CASE OF WYNNE v. THE UNITED KINGDOM
No violation of Art. 5-4
C. Russo;John Freeland
6. In 1964 the applicant was convicted of the murder of a woman whom he had violently assaulted. He was sentenced to a mandatory term of life imprisonment. At that time the doctor who examined him found no signs of mental illness or abnormality. In May 1980 he was released on life licence after a positive recommendation by the Parole Board. 7. In June 1981 the applicant killed a 75 year-old woman who was placing flowers on a family grave in a London cemetery. He cut her throat with a knife. In December 1981 he pleaded not guilty to murder, but guilty to manslaughter on the ground of diminished responsibility. This plea was accepted by the court and in January 1982 a discretionary sentence of life imprisonment was imposed (see paragraph 12 below). The trial judge considered that a life sentence was appropriate in view of the extreme danger to the public which the applicant represented. The court, at the same time, revoked his life licence under section 62 (7) of the Criminal Justice Act 1967 ("the 1967 Act"; see paragraphs 14 and 15 below). The applicant claims that he was informed in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was subject to the regime for discretionary life sentences. 8. In December 1985 the applicant was transferred to the hospital wing of Parkhurst Prison. Since then he has been transferred to Gartree Prison where he is held as a "Category A" (high security) prisoner. 9. The applicant was considered for parole by the Parole Board in January 1989. The Board recommended that his case be referred again to the local review committee in 1994. By letter dated 14 August 1989 to the applicant’s Member of Parliament, the Home Office gave the following information: "In accordance with paragraph 4 [of section 61 of the 1967 Act], the trial judge and Lord Chief Justice were consulted in September 1987. In the light of their views, it was decided that [the applicant’s] case should be referred to the local review committee, as the first stage in a formal review by the Parole Board, in June 1988. The local review committee considered the case at that time [June 1988] and the Parole Board considered it in January 1989. The Board did not feel able to recommend [the applicant’s] release and recommended instead that it should be referred to the local review committee (as the first stage in a further formal review) in January 1994. This recommendation was accepted and [the applicant] was informed accordingly. He should have been told in February, but owing to an oversight at Gartree I am afraid that he was not informed until last month. You will appreciate that I cannot forecast what the outcome of the next review will be or say when [the applicant] might be released. When the Parole Board consider [the applicant’s] case in 1994 the tariff will have been satisfied and the question of risk will be the overriding consideration. Indeed, the Parole Board will have borne the question of risk in mind in making their recommendation as to the date of the next review. As you know, the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory, no matter how long he has been detained." 10. He subsequently learned that the "tariff" period fixed by the trial judge in respect of his second offence expired in June 1991 (see paragraph 17 below as regards the "tariff" period). 11. In a Home Office memorandum dated 5 June 1992 the applicant was informed that the "tariff" in respect of his conviction in 1964 had now been served and that his continued detention was based on the risk he represented. 12. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge. Such a discretionary life sentence of imprisonment may also be passed in certain other cases where the offence is grave and where 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 (see, in this connection, the Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, pp. 19-20, paras. 50-53). 13. Under section 61 of the 1967 Act the Secretary of State may release on licence a person sentenced to life imprisonment only if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice of England and the trial judge if available. By virtue of section 62 (1) the Secretary of State may revoke the licence of a person whose recall to prison is recommended by the Parole Board. 14. Under section 62 (7) of the 1967 Act, if a person subject to a licence is convicted on indictment of an offence, the trial court may, whether or not it passes any other sentence on him, revoke the licence. 15. The effect of revocation of a licence, whether by the Secretary of State or by a court, is that the person is liable to be detained in pursuance of his sentence (section 62 (9) of the 1967 Act). 16. It is the duty of the Parole Board to advise the Secretary of State with respect to, inter alia, the release on licence under section 61, and the recall under section 62, of persons whose cases have been referred to the Board by the Secretary of State (section 59 of the 1967 Act; see also the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 21-22, paras. 57-58). 17. Prior to 1992, in respect of both mandatory and discretionary life sentences, the Secretary of State would receive the views of the judiciary (the trial judge and the Lord Chief Justice) on the period deemed necessary to satisfy the requirements of retribution and deterrence ("the tariff period") and of the Parole Board on the question of risk. The Secretary of State would decide when, if at all, it was appropriate to release the prisoner on life licence. He accepted the views of the judiciary, in discretionary life sentence cases, as to the length of the tariff period. However, in mandatory life sentence cases he formed his own judgment on that question, taking into account the views of the judiciary (for the distinction between discretionary and mandatory life sentences, see the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 19-20, paras. 50-53). 18. Following the judgment of the European Court in the case of Thynne, Wilson and Gunnell (loc. cit.) changes to the procedures for the release of discretionary life prisoners were introduced by the Criminal Justice Act 1991 ("the 1991 Act"). Parliament decided, however, not to extend these changes to mandatory life sentences. Under section 34 of this Act discretionary life prisoners are now informed by the trial judge, in open court, of the tariff period appropriate for the offence. After the expiry of that period, the prisoner has a right to be released on life licence if and when the Parole Board decides that it is safe to do so. They are entitled to appear before the Board in person, to see all the reports placed before it, and to call witnesses and submit documentary evidence. When the Board decides that a prisoner should be released the Secretary of State is under a duty to do so (section 34 (3) of the 1991 Act). Section 34 (7) (a) of the 1991 Act specifically excludes from eligibility for review under the new procedures a discretionary life prisoner who is also serving a mandatory life sentence. 19. In the debate in the House of Commons on 16 July 1991 concerning this legislation, the Minister of State for the Home Department made the following statement concerning the differences between mandatory and discretionary life sentences: "Mandatory life sentence cases ... raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases. In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days. If necessary, he can be detained for life without the necessity for a subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner’s release than by his continued detention. In exercising his continued discretion in this respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his." 20. In relation to mandatory life prisoners, the Secretary of State continues to decide the length of the tariff after considering advice from the judiciary and any representations which the prisoner wishes to make. After the expiry of that period, he has power to release the prisoner on life licence if recommended to do so by the Parole Board. The decision on whether to release is for him alone. 21. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State "will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice". 22. In determining the principles of fairness that apply to the procedures governing review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (the "tariff") and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the "tariff" (R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135; R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Reports 576; R. v. Secretary of State for the Home Department, ex parte Cox (judgment of the Divisional Court of 4 September 1992); R. v. Parole Board, ex parte Creamer and Scholey (judgment of the Divisional Court of 21 October 1992)). 23. In R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 All England Reports 92, the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and the practice in respect of mandatory life sentences were out of tune. In his speech, with which the other Law Lords agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a "tariff" period to reflect the requirements of retribution and deterrence. A mandatory life prisoner knew that once he had served the penal element of his sentence the penal consequences of his crime had been exhausted. Nevertheless, the Secretary of State was not obliged to adopt the judicial view of the "tariff" period and it was he who was entrusted with the task of deciding on the prisoner’s release. He was entitled to depart from the judge’s advice and to have regard to broader considerations of a public character than those which applied to an ordinary sentencing function. He added (loc. cit., p. 105): "The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them. It may be - I express no opinion - that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review." Lord Mustill considered that, having regard to the rights which discretionary prisoners had, the Secretary of State was required to comply with the following requirements of procedural fairness when fixing the penal element in a mandatory life sentence: the Secretary of State must inform such a prisoner of the judicial advice on the length of the "tariff", and give him the opportunity to make written representations on that subject before he decides on the appropriate term of years. If the Secretary of State departs from the judicial advice, he must give reasons for doing so.