CASE OF THYNNE, WILSON AND GUNNELL v. THE UNITED KINGDOM
Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
C. Russo;Gaukur Jörundsson;N. Valticos;R. Pekkanen
9. The first applicant, Mr Michael Keith Thynne, is a British citizen, born in 1951. 10. On 27 October 1975 he pleaded guilty at the Central Criminal Court, London, to rape and buggery. On 24 November 1975 he was sentenced by the Recorder to life imprisonment on each count. 11. On 7 August 1975, within 36 hours of his release from prison, the applicant had gained entrance to a flat under the pretence that he was a policeman investigating a burglary that had just taken place there. The flat was occupied at the time by a 45-year-old woman whom he threatened to kill with a knife if she made a noise. He told her to take her clothes off and then raped and buggered her as well as inflicting some minor puncture wounds with a pair of scissors he had found in the flat. 12. The applicant had a long criminal record, having served various sentences of imprisonment for theft and burglary. In view of the nature of his personality disorder - described by a psychiatrist as "a severe psychopathic character disorder" - the Recorder considered both a hospital order and a long determinate sentence to be inappropriate. An indeterminate life sentence was imposed to enable the Home Secretary to release Mr Thynne once his condition had sufficiently improved for it to be reasonably safe to do so. The Recorder stated as follows: "But for the psychiatric reports that I have seen I would impose on you a very long prison sentence. As it is, I am going to sentence you to life on each count in order that those in a position to observe any improvement in your personality disorder, those capable of carrying out any operative treatment which may [be] seen to be necessary, with your consent, on your frontal lobe, may judge the time when it is reasonably safe that you should be free." 13. The applicant applied to a single judge for leave to appeal to the Court of Appeal (Criminal Division) against the life sentences on the ground that they were manifestly excessive and wrong in principle as they resulted in custody for a longer time than the appropriate determinate sentence. His application was refused and so he renewed it to the full court. Refusing leave to appeal on 22 March 1976, the court stated as follows: "Without going into any more detail as to the offences, it is quite clear and indeed is accepted ... on the applicant’s behalf, that this was a very serious and violent attack upon this lady which involved not merely violence but the indecency and indignities to which she was subjected. ... Life sentences are imposed in circumstances where the offence is so grave that even if there is little risk of repetition it merits such a severe, condign sentence and life sentences are also imposed where the public require protection and must have protection even though the gravity of the offence may not be so serious because there is a very real risk of repetition. This case falls within neither of those categories which express extreme situations but undoubtedly the offences here were very grave indeed and undoubtedly, in the light of the medical reports on this man, the Court cannot be sure by any means that he would, in society, not give way to outbursts of this nature which would very seriously affect other persons. In those circumstances the balancing exercise that the Court has to do is indeed a difficult one when presented with facts of this nature. We do not see the life sentence in this case as necessarily involving detention in custodial conditions for a very long period of time. It depends upon the regime to which he is subjected and the treatment that he can get. If a determinate sentence were to be substituted, then the Court would have to pass such a sentence as would ensure that he was kept in custody for a very long time indeed and, on the facts of this case as we see it, it will mean that probably the Court would err on the side of passing a sentence so long that it would result in his remaining in custody for a longer time than he probably will remain under a life sentence." 14. In May 1977 Mr Thynne was accepted for treatment at Grendon Underwood, a psychiatric prison. However, he decided not to accept the place offered as, in the light of medical evidence that he was not amenable to surgery or psychiatric treatment, he was told that he would not automatically be given early release. 15. Following representations made on the applicant’s behalf, his case was referred to the Joint Parole Board-Home Office Committee. In August 1980 the Committee recommended that it should be referred to the Local Review Committee in September 1981 by which time he would have been detained for six years. The Local Review Committee decided not to recommend release. 16. On 1 May 1982 the applicant absconded from an open prison and committed further offences. He was arrested on 26 July 1982 and was subsequently sentenced to six months’ imprisonment on charges of theft, unlawful possession of drugs and criminal damage. The sentence was to run concurrently with the existing life sentence. 17. On 22 October 1982 the Parole Board recommended that his case again be referred to the Local Review Committee nine months after his arrival at Maidstone Prison. On 16 March 1983, however, he escaped when he was visiting his mother who was gravely ill. He was recaptured two days later and the date of referral to the Local Review Committee was put back to June 1984. In June 1983 he was transferred to Blundestone Prison where he was examined by the prison department psychiatrist who found no evidence of mental illness and saw no need for psychiatric treatment. The Local Review Committee did not recommend release. 18. In January 1985 Ministers accepted that the punitive element of his sentence (the "tariff"- see paragraphs 52 and 53 below) had been satisfied and that risk was the sole remaining consideration in his continued detention. 19. In July 1985 the applicant’s case was referred to the Parole Board which recommended a further review two years later. In July 1987 the Local Review Committee again recommended that he remain in custody, but in May 1989 it recommended his release. However, following its further consideration of his case in December 1989, the Parole Board again recommended that he remain in custody with no release date but that there should be a further review one year after his transfer to an open prison. 20. The second applicant, Mr Benjamin Wilson, is a British citizen, born in 1916. 21. On 17 May 1972 he pleaded guilty at the Central Criminal Court, London, inter alia, to one count of buggery, two counts of attempted buggery and seven counts of indecent assault on boys under 16. He had a very long history of sexual offences and was sentenced to life imprisonment for the offence of buggery and seven years on each of the other nine counts, to be served concurrently. 22. In passing sentence the Judge said: "I entirely accept that, to a large extent, you cannot help yourself. To that extent, your moral guilt is the less, but I have two duties to perform. One is a duty to find the correct sentence as far as you are concerned, having regard to your make-up, your physical and mental make-up. ’t control themselves. I hope that, in the course of time a method of treatment for your particular freakish affliction can be found. I think it will be in the best interest of society generally, and yourself in particular, if some form of treatment for you could be found. What I am going to do in your case may sound harsh from your point of view, but it will be explained to you, no doubt, by your counsel hereafter, that it may in fact hold out more hope to you than if I merely went up to perhaps 4, 5 or 6 years, or even 7 years in a particular case. The sentence of the court is that so far as the count of buggery is concerned, that is the eighth count on the indictment, you will go to prison for life. So far as the counts of attempted buggery and indecent assault are concerned, you will go to prison for a period of 7 years. All these sentences to be concurrent. Now I am sure that your counsel will have a word with you hereafter and will indicate what the situation is with regard to a life sentence, but as I say, I think my main duty in this particular case is to protect the public and the young public, in the light of what I have heard occurred in your case. I only hope that, in due course, some form of treatment, perhaps that to which the doctor refers in the medical report which I have seen, may help you." 23. In October 1972 the applicant’s application to a single judge for leave to appeal to the Court of Appeal (Criminal Division) was refused. Having renewed his application to the full court, he abandoned it in June 1973, a few days before it was to have been heard. In July 1976 he applied to the Court of Appeal to have his notice of abandonment set aside as a nullity. On 26 November 1976, the Court of Appeal turned down his application, but did give some consideration to the merits of the substantive appeal. In the words of Lord Justice Shaw: "... the applicant has not established a situation in which this Court could properly allow him to withdraw the notice of abandonment. The Court has thought it right to go to some extent into the history of the matter in order to establish that even if such a withdrawal were permitted, it could not possibly be of advantage to the applicant, if we were to substitute for the life sentence a very long sentence that really would not be distinguishable from a life sentence. But if he wishes to take advantage of it, build himself up and strengthen his own character, he has far better prospects under an indeterminate sentence than under a long determinate sentence." 24. The applicant’s case was first referred to the Joint Parole Board-Home Office Committee after three years of his sentence and they recommended that his case be reviewed by the Local Review Committee after seven years of his sentence had been served. Accordingly, in 1979, the Local Review Committee heard his case and referred it to the Parole Board, who, on 11 December 1981, recommended his release into a controlled protective environment with psychiatric supervision not later than December 1982. On 14 September 1982, pursuant to the Secretary of State’s authorisation of 3 September 1982, the applicant was released on licence on condition that he: (i) live at a probation hostel; (ii) co-operate with his probation officer; (iii) attend appointments with his supervising consultant psychiatrist and take any prescribed treatment; and (iv) refrain from any activity involving young boys without the permission of his probation officer. 25. On 11 February 1983, five months after his release on licence, the Parole Board recommended his recall and on 14 February 1983 the Secretary of State revoked his licence. The applicant on his return to prison was informed that he had been recalled because his conduct had given cause for concern and he had failed to co-operate with his supervising officer. The applicant exercised his right to make written representations against his recall, but on 16 September 1983, after referral by the Secretary of State, the Parole Board declined to change the decision. 26. On 6 April 1984 the applicant commenced judicial review proceedings to have this decision quashed on the ground that he had not been provided with adequate details of the reason for his recall as required by section 62(3) of the Criminal Justice Act 1967 and that he had accordingly been unable to make effective representations. 27. The Home Office conceded the inadequacy of the reasons given and provided a one page statement on 5 October 1984, which included the allegations that: (i) the applicant had sought to get himself evicted from the probation hostel by refusing to pay his rent, by other residents of his offences and thus risking attack from them and by leaving a schoolboy’s cap in the sitting-room of the hostel as a warning that he intended to re-offend; (ii) the applicant had protested against the probation officer’s refusal to allow him to take part in activities at the local sports centre; (iii) the applicant had shown an interest in watching boys play football and his psychiatrist suspected that he was exploring ways of contacting boys again. 28. The Home Office then agreed to allow the applicant the opportunity to make further representations to the Parole Board, which he did, denying the allegations made against him. On 7 November 1984 his solicitors requested disclosure of a number of reports which were before the Parole Board when it made its decision. 29. On 20 March 1985 the Divisional Court considered the applicant’s case. The court quashed the Parole Board’s decision of 16 September 1983 (see paragraph 25 above) on the ground that it was flawed by a procedural impropriety, in that the applicant had not been given sufficient reasons to enable him to make proper representations. 30. By letter of 20 March 1985 the applicant’s lawyer requested disclosure of the probation report which alleged non-cooperation and asked for his client to be given an oral hearing with legal representation. However, the Parole Board did not answer this request and after a meeting on 22 March 1985 maintained the decision not to release Mr Wilson. 31. In December 1986 the Local Review Committee reconsidered the applicant’s case but made no recommendation to release him. 32. In June 1987 the Parole Board recommended that his case should be referred to the Local Review Committee in two years’ time. Accordingly, in June 1989, the Local Review Committee re-examined the applicant’s case but did not recommend release. In October 1989 the case was considered by the Parole Board which recommended a further review in two years’ time, with the proviso that should his health deteriorate to such an extent that he was no longer considered to be a risk, the case should be reviewed at an earlier date. The Secretary of State accepted this recommendation. The next review date is October 1991. 33. The third applicant, Mr Edward James Gunnell, is a British citizen, born in 1930. 34. On 15 December 1965, he was convicted at the Central Criminal Court, London, inter alia, of four offences of rape and two offences of attempted rape. He was sentenced to life imprisonment on each of the four counts of rape. On the two counts of attempted rape he was sentenced to seven years’ imprisonment, such sentences to run concurrently with each other and with the life sentences. 35. A pattern was discernible in a number of those offences. In four of them he entered houses, by some plausible excuse, where his victims, housewives and an au pair girl, were alone and by force - in one instance at knife-point - or by the threat of force had sexual intercourse with them. 36. According to uncontradicted medical evidence, the applicant was suffering from a "mental disorder" within the meaning of that term in the Mental Health Act 1959 (namely psychopathy) and needed constant care and treatment in a maximum security medical setting. Nevertheless the sentencing judge concluded that, because of the gravity of the offences, punishment had to be an element in this case, and that punishment could only be achieved by imprisonment. On passing sentence, the trial judge, Mr Justice Roskill, stated as follows: "... These must be amongst the worst cases of rape or attempted rape ever to come before a court in this country. But though I accept you have spent much of your early life in mental institutions, and I accept certain evidence I have heard this morning that you are suffering from psychopathic disorder, the evidence leaves no doubt and can leave no doubt in anybody’s mind, that you did know what you were doing and you were well aware of the wickedness of what you had done. I have listened with great attention to the medical evidence which I have had the opportunity of hearing this morning, and I have endeavoured to give all the weight to it that I properly can.It has been urged upon me that I should deal with you by making a hospital order and sending you to Rampton, where you will be kept in secure conditions and receive any treatment which you may require. In many cases it is clearly right for a court in discharging its responsibilities to have regard solely or mainly to the needs of the offender, but the present case in my view is one of such magnitude that I cannot only have regard to such needs. It is true, to send you to Rampton would involve you being kept under secure conditions and to that extent would keep the public from you. But there are other matters which I must take into account in the public interest, not the least of which is to make it clear that crimes of this kind committed against ordinary housewives in their ordinary homes doing their every day business while their men-folk are away at work are such as must, when brought home to a particular offender, be dealt with in such a way as to make plain that the law is concerned and ever will be concerned to protect people who suffer as you caused these women to suffer by these quite appalling sexual attacks that you made upon them. Punishment must be an element in this case, and that punishment can only be achieved by imprisonment. Imprisonment will afford security to the public from you, and the Home Secretary has ample power if and when the need for treatment arises, to transfer you to any institution where such treatment can be received. In my judgment there is only one sentence which is appropriate in this case, and I will deal with count 3 first. Upon count 3 the sentence of the Court is that you be imprisoned for the term of your natural life. There will be corresponding life-sentences on counts 4, 5 and 7, upon which you stand convicted of rape." 37.On 22 June 1966 the Court of Appeal (Criminal Division) refused the applicant leave to appeal. In the course of his judgment the Lord Chief Justice Parker said: "It is a shocking case and there is no conceivable ground upon which he could succeed in his application for leave to appeal against conviction. Indeed, all he says is that he would like to call three of the women complainants to challenge their evidence all over again. This court refuses the extension of time in which to apply for leave to appeal against conviction. In regard to the application for leave to appeal against sentence in regard to the rapes and attempted rapes, the applicant is thirty-five and, though he has committed offences before, none of them have been offences of violence or of a sexual nature, but he has a long mental history. As long ago as 1946 he was committed to Manor Hospital, Epsom, from which he escaped eighteen times. In 1950 he was admitted to Farmfield Hospital, Horley. He absconded three times. In 1951 he was transferred to Rampton Hospital where he made no attempts to escape, possibly knowing that it is difficult to do so. In 1959, however, he was released on licence from Rampton and in 1960 he was discharged from the operation of the Mental Deficiency Act 1959. There was evidence, indeed it was uncontradicted, from the doctors that the applicant could be made the subject of a hospital order under the Mental Health Act 1959, in that he was a psychopath who needed constant care and treatment in a medical setting of maximum security such as Rampton and such a vacancy was then available. The learned judge refused to take that course and the ground of appeal here is that he was wrong in principle, when two doctors certified that the applicant was a fit subject for a hospital order and that treatment was warranted, not sending him to hospital but sending him to prison ... This court would like it to be known that they agree with every word that the learned judge there said, indeed in an earlier case of Morris (1961) 2 QB 237, it was pointed out that there may be cases where although a court has powers to make a hospital order, yet where a punishment is required it would be right to send the offender to prison, it being recognised that the Home Secretary has ample powers under section 72 of the Mental Health Act 1959 to cause him to be treated in hospital when the need arises. This court would like to add one further reason justifying the judge’s order in the present case. The applicant is obviously a dangerous psychopath. It is clear unless he is kept in circumstances of strict security he is liable to be a menace to the public. True, Rampton is said to be a secure hospital, but it does not mean that he would not get away from there. More important, it has to be observed that this dangerous psychopath has already been released on licence from Rampton. Bearing the interests of the public in mind, this court thinks it far safer that he should be kept in prison for as long as is necessary rather than he should be left to be dealt with as a hospital might deal with him, on a doctor and patient relationship under which it might be considered safe for him to be free, whereas from the public angle he remains a menace. This court is quite satisfied that the sentence was right and the application is refused." 38. In December 1980 the applicant’s case was reviewed by the Parole Board in accordance with the provisions of Part III of the Criminal Justice Act 1967. They recommended his release in 15 months’ time, subject to his continued good conduct, the satisfactory completion of periods in open conditions and on the pre-release employment scheme, and suitable resettlement arrangements being made. After consulting the judiciary in accordance with section 61(1) of the 1967 Act (see paragraph 56 below), the Home Secretary accepted the Board’s recommendation and the applicant was given a provisional release date of 4 March 1982. 39. In March 1982 the applicant was released on licence on condition that he: (i) co-operate with his supervisory probation officer; (ii) attend Dr Field’s Clinic at St Leonard’s Hospital, London N1 for such care and treatment as recommended; (iii) continue to take hormonal drug treatment, in tablet form, to control his sexual libido. 40. The applicant was given no reason to believe that he had failed to keep the terms of his licence in any significant way. However, two incidents occurred in January and February 1983 which led to the revocation of the applicant’s licence and his recall to prison. 41. The first incident was in January 1983 when he was stopped by a police officer and questioned about a woman’s complaint to the police that he had been in her back garden looking through her rear window. The applicant maintained that his intentions were completely innocent and that he was merely signalling to the lady he had seen in the house that he would like a glass of water with which to take his hormone tablets, which she duly got for him while he waited at the door. It was never alleged that the applicant had done anything to this woman, but it was later to be alleged that he had acted "suspiciously". On being told by the applicant that he had spent seventeen years in prison for rape, the police officer took him to the police station for questioning, but his release was authorised by a senior officer as there was no evidence of any crime having been committed. 42. The second incident was in February 1983 when the applicant was again stopped and questioned by the police following information that they had received from Finchley Road Police Station that he had been seen watching a woman cleaning her car and had then been found in her back garden. He was subsequently arrested some distance away and taken into custody by the same police officer who had arrested him in January. After some eight hours of detention, the Secretary of State revoked the applicant’s life licence under section 62 (2) of the 1967 Act because of the similarities between the applicant’s current behaviour and the circumstances in which the original offences were committed. He was taken to Pentonville Prison where, on arrival, he was told by an Assistant Governor that he would go before a reception board. When he did he was told that he had been recalled because his licence had been revoked and that he would be seen by another Assistant Governor and a member of the Local Review Committee and told the reasons for his recall when papers had been received from the Home Office. 43. The applicant was subsequently transferred to Wormwood Scrubs where an Assistant Governor, very soon after his arrival, had a number of conversations with him. Mr Gunnell, according to the High Court’s judgment of 2 November 1983 (see paragraph 48 below), made it abundantly plain that he fully realised that he had been brought back to prison because of the events which had taken place in January and February. He protested that he had done nothing wrong on those occasions but showed every indication that he fully realised why it was that the authorities had taken the decision which they did. 44. The applicant was interviewed on 1 March 1983 by a member of the Local Review Committee after having signed a standard form on 25 February 1983 to the effect that he wished the report from that interview to be submitted to the Parole Board as constituting his written representations, though he did in fact also himself make separate written representations. The interviewer did not have the police reports in their full and final state, nonetheless they did contain sufficient information to acquaint him with what happened in January and February. He did not show the applicant the medical report nor the probation officer’s report although the latter was discussed. 45. On 4 March 1983 the case was referred by the Secretary of State - under section 62 (4) of the 1967 Act - to the Parole Board which then took a preliminary view confirming the revocation of the applicant’s licence. On 25 March the Parole Board rejected the applicant’s representations but made a non-binding recommendation (see paragraph 56 below) that, subject to satisfactory resettlement arrangements being made and to continuing psychiatric supervision, he should be released in a month’s time, namely on 25 April 1983. 46. In May 1983 the Secretary of State - after consultations with the Lord Chief Justice and the trial judge in accordance with section 67 (1) of the 1967 Act - did not accept the Board’s recommendation, but decided that the applicant’s case should be reviewed in March 1984. Mr Gunnell subsequently petitioned the Secretary of State, complaining that he had not been allowed to defend himself. The petition was rejected in a reply dated 3 August 1983. The applicant states that the reply contained the first written explanations of the reasons for his recall and the first official account in any detail of the allegations made against him. 47. On 9 August 1983 Mr Gunnell applied to the High Court for leave to move for judicial review of the decisions of the Parole Board and the Home Secretary confirming the initial revocation of the licence. He was granted leave on 18 August 1983. At an interlocutory hearing on 10 October 1983, his applications for discovery of certain documents relating to the determination of his case by the Parole Board and Home Secretary were refused. They were again refused at the hearing of the substantive application for judicial review which was also dismissed on 2 November 1983. 48. An appeal against this decision to the Court of Appeal was also dismissed on 30 October 1984. The applicant’s case was reviewed again by the Parole Board and the Home Secretary in 1984 but he was not released. He was released on licence once more in September 1988 under the supervision of the Inner London Probation Service. 49. On 24 September 1990 the applicant pleaded guilty at the Central Criminal Court, London, to one charge of attempted rape, five charges of indecent assault and three charges of robbery. He was sentenced to life imprisonment, the life licence for his original offences having already been revoked. 50. A sentence of life imprisonment must be passed on any person convicted of murder - a mandatory life sentence. It may also 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. There are no statutory conditions for the imposition of a discretionary life sentence other than this, but its use in practice 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 him dangerous to the public in respect of his probable future behaviour unless there is a change in his condition (see Hodgson (1967) 52 Criminal Appeal Reports 113, Picker (1970) 54 Criminal Appeal Reports 330; Wilkinson (1983) 5 Criminal Appeal Reports (S) 105). In his judgment in R v. Wilkinson, Lord Chief Justice Lane said: "It seems to us that the sentence of life imprisonment, other than where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With few exceptions ... it is reserved broadly speaking ... for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner’s progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large." 51. The use of the discretionary life sentence is distinguished in the practice of the English courts from the use of the determinate or fixed-term sentence of imprisonment. In fixing the length of a determinate sentence the most important principle is that it should be related to the gravity of the offence. It is subject to one-third remission of sentence for good behaviour and there is the possibility of parole once a third of the sentence has been served. 52. In three recent decisions (R v. Secretary of State for the Home Department, ex parte Handscomb and Others (1988) 86 Criminal Appeal Reports 59; R v. Secretary of State, ex parte Benson (1988) and R v. Secretary of State, ex parte Bradley (1990) as yet unreported), the Divisional Court has recognised that a discretionary life sentence prisoner should be required to serve no longer as punishment for his offence than the "tariff". This expression denotes the period of detention considered necessary to meet the requirements of retribution and deterrence. 53. In the case of Bradley, Lord Justice Stuart-Smith gave the following elucidation of the nature of the discretionary life sentence: "The rationale or justification for a discretionary life sentence must surely be this: that in exceptional cases the interests of public safety cannot be sufficiently protected by imposing a determinate sentence even to the maximum extent permissible - i.e. the tariff sentence merited in the way of punishment, uplifted to a limited extent allowed by established case-law for the protection of the public. Rather it is necessary to cater for the presently perceived risk that, upon completion of any lawful determinate sentence, the prisoner would, if freed, remain a grave danger to society. This is achieved by passing a life sentence so as to ensure that the public will be protected and the risk reassessed after the tariff period expires. ... ... the sentencing Court recognises that passing a life sentence may well cause the offender to serve longer, and sometimes substantially longer, than his just desserts. It must then not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But, of course, the Court’s perception of that risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post-tariff stage the assessment comes to be made by the Board they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoner’s release." 54. By virtue of section 1 and schedule 2 of the Sexual Offences Act 1956, the maximum penalty for rape, and, by virtue of section 12(1) and schedule 2 of the same Act, for buggery of a boy under the age of 16, is life imprisonment. 55. According to the opinion of an expert in sentencing policy of the English courts, the practice of the Court of Appeal showed that, in the absence of evidence of mental instability and dangerousness, the sentence imposed was unlikely to exceed 10 years’ imprisonment for offences of buggery and 18 years’ in cases of serious rape (Affidavit of Dr D. A. Thomas sworn on 29 July 1988). 56. Under section 61 of the Criminal Justice Act 1967 the Secretary of State may only release on licence a person sentenced to life imprisonment 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. A prisoner recalled in such circumstances is entitled to be informed of the reasons for his recall and of his right to make representations. If he makes representations the Secretary of State must refer his case to the Board. Under section 62(2) the Secretary of State may himself revoke such a licence without consulting the Parole Board if it appears expedient in the public interest to do so before such consultation is practicable; but the case of a prisoner so recalled must be referred to the Board. If the Board recommends the immediate release on licence of a recalled prisoner whose case is referred to it under section 62, the Secretary of State is bound to give effect to the recommendation. 57. Section 59 sets out the constitution and functions of the Parole Board and of local review committees: "(1) For the purposes of exercising the functions conferred on it by this part of this Act as respects England and Wales there shall be a body known as the Parole Board ... consisting of a chairman and not less than four other members appointed by the Secretary of State. ... (3) It shall be the duty of the Board to advise the Secretary of State with respect to - (a) the release on licence under section 60(1) or 61, and the recall under section 62, of this Act of persons whose cases have been referred to the Board by the Secretary of State; (b) the conditions of such licences and the variation or cancellation of such conditions; and (c) any other matter so referred which is connected with the release or recall of persons to whom the said section 60 or 61 applies. (4) The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say - (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained; and (b) if in any particular case the Board thinks it is necessary to interview the person to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member; ... (5) The documents to be given by the Secretary of State to the Board under the last foregoing subsection shall include - (a) where the case referred to the Board is one of release under section 60 or 61 of this Act, any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection; (b) where the case so referred relates to a person recalled under section 62 of this Act, any written representation made under that section. (6) The Secretary of State may by rules make provision - (a) for the establishment and constitution of local review committees having the duty of reviewing at such times or in such circumstances as may be prescribed by or determined under the rules the cases of persons who are or will become eligible for release under section 60 or 61 of this Act and reporting to the Secretary of State on their suitability for release on licence; and (b) for the interview of such persons by a member of any such committee (not being a prisoner officer); and rules under this subsection may make different provision for different cases." 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 a psychiatrist; (c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or aftercare of discharged prisoners; and (d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the 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, each of which in the case of life prisoners includes 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. 58. Under section 59 (6) the Secretary of State has established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It is the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee review a case, a member of the Committee shall interview the prisoner if he is willing to be so interviewed. 59. The review procedures applicable to all life sentences within the framework of the Criminal Justice Act 1967 have evolved in four stages: (a) When section 61 of the Criminal Justice Act 1967 came into operation it was the practice to refer all life sentence cases to the Parole Board when the prisoner had served not longer than seven years, irrespective of whether there was any prospect of early release. In making its recommendations to the Secretary of State as to the release of a life prisoner, the Board took into account the views of the judiciary as required by section 61. (b) In 1973 a Joint Parole Board-Home Office Committee was set up to recommend to the Home Secretary a date for the first formal review by the Local Review Committee as the first stage in a review by the Parole Board (see paragraph 57 above). They gave initial consideration to the timing of the first review usually after the prisoner had been detained for about three years, but this system became less and less effective as the Committee only recommended dates in about half the cases referred to it. Under these arrangements, the judiciary were consulted - as required by section 61 of the 1967 Act - only at the stage when release seemed a realistic possibility. (c) In 1983, the Joint Committee was disbanded and new arrangements were made for fixing the date of the first formal review by the Local Review Committee. Under these arrangements the judiciary were consulted, usually, after a life prisoner had been detained for about three years, and asked for their views on the period necessary to meet the requirements of retribution and deterrence for the offence - the tariff period. In the light of these views the Home Secretary would decide the date of the first reference of the case to the Local Review Committee, normally set for three years before the expiry of the tariff period. (d) On 23 July 1987, in a parliamentary written answer to the House of Commons, the Home Secretary made the following statement in response to the Divisional Court judgment in the case of Handscomb and Others (see paragraph 52 above): "I accept the conclusion of the Divisional Court that there are strong arguments for carrying out this consultation exercise" - with the judiciary on the question of the period necessary to meet the requirements of retribution and deterrence - "as soon as practicable following the imposition of a discretionary life sentence. Following consultation with the Lord Chief Justice it has been agreed that the most satisfactory way of obtaining the judicial view is to ask the trial judge to write to me, through him, in every case where a discretionary life sentence is passed giving his view on the period necessary to meet the requirements of retribution and deterrence. This view will be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and will also take account of the notional period of the sentence which a prisoner might expect to have been remitted for good behaviour had a determinate sentence been passed. The date of the first formal review by the Parole Board machinery will then be fixed in accordance with the judicial view on the requirements of retribution and deterrence, and the review will, as before, normally take place three years before the expiry of that period. I have agreed with the Lord Chief Justice that this new procedure will be introduced with effect from 1 October 1987. ... I shall arrange for a review to be undertaken of all discretionary life sentence cases with a first formal review date of January 1988 or later. Where account has been taken of factors other than the judicial view on the requirements of retribution and deterrence in fixing the date, the date will be adjusted to bring it into line with the judicial view. ... In cases of prisoners serving life sentences for murder, where the sentence is not at the discretion of the court, the question of the notional equivalent determinate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidence in the system of justice) to be weighed in the balance in setting the first review date. I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving life sentences for the worst offences of violence fully reflects public concern about violent crime. ... no life sentence prisoner will be detained for more than 17 years without a formal review of his case even where the period thought necessary to meet the requirements of retribution and deterrence exceeds 20 years. ... However, as was made clear by the Divisional Court, the release of a life sentence prisoner is solely at my discretion and it is for me to decide, after receiving the Parole Board’s recommendation and after consulting the judiciary as required by section 61 (1) of the Criminal Justice Act 1967, when actual release should take place." 60. In addition to his right to make representations to the Parole Board under the provisions of the Criminal Justice Act 1967 (see paragraphs 56-59 above), a prisoner detained pursuant to a discretionary life sentence may take proceedings in the High Court to obtain the judicial review of any decision of the Parole Board or of the Home Secretary on the ground that it is tainted by illegality, irrationality or procedural impropriety (see judgment of 2 March 1987 in the Weeks case, Series A no. 114, pp. 18-19, paras. 30-31).