Court/Judicial body: European Court of Human Rights
Citation: Application No. 23389/94, 21 February 1996 Application No. 21928/93, 21 February 1996
Date: 21 February 1996
Instrument(s) cited: European Convention on Human Rights, Article 5(4) (right to have lawfulness of continued detention decided by a court) Children and Young Persons Act 1933, section 53(1) (a person convicted of an offence committed when under the age of 18 years shall be sentenced to be detained during Her Majesty’s pleasure in such a place and under such conditions as the Secretary of State may direct) Criminal Justice Act 1991 (provisions on fixing of the tariff and release on licence)
Background: In 1973, Singh was convicted of murder at the age of 15 and received a mandatory sentence of “detention during Her Majesty’s pleasure” (“DHMP”). In 1978, Hussain was convicted of murder at the age of 16 and also received a mandatory sentence of DHMP (“applicants”). English law imposes a mandatory sentence of DHMP for murder if the offender was under the age of 18 at the time of the offence. The person sentenced to DHMP will be “liable to be detained in such a place and under such conditions as the Secretary of State may direct.” Persons sentenced to DHMP have a “tariff” set in relation to that period of detention they should serve to satisfy the requirements of retribution and deterrence. The length of the tariff is decided by the Secretary of State. After the expiry of the tariff, they become eligible for release on licence. Such persons 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. The applicants argued that the cases of their continued DHMP after the expiry of their tariffs were not heard by a court, in violation of Article 5(4) of the European Convention on Human Rights.
Issue and resolution: Juvenile justice; DHMP sentences. The Court found that there had been a violation of Article 5(4) of the Convention in that the applicants, after the expiry of their tariffs, were unable to bring before a court the case of their continued DHMP or of their re-detention following the revocation of their licence.
Court reasoning: The applicants were sentenced to DHMP because of their young age at the time of the offences. The corresponding sentences contain a punitive element and accordingly tariffs are set to reflect the requirements of retribution and deterrence. However, an indeterminate term of detention for a convicted young person, which may be as long as that person’s life, can only be justified by considerations based on the need to protect the public. These considerations, centred on an assessment of the young offender’s character and mental state and of their resulting dangerousness to society, must take into account any developments in the young offender’s personality and attitude as they grow older. New issues of lawfulness may arise in the course of detention and the applicants are end under Article 5(4) to take proceedings to have these issues decided by a court at reasonable intervals as well as to have the lawfulness of any re-detention determined by a court. Secondly, the Parole Board does not satisfy the requirements of Article 5(4) – it cannot order the release of a prisoner, and the lack of adversarial proceedings before the Parole Board prevents it from being regarded as a court or court-like body for the purposes of Article 5(4). In a situation such as that of the applicants, where substantial terms of imprisonment may be at stake and where characteristics pertaining to their personality and level of maturity are important to deciding their dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses. The possibility of the applicants obtaining an oral hearing by instituting proceedings for judicial review does not satisfy this requirement.
Impact: On 1 October 1997, section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgments of the European Court in the Hussain and Singh cases. This section provides that, after the tariff period has expired, it shall be for the Parole Board, and not, as previously, for the Secretary of State, to decide whether it is safe to release on licence an offender serving a sentence of DHMP for an offence of murder committed before the age of 18. A person sentenced to DHMP who is released on licence is liable to be recalled throughout his or her life, subject to the decision of the Parole Board. The criterion for determining whether re-detention is justified is that of dangerousness, meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the “life or limb” of the public.