D.W. proti Spojenému království



AS TO THE ADMISSIBILITY OF

Application No. 34127/96

by D.W.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM 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 24 January 1995

by D.W. against the United Kingdom and registered on 11 December 1996

under file No. 34127/96;

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 1942 and he currently

resides in a probation hostel in Purbrook. Before the Commission, he

is represented by Ms. Helen Jones, a solicitor practising in London.

A. Particular circumstances of the case

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

summarised as follows. In April 1975 the applicant was convicted on

four counts of buggery and on five counts of indecent assault. He was

sentenced to life imprisonment on each of the counts of buggery and to

seven years on each of the counts of indecent assault, the sentences

to run concurrently. The applicant's sentence was a discretionary life

sentence based on the risk it was considered he posed to society. The

offences of which he was convicted were committed against schoolboys

and were accompanied by beatings and other sadistic acts. The applicant

had previous convictions of indecent assault and buggery of young boys.

On 29 January 1993 the Home Secretary directed the applicant's release

on licence and he was released on 1 February 1993.

In reports dated 10 and 13 of December 1993, the applicant's

probation officers expressed concern about his association with two

young men (G aged seventeen and W aged eighteen) and about reports of

contacts between the applicant and a fourteen year old boy who had

absconded from a children's home. The probation officers warned the

applicant of the appropriateness of his seeking to establish a parental

or supervisory relationship with these young men.

A report dated 16 February 1994 completed by a consultant

forensic psychiatrist expressed particular concern about the

applicant's refusal to associate with a more age-appropriate group of

homosexuals, noted that this concern had been impressed on the

applicant and expressed a slim hope that his conversation with the

applicant would have some influence on him. The consultant could not

say that the applicant was at imminent risk of re-offending. However,

he considered that the applicant was failing to make the progress that

the consultant would wish. In particular, his failure to accept in an

seemingly "arrogant way" that his association with youths constituted

a risk and temptation of re-offending meant that, unless he changed his

attitude, it was likely that he would fall into further trouble.

On the initiative of his probation officers, the applicant's case

was referred to the Parole Board. The latter recommended and

consequently, on 17 March 1994, the Secretary of State directed the

addition of a condition to the applicant's licence that he should not

entertain at his residence male persons under the age of consent nor

engage in any activity involving such persons without the permission

of his probation officer. The applicant was so informed by letter

handed to him on 23 March 1994. The applicant then told G, who had been

living in his home unknown to the probation officer, to leave.

On 23 March 1994 G made a report to the applicant's probation

officer to the effect that the applicant had asked G to obtain a gun

and had suggested that they should both beat up and kill W. The

probation officers found out at that stage that G had been living in

the applicant's home. The probation officers contacted the Home Office

and recommended recall, the recommendation was accepted and on

26 March 1994 the applicant's licence was revoked by the Secretary of

State pursuant to section 39(2) of the 1991 Act and he was recalled to

prison. The grounds given by the Secretary of State for recall were the

information received that the applicant had attempted to procure a gun;

allegations received that he had spoken of a plan to attack and

possibly kill a young man; earlier events and concerns expressed by

probation officers and by the consultant which resulted in the addition

of a further condition to his licence; and his having concealed from

his probation officers that he had co-habited with G since

January 1994. Having regard to all of the circumstances and the

offences for which he had received the life sentence, the Secretary of

State considered the applicant's "presence in the community no longer

constituted an acceptable risk to the safety of others".

On 30 March 1994 the Parole Board confirmed the decision of the

Secretary of State. It considered that the pattern of the applicant's

conduct since release on licence belied the assurances that he had

given to the Parole Board and falsified the belief, then held by the

applicant, that he could be released without risk to the public; that

his conduct had already led to changes in the conditions of his licence

and he had received a warning letter on 23 March 1994; and that his

offering accommodation to a boy of seventeen and hiding this fact from

his probation officer made recall inevitable.

Pursuant to section 39(4) of the 1991 Act, arrangements were put

in train for a formal review of the applicant's recall by the Parole

Board. For this review, a considerable body of documentary evidence was

placed before the Parole Board, including copies of reports by

probation officers, the statement of G, the report of the consultant,

the March 1994 recommendation of the Parole Board, statements by the

Governor and Chaplain at Winchester prison, written representations by

and on behalf of the applicant and testimonials as to the applicant's

character. The review took place on 25 July 1994 before a Parole Board

differently constituted to the Parole Board which considered his recall

in March 1994. The applicant was represented by counsel.

By letter dated 25 July 1994 the Parole Board notified the

applicant that it was required to direct his release only if it was

"satisfied that it was no longer necessary for the protection of the

public that you be confined". The letter noted that the Parole Board

had considered his history of offending and in particular his

convictions for sexual offences against young boys some involving acts

of violence; his history while in hospital and in prison; the reports

and statements in the dossier (see the preceding paragraph) before the

Parole Board excluding G's statement (which had been disregarded by the

Parole Board following submissions by the applicant's counsel); the

applicant's representations and other statements submitted by the

applicant; the evidence of his probation officer; and the applicant's

counsel's submissions.

In rejecting the applicant's representations against recall, the

Parole Board stated that it was "wholly convinced, on the totality of

the evidence ... heard that you continue to present a very real risk

to the public and that there is a substantial risk that if you were

released you would again commit serious sexual offences against males

under the age of consent." On the evidence the Parole Board was

satisfied that by reason of the applicant's association with young men

aged 17 with criminal convictions, drug addictions and no settled way

of life, the applicant had exposed those persons, young members of the

public, and himself to a substantial potential risk. The Parole Board

considered that the applicant created an undesirable dependency of

those youths on him and it took the view that the risk of these

associations leading to serious sexual offences was very high. It noted

that the applicant had not been honest and open with his supervising

officer; that the applicant had concealed the extent of his

associations from that officer; that he did not heed that officer's

advice and warnings; and that he had accommodated a minor in his home

for a substantial period without disclosing this to his supervising

probation officer.

The Parole Board recommended the applicant's further assessment

and treatment so that the applicant would gain an understanding and

insight into his potential for re-offending with a view to his eventual

release. It also recommended that on completion of any such assessment

and treatment, the applicant's case should be reviewed again to see

whether it would be appropriate to transfer him to open conditions. The

Parole Board noted that while its decision not to direct release was

binding on the Secretary of State, these recommendations were not.

The applicant applied for leave to take judicial review

proceedings and, by judgment dated 18 October 1995, the High Court

refused leave. The applicant had challenged the July 1994 decision of

the Parole Board on the basis, inter alia, that the Parole Board

applied the wrong test and on the basis of the Parole Board's extra-

statutory confirmation of his emergency recall in March 1994. The

applicant appealed to the Court of Appeal.

On 4 March 1996 Bingham MR gave the main judgment of the Court

of Appeal rejecting the same submissions of the applicant. He

considered that in March 1994 the Parole Board was acting as an extra-

statutory watchdog. That informal confirmation could not in practice

pre-empt or unfairly influence the section 39(4) hearing in July 1994

because, inter alia, the members of the Parole Board would appreciate

that the initial confirmation was provisional and tentative given on

a partial hearing of only one side of the case without the benefit of

the full materials and representations which would be available at the

later formal review. Accordingly, there would be no reason that those

conducting the July 1994 review would feel that to direct the

individual's release would be to disagree or implicitly criticise the

preliminary decision. The March 1994 decision would be seen as part of

the history of the case but, of itself, it would be of no weight at all

for the Parole Board in July 1994. Accordingly, Bingham MR considered

that the preliminary involvement of the Parole Board in March 1994

presented no danger of bias as regards the July 1994 review.

He also considered that the correct test was applied by the

Parole Board in July 1994. It would be subversive of the review regime

established by the 1991 Act if the Parole Board confined itself to

reviewing the validity of the Home Secretary's reasons for recall. The

Parole Board is the primary decision-maker. It must make its own mind

up and give its own reasons. It would seriously undermine the integrity

of the system if the Parole Board were to defer to the Home Secretary's

view unless it were shown to be wrong. In exercising its practical

judgment the Parole Board is bound to approach its task under sections

34 and 39 in the same way "balancing the hardship and injustice of

continuing to imprison a man who is unlikely to cause serious injury

to the public against the need to protect the public against a man who

is not unlikely to cause such injury." Preponderant weight is given to

the need to protect innocent members of the public "against any

significant risk of serious injury."

B. Relevant domestic law and practice

Discretionary life sentences

A sentence of life imprisonment may be passed, in the exercise

of the court's discretion, on persons convicted of any of the offences

for which life imprisonment is provided by the relevant legislation as

the maximum penalty for the offence concerned - a discretionary life

sentence. Use of the discretionary life sentence is reserved, broadly

speaking, for cases where the offence is a very grave one in itself and

it appears that the accused is a person of unstable character likely

to commit such offences in the future thus making the accused a danger

to the public in respect of his probable future behaviour unless there

is a change in his condition (Eur. Court HR, Thynne, Wilson and

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

no. 190-A, para. 50).

Accordingly, the discretionary life sentence is now considered

to be made up of two elements - the "tariff" which represents that part

of the sentence attributable to deterrence and punishment together with

a right to detain for a further period as long as that person

constitutes a risk to society. By virtue of section 12(1) and

Schedule 2 of the Sexual Offences Act 1956, the maximum penalty for

buggery of a boy under the age of 16 years old is life imprisonment.

The Criminal Justice Act 1991

Following the judgment of the Court in Thynne, Wilson and Gunnell

(Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom

judgment, loc. cit.), the Criminal Justice Act 1991 ("the 1991 Act")

came into force on 1 October 1992. This Act instituted substantial

changes to the regime applicable to discretionary life prisoners.

Pursuant to section 34 of the 1991 Act, the tariff 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 (whose powers are carried out by panels known

as the Discretionary Lifer Panels) and the parole board shall not order

release unless it "is satisfied that it is no longer necessary for the

protection of the public that the prisoner should be confined"

(section 34(4)(b) of the 1991 Act).

Section 37(3) of the 1991 Act provides that a licence shall,

unless revoked under section 39(1) or (2), remain in force for the

duration of the subject's life.

Section 39 of the 1991 Act provides for the recall of prisoners

on licence in two different ways. In the first place, if recall is

recommended by the Parole Board, the Secretary of State may revoke the

prisoner's licence and recall him to prison (section 39(1)). A prisoner

so recalled may make representations in writing to the Parole Board

(section 39(3)) and, if he does so, the Secretary of State must refer

the case to the Parole Board (section 39(4)(a)). Secondly, the

Secretary of State may revoke the licence and recall the prisoner

without a recommendation from the Parole Board where it appears that

it is expedient in the public interest to recall that person before

such a recommendation is practicable (section 39(2)). The latter

procedure is the emergency procedure to cater for an urgent need to

protect the public. In such case, whether the person recalled makes

representations or not, the case must be referred to the Parole Board

(section 39(4)(b)). In a case referred to the Parole Board in either

of the instances noted above and if the Parole Board directs release

on licence, the Secretary of State must give effect to that direction

(section 39(5)).

The practice has, however, developed for the Parole Board to

consider an emergency recall by the Secretary of State immediately

thereafter. There is no statutory provision for this procedure and the

Secretary of State is not bound by any consequent recommendation of the

Parole Board.

The Parole Board Rules 1992

The Parole Board Rules 1992 ("the 1992 Rules") came into force

on 1 October 1992. Pursuant to those rules, a prisoner before the

Parole Board is entitled to, inter alia, an oral hearing before the

Parole Board, to have relevant papers (including prison reports) in

advance of the hearing, to comment on the evidence in advance of the

hearing, to attend the hearing, to be legally represented and to be

legally aided if he qualifies under the normal rules. A prisoner can

also apply to call witnesses on his behalf and to cross-examine other

witnesses who have written reports about him. A reasoned decision by

the Parole Board is delivered within seven days of the hearing.

The 1992 Rules make reference to the extra-statutory practice of

the Parole Board's consideration of an emergency recall. The

information and reports which must be supplied by the Secretary of

State to the Parole Board and to the prisoner for the purposes of the

formal review by the Parole Board under section 39(4) of the 1991 Act,

according to the 1992 Rules include:

"The details of any memorandum which the Board considered prior

to making its recommendation for recall under section 39(1) of

the <1991> Act or confirming the Secretary's of State's decision

to recall under section 39(2) of the <1991> Act including the

reasons why the Secretary of State considered it expedient in the

public interest to recall that person before it was practicable

to obtain a recommendation from the Board."

COMPLAINTS

The applicant complains about the test applied by the Parole

Board in July 1994 in reviewing his recall. He also complains that the

Parole Board both confirmed the Secretary of State's initial decision

to recall him and subsequently carried out the review pursuant to

section 39(4) of the 1991 Act. He invokes Article 5 paras. 1, 4 and 5

of the Convention.

THE LAW

The applicant considers that the test applied by the Parole Board

in July 1994 was inappropriate given the recall context of the review.

He also complains that the fact that the Parole Board both confirmed

the Secretary of State's initial decision to recall him and carried out

the subsequent review of that recall under section 39(4) of the

1991 Act meant that the Parole Board which sat in July 1994 was biased.

He invokes Article 5 paras. 1, 4 and 5 (Art. 5-1, 5-4, 5-5) of the

Convention.

Given that applicant does not dispute that his recall and the

revocation of his licence in March 1994 was in pursuance of the

discretionary life sentence imposed on him by a competent court, the

Commission considers that his complaints should be considered under

Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention, which read

as follows:

"4. 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.

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

In the first place, the applicant complains about the test

applied by the Parole Board in reviewing his recall in July 1994. He

submits that the purpose of the July 1994 review was to consider the

validity of the Secretary of State's decision to revoke his licence

after a period of liberty and to recall him to prison. Accordingly, the

Parole Board should have been positively satisfied that his re-

detention was justified. However, the Parole Board applied the test set

out in section 34(4)(b) of the 1991 Act which is designed for an

initial release context and which requires the Parole Board to be

satisfied that it is not necessary to continue to detain an individual.

The Commission recalls that the basis of the applicant's original

detention and for his re-detention was the risk he posed to society,

a factor susceptible to change with the passage of time. Accordingly,

not only does Article 5 para. 4 (Art. 5-4) require a review of the

"lawfulness" of the applicant's re-detention, but the scope of that

review must extend to an assessment of the risk posed by the applicant

to society, this being the essential condition for the lawfulness of

his re-detention (Eur. Court HR, Thynne, Wilson and Gunnell v. the

United Kingdom judgment, loc. cit, p. 24, para. 76 and Weeks v. the

United Kingdom judgment of 2 March 1987, Series A no. 114, pp. 32-33,

para. 69).

In the present case, having considered the evidence and

submissions before it in July 1994 in accordance with the 1992 Rules,

the applicant's convictions and, in particular, his actions and

comportment since he had been released on licence in 1993, the Parole

Board was:

"wholly convinced, on the totality of the evidence ... heard,

that you continue to present a very real risk to the public and

that there is a substantial risk that if you were released you

would again commit serious sexual offences against males under

the age of consent".

Although the Parole Board applied that risk assessment to the

necessity to continue to maintain the applicant in detention (the test

contained in section 34(4)(b) of the 1991 Act) as opposed to the need

for his re-detention, the essential decision of the Parole Board

pursuant to section 39(5) was to decide, given the assessed risk,

whether the applicant's release on licence should be directed or not.

In such circumstances, the Commission considers that the review

provided by the Parole Board in July 1994 complied with the State's

obligation to provide a review of the lawfulness of the applicant's re-

detention bearing on the condition essential for that re-detention.

Secondly, the applicant submits that the two roles of the Parole

Board advising the executive (in March 1994) about his recall and

subsequently reviewing the merits of the recall decision (in July 1994

under section 39(2)(b) of the 1991 Act) are incompatible rendering the

Parole Board in July 1994 biased as far as the question of his recall

was concerned. Only the executive had access to the Parole Board during

the March 1994 proceedings and the decision of the Parole Board in

March 1994 was put before the Parole Board in July 1994. The applicant

relies on the Singh judgment (Eur. Court HR, Singh v. the United

Kingdom judgment of 21 February 1996, Reports of Judgments and

Decisions for 1996).

The Commission recalls that the Court in the Singh case, which

related to persons detained at Her Majesty's pleasure, based its

finding of a violation of Article 5 para. 4 (Art. 5-4) on the lack of

an oral hearing before the relevant Parole Board. However, in the

Commission's Report in that case (Eur. Court HR, Singh v. the United

Kingdom judgment, loc. cit, Comm. Report 11.10.94, pp. 15-16, paras.

77-79), the fact that the Parole Board hearing at issue was a re-

consideration of its original decision to revoke Mr. Singh's licence

constituted a further reason to conclude that that Parole Board lacked

the necessary judicial guarantees.

The Commission observes that the composition of the Discretionary

Lifer Panels of the Parole Board, which considered the applicant's

recall in March and in July 1994, was different. In addition, and in

contrast to the position in the Singh case, the nature of those two

hearings were also significantly different. In March 1994 the Parole

Board carried out a review of the applicant's emergency recall by the

Secretary of State. This was an extra-statutory control, the Parole

Board had no power whatsoever to direct the applicant's discharge or

his continued detention and, most significantly, the process was

carried out in circumstances where an automatic and formal review by

the Parole Board of the applicant's recall was already foreseen by

section 39(4)(b) of the 1991 Act.

According to the 1992 Rules, that formal review was to include

an oral hearing, disclosure of all evidence before the Parole Board,

legal representation and the possibility of calling witnesses on the

applicant's behalf and of cross-examining those who had prepared

reports about him. Accordingly, the Commission considers, as did the

Court of Appeal, that the review of the Parole Board in March 1994

constituted a tentative and provisional assessment, considered by the

Parole Board to be a prudent exercise in the case of an emergency

recall, made pending the formal adversarial hearing before the Parole

Board of the applicant's recall which would subsequently and

automatically take place.

In such circumstances, the fact that the text of the March 1994

recommendation was before the Parole Board in July 1994 does not

provide a basis for doubts as to the fresh nature of the review of the

applicant's recall in July 1994. In addition, the review which led to

the Parole Board's recommendation of a further condition to the

applicant's licence was an assessment of a materially different nature

to the July 1994 review of the revocation of the applicant's licence

and his recall to prison. Accordingly, the Commission considers that

the applicant does not have legitimate grounds to fear that the review

of his recall conducted by the Parole Board in July 1994 pursuant to

section 39(4)(b) of the 1991 Act was prejudged as a result of the

Parole Board's preliminary control of the applicant's recall in

March 1994.

The Commission does not therefore consider that the applicant's

complaints as regards the test applied by the Parole Board and its

involvement in his recall in March 1994 demonstrate that the review

conducted by the Parole Board in July 1994 fell short of the

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

Moreover, since the Commission has not concluded as to a breach of

Article 5 para. 4 (Art. 5-4) of the Convention, the applicant has no

right to compensation under Article 5 para. 5 (Art. 5-5) of the

Convention in that respect (see, for example, No. 10801/84, Dec.

3.10.88, D.R. 61, p. 62).

In such circumstances, the Commission considers the applicant's

complaints under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) manifestly

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

Convention

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber