DANCY v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Terence Dancy, is a United Kingdom national, born in 1957 and currently serving a sentence of life imprisonment in HM Prison Full Sutton. He is represented before the Court by Mr E. Abrahamson, a solicitor practising in Liverpool. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had a history of psychiatric illness. On 28 May 1992, he went to the police station where he confessed that he had attacked a man, Mr M., in the building where he lived as he thought the man had accused him of stealing his television. Mr M. was found dead with multiple depressed skull fractures consistent with use of a hammer. On 23 September 1993, the applicant pleaded guilty to manslaughter on grounds of diminished responsibility and was sentenced by the judge to a term of life imprisonment. The judge declined to set a relevant period for deterrence and retribution (the “tariff”). His sentencing remarks were “... you have pleaded guilty to the crime of manslaughter on the basis of diminished responsibility. It was a horrendous crime committed with great violence. I bear in mind everything which I have read about you in the reports. I accept that your distress when you realised what you had done was genuine and that your remorse for it is genuine. Nevertheless, it is a very serious crime indeed and your mental state is such that though you are not a mentally sick person you present a continuing danger to the public because of your liability to fits of explosive temper unless you take regularly your proper medication. I am satisfied therefore that a sentence longer that would be necessarily appropriate to punish you having regard to the seriousness of the offence, is necessary to protect the public from serious harm. The sentence of the court upon you therefore is one of life imprisonment. [Addressing leading counsel for the applicant] I have considered the question of making it a discretionary life sentence under Section 34. I do not consider that appropriate for the reasons which I have explained.” By letter of 28 May 1998, the applicant was informed by the Home Office that as a tariff had not been set under section 34 of the Criminal Justice Act 1991 by the trial judge he was to be treated as a mandatory life prisoner and the Secretary of State would proceed to fix his tariff. He was informed of the trial judge’s view, given in a recent report, that five years was an appropriate period and was given an opportunity to make written representations to the Secretary of State. In or about November 1998, the Secretary of State set the applicant’s tariff at five years. He had been advised that the applicant should originally have been treated as a discretionary life prisoner by the trial judge who should himself have fixed as tariff at trial. For that reason, he regarded himself as bound to follow the trial judge’s view. On 22 December 1998, the applicant was informed of this decision and told that as his tariff had already expired (in May 1997) it was no longer a factor in his continued detention. On 12 July 1999, the applicant lodged an appeal against sentence, alleging that the trial judge should have specified the five year tariff at the time the sentence was passed and that had the period been so specified he would have been treated as a discretionary life prisoner and not a mandatory life prisoner. Permission to appeal was granted on 5 October 1999. In its judgment of 8 November 1999, the Court of Appeal upheld the appeal. Lord Justice Rose said: “It seems to this Court, from the sentencing observations of the learned judge, that, although he referred to the gravity of the offence and the danger then presented by the appellant, he was not seeking to say that, in this case, life should mean life. Indeed, his recent recommendation to the Home Secretary that a period of five years would be appropriate for retribution and deterrence is quite inconsistent with such having been his intention at that time. It is not clear whether the judge’s attention was drawn to the Practice Direction and, in any event, he certainly did not have the advantage of the observations of this Court in Hollies, which was decided in August 1994, after the learned judge passed sentence. Had he had that advantage, it seems to us very unlikely that he would have expressed himself quite as he did in his sentencing remarks. The consequence, in our judgment, is that a period of five years ought to have been expressed by the learned judge at the time sentence was passed, in accordance with the Practice Direction and in accordance with what now appears in the judgment of this Court, in Hollies. Accordingly, this appeal will be allowed, to the extent that a five year tariff period will be specified... The consequence of this is, for the avoidance of doubt, that he will become a discretionary life prisoner and can and should be treated by the Parole Board accordingly.” The applicant was immediately re-categorised as a discretionary life prisoner by the Prison Service and Parole Board. On 1 December 1999, the applicant’s case was reviewed by the Parole Board, at an oral hearing. He appeared in person and was represented by his solicitor. He was entitled to adduce evidence and to cross-examine witnesses. It did not direct release, finding that the applicant remained a risk. It did recommend to the Secretary of State that his case be reviewed in twelve months as he had nearly completed the recommended offence related programmes and as he had been disadvantaged in not obtaining a review two years before the expiry of the tariff as his tariff had only been fixed recently. The applicant’s case was reviewed by the Parole Board at an oral hearing held on 29 November 2000. By decision dated 30 December 2000, the Parole Board declined to direct the applicant’s release as it concluded that the applicant remained a danger to the public. It recommended that the next review take place in 24 months as considerable further offence-related, treatment/work programmes still needed to be undertaken e.g. further work on anger management and relationship issues as well as attendance on an Extended Sex Offender Treatment Programme. It noted that the applicant had acknowledged during the proceedings that neither release nor transfer to open conditions was appropriate at this stage. It did recommend that he be transferred to a Category C prison (lower security) to facilitate further treatment work and this was implemented. The applicant’s next review was scheduled for November 2002. On 1 March 2002, the applicant signed the annual review board summary setting out proposals for further treatment, indicating that he fully agreed with the recommendations. The applicant has now been transferred to a Category C prison. 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: 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, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (the 1997 Act) from 1 October 1997. Pursuant to section 34 of the 1991 Act, the trial judge in sentencing a person to a term of discretionary life imprisonment in open court after a trial was given the power to fix the tariff. The role of the trial judge in this respect was clarified by the Court of Appeal in a Practice Direction (Crime – Life sentences) [1993 1 WLR 223]. Paragraph 3 stated: “The judge is not obliged by statute to make use of the provisions of section 34 when passing a discretionary life sentence. However the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.” In August 1994, the case of R v. Hollies (16 Cr App R(S) LJ Stuart Smith said concerning the Practice Direction and the 1991 Act: “The scheme of the Act is that the judiciary should specify the period which the prisoner should serve, and that period should be appropriate to the punishment or retribution required and the need to deter the prisoner and others from committing similar grave offences. This period is usually referred to as the tariff period. Once that period has expired the prisoner can expect to be released on licence if the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (see section 34(4)b). There is thus a clear division of function. The judges are to decide the period which the prisoner is to serve by way of punishment and deterrence. The Board must decide whether he still presents a danger to the public and, if he does not, he must be released. That means, save in cases of most exceptional gravity, where the judge thinks that a prisoner should remain a prisoner for the rest of his normal life, he should specify a period under the Act.” In cases of mandatory life sentences, it is for the Secretary of State to fix the tariff after consulting the trial judge and the Lord Chief Justice. He is entitled to depart from the judicial view. Pursuant to section 32 (2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners. The Parole Board’s Chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the Discretionary Lifer Panel (“DLP”). Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a discretionary life prisoner was entitled to, amongst other things, an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. Prior to 1 October 1997, the duty to release discretionary life prisoners was dealt with by section 34, which provided that where a discretionary life prisoner had served his tariff and the Board had directed his release, it was the duty of the Secretary of State to release him on licence. Section 34(4) provided: “The Board shall not give a direction ... unless – (a) the Secretary of State has referred the prisoner’s case to the Board; (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.” A discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board, after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34 (5) (b) of the 1991 Act, now section 28 (7) (b) of the 1997 Act). The regime applicable to mandatory life prisoners 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.” The provisions concerning oral hearings and the requirement for regular reviews were not extended to mandatory life prisoners and the Parole Board was not given any power to direct their release.