WALLER and VALE v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicants, Mr Darren Waller and Mr Brian Vale, are British nationals, born in 1964 and 1949, respectively. Both are currently in prison. They are represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool. Mr Waller was convicted of attempted murder and sentenced to a discretionary life sentence on 24 September 1996. His tariff was fixed at eight years by the sentencing judge on the same day. He was refused leave to appeal against conviction on 10 April 1997 by a single judge of the Court of Appeal. Mr Vale was convicted of manslaughter and on 8 September 1994 sentenced to a discretionary life sentence. His tariff was fixed at ten years and, on 3 October 1995, after he was granted leave to appeal against sentence, it was reduced to eight years by the Court of Appeal. In response to a query by Mr Vale’s representatives as to the means by which he could apply to have his tariff reduced, the Prison Service responded by letter dated 17 February 1999 confirming that the Secretary of State could not interfere with a tariff fixed by a court. The Court refers to the description of the domestic law and practice in its judgment in the case of Stafford v. the United Kingdom ([GC], no. 46295/99, judgment of 28 May 2002, ECHR 2002-IV). English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as 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 (e.g. manslaughter, rape or 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 in order 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). 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 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 of discretionary and mandatory life prisoners was the same. Section 61(1) of the 1967 Act provided inter alia that: “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 custody 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 custody for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England and the trial judge if available.” For both categories of prisoner, the Secretary of State fixed the tariff element of the sentence, after consulting the judiciary. 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, the sentencing court was to specify the penal or tariff element of the sentence. After the tariff expired, the prisoner could require the Secretary of State to refer his case to the Parole Board which had the power to order his release if it was satisfied that it was 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 was entitled to an oral hearing, to disclosure of all evidence before the Parole Board and to legal representation. He was 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 and prisoners detained during Her Majesty’s Pleasure was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provided 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.” On 10 November 1997 the Secretary of State made the following parliamentary statement (Hansard (House of Commons Debates) cols. 420-421): “So far as the procedures for setting and reviewing tariffs of [mandatory life prisoners] are concerned, I am continuing the practice of my predecessor, as described in his answers of 27 July 1993, ... In particular, before setting the tariff, I am continuing to take the advice of the trial judge and the Lord Chief Justice, informing the prisoner of the substance of that advice and inviting representations about it, and giving reasons for any departure on my part from the judicial review. With regard to the discretion to alter the tariff, I reiterate that the view which I take ... at the beginning of a mandatory life sentence of the period necessary to satisfy the requirements of retribution and deterrence, is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it or by increasing it where I, or a successor in my office, conclude that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined. The procedure for considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of State is minded to increase the tariff, and to be given reasons for any subsequent decision to increase it. So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence ... Prisoners will continue to be given the opportunity to make representations and to have access to the material before me. I intend to apply these policies in respect of all tariffs for adult murderers, whether or not they were originally set before 27 July 1993 and whether or not they were originally fixed by me personally, or a Minister acting on my behalf, or by or on behalf of a previous holder of my office.” On 9 July 1998 the Secretary of State made the following parliamentary statement (Hansard (House of Commons Debates) cols. 588-589): “Those convicted of murder [mandatory prisoners] are now fully informed about the tariff-setting process and may make representations at any time about the length of their tariff. In addition, they may at any time make representations for their tariff to be reduced to take account of exceptional circumstances, including exceptional progress in prison. ...”