be transferred from a

Category C to a Category D prison.

     The Parole Board has since recommended that the applicant be

transferred to Category D prison.  This recommendation was not,

however, accepted by the Secretary of State who, on 28 November 1995,

directed that the applicant be transferred to another Category C prison

pending a further review to be initiated by the Parole Board in

September 1996.

B.   Relevant domestic law and practice

     1. Detention at Her Majesty's pleasure

     English law imposes a mandatory sentence for the offence of

murder:  in respect of offenders under the age of 18, detention during

Her Majesty's pleasure (section 53(1) of the Children and Young Persons

Act 1933); in respect of offenders between the age of 18 and 20 years,

custody for life (section 8(1) of the Criminal Justice Act 1982); and

in respect of offenders aged 21 and over, life imprisonment

(section 1(1) of the Murder(Abolition of Death Penalty) Act 1967).

     Mandatory life sentences are fixed by law in contrast to

discretionary life sentences which can be imposed at the discretion of

the trial judge on persons convicted of certain violent or sexual

offences (eg. manslaughter, rape, robbery). The principles underlying

the imposition of a discretionary life sentence are:

     i.    that the offence is grave, and

     ii.   that there are exceptional circumstances which demonstrate

           that the offender is a danger to the public and that it is

           not possible to say when the danger will subside.

     Discretionary life sentences are indeterminate so that "the

prisoner's progress may be monitored ... so that he will be kept in

custody so long as public safety may be jeopardised by his being let

loose at large" (R v. Wilkinson [1983] 5 Cr.App.Rep. 105, p. 108).

     2. Categorisation of detention "at Her Majesty's pleasure"

     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

pleasure".

     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."

     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."

     The Court accordingly held that the applicant in that case, who

was 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

     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 the period of imprisonment

they should serve in order to satisfy the requirements of retribution

and deterrence. After the expiry of the tariff, the prisoner becomes

eligible for release on licence. Applicable provisions and practice in

respect of the fixing of the tariff and release on licence have been

subject to change in recent years, in particular, following the coming

into force on 1 October 1992 of the Criminal Justice Act 1991.

     Under the relevant provisions of the Criminal Justice Act 1967

the regime applying to the release and re-detention of discretionary

and mandatory life prisoners was the same. Section 61(1) of 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 a person detained under section 53 of the Children

     and Young Persons Act 1933."

     Section 62 of the 1967 Act provided inter alia  that:

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

     who is subject to a licence under section ... 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...

     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...

     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...".

     The 1991 Act instituted changes to the regime applicable to the

release of discretionary life prisoners following the decision of the

European Court of Human Rights in the case of Thynne, Wilson and

Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A

no. 190-A).

     Pursuant to section 34 of the 1991 Act, after the tariff has

expired the prisoner may require the Secretary of State to refer his

case to the Parole Board which has the power to order his release if

it is satisfied that it is no longer necessary for the protection of

the public that the prisoner should be confined.  Pursuant to the

Parole Board Rules 1992 which came into force on 1 October 1992, a

prisoner is entitled to an oral hearing, to disclosure of all evidence

before the Parole Board and to legal representation. He is also

entitled to call witnesses on his behalf and to cross-examine those who

have written reports about him.

     The regime applicable to mandatory life prisoners has, however,

been preserved within sections 35 and 39 of the 1991 Act.  Section 35

of the 1991 Act provides insofar as relevant:

     "(2)  If recommended to do so by the Board, the Secretary of

     State may, after consultation with the Lord Chief Justice

     together with the trial judge if available, release on licence

     a life prisoner who is not a discretionary life prisoner."

     Section 39 provides insofar 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...

     (3)   A person recalled to prison under subsection (1) or (2)

     above

           (a)   may make representations in writing with respect to

           his recall; and

           (b)   on his return to prison, shall be informed of the

           reasons for his recall and of his right to make

           representations.

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

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

           above who makes representations under sub-section (3) 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."

     The index for determining whether re-detention is justified is

that of dangerousness, meaning a consideration of whether the offence

constitutes an unacceptable risk of physical danger to the life or limb

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

parte Prem Singh, unreported, transcript pp. 26F-27B; and Eur. Court

HR, Singh v. the United Kingdom judgment of 21 February 1996, at

para. 39).

COMPLAINTS

1.   The applicant complains that he has not been able, either on his

recall to prison following the revocation of his life licence or

thereafter during the currency of his continued detention, to take

proceedings satisfying the requirements of para. 4 of Article 5 of the

Convention.

2.   The applicant further complains that a test which requires the

Parole Board to be satisfied that the applicant does not continue to

represent any risk to the life or limb of the public before

recommending his release following re-detention is too onerous and such

as to constitute a violation of para. 1 (a) of Article 5 of the

Convention.  The applicant submits that the Parole Board should

recommend release unless it is established that he continues to

represent a risk to the life or limb of the public.

THE LAW

1.   The applicant complains of the absence of any procedure

satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention whereby the lawfulness of his continued detention may be

determined.

     The Commission recalls that in the case of persons detained at

Her Majesty's pleasure following the expiry of the tariff period, the

Court found that the procedure under which their continued detention

was reviewed did not satisfy the requirements of Article 5 para. 4

(Art. 5-4) (see Eur. Court HR, Singh v. the United Kingdom of 21

February 1996, to be reported in Reports 1996 and Eur. Court HR,

Hussain v. the United Kingdom judgment of 21 February 1996, to be

reported in Reports 1996).

     The applicant's case raises identical issues.  Accordingly, the

Commission considers that this part of the application be communicated

to the respondent Government in accordance with Rule 48 para. 2 (b) of

the Rules of Procedure.

2.   The applicant complains that the test applied by the Parole Board

and the Secretary of State in considering whether the applicant should

be released is too onerous and such as to constitute a violation of

para. 1 (a) of Article 5 (Art. 5-1-a) of the Convention which provides:

     "1.   Everyone has the right to liberty and security of

     person.  No one shall be deprived of his liberty save in

     the following cases and in accordance with a procedure

     prescribed by law:

     a.    the lawful detention of a person after conviction by

     a competent court;"

     The Commission recalls that 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 (see Eur. Court HR, Singh v. the United Kingdom of

21 February 1996, to be reported in Reports 1996, loc. cit., at

para. 61 and Eur. Court HR, Hussain v. the United Kingdom judgment of

21 February 1996, loc. cit., at para. 53).

     The  Commission  further  recalls  that  before  any  term  of

re-detention complies with para. 1 (a) of Article 5 (Art. 5-1-a) there

must be a sufficient causal link between the subsequent detention and

the original conviction, that is that the decision to re-detain, or any

subsequent decision not to release, must be based on grounds consistent

with the objectives of the sentencing court (see Eur. Court HR, Van

Droogenbroeck v. Belgium judgment of 24 June 1982, Series A no. 30,

p. 19, para. 35 and Weeks v. the United Kingdom judgment of 2 March

1987, Series A no. 114, p. 26, para. 49).

     The Commission notes that the criterion for determining whether

any period of re-detention is justified is that of dangerousness,

meaning an unacceptable risk of physical danger to the life or limb of

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

parte Prem Singh, unreported, transcript pp. 26F-27B; and Eur. Court

HR, Singh v. the United Kingdom judgment of 21 February 1996, loc.

cit., at para. 39). The Commission considers this criterion to be

manifestly consistent with the objectives of a sentence of detention

at Her Majesty's pleasure, namely considerations of the need to protect

the public.

     Whilst a test which in terms requires the Parole Board to satisfy

itself that the applicant no longer represents a danger to the life or

limb of the public gives rise to a different presumption from a test

which in terms requires the Parole Board to release the applicant

unless it is established that he continues to represent a danger,

namely in the former case that the applicant is to be considered to

represent a risk unless the contrary is proved, the Commission does not

consider that such a test may be said to be based on grounds

inconsistent with the objectives of the sentencing court so as to

constitute a violation of Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention.

     It follows that  this part  of  the  application  is  manifestly

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

Convention.

     For these reasons, the Commission

     DECIDES TO ADJOURN the examination of the applicant's complaint

     under Article 5 para. 4 of the Convention;

     unanimously

     DECLARES INADMISSIBLE the remainder of the application.

     M.F. BUQUICCHIO                              J. LIDDY

        Secretary                                 President

   to the First Chamber                      of the First Chamber

 

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