CASE OF HUSSAIN v. THE UNITED KINGDOM
Violation of Art. 5-4;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos
6. Mr Abed Hussain was born in 1962 and is currently detained in Lindholme prison. 7. On 12 December 1978, the applicant - then aged 16 - was convicted at Leeds Crown Court of the murder of his younger brother, aged 2. The applicant had inflicted severe injuries on the infant while looking after him. He received a mandatory sentence of detention "during Her Majesty’s pleasure" pursuant to section 53 (1) of the Children and Young Persons Act 1933 (as amended) (see paragraph 23 below). Its effect was to render the applicant "liable to be detained in such a place and under such conditions as the Secretary of State [for the Home Department] may direct". 8. In passing sentence on the applicant, the judge stated: "I regard you as someone who has demonstrated himself tobe a cruel and unfeeling young man. I think you are -certainly for the time being - a dangerous person." The applicant appealed against both his conviction and sentence. The Court of Appeal dismissed his appeal on 5 March 1980. 9. Mr Hussain was first detained in the youth wing of Liverpool prison and then in a young offenders’ institution before being transferred to an adult prison. 10. Under the administrative procedures governing such sentences as that received by the applicant, a "tariff" period is set to fix the number of years’ detention necessary to satisfy the requirements of retribution and deterrence (see paragraph 27 below). In this regard, in 1978 the trial judge wrote to the Secretary of State: "Over the two or three days immediately preceding thebaby’s death, [the applicant] had undoubtedly treated himwith very considerable violence by slapping, kicking andshaking. The baby was covered with over 60 bruises andhis brain and spine were injured. Since [the applicant]denied ever having laid hands on him, it was not possibleto discover why he had acted with such violence. [The applicant] is unquestionably an unscrupulous youngliar, but the most unusual feature of him was hisimpassivity. He demonstrated no feeling whatsoever forhis brother’s injuries and death. This gave me the impression that he is very probably avery dangerous young man who is quite unmoved bybrutality. I am anxious that this aspect of hischaracter should be borne fully in mind whenever thequestion of release arises. He still has three youngsiblings and their safety must be a predominantconsideration. I am deeply concerned at the appearanceof normality this young man gives; it is probably verymisleading. I cannot recommend any period for his detention. It willhave to continue until one can say with reasonablecertainty that maturation has rendered him safe. Thedifficulty is that he is already `old for his years’, asone police officer described him. Maturation hereinvolves much more than simply a young boy growing up.I can do no more than sound this sombre note of warning." 11. It was not until 1986 that the applicant’s tariff was set, at fifteen years, by the Secretary of State after a confidential process of consultation involving the trial judge and the Lord Chief Justice. In the course of this process, in which the applicant had no sight of any of the documents, the trial judge recommended a period of ten years "in view of the young age of [the] prisoner at the time of the offence"; the Lord Chief Justice agreed but stated that this should be "the absolute minimum". However, the Secretary of State commented: "I cannot accept the judicial tariff as matching the gravity of one of the most appalling offences I have encountered." He accordingly increased the proposed tariff by five years. The applicant first learnt about these details through a letter from the Home Office of 6 October 1994, sent in accordance with the House of Lords’ judgment of 24 June 1993 (see paragraph 30 below). 12. In the course of the applicant’s detention the Parole Board (see paragraph 37 below) has so far considered whether or not to recommend the applicant’s release on four occasions. 13. The first Parole Board review took place in December 1986. The reports of progress were positive and, as later disclosed to the applicant: "the Local Review Committee [see paragraph 38 below], whofelt that the risk was acceptable, considered Mr Hussain suitable to be given a provisional release date." The Parole Board did not however recommend the applicant’s release but it did recommend that he be transferred to a less restrictive category C prison with a further review to commence in August 1990. At the time, the applicant did not see any of the reports before the Parole Board and had no opportunity to appear before it. 14. The second Parole Board review took place in 1990. A Home Office summary of the review, disclosed later to the applicant, stated: "The Local Review Committee recommended that Mr Hussainshould be given a provisional release date ... The Board did not recommend Mr Hussain’s release, butrecommended his transfer to open conditions with afurther review to commence eighteen months thereafter.However, the Secretary of State rejected the Board’srecommendation and directed that he should move toanother category C prison with a further review tocommence in October 1992." Again the applicant did not see any of the reports on him and was afforded no hearing before the Parole Board. He was given no reasons for the decisions taken. 15. In the third review in December 1992, the Parole Board recommended that the applicant be transferred to open conditions with a further review in six months’ time. However, the Secretary of State, in exercise of his statutory powers (see paragraph 29 below), rejected this recommendation, directing that the applicant remain in close conditions with a further review to commence in March 1995. The applicant was only informed in March 1993 that his release had not been recommended and about the date of his next review. 16. In June 1993, Mr Hussain applied for judicial review (see paragraph 39 below) in respect of the decision communicated in March 1993 on the basis that he had not been shown the reports on him placed before the Board. He relied on the case of Prem Singh (see paragraph 24 below) as establishing that persons detained during Her Majesty’s pleasure had a right at common law to disclosure of reports. 17. On 13 October 1993, the Parole Board gave the High Court an undertaking to reconsider the applicant’s case immediately and to disclose their case file to him so that he could make informed representations. The applicant withdrew his application for judicial review. 18. At his most recent review in January 1994, the applicant was shown the reports on him that were before the Parole Board but he was not given an opportunity to appear in person before the Board. Following this review, the Secretary of State accepted the Parole Board’s recommendation to transfer the applicant to open-prison conditions, which transfer took place in February 1994. The Parole Board will again consider the applicant’s case in February 1996. 19. The applicant has been detained for over seventeen years. 20. A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder. English law imposes a mandatory sentence for the offence of murder: "detention during Her Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1) of the Children and Young Persons Act 1933 (as amended) - see paragraph 23 below); "custody for life" if the offender is between 18 and 20 years old (section 8 (1) of the Criminal Justice Act 1982); and "life imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965). 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 (for example manslaughter, rape, robbery). 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. Discretionary life sentences are indeterminate so that "the prisoner’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108). 21. The notion of detention during Her Majesty’s pleasure has its origins in statutory form in an Act of 1800 for "the safe custody of insane persons charged with offences" (Criminal Lunatics Act), which 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 shall be known" and described their custody as being "during His [Majesty’s] pleasure". 22. In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged between 10 and 16. It was extended to cover those under the age of 18 at the time of conviction (1933) and further extended to cover persons under the age of 18 at the time when the offence was committed (1948). 23. The provision in force at present is section 53 (1) of the Children and Young Persons Act 1933 (as amended) ("the 1933 Act") which provides: "A person convicted of an offence who appears to thecourt to have been under the age of eighteen years at thetime the offence was committed shall not, if he isconvicted of murder, be sentenced to imprisonment forlife, nor shall sentence of death be pronounced on orrecorded against any such person; but in lieu thereof thecourt shall ... sentence him to be detained during HerMajesty’s pleasure and, if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of State may direct." 24. In the case of R. v. Secretary of State for the Home Department, ex parte Prem Singh (20 April 1993, unreported) Lord Justice Evans in the Divisional Court held as follows in respect of detention "during Her Majesty’s pleasure": "At the time of sentencing, the detention orders undersection 53 were mandatory. It is indeed the statutoryequivalent for young persons of the mandatory lifesentence for murder. But the sentence itself is closerin substance to the discretionary sentence of which partis punitive (retribution and deterrence) and the balancejustified only by the interests of public safety when thetest of dangerousness is satisfied. The fact that themandatory life prisoner may be given similar rights asregards release on licence does not alter the fact thatthe mandatory life sentence is justifiable as punishmentfor the whole of its period: see R. v. Secretary of StateEx. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK(E.C.H.R. 1st December 1992). The order for detentionunder section 53 is by its terms both discretionary andindeterminate: it provides for detention `during HerMajesty’s pleasure’... I would decide the present case onthe narrow ground that, notwithstanding Home Office andParole Board practice, the applicant should be regardedas equivalent to a discretionary life prisoner for thepurpose of deciding whether Wilson rather than Paynegoverns his case." (transcript, pp. 24C-25B) The court accordingly held that the applicant in the case, detained during Her Majesty’s pleasure, should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before the Parole Board when it decided whether he should be released after his recall to prison on revocation of his licence. The Parole Board has changed its policy accordingly. 25. However, in a statement in Parliament made on 27 July 1993 (see paragraph 32 below), the Secretary of State, Mr Michael Howard, explained that he included in the category of "mandatory life sentence prisoners" those "persons who are, or will be, detained during HerMajesty’s pleasure under section 53 (1) of the Childrenand Young Persons Act 1933 ..." 26. In R. v. Secretary of State for the Home Department, ex parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the Divisional Court (with whom Mr Justice Pill agreed) said: "I see no reason to regard him as having any specialstatus because he was sentenced to detention [during HerMajesty’s pleasure] rather than to life imprisonment,despite what was said by Evans LJ when giving judgment inReg. v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues in that casewere very different from those with which we areconcerned. If Hickey had not been sent to hospital hecould hope to benefit from the provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It will be recalled that in Hickey’s casethe offence was murder, so the sentence was mandatory notdiscretionary." On appeal the Court of Appeal stated that in respect of a person sentenced to detention during Her Majesty’s pleasure under section 53 (1) of the 1933 Act for the offence of murder, the relevant provisions on release were those in section 35 (2) of the Criminal Justice Act 1991 (see paragraph 29 below), and not those relating to a discretionary life prisoner (R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All England Law Reports 479, 488). 27. 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 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"). 28. Section 61 (1) of the Criminal Justice Act 1967 ("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 custody for life or a person detained under section 53 of the Children and Young Persons Act 1933". In this respect no difference was made between discretionary and mandatory life prisoners. 29. By virtue of section 35 (2) of the 1991 Act, persons detained during Her Majesty’s pleasure and those life prisoners who are not discretionary life prisoners (see paragraph 20 above), may be released on licence by the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. The decision on whether to release still lies, therefore, with the Secretary of State. 30. The Secretary of State also decides the length of a prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993 (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531, 567G), 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. Where the Secretary of State decides to depart from the judicial recommendation he is obliged to give reasons. As a matter of practice the prisoner is informed of the Secretary of State’s final decision. In the second, post-punitive phase of detention the prisoner knows that "the penal consequence of his crime has been exhausted" (ibid., 557A). 31. A statement of policy issued by Sir Leon Brittan, then Secretary of State for the Home Department, on 13 November 1983 indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public. 32. On 27 July 1993 the Secretary of State, Mr Michael Howard, made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he "will consider not only, (a) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the publicacceptability of early release. This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice". 33. In a number of recent court cases involving persons detained during Her Majesty’s pleasure, it has been stated that the correct test for post-tariff detention was to be whether the offender continued to constitute a danger to the public (R. v. Secretary of State for the Home Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph 24; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), 16 March 1995). 34. The 1991 Act instituted changes to the regime applying 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). 35. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is now 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 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 panel (see paragraph 37 below) and to legal representation. 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. 36. For the purposes of the 1991 Act, persons detained during Her Majesty’s pleasure are not regarded as discretionary life prisoners (section 43 (2)). 37. Section 59 of the 1967 Act set out the constitution and functions of the Parole Board: "(1) For the purposes of exercising the functionconferred on it by this Part of this Act as respectsEngland and Wales there shall be a body known as theParole Board ... consisting of a chairman and not lessthan four other members appointed by the Secretary ofState. ... (4) The following provisions shall have effect withrespect to the proceedings of the Board on any casereferred to it, that is to say (a) the Board shall deal with the case onconsideration of any documents given to it by theSecretary of State and of any reports it has calledfor and any information whether oral or in writingthat it has obtained; and (b) if in any particular case the Board thinks it isnecessary to interview the persons to whom the caserelates before reaching a decision, the Board mayrequest one of its members to interview him andshall take into account the report of that interviewby that member ... (5) The documents to be given by the Secretary of Stateto the Board under the last foregoing subsection shallinclude (a) where the case referred to the Board is one ofrelease under section 60 or 61 of this Act, anywritten representations made by the person to whomthe case relates in connection with or since hislast interview in accordance with rules under thenext following subsection; (b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section." As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides: "1. The Parole Board shall include among its members (a) a person who holds or has held judicial office; (b) a registered medical practitioner who is apsychiatrist; (c) a person appearing to the Secretary of State tohave knowledge and experience of the supervision orafter care of discharged prisoners; (d) a person appearing to the Secretary of State tohave made a study of the causes of delinquency orthe treatment of offenders." The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, including, in the case of life prisoners, a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after consultation with the Lord Chief Justice. With the exception of the new rules concerning discretionary life prisoners, similar provisions apply under the 1991 Act. 38. Under section 59 (6) of the 1967 Act the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee reviewed a case, a member of the committee would interview the prisoner if he was willing to be interviewed. The first review by the Local Review Committee was normally fixed to take place three years before the expiry of the tariff. Local Review Committees were abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a member of the Parole Board. 39. Persons serving a sentence of detention during Her Majesty’s pleasure may institute proceedings in the High Court to obtain judicial review of any decision of the Parole Board or of the Secretary of State if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality, irrationality or procedural impropriety (Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All England Law Reports 935, 950-51).