Beyond the Tariff: Human Rights and the Release of Life Sentence Prisoners 1903240883, 9781903240885

Table of contents :
Content: Forms of life sentence --
Discretionary life sentences --
Mandatory life sentences --
Detention at Her Majesty's pleasure or for a specified period --
Custody for life --
'Automatic' life sentences --
Life sentences: in custody and approaching release --
Some statistics --
Serving a life sentence --
Release under the Criminal Justice Act 1967 --
The view from Europe --
The European Court of Human Rights --
The case of Weeks --
The case of Thynne, Wilson and Gunnell v. United Kingdom --
Wynne: murders are different --
The cases of Hussain and Singh --
Parliamentary and governmental responses --
The Criminal Justice Bill 1990 --
The Bill in the House of Commons --
The House of Lords --
Back in the Commons: the government reacts --
Back to the House of Lords --
Drafting the regulations --
The Crime (Sentences) Act 1997: extending the procedure --
DLPs in practice --
Preparing for the DLP --
The dossier --
The DLP in practice --
Decisions and outcomes --
Key issues --
Release procedures compared --
Determinate sentences --
The release of mandatory lifers --
Mental Health Review Tribunals --
The spirit of Weeks/Thynne and the reality --
The judicial function --
What is a court? --
The independence of the Parole Board --
The 'court' must follow appropriate procedures --
Recent developments in judicial review --
Theory and practice --
Back to basics --
Developments elsewhere in the United Kingdom --
Does the DLP pass the test? --
Lessons for the future --
Extracts from the majority and dissenting opinions in Weeks.

Citation preview

Beyond the Tariff Human rights and the release of life sentence prisoners

Nicola Padfield

Beyond the Tariff

Beyond the Tariff H u m a n r ig h t s a n d th e r e le a s e o f lif e s e n t e n c e p r is o n e r s

N ico la P ad field

WILLAN PUBLISHING

Published by Willan Publishing Culmcott House Mill Street, Uffculme Cullompton, Devon EX15 3AT, UK Tel: +44(0)1884 840337 Fax: +44(0)1884 840251 e-mail: info(ctwillanpublishing.co.uk website: @ www.willanpublishing.co.uk Published simultaneously in the USA and Canada by W illan Publishing c / o ISBS, 5824 N.E. Hassalo St, Portland, Oregon 97213-3644, USA Tel: +001(0)503 287 3093 Fax: +001(0)503 280 8832 Website: www.isbs.com

© Nicola Pad field 2002 The right of Nicola Padfield to be identified as author of this book has been asserted by her in accordance with the Copyright, Designs and Patents Act of 1988. All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the Publishers or a licence permitting copying in the UK issued by the Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1P 9HE. First published 2002 ISBN 1-903240-88-3 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

Typeset by TW Typesetting, Plymouth, Devon Printed and bound by TJ International Ltd, Padstow, Cornwall

Contents P reface

ix

A cknow ledgem ents

xiii

List o f abbreviations

xiv

Table o f cases Table o f statutes

xv xix

1 Form s of life senten ce D iscretion ary life sen tences M and atory life sentences D etention at H er M ajesty 's pleasure or for a specified period C u stod y for life 'A u tom atic' life sen tences C on clu sio n

1 3 5 8 10 11 14

2 Life senten ces: in custod y and ap proachin g release Som e statistics S erv in g a life sen tence Release u n d er the C rim inal Ju stice A ct 1967

16 16 20 23

3 The view from Eu rop e T h e E uropean C ou rt o f H um an Rights T h e case o f W eeks T h e case o f T hynne, Wilson and G unnell v. U nited Kingdom W ynne: m u rd ers are different The cases o f H ussain and Singh Su m m ary

30 30 34 39 51 52 58

4 P arliam en tary and govern m en tal resp on ses The C rim in al Ju stice Bill 1990 The Bill in the H ouse o f C om m ons

60 60 62

VI

Beyond the tariff

The H ouse of Lords Back in the Com m ons: the governm ent reacts Back to the H ouse of Lords Drafting the regulations The Crim e (Sentences) Act 1997: extending the procedure Sum m ary

65 69 70 77 79 81

5 D LPs in practice Preparing for the DLP The dossier The DLP in practice Decisions and outcom es Key issues Sum m ary

82 83 84 89 94 98 107

6 Release procedures compared D eterm inate sentences The release of m andatory lifers M ental H ealth Review Tribunals Conclusions

108 108 112 118 124

7 The spirit of W eeks/T hyttn e and the reality The judicial function W hat is a court? The independence of the Parole Board The 'court' m ust follow appropriate procedures Recent developm ents in judicial review

126 126 130 132 140 144

8 Theory and practice Sum m ary Back to basics Developm ents elsew here in the United K ingdom Does the DLP pass the test? Lessons for the future

151 151 151 157 160 163

A ppendices 1 Extracts from the m ajority and dissenting opinions in Weeks 2 Sections 32 and 34 of the Crim inal Justice A ct 1991 3 Sections 2 8 -3 2 of the Crim e (Sentences) A ct 1997 (as am ended) Section 82A of the Pow ers o f Crim inal Courts (Sentencing) Act 2000 4 The Parole Board Rules 1997

165 165 175 177 180 181

Contents

vii

5 Sections 72 and 73 o f the M ental H ealth A ct 1983, as am ended by the M ental H ealth A ct 1983 (Rem edial) O rd er 2001 (SI 2001 N o. 3712)

191

R eferences

195

Index

201

Preface This bo ok is a stud y o f the history and evolu tion o f a legal bod y w hich cam e into b ein g in England and W ales in O ctober 1992: the D iscretion ary Lifer Panel o f the Parole Board (D LPs). D LPs have the task o f d eciding w hether and w hen d iscretionary life sen tence prisoners should be released. The term 'd iscretion ary life sen tence p risoner' is gen erally used to d istin gu ish those on w hom a ju d g e has chosen to im pose a life sentence, becau se o f the risk that the offender poses to the public, his or her 'd an g erou sn ess', as opposed to those (m u rd erers) for w hom a life sen tence is m andatory. H ow ever, as w e shall see in C h ap ter 1, the d istinction b etw een the various form s o f life sen tence is anything but clear-cut. N or is it only d iscretionary life sen tence prisoners w ho are now entitled to an oral hearing before a DLP. T h e u n certainties and in con sisten cies in both current law and cu rren t p ractice are explored in this book. The roots o f the D LP lie in A rticle 5(4) o f the E uropean C on vention on H um an Rights, w hich provides that: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. A s alw ays w ith com plex ideas expressed in sim ple w ords, the m essage o f this A rticle can be interpreted in m any w ays. A boo k could be w ritten on the m ean in g o f A rticle 5(4), w hether lin guistic, legalistic or philo­ sophical. This bo ok sim ply attem pts to explore how the w ords have been interpreted in the narrow con text o f the release o f life sen tence prisoners in England and W ales, by the European C ou rt o f H um an Rights, by the H om e Office, by P arliam ent and by the English cou rts betw een 1987 and the present day. In 1990-1 the G ov ern m ent w as obliged ('fo rced '?) to act on the E uropean C ou rt o f H um an R igh t's d ecision in T hynne, W ilson and Gunnell' that the system o f rev iew av ailable to d iscretionary life sentence p risoners fell belo w the standard required b y the C onvention. But the bo o k starts w ith tw o chapters w hich provide the con text for later 1 (1991) 13 EHRR 666.

X

Beyond the tariff

d iscu ssions - d escriptions o f the various life sen tences available in E nglish law and o f the life sen tence as served in E nglish prisons. C h ap ter 3 then explores the background and reasoning applied in the T hynne case, as w ell as in the equally im portan t case o f W eeks2 w hich preceded it and w hich the go v ernm ent su ccessfu lly avoid ed acting upon until after the decision in Thynne. O ther relevan t d ecisions o f the C ou rt are also d iscu ssed in an attem p t to analyse the argum en ts w hich lie behind the C o u rt's reasoning that, once d iscretionary life sentence p risoners have served the period o f their sen tence im posed as 'p u n ish ­ m en t', the 'tariff'3, and enter a stage o f their sentence w hen they are detained sim ply for the protection o f the public, they are entitled to an oral hearing before a 'co u rt' to review the legality o f their detention. The go v ern m en t's response to the d ecision in T hynne is d iscussed in detail in C h ap ter 4. A ctive n on-governm ental organisations and a d eterm ined H ouse o f Lords forced on the gov ernm ent speed ier change than the governm ent w ould have chosen. D iscretionary Lifer Panels of the Parole Board w ere thus created in late am en dm en ts to w hat becam e the C rim in al Ju stice A ct 1991, w hich took effect in O ctober 1992. The law has been am ended in A cts o f P arliam en t in 1997 and in 2000. C h apter 5 review s the operation of the Panels in the first eight years of their life, relying heav ily on the research carried out in 1999 b y the au th or and Dr A lison Liebling, w ith H elen A rnold, at the Institute o f C rim inology, U niversity o f C am bridge. T h e book then m oves on to com pare this system w ith other p rocesses gov erning the release o f those com pulsorily detained in England and W ales: those detained in prison subject to long d eterm inate sentences and as ad ult m u rd erers (w ho receive a m an datory life sen tence), and those detained against their w ishes in m ental hospitals. M and atory life sen tence prisoners also have their 'risk' assessed by the P arole Board, but they do not have the b enefit o f an oral hearing. T he H om e Secretary m aintains the right to m ake the final d ecision on release. P eople d etained com p u lsorily under m ental health legislation m ay challenge the legality of the d etention before a M ental H ealth R eview Tribunal (M H RT). A lth ou gh D L Ps w ere closely m odelled on M H R Ts, w e shall see in C h apter 6 that there are also im portant procedu ral differences. Recent challenges to the M H R T have im p lica­ tions for the DLP: m ost im portantly, the first declaration o f incom p ati­ bility issued un der the H um an R ights A ct 1998 has resulted in a shift of 2 (1988) 10 EHRR 333. 3 The Lord Chief Justice has recently issued a Practice Statement As To Life Sentences (see the Times 4 June 2002) in which he explained that the term 'tariff' will no longer be used 'because it has commonly been misunderstood'. Instead judges should now use the term 'minimum term' to make it clearer that, even when released, the offender has not served his sentence which continues for the remainder of his life. The term 'tariff' is however used throughout this book, being the term employed during the period under review.

Preface

xi

the bu rd en of proo f before the M H RT. It w ould have been easier to close the book at the end o f the tw entieth century, but an attem p t has been m ad e to include relevant changes in law and practice until Ju ly 2002. In a field w hich is m oving fast, it is im possible to be quite up to date. In one sen se this b oo k seeks to be a classic 'case stu d y', w ell know n to teachers o f law : the d ecisions in W eeks and T hynne lie at the heart of the book, w hich seeks to in terpret the law by traditional legal m ethods: the interpretation o f statu te and case law. But the book also seeks to do som ething m ore than this: to tell the stories o f the lives o f certain key prisoners and to put these stories in a w id er legal and p olitical context. The bo o k seeks to take a 'law in action ' perspective, lookin g at the actual m ean in g o f sen tences, as w ell as the theoretical background . By w eaving together the personal, the legal and the political w e m ay get closer to u n derstand ing the reality o f w hat has been going on. C h ap ters 7 and 8 seek to d raw this history together by exploring the u n derlyin g tensions and conceptu al confusions. The b oo k con clud es by arguing that the E uropean C ou rt o f H um an R ights should not be seen as the only force d riving change in this area: d om estic ju d g es have also been concerned. But the role o f the judge is lim ited, and real change in this area depends not only on 'reform by ju dges' or on 'reform by P arliam en t' but on 'reform from w ithin'. T he d ecisions o f in d ividu al prison staff and of p robation officers, as w ell o f prison and other crim inal ju stice structures, m ay shape the ou tcom e o f d ecisions about release as m u ch as the d ecisions o f the P arole Board. I w ould like to pay tribute to the help and en couragem ent o f nu m erou s people w ithin the H om e O ffice and Prison Service, as w ell as those o utsid e the corrid ors o f pow er, w ho have helped m e w ith this project. In an age preoccu pied w ith protectin g the pu blic against the risk o f seriou s crim e, it is encou rag in g that real d ialogu e and d ebate is taking place. H ow ever, it is also im portan t that the stories of the ind ividu als, w hose rights A rticle 5 w as designed to protect, are also heard. T he scales of ju stice are not alw ays fairly balanced . B y the tim e the book had reached pro of stage, the E u rop ean C ou rt of H um an R ights had given its long aw aited decision in Stafford v. U nited Kingdom (see pages 7, 59 and 118 below ). G iving ju d g m ent on 28 M ay 2002, the C o u rt stated:

Since the Convention is first and foremost a system for the protection of human rights, the Court must . . . have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved . . . It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement. (para. 58)

xii

Beyond the tariff

N oting the steady erosion of the Secretary of State's decision-m aking pow er in this field, the Court went on to hold that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne (1994) 19 EHRR 333 that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. (para. 79) H aving found that the tariff com prises the punishm ent elem ent of the m andatory life sentence and that the Secretary of State's role in fixing the tariff is a sentencing exercise, not the adm inistrative im plem entation of the sentence of the court, the Court went on to hold unanim ously that there had also been a violation of both A rticle 5(1) and A rticle 5(4) of the C onvention since the law fulness of the applicant's continued detention was not review ed by a body w ith a pow er to release or w ith a procedure containing the necessary judicial safeguards, including, for exam ple, the possibility of an oral hearing. The H om e Secretary lost his pow er to detain post-tariff lifers against the recom m endation of the Parole Board. But the H om e Secretary's response was 'disappointm ent' that the effect of the judgm ent was that he would lose his pow er to decide the release of adult m urderers w hose tariff had expired. He was concerned that the judgm ent m ay be used as encouragem ent for those who would like to rem ove the Home Secretary's pow ers to set tariffs, and said that if the courts took this lead, he would use dom estic legislation 'to enshrine the pow er of Parliam ent to provide adequate punishm ent for the guilty . .. It is crucial that jurisprudence does not interfere with [the] basic right on behalf of the elected governm ent [to protect the public from dangerous offenders, w hile doing everything w e can to assist and support victim s and their fam ilies]'. It is perhaps rom antic to hope that this book m ight play a sm all part in convincing the H om e Secretary to change his stance.

Acknowledgments A lthou gh sin glin g out specific ind ividu als for thanks is invid ious, I w ould like to acknow led ge the host o f p eople w ho have helped m e w ith this boo k in innu m erable w ays. The book arose o ut o f research carried o ut w ith A lison L iebling and H elen A rnold in 1999, and m y thanks to them are param ount. I w ould also like specifically to record m y m ore recent debts to T revor A llan, Jo y A nd erson, H am ish A rnott, D an Bates, T on y B ottom s (particularly), Ju lian B roadh ead, Sim on Buck, N iall C am pbell, L aura D avid son, M ark Elliott, L orain e G elsth orpe, G abrielle G arton G rim w ood, H elen G riffiths, Ivan H are, Philippa H elm e, R oger H ood, Paul Jackson , Philippa K auffm an, M ichael Rice, T erry Russel, Stephen Shute, D irk van Zyl Sm it, and N igel W alker.

List of abbreviations DCR DLP D SPD ECH R E C tH R H M IP P HMP LRC M HRT N D PB OLR PRES RM A RM O SO T P

D iscretion ary C on dition al Release D iscretionary Lifer Panel o f the P arole Board d angerou s sev erely p ersonality disordered E uropean C on vention on H um an Rights E uropean C ou rt o f H um an R ights H er M ajesty 's Insp ectorates o f Prisons and Probation d etention during H er M ajesty 's pleasure Local R eview C om m ittee (of the P arole Board) M ental H ealth R eview Tribunal N on-D epartm en tal P ublic Body O rd er o f L ife-long Restriction P re-R elease E m ploym en t Sch em e Risk M anagem ent A uthority R esponsible M edical O fficer Sex O ffender T reatm en t Program m e

Table of cases Aitken (1966) 50 Cr App R 204, 7 Anderson and Taylor [2001] EWCA Civ 1698, 153 Associated Provincial H ouses Ltd v. VJednesbury Corporation [1948] 1 KB 223, 26 Bell (1989) 11 Cr App R (S) 472, lOfn Brogan and Others (1989) 11 EHRR 117, 49 Bromfield v. United Kingdom (1988) 26 EHRR CD 138, 58 Buckland [2001] 1 Cr App R 471, 13 Campbell and Fell v. United Kingdom (1985) 7 EHRR 165, 134, 168fn Campbell v. United Kingdom (1992) 15 EHRR 137, 87fn Council o f Civil Service Unions v. M inister for the Civil Service [1985] AC 374; [1984] 3 All ER 935, 127 De Wilde, Ooms and Versyp v. Belgium (N o.l) (1979) 1 EHRR 373, 33, 48, 130, 132, 168fn, 172fn Doody v. Secretary o f State for the Hom e Department [1994] 1 AC 531; [1993] 3 All ER 92, 6, 54, 112 E v. N orway (1994) 17 EHRR 30, 48, 57 Findlay v. United Kingdom (1997) 24 EHRR 221, 158 Flemming (1973) 57 Cr App R 524, lOfn Fletcher [2002] 1 Cr App R (S) 82, 13fn Fox, Campbell and Hartley (1991) 13 EHRR 157, 49 Frost [2001] Crim LR 143, 14 Furber [1998] 1 All ER 23, lOfn Golder v. United Kingdom (1975) 1 EHRR 524, 87fn Gunnell [1985] Crim LR 105, 46 H andscomb (1998) 86 Cr App R 59, 25-6 H andyside v. United Kingdom (1976) 1 EHRR 737, 33 H erczegfalvy v. Austria (1992) 15 EHRR 437, 139fn H irst v. United Kingdom [2001] Crim LR 919, 139 Hodgson (1967) 52 Cr App R 113, 3 H ollies (1994) 16 Cr App R (S) 463; [1995] Crim LR 171; D (1994) 16 Cr App R 564, 79fn

xvi

Beyond the tariff

Hussain and Singh v. United Kingdom (1996) 22 EHRR 1, 52-60, 79, 140 Kelly [1999] 2 Cr App R 36, 13 Kelly No. 2 [2002] 1 Cr App R (S) 2002, 13fn Leaney [1995] Crim LR 670, 7 Luberti v. Italy (1984) 6 EHRR 440, 167fn M acNeil v. D iscretionary Lifer Panel [2001] EWCA 448, 139, 149 M ansell v. United Kingdom, Application No. 32072/96, decided 2 July 1997, 109 M arklew and Lambert [1999] 1 Cr App R (S) 6, 4, 10 N eum eister v. Austria (No. 1) (1968) 1 EHRR 91, 131 Offen (No. 2) [2001] 1 W LR 253, 13-14 Oldham v. United Kingdom (2000) 31 EHRR 813; [2000] Crim LR 1011, 139 R (Daly) v. Secretary o f State for the Home Department [2001] 2 AC 532, 145 R (ex p. H) v. M ental Health Revieiv Tribunal, North and East London Region and the Secretary o f State for Health (intervenor) [2001] 3 W LR 512, 121, 143 R (Giles) v. Secretary o f State for the H om e Department [2002] 1 W LR 654, 4, 109 R (on the application o f Blagdon) v. Secretary o f State for the H om e Department [2001] EW HC Adm in 393, 11 April 2001, 148 R (on the application o f Burgess) v. Secretary o f State for the H om e Department (2000) EW HC, 3 N ovem ber; Daily Telegraph, 5 Decem ber; Criminal Law Week 0 0 /4 4 /1 7 , 136, 149 R (on the application o f Jordon) v. Parole Board (2000) EW HC Adm in, 26 October; [2001] ACD 261, Criminal Law Week 0 1 /1 3 /9 , 146 R (on behalf o f Noorkoiv) v. Secretary o f State for the Home Department, 2 July 2001, Criminal Law Week 0 1 /2 6 /7 0 , 140fn R v M inistry o f Agriculture, Fisheries and Food, ex parte H amble (Offshore) Fisheries Ltd. [1995] 2 Ail ER 714, at p. 731, 98 R v. M inistry o f Defence, ex parte Smith [1996] QB 317, 145fn R v. Parole Board, ex parte Bradley (1991) 1 W LR 134, 26fn, 27, 28, 48fn, 93, 144 R v. Parole Board, ex parte Gordon (2000) 7 N ovem ber, unreported, 147 R v. Parole Board, ex parte Hart (2000) 24 May, unreported, 146 R v. Parole Board, ex parte Oyston (2001) 1 M arch, unreported, 146 R v. Parole Board, ex parte Watson [1996] 2 All ER 641, 102 R v. PH [2002] EWCA, 13 February 2002, 9fn R v. Secretary o f State for the Home Department, ex parte Benson (1988) Times Law Reports 21 N ovem ber, 26fn, 27 R v. Secretary o f State for the Home D epartm en t, ex parte Bulger [2001] ENHC Admin 119 [2001] 3 All ER 449, 9fn R v. Secretary o f State for the Home Department, ex parte Cummings [2001] EWCA Civ 45, 22 January 2001, 103 R v. Secretary o f State for the Home Department, ex parte H andscomb and Others (1988) 86 Cr App R 59, 26fn, 28 R v. Secretary o f State for the Home Department, ex parte H indley [2001] 1 AC 1 5 2 ,7fn

Table o f cases

xvii

R v. Secretary o f State for the H om e Department, ex parte H irst [2001] EWCA 378, 3 M arch, 147 R v. Secretary o f State for the Home Department, ex parte Prem Singh, 20 April 1993, 54 -5 R v. Secretary o f State for the Home D epartment, ex parte Prem Singh (No. 2), 16 M arch 1995, 55fn R v. Secretary o f State for the Home Department, ex parte Stafford [1999] 2 AC 38, 153fn R v. Secretary o f State for the Home Department, ex parte Thompson and Venables [1998] AC 407, 8 -9 R v. Wilkinson (1983) 5 Cr App R (S) 105, 3, 48fn Ryan v. United Kingdom (1999) 27 EHRR CD 204, 58 Sanchez-Reisse v. Switzerland (1987) 9 EHRR 71, 170fn Simmonds [2001] Crim LR 326, 4 Smith and Grady v. United Kingdom (1999) 29 EHRR 493, 145fn Stafford v. United Kingdom [2001] ECHR, 28 May, 5 2 , 153 Starrs v. Procurator Fiscal, Linlithgow [2000] SC 208; [2000] H RLR 191, 158 T v. United Kingdom and V v. United Kingdom (1999) 30 EHRR 121, 80 Thynne, Wilson and Gunnell v. United Kingdom (1991) 13 EHRR 666, 30, 37-51, 56-60, 64-7, 73-6, 81, 109, 116, 139, 155 V v. United Kingdom; T v. United Kingdom (1999) 30 EHRR 121, 9 Van D roogenbroeck v. Belgium (1982) 4 EHRR 433, 33, 48 -9 , 166, 167fn, 171 Wallace [2001] Crim LR 407, 13 Weeks (1988) 10 EHRR 666, 1 2 6 - 7 ,130, 1 3 2 ,1 3 4 , 137, 140, 151, 155, 165-74 Weeks v. United Kingdom (1988) 10 EHRR 333; (1991) 13 EHRR 435, 30, 37-50, 56-60, 65, 81, 152 West [2001] 1 Cr App R (S) 103, 14 Wilkinson see R v. Wilkinson Williams v. Secretary o f State for the Home Department [2002] ECWA Civ 498, 17 April, 148 Williams v. Secretary o f State for the H om e Department [2002] EWCA Civ 498 (17 April 2002), 22fn Wynne v. UK [1994] 19 EHRR 333, 7, 51, 56, 58, 73fn, 112 X v. United Kingdom (1982) 4 EHRR 188, 33fn, 48, 118, 130fn, 131, 167fn, 168fn, 169fn, 170fn Zamir v. United Kingdom (1996) 5 EHRR 533, 33fn

Table of statutes

Bail, Ju d icial A ppointm ents etc. (Scotland) A ct 2000, 158 Children Act 1908, 8 Children and Young Persons Act 1933, 8 Section 44, 8 Section 53, 24 Section 53 (1), 8, 53 Section 53 (2), 8, 10 C onvention Rights (Com pliance) (Scotland) A ct 2001, 15 7 -9 Crim e and D isorder A ct 1998 Section 36, 63 Section 58, 2 Section 119, 7 9 -8 0 Crim e (Sentences) A ct 1997, 2, 11, 58, 7 9 -8 1 ,1 5 2 , 180, 182 Section 2, 12, 13, 1 4 ,1 8 , 80 Section 20, 109fn Section 28, 82, 113 Section 28 (4), 79 Section 28 (5)-(8), 10 Section 28 (6), 84, 93fn, 99, 143fn Section 2 8 -3 2 , 7 9 -8 0 ,1 7 7 -9 , 182 Section 29, 113 Crim inal A ppeals A ct 1968, Section 2, 39 Crim inal Justice A ct 1948, Section 57, 23 Crim inal Justice A ct 1967, 165, 166, 169, 184 Part II, 23 Sched ule 2, 132-3 Section 30, 24 Section 59, 132 Section 59 (1), 132 Scctio n 59 (6), 132 Section 61, 23 Section 61 (1), 29, 45 Section 62 (1), 24 Section 62 (2), 24 Section 62 (3), 43 Section 62 (9), 36 Section 67, 180

XX

Beyond the tariff

C rim inal Justice A ct 1991, 1, 77 -8 0 , 82, 109, 156, 184 Section 1 , 1 Section 2, 1, 109 Section 2 (2)(b), 109 Section 32, 77, 175-6 Section 32 (1), 178, 182 Section 32 (2), 178 Section 32 (5), 77, 80, 111, 134fn Section 32 (6), 77, 78, 110, 134fn Section 33 (2), 180 Section 34, 77, 79, 82, 100, 175-6 Section 34 (4), 93fn, 143fn Section 35 (1), 180 Section 39 (4), 176 Section 44, 109fn Section 79 (2)(a), 1 Section 79 (2)(b), 1 Section 80 (2), 1 Section 110 (2), 2 Section 111 (2), 2 Crim inal Justice A ct 1993, 1 Crim inal Justice and C ourt Service A ct 2000, 123, 180 Section 60, 10, 80 Section 61, 11 Crim inal Procedure (Scotland) A ct 1995, 159 H um an Rights A ct 1998, 13, 30, 121, 145, 146, 149, 159 M ental D eficiency A ct 1959, 45 M ental H ealth Act 1959, 44, 118 Section 72, 45 M ental H ealth A ct 1983, 3, 108, 118, 123-4, 183 Section 2, 121 Section 37 121 Section 37 -4 1 , 118 Section 41, 121 Section 66 (l)(g ), 121 Section 71, 121 Section 72, 120, 122, 191-4 Section 72 (1), 120, 122 Scction 72 (l)(b ), 121 Section 73, 120, 122 Section 73 (1), 122, 191-4 Section 73 (2), 122, 191 Section 78, 119 M urder (A bolition of the Death Penalty) A ct 1965, 5 Section 1, 5 Section 1 (1), 5

Table o f statutes Section 1 (2), 6 Section 1 (5), 1 O ffences against the person A ct 1861, Section 18, 13 Pow ers of Crim inal C ourts (Sentencing) A ct 2000, 80 Section 28 (5)-28(8), 180 Section 60, 80 Section 79, 1, 108fn Section 79 (2)(b), 4 Section 80, 1, 108fn Section 80 (2)(b), 109-10 Section 82 A, 10, 80, 82, 177, 180 Section 85, 2fn, 109fn Section 86, 109fn Section 90, 4, 8, 11, 53fn Section 91, 8, 10 S cction 93, 10 Section 94, 11 Section 94 (1), 11 Section 94 (2), 11 Section 109, 12 Section 109 (2), 13 Section 109 (5), 13 Section 110, 2fn Section 111, 2fn Prison A ct 1952, 165, 176 Section 6, 134fn Section 27, 5, 23 Section 49, 176, 178 P risons (Scotland) A ct 1952, Section 21, 5 R ehabilitation of O ffenders A ct 1974, 184 Social Protection A ct 1964, 171 Tribunals and Inquiries A ct 1992, Section 8, 119

xxi

1 Forms of life sentence The basic rules o f custod ial sen tencing in England and W ales are today found in sections 79 and 80 o f the P ow ers o f C rim in al C ou rts (Sentenc­ ing) A ct 2000, a cod ification o f earlier legislation. Sections 79 and 80 replicate sections 1 and 2 o f the C rim in al Ju stice A ct 1991,1 w hich as w e shall see, is the A ct o f P arliam ent w hich introd uced D iscretion ary Lifer Panels of the P arole Board (D LPs). It w as a con troversial statu te, in w hich the gov ernm ent chose to legislate the fundam entals of sen tencing law. T h e heated d ebates in P arliam en t on these m ajor changes in sen tencing overshadow ed the provisions o f the A ct w hich created DLPs. The essence o f sections 1 and 2 o f the 1991 A ct w ere that, w here a custod ial sen tence is im posed, the term im posed should be 'com m en su r­ ate' w ith the gravity o f the offence. H ow ever, w here the offence w as violent or sexual, a longer than com m ensurate sen tence could be im posed, w here in the opinion o f the court 'this is necessary to protect the pu blic from serious h arm '.2 T h e em phasis on 'co m m en su rability' w as an attem pt to force ju d g es to give p roportionate sen tences (and to resist the tem ptation to give deterrent sentences w hich m ight result in incon sisten t practice).3 H ow ever, this does not m ean that life sentences w ere d iscouraged. Thu s a prisoner m ay be sen tenced under section 79(2)(a) or (b): (2) Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion (a) that the offcnce, or the combination of the offcnce and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or (b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him. The length o f these sentences is governed by section 80(2):

1 As amended by the Criminal Justice Act 1993. 2 Sections 79 and 80 of the codifying Powers of Criminal Courts (Sentencing) Act 2000 reproduced sections 1 and 2 of the Criminal Justice Act 1991. 3 See Home Office (1990).

2

Beyond the tariff (2) Subject to sections 110(2) and 111(2) below, the custodial sentence shall be (a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or (b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.

In essence, a prisoner should eith er be sentenced to a term com m ensu r­ ate w ith the seriou sn ess o f the offence (or the com bination o f the offence w ith other associated offences) or, in the case o f v iolent or sexual offences, for a longer period w hich the cou rt thinks is necessary to protect the public from seriou s harm from the offender. T he relation ship betw een these basic rules has been com plicated b y the introd uction of m inim u m sev en-y ear sen tences for third-class A drug trafficking offences and m inim u m three-year sen tences for third d om estic burglaries by the C rim e (Sentences) A ct 19974 and o f extended sen tences by section 58 o f the C rim e and D isord er A ct 1 9 9 8 / w hich allow s courts to extend sen tences for the pu rposes o f requiring offenders to un dergo a longer period o f p ost-release supervision. W ithin this fram ew ork, a sen tence of 'life im p risonm ent' m ay be im posed in a w id e v ariety o f circu m stances for nu m erou s offences. In this chapter, w e w ill review the form s o f life sen tence im posed in England and W ales today, con centratin g on the 'd iscretion ary' life sen tence w hich is the m ain focus o f this book. T h e w ay the sen tence is im posed at the sen tencing stage and the w ay it is carried out w ithin the prison system both prov id e keys to u n d erstand ing release procedures: C h apter 2 m oves the d iscu ssion on from the sen tencing stage to prison practice. A s w e shall see, once the convicted life sen tence prisoner finds him self serving the sen tence in prison, he or she w ill find that the Prison Service m akes little d istin ction betw een the different categories o f life sentence. W hen it com es to the all-im portant qu estion o f release, how ever, the differences betw een the categories becom e once again v itally im portant. In this chapter, how ever, w e con centrate on the role of the trial ju dge, w ho, on sentencing, is required to explain the n atu re of the specific sentence. T h e su bstance o f w hat has to be explained in open cou rt has varied ov er the years, and varies for the d ifferent form s o f life sentence.

1 Now sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act 2000. 5 Now section 85 of the Powers of Criminal Courts (Sentencing) Act 2000.

Forms of life sentence

3

D iscretionary life sentences Sin ce at least 1861, a trial judge has been able to im pose a sen tence o f life im prisonm ent, passed in the exercise o f the cou rt's discretion, on people convicted o f any o f the offences for w hich life im prisonm ent is provided by the relevant legislation as the m axim um p enalty for the offence.6 It is usually im posed in p ractice on people w ho have com m itted a very grave crim e, w here it appears to the sen tencing ju dge that the offend er is a person o f u n stable character likely to com m it such offences in the future, thus m akin g him d angerou s to the public in respect o f his probable futu re b ehav iou r unless there w as a change in his condition. The criteria have been d eveloped ov er the years by the C ou rt o f A ppeal. Thus, in H odgson7 the criteria fo r a d iscretionary life sen tence w ere said to be that: 1. the offence m u st in itself be grave enough to requ ire a very long sentence; 2. the offender m u st be a person o f m ental instability w ho, if at liberty, w ill probably re-offend and present a grave risk to the public; and 3. it m u st ap p ear that the offend er will rem ain u n stable and a potential d anger for a long o r uncertain time. In W ilkinson,8 Lord Lane LCJ 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. It w as noted earlier that the general princip le o f d eterm inate sentencing is that the length o f the sen tence should be 'com m en su rate' w ith the seriou sn ess o f the offence. But a d iscretionary life sen tence is not a 6 The list includes attempted murder, manslaughter, rape, robbery, arson, criminal damage with intent to endanger life, aggravated burglary, kidnapping, incest, infanticide and sexual intercourse with a girl under the age of 13. 7 (1967) 52 Cr App R 113 (see also Picker (1970) 54 Cr App R 330). 8 (1983) 5 Cr App R (S) 105, at pp. 108-9.

4

Beyond the tariff

'com m en su rate' sentence: it is im posed as an exception to the general rule. In C hapm an9 the C ou rt o f A ppeal m ad e it clear that section 79(2)(b) o f the P ow ers o f C rim in al C ou rts (Sentencing) A ct 2000 is the sou rce of the pow er to im pose d iscretionary life sentences. In that case, the appellan t had pleaded gu ilty to arson bein g reckless as to w hether life w as endangered and w as sen tenced by the trial ju d g e to a d iscretionary life sentence, w ith a tariff o f only 12 m onths. H ow ever, on appeal Lord Bingham CJ reduced the sen tence to a d eterm inate sen tence o f ten years: three years w as the approp riate com m ensu rate sen tence but a further seven years w ere added for the pu rposes of public protection. A rem ind er from the C ou rt of A ppeal that the offence m u st be serious before a d iscretionary life sen tence is im posed w as given in Sim m onds.10 A m an had set fire to his ex-w ife's hom e, w hen the hou se w as unoccupied , com pletely d estroying the contents. H e had no previous convictions but w as said to be suffering from a personality disorder. The C ou rt o f A ppeal quashed a sen tence o f life im prisonm ent, su bstitu ting a term o f six years' im prisonm ent. A lth ou gh the offence w as seriou s, it w as not grave enough to requ ire a very long sentence. T h e con sequ ence o f these d ecisions, as w e shall see in C h ap ter 5, is that Chapm an and Sim m onds are subject to the P arole Board provisions relating to d eterm i­ nate sen tences (D iscretion ary C on d ition al R elease) rather than to an oral hearing before a D iscretion ary Lifer Panel. H ow ever, follow ing the d ecision o f the H igh C ou rt in R (Giles) v. P arole Board and the Secretary o f State fo r the H om e D epartm ent,11 this m ay now change and p risoners such as C h apm an , serving a longer than com m ensu rate sentence, m ay be entitled to an oral hearing.12 In this book w e w ill trace how and w hy the courts have ov er the last forty years m oved to the position w hereby a period, often know n as 'the tariff', is fixed by the sen tencing ju d g e in open court. T h e offender w ill serve this period before bein g con sid ered for p ossible release. The C ou rt o f A p p eal's recent gu idance on the im position o f d iscretionary life sentences offered in M arkleiu and L am bert13 serves as a good illustration o f the current position. The case involved a 16-year-old and a 17-yearold, both convicted o f arson w ith intent to end anger life and w ho had been sentenced to detention for life, u n d er w hat is now section 90 o f the Pow ers o f C rim inal C ou rts (Sentencing) A ct 2000.14 T h e C ou rt o f A ppeal consid ered that it w as im portan t that the ju d g e in all d iscretionary life 9 ,0 11 12 15 14

[2000] 1 Cr App R 77. [2001] Crim LR 326. [2001] EWHC 834, 5 October 2001. Giles was overturned on appeal - see page 110 below. 11999] 1 Cr App R (S) 6. We shall see below (at p. 10) that detention for life is the equivalent for young people (those under 18) of a discretionary life sentence.

Forms of life sentence

5

sen tence cases should , w hen passing sentence, m ake clear to the d efen dan t w hat the d eterm inate (i.e. fixed term ) sen tence w ould have been had it not been necessary to im pose a life sen tence to protect the public. T h e ju dge should then exercise his d iscretion in fixing the specified period o r tariff. In the case o f a you ng person, that should be half the equivalen t d eterm inate period. In the case o f adults, half the d eterm inate period w ould also often be the ap p rop riate tariff period, but circu m stan ces m ight m ean that in certain circu m stan ces the period w as m ore than half and up to tw o-third s o f the d eterm inate sentence. The period o f tim e that a d efen dan t had spent in custod y on rem and has also to be taken into accoun t in fixing the 'tariff' since this w ould have been taken into account in fixing the precise length o f a d eterm inate sentence.

M andatory life sentences T h e m an d atory life sen tence for m u rd er dates b ack only to the M urder (A bolition o f the Death Penalty) A ct 1965. U ntil then, capital p u nishm ent w as the penalty for m u rd er, though in the early years o f the tw entieth cen tury nearly half of those sentenced to d eath w ere reprieved. A ccord ­ ing to the Royal C om m ission on C ap ital P unishm ent in 1953,15 betw een 1900 and 1949, the nu m ber reprieved w as 45 per cent: 439 of the 1,080 m en sentenced to d eath, 126 of the 130 w o m en .16 A t this tim e too the life sen tence tended to be m u ch shorter than it is tod ay .17 D u ring the passage o f the M urd er (A bolition o f the D eath Penalty) A ct 1965, w hich abolished the death penalty for m urder, there w as con sid erable support for m aking the life sen tence d iscretionary, bu t in ord er to achieve the p assage o f the Bill, a com prom ise w as reached and the life sen tence w as m ade m andatory. Section 1 o f the A ct provides: (1) No person shall suffer death for murder, and a person convicted of murder shall, subject to subsection (5) below, be sentenced to imprisonment for life. (2) On sentencing any person convicted of murder to imprisonment for life the court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952 or section 21 of the Prisons (Scotland) Act 1952. 15 Royal Commission on Capital Punishment, Cm 8932,1953. See also Padfield (2002) Crim LR 192. 16 Royal Commission on Capital Punishment, Cm 8932, 1953) Appendix 2, Table 12. 17 See p. 18 below.

6

Beyond the tariff

T here w as nothing in the law at this stage w hich suggested a rigid 'tariff', the d ivision o f the life sen tence into tw o parts. T his has evolved m ore recently. T h e provision in section 1(2) em pow ering the sen tencing judge to d eclare the m inim u m period w hich should elapse b efo re the H om e S ecretary ordered release on licence w as enacted to guard against excessiv e leniency by the H om e Office. Indeed, the H om e Secretary in 1965 did n ot w ant ju dges to set a m inim u m term sin ce they w ould not have the benefit o f the con tin ual reports w hich could help him in the exercise o f his d iscretionary pow ers to decide on release. The H om e Secretary w as at that stage m ore lenient than w ere H er M ajesty 's judges! H ow ever, the term 'tariff' started to be used inform ally w ithin the H om e O ffice to represent the period that the H om e O ffice thou ght the lifer should serve by w ay o f punishm ent. T he system has evolved in the last thirty years w hereby a 'tariff' is fixed in all cases (by the H om e Secretary, having consulted the trial ju d g e and Lord C h ief Ju stice), and a case is not referred to the Parole Board until the tariff is d ue to expire. Even today, the v ast m ajority o f m an d atory lifers are not told their 'tariff' in court. O nce the trial is over and the prisoner has been sentenced , the ju dge w ill be asked to com plete a form in w hich both he and the Lord C h ief Ju stice are consu lted as to the period w hich the prisoner should serve before bein g consid ered for release. The H om e S ecretary m ay overrule this 'tariff' period, the penal elem ent o f the sentence. The opinion o f the ju dges is 'no m ore than a com ponent o f the entire bo d y of m aterial' (per Lord M ustill in D oody v. Secretary o f State fo r the H om e D epartm en t)}* In this case, D oody and three o ther applican ts had been told the date o f the first review o f their cases by the P arole Board and consid ered that the M inister had increased the tariff periods recom m en­ ded by the judiciary. T h ey sou gh t d eclaration s that the S ecretary o f State w as required to adopt the ju d icial view o f the penal elem ent o f the sentence. W hile the H ouse o f Lords w as not prepared to go that far, they w ere clear that prisoners w ere entitled to be treated fairly. A s Lord M ustill put it, it w as not the task of the cou rt to say how it w ould choose to o perate the schem e if it had a free hand: the only issue w as w hether the w ay in w hich the schem e w as ad m inistered fell below the 'm inim um standard of fairness'. T hese standards are not im m u table, and depend on the context. The H ouse o f Lords granted the follow ing declarations: (1) The Secretary of State is required to afford to a prisoner serving a mandatory life sentence the opportunity to submit in writing representa­ tions as to the period he should serve for the purpose of retribution and deterrence before the Secretary of State sets the date of the first review of the prisoner's sentence. 18 [1994] 1 AC 531; 119931 3 All ER 92.

Forms of life sentence

7

(2) Before giving the prisoner the opportunity to make such representations, the Secretary of State is required to inform him of the period recommen­ ded by the judiciary as the period he should serve for the purpose of retribution and deterrence, and of any other opinion expressed by the judiciary which is relevant to the Secretary of State's decision as to the appropriate period to be served for these purposes. (3) The Secretary of State is obliged to give reasons for departing from the period recommended by the judiciary as the period which he should serve for the purpose of retribution and deterrence. If a judge does m en tion a m inim u m in court, the prisoner m ay not appeal this recom m en dation, nor is it subject to ju dicial review . In Leaney,19 the trial ju dge recom m en ded that a m an convicted o f m urd er should serve a m inim u m period o f tw enty years. A lth ou gh the C ou rt of A ppeal m ade it clear that they thought that the recom m en dation in the case w as excessive, they consid ered them selves pow erless to do any­ thing about it, and the Lord C h ief Ju stice urged that the m atter 'ou ght to be reconsidered by P arliam en t as a m atter o f u rgency'. It is an interesting question w hether the C ou rt o f A ppeal w as tru ly pow erless. The m ain au th ority (relied on in su bsequ ent cases, ad m itted ly) for not allow ing an appeal in these circu m stan ces is A itken.20 So m u ch has changed since 1966, and it is arguable that this w as a case w here the C ou rt o f A ppeal could have felt free to reconsid er their previous decision. The 'd u e p rocess' im provem en ts introduced by the courts in recent years have not affected the final d iscretion o f the H om e Secretary. Indeed, w hen in 1994 all m an datory lifers w ere told their m inim um sen tence, ap proxim ately tw enty w ere told that the m inim u m period w as their 'n atu ral life '.21 T he governm ent con tin ues to argue that to allow judges to decide the length o f a sen tence for m u rd er w ould w eaken the pu b lic's con fid ence in the crim inal ju stice system . This view seem s to have been accepted u n questioningly in the E uropean C ou rt o f H um an R ights in W ynne v. UK.22 Little inform ation is av ailable about the w ay the tariff is fixed in m u rd er cases. T h e Sentencin g A dvisory Panel (2001) reported that in February 2001 the H om e Secretary considered tariffs in eleven m urd er cases, and that the trial ju dges in these cases had proposed tariffs of betw een 8 and 25 years. Frustratingly, the Sentencin g A dvisory Panel does not go on to d escribe the im pact o f the trial ju d g e's, and the Lord

19 20 21 22

[1995] Crim LR 670. (1966) 50 Cr App R 204. See R v. Secretary o f State for the Home Department, ex p. Hindtey [2001] 1 AC 152. [1994] 19 EHRR 333; now the Stafford v. UK (summarised in the Preface).

8

Beyond the tariff

C h ief Ju stice's, view on the final tariff. Ju stice (1996) suggested that a very significant con sequ ence o f the im provem en ts in proced u ral safe­ gu ard s introduced by D oody has been a d ecline in m inisterial interv en­ tion in fixing the tariff. It w ould be useful to know m ore about current practice. W e w ill return in C h ap ter 6 to the process w hich governs the release o f m an datory life sen tence prisoners.

Detention at Her M ajesty's pleasure or for a specified period T h e sen tence im posed on child ren w ho are gu ilty o f m u rd er has been know n as 'd eten tion at H er M ajesty 's P leasure' since the C hild ren Act 1908. The C h ild ren and Y oun g P ersons A ct 1933 then abolished the death penalty for m u rd ers com m itted by you ng people u n d er the age o f 18. Section 53(1) o f that A ct provided that offenders w ho com m itted m urd er w hen un der 18 w ould be d etained at H er M ajesty 's P leasure; section 53(2) provided that those u n d er 18 w ho w ere convicted o f certain very serious offences (gen erally those for w hich a sen tence o f 14 years' im prisonm ent w as available for adults) and for w hom no other sen tence w as suitable, could be detained for any period not exceeding the ad ult m axim um . The current law is to be found in sections 90 and 91 o f the P ow ers o f C rim in al C ou rts (Sentencing) A ct 2000. Section 90 provides that Where a person convicted of murder appears to the court to have been aged under 18 at the time the offence was committed, the court shall (not withstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure. W hen P arliam en t in 1908 introduced a m an d atory sen tence for child m u rd erers, it w as clearly a sen tence o f ind efinite d uration and not a sen tence o f d etention for life. The w elfare o f the child w as even then an im portan t con sid eration and this w as underlined in section 44 o f the C h ild ren and Youn g Person A ct 1933, w hich rem ains in force: Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps . . . for securing that proper provision is made for his education and training. In R v. Secretary o f State fo r the H om e D epartm ent, ex parte Thom pson and V enables,23 the H ouse o f Lords (by a m ajority of three to tw o) held (inter 23 [1998] AC 407.

Forms of life sentence

9

alia) that the d ecision o f the H om e Secretary in fixing the tariff w as u n law fu l in that he had failed to take into accoun t the progress and d evelopm ent o f the child ren u n d er rev iew .24 T h e E uropean C ou rt of H um an Rights in V v. U nited K ingdom ; T v. U nited K ingdom 25 w ent m uch further, h olding that the fixing o f the tariff by the H om e S ecretary gave rise to a breach o f A rticle 6 as it w as a sen tencing exercise not by an ind ep en d en t and im partial tribunal. T h e C ou rt also held that there w as a breach o f A rticle 5(4). The go v ernm ent respond ed relativ ely prom ptly. O n 13 M arch 2000 the H om e Secretary m ad e a statem ent in P arliam en t explaining that he w ould introd uce legislation w hereby in futu re the tariff for d efendants u n d er 18 w ould , as in the case o f adults subject to a d iscretionary life sen tence, b e set in open court b y the trial judge, subject to appeal b y the d efen d an t or, if it w ere un du ly lenient, by the A ttorney G eneral. A s to existing d etainees, their tariffs w ould be review ed by the Lord C h ief Ju stice, and the H om e S ecretary announced that it w ould be open to them to m ake new rep resentation s to the Lord C h ief Justice, w hose recom m en dations as to tariff, he, the H om e Secretary, w ould adopt. The Lord C h ief Ju stice then issued a Practice S tatem ent,26 in w hich he explained that the usual tariff length w ould be 14 years. In O ctober 2000, the Lord C h ief Ju stice annou nced his recom m en d ation and reasons for fixing the tariff of Thom pson and V enables, then aged 18, at seven years and eight m onths.27 H e did so by starting w ith the ten years fixed by Lord T aylor, and red ucing that figure to reflect the w elfare and progress o f the tw o you ng m en .28 Sin ce then m any H M P prisoners have had their tariffs review ed , and the factors w hich have influenced the Lord C h ief Ju stice to red u ce tariffs inclu de reports on the p rison er's positive d ev elop m ent in prison.29 T his, o f course, lies u n com fortably w ith the idea of the 'tariff' as a fixed term representing the period the prisoner should serve for retribution and d eterrence: it reflects not only the requ irem ent o f the H ouse o f L ords in Thom pson and V enables that the 'tariff' for juveniles should be som ething kept con tin u ally under review . It surely represents a con tin uing un certainty about the natu re and function o f the 'tariff' part of the sentence.

24 See Padfield, N, 'Fixing the tariff, and the Length of Her Majesty's Pleasure' (1997) 56 Cambridge l.aw Journal 477. 25 (1999) 30 EHRR 121 (16 December 1999). 26 12000] 1 WLR 1656; 120001 4 All ER 831. 27 See [2001] 1 All ER 737. 28 In R v. Secretary o f State for the Home Department, ex p. Bulger, Rose LJ in the Divisional Court held that the victim's father could not challenge the tariff by way of judicial review: The invitation extended to him to make representations as to the impact of the offence on him was not an invitation to indicate views as to the appropriate tariff.' 29 See, for example, R v. PH [2002] EWCA, 13 February 2002.

10

Beyond the tariff

Section 60 o f C rim in al Ju stice and C ou rt Services A ct 2000 added a new section 82A to the P ow ers o f the C rim in al C ou rts (Sentencing) A ct 2000 (d eterm ination o f tariffs), w hich is applicable to sentences passed after 30 N ovem ber 2000. The court w hen im posing a sen tence o f d etention d uring H er M ajesty 's pleasu re now orders that section 28(5)—(8) o f the C rim e (Sentences) A ct 1997 shall apply as soon as he has served his tariff. D rafted in extraord inarily com plex langu age, the section appears to say no m ore than that the cou rt now fixes the tariff, and the P arole Board decides, as w ith d iscretionary life sentences, w hether to d irect release. T h e S ecretary o f State m u st act on such a d irection from the P arole B oard.30 Thus a sen tence o f d eten tion d uring H er M ajesty 's pleasure has in m an y w ays been d raw n into line w ith the procedu res applicable to d iscretionary life sen tences, w hich w e pu rsu e through the pages o f this book. T his has certain ly introduced better procedural safeguards from the point o f view o f the d etainee. H ow ever, the changes ignore the im portan t fact that the d iscretionary life sen tence for adults is justified on very different ground s to the d etention of child m urderers: ad ults are subject to d iscretionary life sen tences becau se they have com m itted a seriou s offence and are consid ered d angerous. C hild m u rd erers are detained ind efinitely becau se o f the natu re o f their offence: w e shall con sid er further in C h apter 8 the varied and v arious ju stifications for ind eterm inate sentences. A t the beginn ing o f this section it w as noted that you ng p eople un der the age o f 18 m ay also be sentenced to d eten tion for life, as a d iscretionary sen tence (un der w hat w as section 53(2) o f the C h ild ren and Y oun g P ersons A ct 1933, now section 91 o f the P ow ers o f C rim inal C ourts (Sentencing) A ct 2000). T his w as the case in M arklezv and Lam bert [1999],31 w here the C ou rt o f A ppeal d iscussed the principles to be applied in fixing the tariff in all d iscretionary life sentence cases (discussed a b o v e )32

Custody for life C u stod y for life is an ind eterm inate sen tence reserved for you ng people aged betw een 18 and 21 w hen convicted. Section 93 o f the Pow ers of C rim in al C ou rts (Sentencing) A ct 2000 (duty to im pose custod y for life in certain cases w here offend er is un der 21) provides that:

30 The currcnt law is set out in Appendix 3. 31 1999 1 Cr App R (S) 6. 32 Other key cases on section 91 (previously section 53(2)) are Flemming (1973] 57 Cr App R 524, Bell [19891 11 Cr App R (S) 472, Furber [19981 1 All ER 23.

Forms o f life sentence

11

W here a person aged under 21 is convicted of murder or any other offence the sentence for which is fixed by law as im prisonm ent for life, the court shall sentence him to custody for life unless he is liable to be detained under section 90 above. S e c tio n 9 4 o f th e P o w e rs o f C rim in a l C o u rts (S e n te n c in g ) A ct 2 0 0 0 (d u ty to im p o s e c u s to d y fo r life in c e rta in c a se s w h e re o ffe n d e r is u n d e r 21) p ro v id e s that: (1) Where a person aged at least 18 but under 21 is convicted of an offence for which the sentence is not fixed by law, but for w hich a person aged 21 or over would be liable to im prisonm ent for life, the court shall, if it considers that a sentence for life would be appropriate, sentence him to custody for life. (2) Subsection (1) above is subject to (in particular) sections 79 and 80 above, but this subsection does not apply in relation to a sentence w hich falls to be imposed under section 109(2) below. T h is re fle cts th e fa c t th a t u n til re c e n tly y o u n g a d u lt m a le p ris o n e rs w e re h e ld s e p a ra te ly fro m o ld e r m a le p ris o n e rs . H o w e v e r, th e s e se c tio n s w ill sh o rtly b e c o m e re d u n d a n t. S e c tio n 61 o f th e C rim in a l Ju s tic e an d C o u rt S e rv ic e s A ct 2 0 0 0 a b o lis h e s c u s to d y fo r life . U n til th e s e c tio n co m e s in to fo rc e , c u s to d y fo r life m a y b e im p o se d as a m a n d a to ry s e n te n c e o r as a d is c r e tio n a r y o n e . B u t y o u n g a d u lt m u rd e re rs w ill n o t g e t th e b e n e fit o f an o ra l h e a rin g b e fo re th e P a ro le B o ard . F o r re le a se p u rp o se s th e y are treated as 'o rd in a ry ' m a n d a to ry life s e n te n c e p riso n e rs.

'A u to m atic' life sentences A lth o u g h n o t in tro d u c e d u n til th e C rim e (S e n te n c e s ) A c t 1997, 'a u to ­ m a tic ' life s e n te n c e s a re n o w an im p o rta n t fe a tu re o f th e life s e n te n c e p o rtfo lio . F irs t p ro p o s e d in th e W h ite P a p e r P ro tectin g the P u b lic - the G ov ern m en t's S tra teg y on C rim e in E n g lan d a n d W ales,33 th e se p ro v isio n s re q u ire a c o u rt to im p o s e a life s e n te n c e o n all o ffe n d ers w h o are co n v ic te d fo r a seco n d tim e o f a s e rio u s v io le n t o r se x u a l o ffen ce: The Governm ent is determined that the public should receive proper protection from persistent violent or sex offenders. That means requiring the courts to im pose an autom atic indeterm inate sentence, and releasing the offender if and only if it is safe to do so.14 33 C m 3190, presented to Parliam ent by the H om e Secretary, M ichael H ow ard in M arch 1996, C hapter 10. 34 Para 10.11.

12

Beyond the tariff

T h e W h ite P a p e r m a in ta in e d th a t th e p ro p o s a ls w e re n o t d e sig n e d o r in te n d e d to in c re a se th e tim e th a t s u c h o ffe n d ers sp e n t in p ris o n as p u n ish m e n t. In d e e d , it su g g e ste d th at th e y m ig h t b e m o re a c c u ra te ly d e s c rib e d as 'a u to m a tic in d e te rm in a te s e n te n c e s '. T h e W h ite P a p e r n o te d th a t little u s e w a s m a d e o f th e d is c r e tio n a r y life se n te n ce : In 1994, for exam ple, 434 offenders were convicted of rape or attempted rape, but only 12 were sentenced to life im prisonment. In 1994, 217 offenders were convicted of a second serious violent or sexual offence, but only 10 received a discretionary life sentence.35 T h u s th e m a in a rg u m e n t fo r th e in tro d u c tio n o f th e 'a u to m a tic ' life s e n te n c e w a s th a t m o re u s e s h o u ld b e m a d e o f in d e te rm in a te se n te n c e s as a m e a n s o f p ro te c tin g th e p u b lic. B u t th e p ro p o s a ls w e re h e a v ily critic ise d . It w a s a rg u e d th a t th e y w o u ld le a d to in ju s tic e s in ce ju d g e s w o u ld n o lo n g e r to b e a b le to lo o k at th e c irc u m s ta n c e s o f a n in d iv id u a l c a se or o ffe n d er. A n d th e re w e re m o re p ra c tica l co n ce rn s: w o u ld o ffe n d ers p lead g u ilty to su ch a n o ffe n c e if th e y k n e w th e y w o u ld b e s u b je c t to an a u to m a tic se n te n c e ? W o u ld p a rtn e rs o r c h ild re n b e e v e n le ss w illin g to g iv e e v id e n c e in c a se s o f d o m e stic v io le n c e if th e y th o u g h t th e c a se m ig h t re s u lt in an a u to m a tic life s e n te n ce ? W o u ld ju rie s b e m o re lik e ly to a c q u it g u ilty p e o p le b e c a u se th e y d id n 't lik e th e a u to m a tic s e n te n c e ? 36 H o w e v e r, a u to m a tic life s e n te n c e s w e re d u ly e n a c te d in s e c tio n 2 o f th e C r im e (S e n te n c e s ) A c t 19 9 7 , n o w to b e fo u n d in s e c tio n 109 o f th e P o w e rs o f C rim in a l C o u rts (S e n te n c in g ) A c t 2 0 0 0 , w h ic h p ro v id e s that: (1) This section applies where (a) a person is convicted of a serious offence committed after 30th Septem ber 1997; and (b) at the time when that offence was com mitted, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence. (2) The court shall im pose a life sentence, that is to say (a) where the offender is 21 or over when convicted of the offence mentioned in subsection (l)(a) above, a sentence of im prisonm ent for life, (b) where he is under 21 at that time, a sentence of custody for life under scction 94 above, unless the court is of the opinion that there are exceptional circum stances relating to either of the offences or to the offender which justify its not doing so. 35 Para 10.4. 36 Indeed, this had been suggested by the C onservative governm ent itself in 1990 w hen rejecting a system o f m andatory sentences (see the W hite Paper (1990) Crim e, Justice and Protecting the Public, Cm 965). See also G ale et al. (1997), at p. 17.

Forms o f life sentence

13

T h e lis t o f 's e rio u s o ffe n c e s' in s e c tio n 1 09(5) in c lu d e s a tte m p te d m u rd e r, m a n sla u g h te r, c a u s in g g r ie v o u s b o d ily h a r m w ith in te n t (c o n tra ry to s e c tio n 18 o f th e O ffe n c e s a g a in s t th e P e rso n A ct 1 8 6 1 ), ra p e , a tte m p te d ra p e , in te rc o u rs e w ith a g irl u n d e r 13, ro b b e ry w ith a fire a rm o r im ita tio n fire a rm . T h e m a in q u e s tio n w h ic h h a s co n ce rn e d th e c o u rts is w h e n 'e x c e p tio n a l c irc u m s ta n c e s ' e x ist w h ic h ju s tify th e c o u rt in n o t im p o s in g a life s e n te n ce . T o b e g in w ith , it se e m e d th a t 'e x c e p tio n a l c irc u m s ta n c e s ' w o u ld b e ra re ly re c o g n is e d (se e K elly 37), b u t in B u ck la n d 38 th e d o o r s ta rte d to s w in g o p e n . T h e k e y c a se n o w is O ffen 39 w h e re th e c o u rt c o n stru e d th e w o rd s in th e lig h t o f th e H u m a n R ig h ts A ct 1998 so as n o t to c o n tra v e n e th e p ro h ib itio n o n in h u m a n an d d e g ra d in g tre a tm e n t (A rtic le 3 ), o r a rb itra ry a n d d is p ro p o rtio n a te p u n ish m e n t (A rtic le 5). T h e c o u rt w a s a lso k e e n to in te rp re t th e le g isla tio n in a w a y w h ic h co m p lie d w ith its u n d e rly in g p u rp o se , n o t ta k in g a n a r ro w ly lite ra l a p p ro a c h to th e in te rp re ta tio n o f th e sta tu te . A cc o rd in g to th e L o rd C h ie f Ju stice : The policy and intention of Parliament w as to protect the public against a person who had com mitted two serious offences. It therefore can be assumed the section was not intended to apply to som eone in relation to whom it was established there would be no need for protection in the future . . .40 Section 2 establishes a norm. The norm is that those who com mit two serious offcnces arc a danger or a risk to the public. If in fact, taking into account all the circum stances relating to a particular offender, he does not create an unacceptable risk to the public, he is an exception to this norm . . . In our judgem ent, section 2 of the 1997 Act will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life im prisonm ent when they do not constitute a significant risk to the public.41 T h e L o rd C h ie f Ju s tic e s tre ss e d th a t th e c o u rt w a s n o t s a y in g th a t th e a u to m a tic life s e n te n c e w a s n o d iffe re n t to th e d is c r e tio n a r y life se n te n ce . In c a se s c o m in g w ith in th e 'a u to m a tic ' c a te g o ry , th e iss u e o f d a n g e ro u s ­ n e ss h a s to b e a d d re s s e d , an d th e s e n te n c in g ju d g e h a s to g iv e re a s o n s if h e d e c id e s n o t to im p o s e a life s e n te n ce . T h e n e w test w a s ap p lied in W allace,42 w h e r e th e C o u rt u p h e ld an a u to m a tic life s e n te n c e o n a w o m a n w h o had m a d e an u n p ro v o k e d a tta ck o n h e r v ic tim w ith a b o ttle c a u s in g 37 3S 39 40 41 42

[1999] 2 C r A pp R 36. 12000] 1 C r A pp R 471. [2001] 1 W LR 253. At para. 79. At para. 97. 12001] Crim LR 407; see also Fletcher [2002]1 C r A pp R (S) 82; K elly N o. 2 120021 1 Cr App R (S) 2002 and D. A. Thom as', A utom atic Life Sentences after Offen (2002) 3 A rchhold New s 5.

14

Beyond the tariff

seriou s injuries: there w ere no 'excep tional circu m stan ces', given her earlier con viction for another section 18 offence in 1998 (for w hich she had been sentenced to a p robation order). T his case can be contrasted w ith Frost,43 w here the cou rt had found 'excep tional circu m stan ces' in the fact that the appellant had b een m ad e subject to a supervision order after his first section 18 conviction. T here will d oubtless con tin ue to be m an y appeals in this area as the cou rts stru ggle to establish consistent policies. D espite the legal u n certainties su rrou nd in g the autom atic sentence, there has been a stead y rise in the nu m ber o f prisoners sen tenced un der this provision, often w ith very short tariff periods. In 2000, 57 offenders w ere sentenced u n d er section 2 o f the C rim e (Sentences) A ct 1997, of w hom 28 w ere convicted o f c a u sin g /in flictin g grievous b od ily harm .44 By M ay 2001 there w ere alread y 298 au tom atic life sen tence prisoners in c u s to d y 45 It is not clear w hether the d ecision in Offen will slow the grow th in num bers. W e have already noted the difficulties surrou nd in g the fixing o f the 'tariff' in d iscretionary life sen tence cases. T hese have been as p roblem ­ atic in the 'au tom atic' life sen tence cases. Thus in West,41' the C ou rt of A ppeal, accepting that a life sen tence prisoner should be in no w orse position w hen it cam e to an application for parole than a prisoner subject to a d eterm inate sentence, explained that the period to be specified should be one half o f the notional d eterm inate sentence. Thu s a m an w ho m igh t 'd eserv e' a d eterm inate sen tence for his second serious offence of eight years, but w ho qualifies for an 'au tom atic' life sentence, should have a four-year 'tariff' im posed. In West itself, a m an w as sentenced to an autom atic life sen tence follow ing his con viction for attem pted m urder. H e had been given a notional sen tence by the trial ju d g e o f 13 years for the attem pted m u rd er, but the C ou rt o f A ppeal red uced the 'specified period' from eight to six years. This book seeks to show that m an y life sen tence prisoners spend long periods in cu stod y u n necessar­ ily post-tariff. T h e problem is m u ch exacerbated w hen the tariff itself m ay w ell have been too long.

Conclusion In this chap ter w e have looked briefly at the various form s o f life sen tence av ailable in E nglish law today. A v ariety o f sentences m ay be

43 44 45 46

[2001] Crim LR 143. Source: Crime and Criminal Justice Unit, IOS: 193-02. Source: Lifer Unit of the Prison Service. [2001] 1 Cr App R (S) 103.

Forms of life sentence

15

im posed for a v ariety o f different reasons. A judge m ay have a d iscretion w hether to im pose a life sen tence (in the case o f 'd ang erou s' rapists, arsonists, etc.), or he or she m ay have no d iscretion at all (in the case of those convicted o f m u rd er), or a little flexibility (in the case o f those convicted o f a second seriou s offence). W e now turn to exam in e how these various sen tences are served in prison.

2 Life sentences: in custody and approaching release In the previous chapter, w e explored the various form s o f life sentence w hich m ay be im posed on an offender. H ow ever, once they are in prison custod y, 'lifers' will find that the Prison Service m akes little distinction betw een the d ifferent categories, except w hen it com es to qu estion s of release and the p reparation o f cases fo r the con sid eration o f the Parole Board.

Some statistics U ntil 1948, life sen tence prisoners could be, and w ere, released un der the royal prerogative. R elease appears to have been exercised generously. A ccord in g to the Royal C om m ission on C apital P unishm ent w hich reported in 1953, m ost lifers w ere released on licence after 10 -1 3 years' im prisonm ent. In the period betw een 1900 and 1949, 15 lifers served less than a year and 53 served only one to three years. O ne served 22 years, and no one served longer than that. By the end o f 1948 only five o f the 112 prisoners released in the previous tw enty years had been reconvicted o f another serious offence, and only one o f them had been reconvicted o f m u rd er.1 B y 1953, it w as exception al for anyone to serve m ore than 15 years and the usual sentences w ere m u ch shorter.2 M odern published statistics are not as helpful as they m ight be. The annual C rim inal Statistics record the nu m bers o f m an d atory life sentences im posed for m u rd er, and the nu m ber o f d iscretionary life sentences im posed for other hom icid es, but not the nu m ber o f life sentences im posed for other offences. Thu s in both 1 9 9 8 /9 9 and 1 9 9 9 /0 0 , 248 p eople w ere convicted o f m u rd er and w ere given a m an datory life sentence. In the sam e tw o years, the nu m ber o f w om en convicted of m u rd er w as 16 and 10. In the sam e years, 15 and 12 people received d iscretionary life sentences for other hom icid es (2 each year w ere 1 Royal Commission on Capital Punishment, Cm 8932, 1953, Appendix 2, Table 12. 2 Ibid.

Table 2.1 Number of persons sentenced to life imprisonment and the offences for which they were sentenced, England and Wales, 1960, 70, 80, 90 and 20001 and offenders given mandatory sentences under the Crime (Sentences Act) 1997, England and Wales 2000

Offence description

1960

1970

1980

2000

Section 2 Mandatory life for 2nd serious offence

170 9 — 3 9 3 —

243 8 2 4 13 76 21

— — — 2 29 12

2 11

3 *

_

45 4 1

--7 1 —

2

31

6

5 —

8 1

—

—

1 Staffordshire Police Force only able to submit sample data for persons proceeded against and convicted in the magistrates' courts for the year 2000. Although sufficient to estimate higher orders of data, these data are not robust enough at a detailed level and have been excluded from the table. 2 Section 53 of the Children and Young Persons Act 1933 was repealed on 25 August 2000 and its provisions were transferred to sections 90-92 of the Powers of Criminal Courts (Sentencing) Act 2000. .. = not available. * = see below for breakdown of rape offences. Source: Crime and Criminal Justice Unit, I Iome Office. IOS 193—02

release

_ _ 6 1 — — 57 214 467 and Wales, 1960, 70, 80, 90 and 20002 1990 20002 10 20

Life sentences: in custody and approaching

Violence against the person Murder 33 87 149 — Attempted murder 3 2 Threat or conspiracy to murder — — — Manslaughter due to diminished responsibility 11 11 14 Other manslaughter — 1 1 Wounding or other act endangering life 1 1 3 — — — Malicious wounding and other like offences Sexual Offences _ Buggery 3 2 Rape — 4 6 Rape of a female Rape of a male — — 1 Unlawful sexual intercourse with girl under 13 Robbery Robbery or assault with intent to rob 2 Criminal damage Arson 3 8 — — — Criminal damage endangering life Other indictable offences _ Kidnapping Absconding from lawful custody — Total 45 118 183 Persons sentenced under sections 90-92 of the Powers of Criminal Courts (Sentencing) Act 2000, England 1960 1970 1980 Murder 11 1 20

1990

18 Table 2.2

Beyond the tariff Estimated population of life sentence prisoners 1970-1999

Year

Lifer population in prison

Mandatory life prisoners

Discretionary life prisoners

1970 1980 1990 1998 1999

566 1,584 2,795 3,934 4,206

415 1,179 2,230 3,178 3,308

151 405 565 756 898

Source: Padfield and Liebling (2000), table 2.1 and Home Office (2001).

w om en ).1 Thu s the n u m ber o f m an d atory lifers m u ch exceeds the nu m ber o f d iscretionary lifers. In 2000, 57 people w ere given w hat the H om e O ffice records as a 'm an d ato ry' sen tence u n d er section 2 o f the C rim e Sentences A ct 1997 for com m ittin g a second serious offence. In only tw o o f these does it appear that the victim d ie d .1 U nfortun ately the annual P rison S tatistics do not d ifferentiate b etw een the various categories. Table 2.1 gives the nu m ber o f people sentenced to life im prisonm ent and the offence for w hich they w ere sentenced in England and W ales in 1960, 1 9 7 0 ,1 9 8 0 ,1 9 9 0 , and 2000 (statistics w ere provided b y the H om e Office). O n 30 Ju n e 2000 there w ere 4,540 prisoners serving life sentences in prisons.5 The nu m bers con tin ue to grow , partly d ue to the increasing nu m bers o f convicted m u rd erers (all of w hom get a m an d atory life sentence) and to the increasing nu m ber o f d iscretionary and autom atic life sentences. To the published figure m u st be added the few children convicted o f m u rd er in the last few years, w ho rem ain in local authority accom m odation until som e tim e after their eighteenth birthd ay. A ccord ­ ing to the Sentencin g A d v isory P an e l/’ in the nine years betw een 1991 and 1999, a total o f 170 you ng offenders w ere sentenced to H er M ajesty 's pleasure. O nly five o f them w ere aged u n d er 15. T able 2.2 show s the estim ated popu lation o f life sen tence prisoners from 1970-2000. N ot only has there been this large rise in the total p opu lation, but the am ou nt of tim e that prisoners have been serving in prison on a life sen tence has also been rising. O f the 1,824 people received un der sen tence b etw een 1965 and 1978, 200 (9 per cent) had not been released by the end o f 1999 and had therefore served at least tw enty years. The Prison Statistics explain this graphically by a figure (reprod uced in Figure

3 4 5 6

Sec Table 4.9 of Criminal Statistics. Source: Crime and Criminal Justice Unit, IOS: 193-02. Prison Statistics 2000, p. 98, as corrected. Sentencing Advisory Panel (2001), Consultation Paper on Tariffs in Murder Cases.

Life sentences: in custody and approaching release

19

Figure 2.1 Population of Life Sentence prisoners 30 June 1975 and 30 June 2000 by time served under sentence Number of persons 2,500 30 Jun e 1975 30 Jun e 2000

1,998

2,000

1,500

1,142

1,000

864

808 622 500 398

85 up to 5 yrs

over 5 up to 10 yrs

over 10 up to 15 yrs

24 over 15 yrs

Num ber of years Source: Prison Statistics (2000), figure 5.3.

2.1) w hich show s the increased nu m ber o f lifers w ho have served longer periods un der sentence. O ne w ould expect that the nu m ber of people released on life licence since 1967 w ould grow as the popu lation as a w hole has grow n. O f course, release on licence is not the only rou te out of prison: the Prison S tatistics 2000 state that about 15 a year are successfu l w ith their appeals, w hile abou t 15 a year die in prison (of w hat cau se is not clear) and som e m ove to and from psychiatric hospitals. T able 2.3 show s the nu m bers o f d iscretionary lifers released in recent years. N ote that the high nu m ber in 1993 is explained by the b acklog o f cases d ealt w ith by D iscretionary L ifer Panels, w ho first m et only in O cto ber 1992.

20

Beyond the tariff

Table 2.3 Releases of discretionary life sentence prisoners on life licence and average time served post-sentence* Year of release

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

Number released

Time served post-sentence (years)

17 14 23 60 29 32 14 10 8 9 14

15.5 12.7 15.3 14.6 13.6 13.5 17.3 13.3 13.6 16.2 13.5

*It is important to note that this figure excludes the significant am ount o f tim e spent on remand in custody pre-trial, or following any recall. Source: Prison Statistics (2000), table 5.5.

Serving a life sentence7 M ost people charged w ith an offence liable to a life sen tence are o f course rem anded in custod y pend ing trial. They w ill norm ally be held w ith other rem and prisoners in a local prison. Som e, those recognised as security risks, w ill be transferred to m ore secure prisons. T h e norm al problem s associated w ith the con ditions fo r rem and prisoners are likely to be exaggerated in the case o f potential lifers, for exam ple the difficulty o f securin g ad equ ate legal advice. In a survey carried o ut for the C h ief Insp ector o f Prisons, w hile governors in all but one prison holding rem and prisoners stated that a set o f legal reference b ooks w as available for the use of rem and prisoners, only 11 per cent of m ale prisoners and 12 p er cent of w om en prisoners said they had such access.8 Few er than h alf o f the 63 p er cent o f prisoners w ho said that they had w anted to see a Bail Inform ation or Legal Services O fficer had been able to do so. It is not surprising that the C h ief Insp ector o f P risons suggested that preparin g for trial should be a key part o f the regim e for unconvicted prisoners. W om en suspects m ay w ell have a particu larly difficult tim e sin ce there are so few prisons fo r w om en: the C h ief Insp ector found that

7 See for greater detail the Prison Service's Lifer Manual, the HM Inspectorates of Prison and Probation, Lifers: A joint Thematic Review (1999), and Cullen and Newell (1999). a See HM Chief Inspector of Prisons, Unjust Deserts: A Thematic Review o f Unsentenced Prisoners (2000).

Life sentences: in custody and approaching release

21

41 per cen t o f unsentenced w om en w ere held m ore than 50 m iles from hom e. O nce sentenced , adult m ale lifers are likely to rem ain in their local prison for several m onths. W om en w ill be taken to D u rham or Bullw ood H all (see below ). C hild ren start their sen tence in local au th ority secure accom m odation and are usually transferred to the prison system at about the age o f 18. To con centrate for the m om ent on ad ult m ales, con ditions in local prisons for new ly sentenced lifers w ere described in the C h ief Insp ectors o f P rison and P robation Jo in t T hem atic R eview on L ifers (H M IPP, 1999) as 'g en erally un satisfactory '.9 T h e R eview highlighted lengthy d elays in the delivery o f relevant paperw ork from cou rt to prison, poor ind uction and an absen ce of central policy. Sentence p lanning w as reported to be poor, d espite the introd uction of Life S entence Plans in 1993. O bv iou sly the Prison Service is trying to con front these difficulties: an extra £0.5 m has been allocated to fund w ork in local prisons 'specifically w ith new and potential lifers, so that risk factors can be ad dressed at the earliest possible stag e '.10 A new Life S entence Plan is bein g introd uced w hich 'inclu des im proved risk assessm en t procedu res and ensures that a m ore system ­ atic approach is taken to the m anagem ent o f lifers throu gh ou t their sen te n ce '.11 P erhaps the C h ief Insp ector o f Prisons should carry out a u seful follow -u p T h em atic R eview to evalu ate the success o f these w elcom e initiatives. A fter som e tim e m ale lifers are transferred to one o f five M ain C entres, w here they norm ally spend three or four years. There they should be able to u n d ertake and com plete a variety o f courses. As w e shall see, the Parole Board is influenced w hen assessing the risk o f releasing an offender by the reports on the priso n er's com pletion o f approp riate courses: the Sex O ffender T reatm en t P rogram m e (SO TP), offending behav iou r courses, enhanced thinking courses, anger m anagem ent cou rses, drug and alcohol m isuse cou rses and so on. Yet not all prisons run all courses. T here m ay be long w aitin g lists. In recent years the Prison Serv ice has put great em ph asis on 'accred ited cou rses' and the T h em atic Review on L ifers points out that 'co u rses such as relation ship skills, gen der aw aren ess, coping w ith g rief and loss, and violence against w om en had all beco m e casualties o f the diversion o f resources into accred ited p ro g ram m es'.12 The provision o f relevan t cou rses in different establish m ents seem s poorly coordinated to the need s of individual

9 At para. 1.6, p. 12. 10 See Prison Service Annual Report and Accounts 2000-2001. 11 Ibid, at p. 44. 12 Her Majesty's Inspectorates of Prison and Probation (1999) Lifers: A Joint Thematic Review, at para. 6.37, p. 63.

22

Beyond the tariff

prisoners. The Them atic Review w as particularly critical of the absence of planning for different types of regim e w hich m ight be required for fem ales, young lifers and those from ethnic m inorities.13 But the problem s in prison are related not only to lack of planning, but also to lim ited resources. The increased num bers of lifers has doubtless contrib­ uted to delays in m oving prisoners through the system. Those prisoners w hose escape would be highly dangerous to the police, the public or to the security of the state, no m atter how unlikely they are to escape, are categorised as 'C ategory A '.14 The 'norm al' route for other adult m ale lifers continues w ith a move from a M ain Centre to a Category B trainer or dispersal prison. Cullen and N ew ell explain that m any prisoners get into a 'log jam ' at this stage, 'w hich often adds years to their im prisonm ent'.15 They single out in particular those with (a) m ental instability labels, (b) records of defiant, prison-based offending a n d /o r (c) those who continue to protest their innocence. The prisoner should in due course m ove on to a Category C prison and eventually to an open (Category D) prison. The Parole Board is unlikely to consider release as a serious option before a prisoner has com pleted this journey through the system .16 Indeed, the Parole Board m ay w ell be w ise to consider that release into the com m unity after a lengthy sentence can be achieved m ore sm oothly from an open prison. The problem , as w e shall see, is that prisoners get stuck in the system before they reach an open prison. And transfers are rarely smooth: w hile plodding along this route through the system , prisoners are likely to spend time in m any different prisons, though it is probably true that the m ore com pliant, the fewer m oves he or she will suffer, but m oves there will be. W hile the problem of adapting to transfers is a problem for all prisoners, especially as a result of the w ay the Incentive and Earned Privileges system is applied ,17 for a lifer the 'pains' of w hat seem s like a retrograde step are particularly acute. M any lifers find it difficult to adjust to different regim es in different prisons. For exam ple, a prisoner will find that w hen he or she m oves to a new prison the 'privileges' available to a prisoner m ay be different to those in the previous prison; in particular, m any suffer a loss of privileges on transfer to category C prisons. O thers see the require­ ment to spend time in open conditions before having the opportunity of

13 Ibid., at para 1.12, p. 13. 14 For a fascinating review of the categorisation process, see Price (2000). Very recently in Williams v. Secretary of State for the Home Department [2002] EWCA Civ 498 (17 April 2002) the Court of Appeal has held that a prisoner may be entitled to an oral hearing before the Category A Committee: see p. 148 below. 15 Cullen and Newell (1999), at p. 26. 16 See Chapter 5, p. 94 below. 17 See Liebling et al. (1997).

Life sentences: in custody and approaching release

23

w hat used to be know n as a 'P re-R elease E m ploym en t S ch em e' as a w aste o f tim e.18 T h e path o f a w om an lifer through the prison system w ill be different. Both young and adult w om en are allocated to one of only tw o m ain centres, one in the north o f England (D urham ) and one in the south (Bullw ood Hall in Essex). M ost are therefore im prisoned a substantial d istance from their hom es, and there is no sep arate regim e for you ng w om en. G en d ers and Player, in one o f the very few pu blished stud ies o f w om en lifers, point out that the assessm en t o f w om en lifers at the beginn ing o f their sen tence has m u ch less m ean in g than it does for their m ale equivalen ts becau se there is m uch less choice in future allocations: 'Facilities in the m ale system perm it a d egree of choice and flexibility in p lanning lifers' career p a th s '.19 The w om en they d escribe (in H w ing at D urham ) 'felt trapped in a nightm are w orld o f un certainties'.211B ecau se o f the low nu m bers, m an y w om en suffer unnecessarily high security restrictions. A ccording to the C h ief Inspector of P risons' T hem atic R eview o f w om en in prison published in 1997, there w ere then no accredited program m es for w om en lifers,21 and there rem ains a shortage today. W e w ill return to som e specific issues con cern in g the release o f w om en lifers in C h apter 5.22

Release under the Criminal Justice Act 1967 T h e first statu tory provisions gov erning the release of lifers w ere contained in the C rim inal Ju stice A ct 1948. Section 57 o f the 1948 Act (replaced by section 27 o f the Prisons A ct 1952) provided for release on licence subject to such con ditions as the H om e Secretary m igh t d eter­ m ine and subject to a righ t o f recall. R elease w as largely un con dition al, and few prisoners appear to have been recalled. P arole w as introd uced by Part II of the C rim in al Ju stice A ct 1967. D eterm inate sen tence prisoners becam e eligible to be consid ered by the P arole Board for release after they had served not less than one-third of their sen tence or tw elve m on ths, w hichev er w as longer. Local Review C om m ittees w ere set up for every prison to d iscu ss all cases in w hich the priso n er's parole eligibility date w as im m inen t and their recom m en­ d ations w ent to the P arole U nit o f the H om e Office. The system for lifers w as m u ch less precise. U nd er section 61 o f the C rim inal Ju stice A ct 1967: 18 See Her M ajesty's Inspectorates of Prison and Probation (2001) Through the Prison Cate: A Joint Thematic Review for a review of current resettlement provision and the need for a clearer strategy in this area. 19 Genders and Player (1987b), at p. 156. 20 Ibid., at p. 154. 21 See para. 6.55, p. 68. 22 See p. 103.

24

Beyond the tariff (1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Person's Act 1933, but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty's pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available.

T h e A ct continued the previous system w hich recognised that lifers m ight be released by executive discretion, b u t added another hurdle: the p risoner had to be recom m en ded for release by the P arole Board before the H om e Secretary could ord er release. T h e H om e S ecretary 's pow er to recall w'as also m aintained . At this tim e there w as no d ifferentiation betw een types o f lifers w hen it cam e to release procedu res. By v irtue of section 62(1), w here the Parole Board recom m ended the recall o f any person w ho w as subject to a licence, the S ecretary o f State could revoke the licence and recall him to prison. A p risoner recalled in such circu m stan ces w as entitled to be inform ed o f the reasons for his recall and o f his right to m ake representation s. If he m ad e representation s the Secretary o f State had to refer his case to the Board. U nd er section 62(2) the Secretary of State could him self revoke such a licence w ithout con su lting the P arole Board if 'it appeared exped ient in the public interest to do so' befo re such con su ltation w as practicable, but the case o f a prisoner so recalled had to be referred to the Board. If the Board recom m en ded the im m ed iate release on licence o f a recalled prisoner w hose case w as referred to it u n d er section 62, the S ecretary o f State w as bound to give effect to the recom m en dation. The H om e Secretary kept the pow'er to release life prisoners on licence on com passionate ground s at any stage (section 30). The A ct gave no gu id ance as to the precise p rocedu res to be follow ed to d ecid e question s on the release o f lifers. O riginally, w hen the A ct cam e into operation, all life sen tence cases w'ere referred to the Parole Board w hen the prisoner had served not longer than seven years, irrespective o f w hether there w as any likelihood o f early release, and som etim es the referral w as sooner. A p riso n er's case w ould be referred to the Local Review C om m ittee o f the prison w here he w as held, and their recom m en dation w ould be passed to a Parole Board panel w hich w ould then con sid er the case, also taking into accoun t the view s o f the judiciary. There appeared to have been no clear v iew as to w hen cases should be consid ered. Indeed, Lord H unt com m ented in the H ouse of Lords in 1991 on the 'p retty scand alous state o f affairs' in the H om e O ffice in 1967 w ith a 'great pile o f d ossiers relatin g to forgotten m e n '.23 23 HL Debs, vol. 530, col. 1030.

Life sentences: in custody and approaching release

25

In 1973 a Join t P arole B oard-H om e O ffice C om m ittee w as set up to recom m en d to the H om e S ecretary a date for the first form al rev iew by the Local R eview C om m ittee as the first stage in a review by the Parole Board. T hey gav e initial con sid eration to the tim ing o f the first review usually after the prisoner had been detained for about three years, but this system proved ineffective: the C om m ittee only recom m ended d ates in about half the cases referred to it, sim ply rem itting the rem aind er for reconsid eration at a later date. N or did they con su lt the ju d iciary at this stage, w ith the result that som e review s w ould be initiated before release w as a realistic possibility.24 In 1983, the Join t C om m ittee w as d isband ed 25 and new arrangem en ts w ere m ad e fo r fixing the d ate of the first form al rev iew by the Local R eview C om m ittee. T hese arrangem en ts w ere announced b y the H om e S ecretary in the H ouse of C om m ons on 30 N ovem ber.26 U nd er these arrangem en ts the ju d iciary w ere consulted , usually, after a life prisoner had been detained for abou t three years, and asked for their view s on the period necessary to m eet the requ irem ents o f retribution and d eterrence for the offence - w hat becam e know n as 'the tariff p eriod'. In the light o f these view s the H om e S ecretary w ould decide the date o f the first reference o f the case to the Local R eview C om m ittee, norm ally set for three years before the expiry o f the tariff period. The case o f H an dscom b,27 sen tenced to tw o d iscretionary life sentences in 1978, provides an exam ple o f practice at that tim e. In 1981 the Join t C om m ittee o f the H om e O ffice and the Parole Board consid ered his case, and w ere u n able to recom m end a d ate for the first form al review for p arole purposes. They asked for a reference b ack three years later. In the spring of 1984 (i.e. six years after sentence, som e seven years after he had been arrested) the view s o f the Lord C h ief Ju stice w ere obtained as to the period o f detention necessary to m eet the requ irem ents o f retribution and d eterrence for H an d sco m b's offences. The S ecretary o f State then review ed the case and decided that H an d sco m b's case should be review ed by the Local R eview C om m ittee in 1991 (i.e. after som e 14 years in custod y). H e could therefore expect at that stage to serve a m inim u m o f 17 or 18 years in custod y, the equiv alen t o f a 27-year d eterm inate sen tence, w ith rem ission and w ithout parole. In Ju n e 1985 a senior m em ber of the Prison Serv ice w rote to H and scom b to explain the system :

24 See Padfield (2002) for more details. 25 It is worth noting that Coker and Martin regretted its demise, seeing it as a downgrading of the importance of (and a vote of no confidence in) the Parole Board (see Coker and Martin (1985), pp. 241-2). 26 49 HC Official Report, 6th series, cols 505-7. 27 (1988) 86 Cr App R 59.

26

Beyond the tariff Your LRC review in 1991 is based on tariff (that is to say, what the judges and Ministers think you ought to serve as 'punishment' for your offence) . . . In the meantime, you should have interim 'reviews' at not longer than three-year intervals. The purpose of these is to let you know you are not forgotten, and to provide an opportunity for you and staff responsible for you to 'update' the situation, make any recommendations about a transfer etc . . . The interim review also allows staff to make recommendations about shortening your tariff, if they believe there are 'exceptional' grounds for it. This is the difficult bit, because I cannot tell you what these might be. The tariff was not lightly set, and is unlikely to be affected merely by 'good behaviour'. I think everyone would have to be convinced that something rather special had taken place in your attitude, outlook, personality or circumstances, and even then, it might not be sufficient to convince the higher authorities that any concession was justified.28

This letter illustrates the vague and im precise criteria w hich w ere applied in d eciding w hen and if to release lifers at this tim e. It is not surprising that prisoners started to turn increasingly to the courts, both d om estic and European, to clarify their legal rights. Ju d icial review s of the process English courts first recognised the im portance o f fixing the 'tariff' in three cases bro u gh t by three d iscretionary life sen tence prisoners in the late 1980s.29 T h e m ain focus of this book w ill be the changes introd uced after the E uropean C ou rt o f H um an Rights had ruled in fav ou r of four other d iscretionary lifers (W eeks, T hynne, W ilson and G unnell). In terest­ ingly, the d om estic cou rts had by then alread y recognised the need to introd uce som e procedu ral safeguards into the treatm ent o f d iscretion­ ary lifers. But it is also w orth noting that by the tim e these cases w ere d ecided , W eeks, and even Thynne, had already lodged their applications w ith the E uropean C om m ission o f H um an Rights.30 In the first o f the three, H andscom b,M four d iscretionary lifers had challenged the d elay in the system w hich occurred before the H om e S ecretary con su lted the trial judge and the Lord C h ief Ju stice before fixing the tariff. T he D ivisional C ou rt held that the existing policy w as V Jed n esb u n f2 u n reason able (and 'rath er d isq u ietin g'33) and that the H om e 28 Cited at (1988) 86 Cr App R 59, at p. 62. 29 R v. Secretary of State for the Home Department, ex parte Handscomb and Others (1988) 86 Cr App R 59; R v. Secretary o f State, ex parte Benson (1988) Times Laiu Reports, 21 November and R v. Parole Board, ex parte Bradley (1991) 1 VVLR 134. 30 See Chapter 3. 31 See note 29 above. 32 That is, 'if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere . . . ' as per Lord Greene MR in Associated Provincial Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, at p. 230. 33 Per Watkins LJ, at p. 78.

Life sentences: in custody and approaching release

27

S e c re ta ry sh o u ld c o n su lt th e ju d ic ia ry im m e d ia te ly th e s e n te n c e w a s p a sse d . H o w e v e r, th e c o u rt w a s h a p p y to d is tin g u is h d is c r e tio n a r y life se n te n c e s fro m m a n d a to ry o n e s , n o tin g th a t d iffe re n t re le a se p ro c e d u re s w e re e ss e n tia l to e n s u re th a t th e p u rp o se s o f th e se n te n c e s w e re no t fru stra te d . In B en son ,3* th e c o u rt re v ie w e d th e H o m e S e c re ta ry 's re fu sa l to o rd e r th e re le a se o f a d is c r e tio n a r y life s e n te n c e p ris o n e r w h o had b e e n re c o m m e n d e d fo r re le a se b y th e P a ro le B o ard o n th re e o cc a sio n s. W h ile th e c o u rt d id n o t h o ld th a t th e H o m e S e c re ta ry h ad acted irra tio n a lly , h is d e c isio n w a s q u a s h e d s in ce h e h ad ta k e n in to a c c o u n t irre le v a n t m a te ria l. L lo y d L J id e n tifie d th e k in d o f ris k w h ic h ju stifie d d ete n tio n : If risk to the public is the test, risk must mean risk of dangerousness. Nothing less will suffice. It must mean there is a risk of Mr. Benson repeating the sort of offence for w hich the life sentence w as originally im posed; in other words risk to life or limb. A s L iv in g s to n e an d O w e n p o in t o u t,35 th is w a s th e first tim e th a t a life r h ad s u c c e s sfu lly c h a lle n g e d th e H o m e S e c re ta ry 's e x e rc ise o f h is d is c re tio n to re fu se to a c c e p t a P a ro le B o ard re c o m m e n d a tio n fo r re le a se . In B ra d ley ,36 th e C o u rt w e n t fu r th e r in e x p lo rin g th e d e g re e o f risk w h ic h m u s t e x ist to ju s tify c o n tin u e d d e te n tio n . S tu a rt-S m ith LJ e x p la in e d th e d is c r e tio n a r y life s e n te n c e th u s: 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 determ inate sentence even to the m axim um extent perm issible - i.e. the tariff sentence merited in the way of punishm ent, 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 com pletion of any lawful determ inate sentence, the prisoner would, if freed, rem ain 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 som etim es substantially longer, than his just deserts. It must then not expose him to that peril unless there is com pelling justification for such a course. That com pelling justification is the perception of grave future risk am ounting to an actual likelihood of dangcrousness. But, of coursc, the Court's perception of that risk is inevitably imprecise. It is having to project its assessm ent many years forward and w ithout the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. 34 See note 29 above. 35 Livingstone and Owen (1999), p. 405. 36 See note 29 above.

28

Beyond the tariff 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.37

S o w h at w as the lev el o f risk? S tu art-S m ith L J's a d v ice to the P aro le Board w h en e v alu atin g the ex te n t o f the risk w as that: The Parole Board . . . must clearly recognise the price which the prisoner personally is paying in order to give proper effect to the interests of public safety. They should recognise too that it is a progressively higher price. Accordingly, the longer the prisoner serves beyond the tariff period, the clearer should be the Parole Board's perception of public risk to justify continuing the deprivation of liberty involved.38 W e w ill retu rn to this a n aly sis in C h a p te r 8 w h e n d iscu ssin g the th e o re tical ju stificatio n s fo r p o st-tariff d ete n tio n .39 F o r the m o m en t, it is im p o rtan t sim p ly to n o te that th ese cases illu strate that at the tim e that the E u ro p ean C o u rt o f H u m an R ig h ts m ad e its first d ecisio n strik in g d o w n the re le ase p ro cess fo r d iscre tio n ary lifers, d o m e stic ju d g es, in the c o n te x t o f ap p licatio n s for ju d icial rev iew , w ere alread y b e g in n in g to b e co m e m o re activ e in p ro te ctin g the righ ts o f d iscre tio n ary life sen ten ce p riso n ers. T h e g o v e rn m e n t's p o sitio n in the late 1980s O n 23 Ju ly 1987, in a p a rlia m e n ta ry w ritten an sw e r to the H o u se o f C o m m o n s, the H o m e S e cre ta ry m a d e the fo llo w in g state m e n t in re ­ s p o n se to the D iv isio n al C o u rt ju d g m e n t in H an d sco m b^ 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 an d /o r public risk which led the judge to pass a life sentence and will also 37 38 • ” ,0

R v. Parole Board, ex parte Bradley (1991) 1 W LR 134, at p. 145. Ibid., at p. 146. See pp. 144 and 162 below. R v. Secretary o f State for the Home Department, ex parte Handscomb and Others (1988) 86 Cr App R 59.

Life sentences: in custody and approaching release

29

take account of the notional period of the sentence which a prisoner might expect to have been remitted for good behaviour had a determ inate 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 requirem ents of retribution and deterrence, and the review will, as before, norm ally 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 requirem ents 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 determ inate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirem ents of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidcnce in the system of justice) to be weighed in the balancc 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 crim e . . . 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 requirem ents 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 recom m endation and after consulting the judiciary as required by section 61(1) of the Crim inal Justice Act 1967, when actual release should take place.'11 S o h e re w e h a v e , fo r th e first tim e , a c le a r m in is te r ia l s ta te m e n t th at fix in g th e ta riff in m a n d a to ry and d is c r e tio n a r y c a se s is d iffe re n t. In th e c a se o f m a n d a to ry life s e n te n c e s 'th e q u e s tio n o f th e n o tio n a l e q u iv a le n t d e te r m in a te s e n te n c e ' d id n o t arise . T h e s ta te m e n t a lso m a d e it c le a r th a t, in a d d itio n to h is rig h t to m a k e re p r e s e n ta tio n s to th e P a ro le B o ard u n d e r th e p ro v isio n s o f th e C r im in a l Ju s tic e A c t 1967, a d is c re tio n a ry life r c o u ld s e e k ju d ic ia l re v ie w o f a n y d e c isio n o f th e P a ro le B o a rd o r o f th e H o m e S e c re ta ry o n th e g ro u n d th a t it w a s ta in te d b y ille g a lity , irra tio n a lity o r p ro c e d u ra l im p ro p rie ty . A s w e s h a ll see in th e n e x t c h a p te r, th e E u ro p e a n C o u rt o f H u m a n R ig h ts w a s n o t c o n v in c e d th at th is w a s an a d e q u a te re sp o n se .

41 120 HC OR, 6th series, written answers, cols 347-9.

3 The view from Europe Tw o cases decided by the European C ou rt o f H um an R ights forced the British go v ernm ent to change the system o f release, at least for d iscretionary life sen tence prisoners. T h e first, Weeks v. U nited K ingdom ,’ did not have the im pact o f the second , T hynne, Wilson and G unnell v. U nited K ingdom ,2 w hich is norm ally perceived as the 'k ey ' case. Before exam in in g these tw o cases, it is im portan t to have a b rief look at the E uropean C on vention o f H um an R igh ts (EC H R), as the backd rop against w hich the cases should be evaluated . W hen one looks at the C on vention itself and the evolving E uropean ju rispru d en ce, it beco m es evid ent that n either the decision in W eeks nor that o f T hynne could have been a great su rp rise to the British governm ent. Perhaps m ore interesting is w hy the go v ernm ent resisted these d evelopm ents: but the gov ern m en t's response w ill be reserved largely for C h ap ter 4. In this C h apter w e visit the d ecisions o f the E uropean C ou rt o f H um an Rights.

The European Court of Human Rights M any excellent books trace the history o f the E uropean C ou rt o f H um an Rights.3 It is sufficient here sim ply to rehearse an outline. The E uropean C on vention o n H um an R ights w as signed on 4 N ovem ber 1950 and cam e into force once ratified by ten o f its signatories on 3 Sep tem b er 1953. As the P ream ble states, it w as fram ed to 'tak e the first step s for collective enforcem ent o f certain rights stated in the U niversal D eclaration of H u m an R igh ts'. W hile the British took an activ e role in the d raftin g of the C onvention, and indeed w ere the first cou ntry to ratify the C onvention, it w as not incorporated into d om estic law until the H um an R ights A ct 1998. H ow ever, for present pu rposes, that should not distract us: applications can and could b e m ade to the institutions o f the

1 (1988) 10 EHRR 333. 2 (1991) 13 EHRR 666. 3 See, for example, Harris, O'Boyle and Warbrick (1995), Lester and Pannick (1999) and Emmerson and Ashworth (2001).

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C on vention by both ind iv id u als located in m em ber sta te s1 and by m em ber states against each other. The E uropean C on vention on H um an Rights w as originally served by three institutions: the E uropean C om m ission o f H um an Rights, the European C ou rt o f H um an Rights and the C ou ncil o f M inisters. U ntil 1998,' the C om m ission acted as a filter, the first point o f con tact for those w ho claim ed their rights had been infringed. T h e C om m ission w ould investigate a com p lain t and d ecide if it w as ad m issible. It w ould seek to reach a settlem ent betw een the parties, and if not successfu l w ould refer a case to the court, having itself expressed an opinion as to w hether there had been a violation. The right o f an in d ividu al to petition the C om m ission w as not an autom atic right, but w as d ep endent up on a d eclaration from a 'H igh C on tracting P arty' that it recognised the com petence o f the C om m ission to deal w ith petitions from its citizens. In the case o f the UK, the governm ent only accepted the right o f ind ividu al petition in 1966 and this w as renew ed on a five-yearly basis.6 For an application to be ad m issible, it m u st have exhausted d om estic rem ed ies and no m ore than six m onths m u st have passed from the d ate on w hich the final d ecision w as taken. It m ust not be 'm anifestly ill founded or an abuse o f the right o f ap p licatio n '.7 Sub stan tive rights The E uropean C on vention on H um an Rights lists key rights and freed om s w hich the H igh C on tracting P arties are required to gu arantee to everyone w ithin their jurisdiction. T hese inclu de the right to life, freed om from slavery and forced labour, the right to a fair trial, the right to respect for private and fam ily life, freed om o f thou ght, con scien ce and religion and so on. For our p u rposes the key articles are: Article 3: Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

4 Citizenship of a member state is not a requirement. 5 Lengthy and unacceptable delays, often of many years, led to major reforms and on 11 November 1998, Protocol 11 to the Convention came into force. The Convention is now served by only two institutions: the Committee of Ministers and the Court. The judicial business of the Court is now undertaken by committees, chambers and the Grand Chamber. 6 See Lester (1998). Since 1998, individuals have had a mandatory right of access to the Court. 7 See Article 34 of the ECHR.

32

Beyond the tariff A rticle 5: Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a com petent court; (b) the lawful arrest or detention of a person for non-com pliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the com petent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his com m itting an offence or fleeing after having done so; (d) the detention of a m inor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the com petent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought prom ptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to com pensa­ tion. Article 18: Limitation on use o f restrictions on rights The restrictions permitted under this Convention to the said rights and freedom s shall not be applied for any purpose other than those for which they have been prescribed.

T h e d o c trin e o f a m a rg in o f a p p re cia tio n T h e fu n c tio n o f th e E u ro p e a n C o u rt o f H u m a n R ig h ts c a n b e se e n e ss e n tia lly as 'fin e -tu n in g '8 le g a l s y s te m s w h ic h b ro a d ly re s p e c t h u m a n 8 Livingstone and Owen (1999), at p. 111.

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rights: the cou rt allow s a 'm argin o f ap p reciation' to national authorities to d ecide the approp riate bou n d aries o f hu m an rights protection. Thus in H andy side v. U K:9 The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights . . . The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted . . . Consequently, Article 10(2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ('prescribed by law') and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force. Nevertheless, Article 10(2) does not give the Contracting States an unlimited power of appreciation. The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure chal­ lenged and its 'necessity'; it covers not only the basic legislation but also the decision applying it, even one given by an independent court. This v iew is echoed in m an y cases. T he m argin o f appreciation perm its d om estic courts to play the prim ary role in the p rotection o f hum an rights; the E uropean C ou rt o f H um an R ights provides sim ply a b ack sto p .10 A rticle 5(4), the vital p aragraph for the d iscu ssion in this chapter, has been described as the 'habeas corpus provision o f the C on vention' and provides a person w ith a judicial rem ed y to test the v alid ity o f his or her d etention. Thu s the burden o f pro o f lies on the state to show that the d etention is law ful.11 In d e Wilde, O om s and V ersyp v. B elgium 12 the E uropean C ou rt o f H um an R ights held that A rticle 5(4) w as infringed w here three B elgians, each detained un der national v agran cy law s, had no rem ed y before a d om estic C ou rt in w hich to challenge the d ecision o f the m agistrate to detain them . A nd in Van D roogenbroeck v. B elgiu m 13 the cou rt had held that a m an held as a recid ivist by the Belgium M inistry o f Ju stice and 'placed at the g ov ern m en t's d isp osal' had also had his rights infringed. W ith a nu m ber o f successful precedents, it is perh aps not surprising that a nu m ber o f English d iscretionary life sen tence prisoners challenged the legality o f their d etention and subsequ ent recall to prison. A s w e shall see, in the first of 9 (1976) 1 EHRR 737, para. 49. 10 We will, in Chapter 7, examine the extent to which domestic courts have heightened their level of scrutiny in judicial review cases. 11 Zamir v. United Kingdom (1996) 5 EHRR 533. ,2 (1979) 1 EHRR 373." 13 (1982) 4 EHRR 433. Another example is provided by X v. UK, discussed in Chapter 6 (see p. 118).

34

Beyond the tariff

these, in M arch 1987, the E uropean C ou rt o f H um an Rights held (by 13 votes to 4) there had been a v iolation o f A rticle 5(4), thou gh not o f A rticle 5(1).

The case of W eeksu Robert W eeks In 1966, then aged 17, R obert W eeks had pleaded gu ilty to robbery and w as sentenced to life im prisonm ent. H e had entered a pet shop, threatened the ow ner w ith a startin g pistol and had stolen 35 pence. A t his trial, a prison m ed ical officer testified that he could find no evid ence o f m ental instability w hich w ould ju stify sending him to a m ental institution. H ow ever, a p robation report, prepared b y a p robation officer w ho had supervised him for a period o f tw o years, characterised him as bein g su scep tible to fluctuation o f m ood and em otionally im m atu re, and as having a m orbid interest in the literatu re o f violence and a fascination for guns. T h e report also stated that he had taken to d rinking heavily from tim e to tim e and that he had a high p otential for aggression. N o p sychiatric report w as av ailable to the court. In p assing sentence, T hesig er J said: . . . [T]he facts of the offence and the evidence of the character and disposition of the accused . . . satisfy me th a t. . . he is a very dangerous young man . . . I think an indeterminate sentence is the right sentence for somebody of this age, of this character and disposition, who is attracted to this form of conduct. That leaves the matter with the Secretary of State who can release him if and when those who have been watching him and examining him believe that with the passage of years he has become responsible. It may not take long. Or the change may not occur for a long time - I do not know how it will work out . . . [S]o far as the first count of the indictment is concerned, I think the right conclusion, terrible though it may seem, is that I pass the sentence that the law authorises me to pass for robbery and for assault with intent to rob with arms, that is life imprisonment. The Secretary of State can act if and when he thinks it is safe to act. H is appeal w as dism issed by Salm on LJ: Now at the trial it appears that the prison doctor said that there was no evidence of any mental disorder then apparent which would have justified his detention in a mental institution. The learned judge, quite rightly in the view of this Court, took the view that this was not a case for borstal because borstal

14 See note 1 above. The facts are taken in large measure from the decision of the European Court of Human Rights.

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for one reason would not be a sufficiently secure place to send such a dangerous young man. The judge was therefore - since he could not send him to a mental institution for lack of evidence - faced with a difficult decision on whether he should give him what he did, namely life imprisonment, or sentence him to some long term, some definite term of imprisonment for a number of years. As he was at pains to point out, he in mercy really to the boy took the former course. Now life imprisonment in this case at any rate means an indeterminate sentence. If when he gets to prison it then appears after he has been there some time that there are grounds for transferring him to a mental institution for treatment, there are ample powers under the Act which will enable the Home Secretary to do so. Moreover, as soon as it becomes apparent, and it is to be hoped that it may not be long, but one cannot tell, that it is safe from the public point of view and from his own point of view to do so, this boy will be released. At first sight a sentence of life imprisonment, particularly having regard to his age, sounds terrible, but when the factors to which reference has been made are considered it will be seen that this is really in mercy to the boy and will perhaps enable him to be released much sooner than if a long term of imprisonment had been imposed, which was the only other alternative.

Thu s the C ou rt o f A ppeal upheld the life sen tence as a m ercy w hich w ould allow W eeks to be released m u ch soon er than w ould have been the case had a long d eterm inate sen tence been im posed. In fact, he w as first released in M arch 1976, a little over nine years later, w hich w as the equiv alen t o f at least a 12-year d eterm inate sen tence (taking into account rem ission and the period he spent in custod y pre-sentence). H ow ever, W eeks did not rem ain 'on the ou tsid e' for m uch m ore than a year. A fter being form ally w arned o f a p ossible revocation o f his licence, he w as recalled to prison in Jun e 1977 as a result o f a various incid ents inv olv ing m inor violence w hile d runk, the use o f an air pistol and a suicid e attem pt. The P arole Board confirm ed the recall in D ecem ber. Tw o years later he abscond ed from an open prison but gave him self up soon afterw ard s. In O ctober 1981 he struggled w ith, and injured, a hostel w ard en at a p re-release hostel. H e first lodged an application w ith the E uropean C om m ission on 6 A pril 1982, arguing that his re-d eten tion in Ju n e 1977 infringed his rights u n d er both A rticle 5(1) and A rticle 5(4). H e w as released on licence for a second tim e in O cto ber 1982, only to find that the H om e S ecretary revoked his licence once m ore in N ovem ber 1984. T he E uropean C om m ission d eclared his ap plication ad m issible on 7 D ecem ber 1984, expressin g the opinion (by 10 votes to 1) that there had been no b reach o f A rticle 5(1), but (by 7 votes to 4) that there had been a breach o f A rticle 5(4). W eeks m ean w hile w as re-released , and then re-d etained in A pril 1985. H e w as released once m ore on licence in Sep tem b er 1985. This licence w as revoked in M arch 1986, though at the

36

Beyond the tariff

tim e o f the hearing before the E uropean C ourt, he w as still at liberty, having fled to France. The oral hearing o f the case w as held on 17 M arch 1986, and the C ou rt issued its ju dgm ent on 2 M arch 1987.

T h e C o u rt's d ecisio n In w hat it d escribed as its central subm ission, the U nited K ingdom go v ernm ent argued that W eeks' recall to prison in 1977 had not deprived him o f his liberty becau se both his liberty and his righ t to liberty had been taken aw ay from him for the rest o f his life by v irtue of the original life sentence. T h e governm ent d rew a d istin ction b etw een liberty, p roperly un derstood, and a life prisoner b ein g perm itted to live on licence o utsid e prison. In the latter case, the governm ent explained , the p risoner w as still serving his sentence, albeit outsid e prison as a result o f a priv ilege granted to him by the H om e Secretary, but his right to liberty had not been restored to him . T hu s it w as one and the sam e d ep rivation o f liberty in Ju n e 1977 as in D ecem ber 1966, based on his original con viction and sentence, and no new issue arose un der A rticle 5. The C ou rt w as not convinced by this argum ent. W hether W eeks regained his 'liberty ', for the pu rposes o f A rticle 5 o f the C onvention, w hen he w as released on licence in 1976 w as a question o f fact, d ep en ding up on the actual circu m stan ces o f the regim e to w hich he w as subject. H e w as law fully 'at large', to use the term s o f section 62(9) of the 1967 A ct, w hen o utsid e prison on licence. A dm itted ly, for persons sentenced to life im prisonm ent, any release u n d er the 1967 A ct w as granted as an act o f clem en cy and w as alw ays conditional. T h e freedom enjoyed by a life prisoner, such as W eeks, released on licence w as thus m ore circu m scribed in law and m ore p recarious than the freedom enjoyed by the o rd in ary citizen. N everth eless, the restrictions to w hich W eeks' freed om outsid e prison w as subject u n d er the law w ere not sufficient to prevent its bein g qualified as a state o f 'liberty' for the pu rposes o f A rticle 5. H ence, the E uropean C ou rt o f H um an R ights held that, w hen recalling W eeks to prison in 1977, the H om e S ecretary w as ord ering his rem oval from an actual state o f liberty, albeit one enjoyed in law as a privilege and not as o f right, to a state o f custody. A lengthy extract from the ju d g m ent is included as A ppend ix 1. In essence, the m ajority decided that W eeks' sen tence w as o f a special character: a special secu rity m easure, but susceptible to change over tim e. (W ithout these 'special reasons' it m ight have infringed A rticle 3 (the p rohibition on to rtu re)15). There w as no infringem ent o f A rticle 5(1) as there w as a sufficient con nection betw een his sen tence and his recall, 15 See para. 47 of the judgment.

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but there w as an infringem ent o f A rticle 5(4) becau se the P arole Board did not have the com p etence to d ecid e:16 the H om e S ecretary could veto their decisions. T his seem s to have been the C o u rt's m ajor m isgiving about the procedure. It seem ed less concerned w hether the P arole Board constituted an 'ind ep end en t' court, though it m ay be that the C ou rt m isund erstood the 'ind ep en d en ce' o f the P arole Board in an im portant respect: they accepted the g ov ern m en t's statem ent that 'th e fun ctions o f the Board do not brin g it into con tact w ith officials o f the prisons or o f the H om e Office iii such a w ay as to identify it w ith the ad m inistration o f the prison or of the H om e O ffice'.17 W hile the expression 'in such a w ay as to id entify it w ith' is extrem ely vague, it w ill be suggested in C h apters 5 and 7 that the ind ep en d en ce o f the Board can indeed be questioned. W e w ill return to the C o u rt's perception o f the need for both su bjectiv e and objective ind ep en den ce. H ow ever, the issue has not been su ccessfu lly challenged. The other area criticised by the European C ou rt o f H um an Rights w as the recall procedure, w hich they said show ed 'a certain procedu ral w eakness' in that it did not allow p rop er participation o f the ind ividu al affected. The tw o d issen ting opinions are also inclu ded in A ppend ix 1. Ju d ges Thor V ilhjalm sson, Lagergren, Sir V incent Evans and G ersing held that there had been no v iolation o f W eeks' rights. Ju d g e D e M eyer argued , at the other end o f the scale, that there w as a breach o f bo th relevant paragraph s o f A rticle 5. T h e g o v e rn m e n t's resp o n se A fter this case, the gov ernm ent took tim e to con sid er its form al position. Som e nine m onths after the C ou rt gave its ju dgm ent, on 15 D ecem ber 1987, Jo an R u dd ock M P asked the H om e S ecretary in the H ouse of C om m ons w hat changes he intended to m ake. Jo h n P atten 's answ er on beh alf o f the H om e S ecretary w as sim ply that the im plications o f the ju dgm ent w ere still un der con sid eratio n .18 W hen the cases o f Thynne, W ilson and G unnell w ere argued before the E uropean C ou rt o f H um an R ights, the governm ent sou ght to argue that W eeks could be d istin­ guished becau se o f the high ly un usual facts in that case. It will be rem em bered that W eeks' licence had been revoked in M arch 1986 and that at the tim e o f the hearing o f the case in the E uropean C ou rt of H um an Rights, he w as still u n law fu lly at large and living in France. M ost surprisingly, tw o m onths after the d ecision o f the C ourt, in M ay 1987, it w as decided that the rem aind er of W eeks' life sen tence should 16 See para. 64. 17 At para. 62. 18 Hansard, vol. 124, col. 434.

Beyond the tariff

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be rem itted by the exercise o f the royal prerogative o f m ercy .19 This m eant that he w as no longer subject to a life licence and the conditions in it. D oes this im ply a recognition that the v arious recalls and re-releases to w hich he had been subject w ere 'u n fair'? C ertainly they had gone on a long time. P erhaps there w as som e u n derlyin g recognition that, to quote the d issen ting ju d g m ent o f Ju d g e de M eyer: L ife im p riso n m e n t in its o rd in a ry sen se w o u ld in d eed h a v e b een a p u n ish ­ m en t to o 'te rrib le ' fo r a so m ew h a t a g g ressiv e y o u n g m an o f sev en tee n , g u ilty o f ro b b in g - a fte r m en a cin g h is v ictim w ith a sta rtin g p isto l lo ad ed w ith b la n k ca rtrid g e s - a su m o f 3 5 o ld p en ce, w h ich h e did n o t ev en tak e aw ay . It w ou ld h a v e ex cee d ed a n y re a so n a b le re la tio n sh ip o f p ro p o rtio n a lity w ith w h at a c tu a lly h a p p en ed . It w o u ld h a v e b een w h a t th e E ig h th A m en d m en t to th e C o n stitu tio n o f th e U n ited

S ta te s o f A m erica

calls

'cru e l an d

u n u su al

p u n ish m e n t', an d w h a t A rticle 3 o f th e E u ro p ean C o n v e n tio n o n H u m an R ig h ts term s 'in h u m a n p u n ish m en t'.

But the case did not end there. There w as the question o f com pensation. T h e D ivisional C o u rt decided in early 1988 that W eeks w as entitled to no com pensation since he had been p roperly con v icted .20 W eeks' case returned to the E uropean C ou rt o f H um an Rights on 5 O ctob er 1988,21 w hen the C ou rt held un anim ously that he should be paid £8,000. N o com pensation w as payable in respect o f the con sequ ences attributable to his d ep rivation o f liberty as such: the only preju dice to be taken into account w as that caused by the v iolation found in the earlier judgm ent. T h e lack o f the requ isite rem ed y occasioned a loss o f o p portu nities and a feeling o f frustration and helplessness. N either the rem ission o f his sen tence nor the finding o f violation in the earlier ju d g m en t constituted ad equ ate satisfaction in relation to the non-p ecun iary dam age. The C ou rt also stated that 'in fixing the am ou nt o f com pensation to be aw arded, account should be taken o f the special features of the case, notably the severity o f the "in d e te rm in a te " life sen tence in relation to the crim e com m itted '22 C learly W eeks' case continued to be seen by the U K governm ent as an exception, a one-off. O therw ise they w ould not have argued as they did in the next case, that o f T hynne, W ilson and G unnell. As for R obert W eeks, he has been living b ack in this cou ntry ev er since his licence w as lifted and he has not been b ack to prison.23

19 20 21 22 23

Information given by the Prison Service. Times LR, 15 March 1988. See (1991) 13 EHRR 435. At para. 15. According to information given by the Prison Service.

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The case of Thynne, Wilson and Gunnell v. United Kingdom T h e C ou rt heard these three cases to gether in the sum m er o f 1990 (although the applications had been lodged even before the d ecision in Weeks). The C ou rt gave its d ecision in O ctober 1990. The facts behind the ind iv id u al cases w ent back som e years. M ich a e l T h y n n e M ichael T h y n n e's application w as lodged w ith the E uropean C o m m is­ sion on H um an R ights b ack in 1985. Born in 1951, by 1975 he already had a long crim inal record and had served various sentences o f im p risonm ent for theft and burglary. In 1975, w ithin 36 hours o f being released from a prison sentence, he had entered a flat pretend ing that he w as a p olicem an in vestigating a burglary that had ju st taken place there. The flat w as occup ied by a w om an w hom he threatened to kill if she m ad e a noise. H e raped and buggered her as w ell as inflicting m inor w ounds on her w ith a pair of scissors. H e pleaded gu ilty at the C entral C rim in al C ou rt, London, to rape and bu g gery and in N ovem ber 1975 he w as sentenced to life im p risonm ent on each count. In view o f the nature o f his p ersonality d isord er - described by a psychiatrist as 'a severe psychopathic character d isord er' - the Recorder considered both a hospital ord er and a long d eterm inate sen tence to be inapprop riate. The R ecorder stated that an ind eterm inate life sen tence w as im posed to enable the H om e S ecretary to release M r T hynne once his condition had sufficiently im proved for it to be reasonably safe to do so. H e w ent on: B u t fo r th e p sy ch ia tric re p o rts that I h a v e see n I w o u ld im p o se o n y o u a v ery lo n g p riso n sen te n ce. A s it is, I a m g o in g to se n te n c e y ou to life on each co u n t in o rd e r th a t th o se in a p o sitio n to o b serv e a n y im p ro v e m en t in y o u r p erso n a lity d iso rd er, th o se c a p a b le o f c a rry in g o u t an y o p era tiv e treatm en t w h ic h m a y [be] see n to b e n ecessa ry , w ith y o u r co n se n t, on y o u r fro n tal lo b e, m a y ju d g e th e tim e w h e n it is re a so n a b ly safe th at y o u sh o u ld b e free.24

T hy nne applied un su ccessfu lly for leave to appeal to the C ou rt o f A ppeal (Crim inal D ivision) against the life sen tences on the ground that they w ere m an ifestly excessiv e and w ron g in princip le25 as they resulted in custod y for a longer tim e than the approp riate d eterm inate sentence. H e renew ed his ap p lication to the full court. R efusing leave to appeal in M arch 1976, the C ourt stated as follow s: 24 Quoted in the European Court of Human Rights (1991) 13 EHRR 666, at para. 12. 25 See section 2 of the Criminal Appeals Act 1968.

40

Beyond the tariff W ithout 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 circum stances 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 extrem e 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. W e 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 regim e to w hich 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 rem aining in custody for a longer time than he probably will rem ain under a life sentence.26

In 1 9 7 7 T h y n n e w a s a c ce p te d fo r tre a tm e n t a t th e p s y c h ia tric p ris o n , G re n d o n U n d e rw o o d . H o w e v e r, h e d e c id e d n o t to a c c e p t the p la c e as, in th e lig h t o f m e d ic a l e v id e n c e th a t h e w a s n o t a m e n a b le to s u rg e ry or p s y c h ia tric tre a tm e n t, h e w a s to ld th a t h e w o u ld n o t a u to m a tic a lly b e g iv e n e a rly re le a se . F o llo w in g re p r e s e n ta tio n s m a d e o n h is b e h a lf, h is ca se w a s re fe rre d to th e Jo in t P a ro le B o a rd -H o m e O ffice C o m m itte e , w h ic h w a s th e b o d y w h ic h a t th a t s ta g e w o u ld d e c id e s e c re tly w h e th e r th e tim e h a d c o m e to re fe r a p ris o n e r 's c a se to th e L o ca l R e v ie w C o m m itte e o f th e P a ro le B o a rd .27 In A u g u s t 1 9 8 0 th e C o m m itte e re c o m m e n d e d th a t T h y n n e 's c a se sh o u ld b e re fe rre d to th e L o ca l R e v ie w C o m m itte e in S e p te m b e r 1981, b y w h ic h tim e h e w o u ld h a v e b e e n d e ta in e d fo r six y e a rs (th e e q u iv a le n t o f a n in e -y e a r s e n te n ce ). T h e L o cal R e v ie w C o m m itte e d id n o t re c o m m e n d re le a se . In M a y 1982 T h y n n e a b s co n d e d fro m a n o p e n p riso n a n d c o m m itte d v a rio u s o ffe n ces. H e w a s a rre s te d in Ju ly 1 9 8 2 an d w a s su b s e q u e n tly se n te n c e d to six m o n th s' im p ris o n m e n t o n c h a rg e s o f th e ft, u n la w fu l p o s s e s s io n o f d ru g s an d c rim in a l d a m a g e . T h e s e n te n c e w a s to ru n c o n c u rre n tly w ith th e e x istin g life s e n te n c e (as a n y d e te r m in a te s e n te n ce 26 Quoted in the European C ourt o f H um an Rights (1991) 13 EH RR 666, at para. 13. 27 See p. 25 above.

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m ust, w hen im posed on a lifer). In O ctober 1982 the P arole Board recom m en ded that his case be referred to the Local R eview C om m ittee nine m onths after his arrival at M aidstone Prison. In M arch 1983, how ever, he escaped w hen he w as v isiting his m oth er w ho w as gravely ill. H e w as recaptured tw o days later and the date o f referral to the Local Review C om m ittee w as put back to Ju n e 1984. In Ju n e 1983 he w as transferred to Blundeston Prison w here the prison psychiatrist found no ev id ence o f m ental illness and saw no need for psychiatric treatm ent. In 1984, the Local R eview C om m ittee again did not recom m end release. In 1985, w hen T hy nne lodged his ap plication to the E uropean C om m ission , it w as ten years sin ce his original sentence. In Jan u ary 1985 M inisters accepted that the pu nitive elem ent o f his sen tence (the 'tariff') had been satisfied and that risk w as the sole rem aining con sid eration in his continued detention. In Ju ly 1985 his case w as referred to the Parole Board w hich recom m ended a further rev iew tw o years later. In Ju ly 1987 the Local Review C om m ittee again recom m ended that he rem ain in custod y, bu t in M ay 1989 it recom m ended his release. H ow ever, follow ing its further con sid eration o f his case in D ecem ber 1989, the P arole Board again recom m en ded that he rem ain in custod y w ith no release d ate b u t that there should be a further review one year after his transfer to an open prison. M eanw hile, the E uropean C ou rt had in 1988 ordered the joind er o f this application w ith that o f G u nn ell and W ilson and d eclared the cases adm issible. B e n ja m in W ilso n B en jam in W ilson w as born in 1916. In M ay 1972 he pleaded gu ilty at the C en tral C rim in al C ou rt, London, inter alia, to one cou nt o f bu ggery, tw o cou nts o f attem pted bu g gery and sev en counts of ind ecent assault on boys u n d er 16. H e had a long history o f sexual offences and w as sentenced to life im p riso nm ent for the offence o f b u g gery and seven years on each o f the other nine counts, to be served concu rrently. In p assing sen tence the ju d g e said: I en tirely a cce p t th a t, to a la rg e ex ten t, y o u c a n n o t h elp yo u rself. T o th at exten t, y o u r m o ra l g u ilt is th e less, b u t I h a v e tw o d u ties to p erform . O n e is a d u ty to fin d th e co rre ct se n te n c e a s fa r as y o u a re co n cern e d , h av in g re g a rd to y o u r m a k e-u p , y o u r p h y sica l an d m en ta l m ak e-u p . T h e o th e r d u ty I h av e, an d in the c irc u m sta n c es o f th e c a se I th in k it is th e m o re im p o rtan t: I h a v e a d u ty to th e p u b lic, and in p a rticu la r, to th e y o u n g p u b lic, to p ro te c t th em from p eo p le lik e y o u w h o , fo r o n e re a so n o r a n o th er, c a n 't co n tro l th em selv es. I h o p e th at, in th e c o u rse o f tim e a m eth o d o f trea tm en t fo r y o u r p a rticu la r freak ish a fflictio n can b e fou nd . I th in k it w ill b e in th e b est in terest o f s o c ie ty g e n e rally , an d y o u rse lf in p a rticu la r, if so m e fo rm o f treatm en t fo r y o u co u ld b e fou nd . W h a t I a m g o in g to d o in y o u r ca se m a y so u n d h arsh from y o u r p o in t o f view ,

42

Beyond the tariff 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 w ill go to prison for a period of 7 years. All these sentences to be concurrent. N ow 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, som e form of treatment, perhaps that to which the doctor refers in the medical report which I have seen, may help you.28

In 1972 W ils o n 's a p p lic a tio n fo r le a v e to a p p e a l w a s re fu se d . H e re n e w e d h is a p p lic a tio n to th e fu ll co u rt, b u t a b a n d o n e d it in Ju n e 1973, a few d a y s b e fo re it w a s to h a v e b e e n h e a rd . In Ju ly 1 9 7 6 h e a p p lie d to th e C o u rt o f A p p e a l to h a v e h is n o tic e o f a b a n d o n m e n t s e t a s id e as a n u llity . In N o v e m b e r 19 7 6 , th e C o u rt o f A p p e a l tu rn e d d o w n h is a p p lica tio n . In th e w o rd s o f L o rd Ju s tic e S h a w : . . . the applicant has not established a situation in which this Court could properly allow him to withdraw the notice of abandonm ent. The Court has thought it right to go to som e extent into the history of the matter in order to establish that even if such a withdrawal were perm itted, it could not possibly be of advantage to the applicant, if we w ere to substitute for the life sentence a very long sentence that really would not be distinguishable from a life sentence. But if he w ishes to take advantage of it, build him self up and strengthen his own character, he has far better prospects under an indeterm i­ nate sentence than under a long determinate sentence.29 W ils o n 's c a se w a s first re fe rre d to th e Jo in t P a ro le B o a rd -H o m e O ffice C o m m itte e th re e y e a r s a fte r h e w a s s e n te n ce d . T h e y re c o m m e n d e d th a t h is ca se b e re v ie w e d b y th e L o ca l R e v ie w C o m m itte e a fte r h e h ad serv e d se v e n y e a rs. A c c o rd in g ly , in 19 7 9 , th e L o ca l R e v ie w C o m m itte e h e a rd h is ca se an d re fe rre d it to th e P a ro le B o a rd , w h o , in D e c e m b e r 19 8 1 , re c o m m e n d e d h is re le a se in to a c o n tro lle d p ro te c tiv e e n v iro n m e n t w ith p s y c h ia tric s u p e rv isio n n o t la te r th a n D e c e m b e r 1982 (i.e. ten y e a rs a fte r h e w a s s e n te n ce d ). O n 14 S e p te m b e r 1982, p u rsu a n t to th e S e c re ta ry o f S ta te 's a u th o ris a tio n o f 3 S e p te m b e r 1982, h e w a s re le a se d o n lic e n c e on c o n d itio n th a t he: • liv e at a p ro b a tio n h o ste l; 28 Quoted in the European C ourt o f H um an Rights (1991) 13 EH RR 666, at para. 22. 29 Ibid., at para. 23.

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• cooperate with his probation officer, attend appointm ents with his supervising consultant psychiatrist and take any prescribed treat­ ment; and • refrain from any activity involving young boys w ithout the per­ m ission o f his probation officer. Five m onths after his release on licence, the Parole Board recom m ended his recall and on 14 February 1983 the H om e Secretary revoked his licence. He was initially given no reasons, but w as sim ply inform ed that he had been recalled because his conduct had given 'cause for concern' and he had failed to cooperate w ith his supervising officer. H e exercised his right to m ake w ritten representations against his recall, but on 16 Septem ber 1983, the Parole Board declined to change the decision. In April 1984 W ilson initiated 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 Crim inal Justice A ct 1967 and that he had been unable to m ake effective representations. The H om e Office conceded that the reasons given w ere inadequate and provided a one-page statem ent on 5 October 1984,30 w hich included the allegations that: 1. W ilson had sought to get him self evicted from the probation hostel by refusing to pay his rent, by telling 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 w arning that he intended to reoffend; 2. he had protested against the probation officer's refusal to allow him to take part in activities at the local sports centre; 3. he had show n an interest in w atching boys play football and his psychiatrist suspected that he was exploring w ays of contacting boys again. The Hom e Office agreed to allow W ilson to m ake further written representations to the Parole Board, which he did, denying the al­ legations m ade against him. In N ovem ber 1984 his solicitors requested disclosure of a num ber of reports w hich had been before the Parole Board the previous Septem ber. In M arch 1985 the Divisional Court quashed the Parole Board's decision of 16 Septem ber 1983 on the ground that it was flawed by a procedural im propriety, in that W ilson had not been given sufficient reasons to enable him to make 30 According to Coker and Martin (1985), this 450-word letter was the 'longest explanation so far provided for any recallee' (p. 247).

44

Beyond the tariff

p rop er representations. By letter of 20 M arch 1985 his law yer again requested disclosure o f the p robation rep ort w hich alleged non-coop er­ ation and asked for his client to be given an oral hearing w ith legal representation. H ow ever, the P arole Board did not answ er this request and after a m eeting on 22 M arch 1985 m aintained the d ecision not to release W ilson. In D ecem ber 1986 the Local Review C om m ittee reconsid ered W ilso n's case b u t did not recom m end his release. In Ju n e 1987 the Parole Board recom m en ded that his case should be referred to the Local R eview C om m ittee tw o years later. A gain, in Ju n e 1989, the Local R eview C om m ittee re-exam ined his case but did not recom m end release. In O ctob er 1989 the case w as consid ered by the P arole Board w hich recom m en ded a further review in tw o years' tim e, w ith the proviso that should his health d eteriorate to such an extent that he w as no longer considered to be a risk, the case should be review ed at an earlier date. T h e S ecretary o f State accepted this recom m en dation. The next review d ate w as fixed for O ctob er 1991, by w hich tim e it w ould be nearly 20 years sin ce the original sen tence (and W ilson w ould be 75 years old). M eanw hile, W ilso n 's ap p lication to the E uropean C om m ission on H um an R ights had been lodged in Sep tem ber 1985, b u t as w e have alread y noted , the E uropean C ou rt o f H um an R ights did not hear the case until Ju n e 1990. Edw ard G u n n e ll E dw ard G u nn ell w as born in 1930. In D ecem ber 1965, he w as convicted at the C entral C rim in al C ou rt in L ondon o f four offences o f rape and tw o offences of attem pted rape. H e w as sen tenced to life im prisonm ent on each o f the four rapes. O n the tw o cou nts o f attem pted rape he w as sentenced to seven years' im prisonm ent, to run con cu rrently w ith each other and w ith the life sentences. H e had entered houses, by som e p lausible excuse, w hen his victim s w ere alone and by force (once at knifepoint) or by the threat o f force had raped them . A ccord in g to unchallenged m ed ical evid ence, he w as suffering from a 'm en tal d isord er' w ithin the m ean in g of the M ental H ealth A ct 1959 (nam ely psychopathy) and need ed con stan t care and treatm ent in a m axim um secu rity m edical setting. N everth eless the sen tencing judge conclud ed that, becau se of the gravity o f the offences, p u nishm ent had to be an elem ent in this case, and that pu nishm ent could only be achieved by im prisonm ent. O n 22 Ju n e 1966 the C ou rt o f A ppeal (C rim inal D ivision) refused leave to appeal. In the cou rse o f his ju dgm ent, Lord P arker CJ said: In re g a rd to th e a p p lica tio n fo r lea v e to ap p e a l a g a in st se n te n c e in re g ard to th e ra p e s an d a ttem p te d ra p e s, th e a p p lic a n t is th irty -fiv e an d , th o u g h h e h as

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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 M anor Hospital, Epsom, from which he escaped eighteen times. In 1950 he was admitted to Farmfield H ospital, Horley. H e absconded three times. In 1951 he was transferred to Ram pton 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 Ram pton and in 1960 he was discharged from the operation of the M ental 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 M ental Health Act 1959, in that he was a psychopath who needed constant care and treatment in a medical setting of maxim um security such as Ram pton 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 punishm ent is required it would be right to send the offender to prison, it being recognised that the Home Secretary has am ple powers under section 72 of the M ental Health Act 1959 to cause him to be treated in hospital wrhen 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 circum stances of strict security he is liable to be a menace to the public. True, Ram pton is said to be a secure hospital, but it does not mean that he would not get away from there. M ore 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.” M o re th a n 14 y e a rs la ter, in D e c e m b e r 1980, G u n n e ll's c a se w a s re v ie w e d b y th e P a ro le B o ard . T h e y re c o m m e n d e d h is re le a se 15 m o n th s later, su b je c t to h is c o n tin u e d g o o d c o n d u ct, th e s a tis fa c to ry c o m p le tio n o f p e rio d s in o p e n c o n d itio n s an d o n th e p re -re le a se e m p lo y m e n t sch e m e , an d s u ita b le re s e ttle m e n t a rr a n g e m e n ts b e in g m a d e . A fte r c o n su ltin g th e ju d ic ia ry in a c c o rd a n c e w ith s e c tio n 6 1 (1 ) o f th e 1 9 6 7 A ct, th e H o m e S e c re ta ry a c ce p te d th e B o a rd 's re c o m m e n d a tio n a n d in M a rc h 1 9 8 2 h e w a s re le a se d o n lic e n c e o n c o n d itio n th a t he: 31 Q uoted in the European C ourt o f H um an Rights (1991) 13 EH RR 666, at para. 37.

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Beyond the tariff 1. coop erate w ith his su p erv isory p robation officer; 2. attend D r Field 's C linic at St L eo n ard 's H ospital, London N1 for such care and treatm ent as recom m ended ; 3. con tin u e to take horm onal drug treatm ent, in tablet form , to control his sexual libido.

G u nnell w as given no reason to b elieve that he had failed to keep the term s o f his licence in any significant w ay. H ow ever, tw o incidents occurred in Jan u ary and February 1983 in w hich it w as alleged that he had been acting 'su sp icio u sly '. H is licence w as revoked and he w as recalled to prison. H e protested that he had d one nothing w rong bu t, in the w ords o f the E uropean C ou rt o f H um an Rights, 'show ed every ind icatio n '32 that he fully realised w hy it w as that the auth orities had taken the decision w hich they did. H e w as interview ed on 1 M arch 1983 by a m em b er o f the Local Review C om m ittee but w as not show n his m ed ical and other reports. O n 25 M arch the P arole Board rejected his representation s but m ade a n on-bind ing recom m en d ation that, subject to satisfactory resettlem ent arrangem en ts b ein g m ad e and to con tin u ing p sychiatric supervision, he should be released a m onth later. The H om e S ecretary did not accept the B o ard 's recom m en dation, but decided that his case should be review ed a year later. A ccord in g to G u nn ell, the first w ritten explanations o f the reasons for his recall and the first official accoun t in any detail of the allegations m ade against him w ere m ad e in a letter o f 3 A ugust. O n 9 A u g u st 1983 he applied for ju dicial review o f the d ecisions of the Parole Board and the H om e S ecretary confirm ing the revocation o f the licence, but the application w as dism issed on 2 N ovem ber 1983.33 H is appeal to the C ou rt o f A ppeal w as dism issed on 30 O ctober 1984.34 The Parole Board and the H om e S ecretary review ed G u n n ell's case again in 1984 but he w as not released , at w hich point he lodged his ap plication to the E uropean C om m ission of H um an Rights. M eanw hile, he w as released on licence once m ore in Sep tem ber 1988, un der the supervision o f the Inner L ondon P robation Service. H ow ever, on 24 S ep tem ber 1990 he pleaded gu ilty at the C entral C rim in al C ourt, L ondon, to attem pted rape, five charges o f ind ecent assau lt and three charges o f robbery. H e w as sentenced to life im prisonm ent, the life licence for his original offences having already been revoked.

32 Ibid., at para. 43. 33 Ibid., at para. 47. 34 [19851 Crim LR 105.

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T h e E u rop ean C ou rt o f H u m an R ig h ts' d ecisio n A s w e have seen, Thynne, W ilson and G u nnell all lodged their applications w ith the C om m ission in 1985. The C om m ission declared the cases ad m issible in 1988. In its report ad opted on 7 Sep tem b er 1989, the C o m m ission 's opinion w as that, in relation to each applicant, there had been a v iolation o f A rticle 5(4) (by 10 votes to 2) and ad d ition ally in the case o f W ilson that there had been a v iolation o f A rticle 5(5) (by 10 votes to 2). The hearing befo re the E uropean C ou rt o f H um an R ights did not take place until 25 Ju n e 1990. T h e C ou rt w as addressed by A lan M oses Q C for the governm ent, by G au ku r Joru nd sson for the C om m ission , by P. A shm an, Legal O fficer o f Ju stice35 for T hy nne and by Edw ard Fitzgerald Q C for G u nnell and W ilson. The C ou rt d elivered its ju dgm ent on 25 O ctob er 1990, ho ld ing by 18 votes to 1 that there had been a violation o f A rticle 5(4) in the case o f all three m en, and by 18 votes to 1 that there had been a v iolation o f A rticle 5(5)) in the case o f W ilson. The governm ent had argued that these cases did not fall into the sam e categ ory as W eeks, that in a norm al d iscretionary life sen tence no clear d ividing line could be d raw n by reference to the 'tariff' period betw een the p u nitive and secu rity p u rposes for w hich the sen tence w as im posed. In their subm ission there w as no clearly identifiable point after w hich the sole ju stification o f the sen tence w as protective detention. T h e pu rpose o f the tariff had been w rongly understood by both the applican ts and the C om m ission as prov id ing support for such a division: the 'tariff' w as sim ply a notional period com m u nicated by the ju dges to the H om e S ecretary in bo th m an d atory and d iscretionary life sentences to enable him to fix the first rev iew d ate b y the Local R eview C om m ittee. It represented the ju d g es' view s as to the m inim u m period o f detention necessary to satisfy the requ irem ents o f retribution and d eterrence, and not n ecessarily the total such period. Thus the ju d g es' recom m en d ation w as relevan t only to the fixing o f the date for the first review .36 W hen con sid erin g release, the H om e S ecretary w as not bound by the judicial view on 'tariff', bu t had to take into acco u n t a variety o f factors w hich it w as im possible to subject to finite analysis. Fu rtherm ore, the governm ent also argued that the fact that the trial ju d g e and the Lord C h ief Justice w ere consu lted a second tim e prior to a p risoner's release show ed that con sid eration o f the period necessary for p u nishm ent did not end at the expiry o f the 'tariff' period. The governm ent argued that the applican ts' 35 The British section of the International Commission of Jurists. 36 It is curious that the government relied on this particular argument, given that it is difficult to reconcile with the Home Secretary's statement to the House of Commons of 23 July 1987 (i.e. three years earlier), discussed at p. 28 above, where he talked of the 'notional equivalent determinate sentence', the period necessary to meet the require­ ments of retribution and deterrence.

Beyond the tariff

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analysis confused the ad m inistrativ e procedu res w hich governed the w ay the sen tence is served w ith the natu re of the sentence. The gravity o f the offences w as relevant at all tim es throughout the sentence, esp ecially w hen the S ecretary o f State w as called on to assess the risk factor w hen con sid erin g release. G ravity also rem ained the im m u table ju stification in a d iscretionary life sen tence - although not the sole ju stification - for the continued d eten tion or recall o f the life prisoner. The C ou rt w as n o t convinced by these argum ents. As in the case of W eeks, it consid ered the earlier cases o f D e Wilde, O om s and Versiyp,37 X v. the U nited K ingdom ,x and Van Droogenlrroeck.39 It also cited Weeks and £ . v. Norway.'10 T h e follow ing is an extract from the m ain judgm ent: 73.

A s re g a rd s th e n a tu re an d p u rp o se o f th e d isc re tio n a ry life sen te n ce u n d e r E n g lish la w , th e g o v e rn m e n t's m ain su b m issio n w as th at it is im p o ssib le to d ise n ta n g le th e p u n itiv e an d secu rity c o m p o n en ts o f su ch sen te n ces. T h e C o u rt is n o t p ersu a d ed b y th is arg u m en t: th e d isc re tio n a ry life se n te n c e h as cle a rly d e v elo p e d in E n g lish law as a m ea su re to d e a l w ith m en ta lly u n sta b le an d d a n g e ro u s o ffen d ers; n u m ero u s ju d ic ia l sta tem en ts h a v e re co g n ised th e p ro tectiv e p u rp o se o f this form o f life sen te n ce.41 A lth o u g h th e d iv id in g lin e m ay b e d ifficu lt to d raw in p a rticu la r cases, it see m s c le a r th a t th e p rin cip le s u n d e rly in g su ch sen te n ces, u n lik e m an d ato ry life sen te n ces, h a v e d e v elo p e d in th e sen se th at th ey a re c o m p o sed o f a p u n itiv e e lem en t an d su b s e q u e n tly o f a se c u rity elem en t d e sig n ed to co n fer o n th e S e creta ry o f S ta te th e re sp o n s ib ility fo r d e term in in g w h e n th e p u b lic in terest p erm its th e p ris o n e r 's relea se. T h is v ie w is co n firm ed b y th e ju d icial d e scrip tio n o f th e 'ta riff' a s d e n o tin g th e p eriod o f d eten tio n co n sid ere d n ecessa ry to m eet th e re q u irem en ts o f re trib u tio n an d d e terren ce

74.

T h e C o u rt a cce p ts th e g o v e rn m e n t's su b m issio n s th at th e 'tariff' is also co m m u n ica ted to th e S e creta ry o f S ta te in c ases o f m an d a to ry life im p riso n ­ m en t; th at th e S e creta ry o f S ta te in c o n sid erin g re le ase m a y n ot b e b o u n d b y th e in tim a tio n o f th e 'ta riff'; an d th a t in th e a sse ssm e n t o f th e risk fa cto r in d e cid in g o n re le a se th e S e cre ta ry o f S ta te w ill also h av e reg ard to th e g ra v ity o f th e o ffen ces co m m itted . H o w ev e r, in th e C o u rt's v ie w th is d o e s n o t a lter th e fa ct th a t th e o b je ctiv es o f th e d isc re tio n a ry life se n te n c e as see n a b o v e are d istin c t fro m th e p u n itiv e p u rp o ses o f th e m a n d a to ry life sen te n ce an d h av e b e e n so d e scrib ed b y th e co u rts in th e re le v a n t cases.

75.

It is c le a r fro m th e ju d g m e n ts o f th e se n te n c in g co u rts th a t in th eir v iew th e th ree a p p lica n ts, u n lik e M r W ee k s, h ad co m m itted o ffen ces o f th e u tm o st

37 38 39 40 41

(1979-80) 1 EHRR 373; 18 June 1971. (1982) 4 EHRR 188; 5 November 1981, Series A no. 46, pp. 22-3, para. 52. (1982) 4 EHRR 433; 24 June 1982, Series A no. 50. (1994) 17 EHRR 30; 29 August 1990, Scries A no. 181-A. They referred, in particular, to the remarks by the Lord Chief Justice, Lord Lane, in R v. Wilkinson (1983) 5 Cr App R (S) 105 and Lord Justice Stuart-Smith in R v. Parole Board, ex parte Bradley [19911 1 WLR 134.

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gravity meriting lengthy terms of imprisonment. Nevertheless, the Court is satisfied that in each case the punitive period of the discretionary life sentence has expired. In the case of Mr Thynne, it was accepted that by the end of 1984 risk was the sole rem aining consideration in his continued detention. In addition to the life sentence imposed on him for the offence of buggery, Mr W ilson was sentenced in 1972 to seven years' im prisonm ent for each of the nine other counts to be served concurrently. In the circum stances of his case, it would seem reasonable to draw the conclusion that the punitive period of his life sentence had expired when he was released in 1982 and that thereafter his re-detention pursuant to that sentence depended solely on the risk factor. In Mr Gunnell's case too it may be taken that, notwithstanding the gravity of his offences on which the courts laid particular emphasis, the applicant had served the punitive period of his sentence by M arch 1982, the date fixed for his provisional release. 76. Having regard to the foregoing, the Court finds that the detention of the applicants after the expiry of the punitive periods of their life sentences is com parable to that at issue in the Van Droogenhroeck and Weeks cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows that at that phase in the execution of their sentences, the applicants were entitled under A rticle 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court . .. T h e C o u rt th e n had to d e c id e w h e th e r th e a v a ila b le re m e d ie s satisfie d th e re q u ire m e n ts o f A rtic le 5(4): 79. Article 5(4) does not guarantee a right to judicial control of such scope as to empower the 'court' on all aspects of the case, including questions of expediency, to substitute its own discretion for that of the decision-m aking authority; the review should, nevertheless, be wide enough to bear on those conditions which, according to the Convention, are essential for the lawful detention of a person subject to the special type of deprivation of liberty ordered against these three applicants.42 80. The Court sees no reason to depart from its finding in the W eeks judgment (paras. 60-69) that neither the Parole Board nor judicial review proceedings - no other rem edy of a judicial character being available to the three applicants - satisfy the requirem ents of Article 5(4). Indeed, this was not disputed by the government. O n th e q u e s tio n o f c o m p e n s a tio n , th e C o u rt, re fe rrin g to B rog an a n d O th ers43 a n d F o x , C a m p b ell a n d H a r tle y ,44 a c c e p te d W ils o n 's a rg u m e n t th a t

42 See, inter alia, Weeks, para. 59, and E v. Norway, para. 50. 43 (1989) 11 EH RR 117; 29 N ovem ber 1988, Series A no. 145-B, p. 35, para. 67. 44 (1991) 13 EH RR 157; 30 A ugust 1990, Series A no. 182, p. 21, para. 46.

50

Beyond the tariff

there had been a breach o f A rticle 5(5) in that he did not have an enforceable right to com p ensation un der the law o f the U nited K ingd om in respect o f the violation o f A rticle 5(4). But even assu m ing that they have suffered certain feelings o f 'h elplessness and fru stratio n', the C ourt shared the gov ern m en t's view that, in the circu m stan ces, finding a v iolation of A rticle 5 in each o f the cases constituted sufficient ju st satisfaction for the pu rposes o f A rticle 50 and no ord er for com pensation w as m ade. T hey w ere aw arded their law yers' fees. D iss e n tin g o p in io n o f Ju d g e V ilh ja lm s so n In W eeks three ju dges had d issen ted , holding that there had been no breach o f A rticle 5(4), b u t this tim e Ju d g e T ho r V ilhjalm sson w as alone. B ecau se the C ou rt w as sitting in plenary, he consid ered him self free to exam in e the question s afresh and to reiterate his d issen ting opinion in W eeks. The earlier case law 'could not . . . be taken to form a clear p recedent for the case at han d '. H e w as p articularly influenced by how the present ju dgm ent w ould influence the situ ation in other countries: I c o n sid e r th a t th e a p p ro a ch o f th e m a jo rity , w h ich is d ifficu lt, if at all p o ssib le, to ap p ly in th e p re se n t ca se, w o u ld g iv e rise to ev en g rea te r d ifficu lties if it w e re to b e a p p lied to sen te n ces p a sse d in o th e r S tates. T h e w o rd s o f the C o n v e n tio n d o n o t re q u ire th a t o u r C o u rt u n d e rta k e th e d ifficu lt task o f b re a k in g u p s en te n ces p a ssed b y co u rts in m em b er S ta tes in to th eir 'tariff' and 'se c u rity ' co m p o n en ts. T h is la tter p a rt o f a sen te n ce is said to b e b ased on g ro u n d s 'su sce p tib le o f c h a n g e w ith th e p assag e o f tim e'. I find th at it is n ot p o ssib le to m a k e th is d istin ctio n u n d e r th e C o n v e n tio n . It is also, in m y o p in io n , re le v a n t th at the p o ssib ilities a cco rd ed to a d m in istra tiv e au th o rities u n d e r n a tio n a l la w s to sh o rte n th e tim e a c tu a lly sp e n t in p riso n is g e n e rally o u tsid e th e co n tro l o f o u r C o u rt. T h e C o n v e n tio n h as n o clear ru les o n th is p o in t an d it is, fo r th e m o st p art, left to th e m e m b e r S ta tes to re g u la te it . . . T h e C o n v e n tio n d o e s n o t g u a ra n te e a rig h t to b e c o n sid ere d fo r p a ro le n or d o e s it c o n ta in ru les a s to th e o u tco m e o f su ch p ro ced u res. I am o f th e o p in io n th at th e rig h ts o f th e a p p lica n ts M r W ilso n and M r G u n n ell a re n o t ch an g ed b y th e fa ct th at th ey w e re relea sed o n lice n ce an d th en re -d e tain e d on th e b a sis o f th eir o rig in a l se n te n c e s sin ce th ese sen te n ces w e re still in force. It g oes w ith o u t sa y in g th a t th e fa ct th a t th e th ird ap p lica n t, M r T h y n n e, esca p ed tw ice fro m d e ten tio n , d o e s n o t c h a n g e h is le g a l situ atio n . A c c o rd in g ly I h av e voted fo r n o v io la tio n o f A rticle 5 (4 ). I th erefo re find n o v io latio n o f A rticle 5(5) as cla im ed b y th e a p p lic a n t M r W ilso n .

T h e ou tcom e fo r T h y n n e , W ilso n and G u n n e ll W e w ill see in the next chapter how the B ritish governm ent responded to this case by creatin g D iscretion ary L ifer Panels o f the Parole Board. T h e first ones m et in O ctober 1992. T h y n n e w as one o f the first to benefit

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from an oral hearing and he w as released on licence on 23 O ctob er 1992. H ow ever, his licence w as revoked in Jan u ary 1993 follow ing concerns about his behaviou r. H e w as su bsequ ently sentenced in M ay 1993 to three years im prisonm ent for offences o f burglary and assau lt w hich took the place the day before he w as recalled in Janu ary. T hese offences resem bled the offence for w hich he had received a life sentence: he had gained ad m ittance by claim ing to be a policem an in vestigating a burglary. Five years later, in A pril 1998, he w as again released on licence but he died shortly afterw ard s, o f a heroin overdose, aged 47. B enjam in W ilson w as ev en tu ally released in 1996 (aged 80), and has since died (aged 84). It w ill be rem em bered that G u nnell had pleaded gu ilty in 1990 to attem pted rape and to sev eral charges o f indecent assault. H e w as sentenced once m ore to life im prisonm ent and the life licence for his original offences had alread y been revoked. H e d ied, still in custod y, in 2001, aged 71. T h e com m on b elief that d angerou s lifers leave prison after a short tim e and have an easy tim e of it are belied by the ind ividu al life stories m entioned here. But such stories create their ow n m ythologies: d uring Padfield and L ieblin g's research carried out in 1999,4:1 T h y n n e's apparen t suicid e from a drug ov erd ose w as m entioned several tim es by people on, or w o rkin g for, the P arole Board as a reason for caution. There seem ed to be a b elief that the P arole Board should not 'set people up to fail' by releasing them inap p rop riately or on conditions that they w ere u n likely (or unw illing) to m eet. T his idea sits u n com for­ tably w ith the prison er's right to be released if he is no lon ger considered d angerous. P aternalistic concerns about 'setting people up to fail' should surely result not in further d etention, but in an insistence on greater su pport bein g m ad e av ailable in the com m unity.

Wynne: murderers are different M eanw hile, a m an d atory life sen tence prisoner also took his case to the E uropean C ou rt o f H um an Rights.46 W yn ne had been convicted of m u rd er in 1964 and sentenced to life im prisonm ent. H e w as released on licence in M ay 1980 and killed another w om an in Ju n e 1981. H e w as convicted o f m an slaughter and received a d iscretionary life sentence, and his licence w as revoked. H e later learnt that his tariff in relation to the second offence had expired in Ju n e 1991 and he sou gh t to argue that the C o u rt's ru ling in Tlnjim e47 should also apply to those sen tenced to a m an d atory sentence. In a b rief ju dgm ent, the E uropean C ou rt o f H um an 45 See Chapter 5. 46 (1994) 19 EHRR 333. 47 (1991) 13 EHRR 666.

52

Beyond the tariff

R ights accepted the 'essential d istin ction' betw een m an d atory and d iscretionary life sentences. The C ou rt said b lu n tly that the fa ct re m a in s th at th e m a n d a to ry se n te n c e b e lo n g s to a d ifferen t ca teg o ry fro m th e d isc re tio n a ry se n te n c e in th e sen se th at it is im p o sed a u to m a tica lly a s th e p u n ish m e n t fo r th e o ffen ce o f m u rd er irresp ec tiv e o f co n sid era tio n s p erta in in g to th e d a n g e ro u sn e ss o f th e o ffen d er. T h a t m a n d a to ry life p riso n ers d o n o t a c tu a lly sp en d th e re st o f th eir liv es in p riso n an d th a t a n o tio n a l tariff p erio d is a lso esta b lish ed in su ch c a ses . . . d o e s n o t a lte r th is esse n tial d istin ctio n b etw ee n th e tw o ty p es o f life sen te n ce [at p a g e 347],

Sin ce W ynne w as serving a m an datory life sen tence, a review o f the law fulness o f his d iscretionary life sen tence w ould be devoid o f purpose. The E uropean C om m ission , on the o ther hand, had not so read ily accepted the gov ern m en t's position. They had been split 1 0 -5 , the d issen ting opinion challengin g the g ov ern m en t's case in a w ay w hich w as not exam ined at all by the Court. T hey pointed o ut (at page 343) that w h ile th e g o v e rn m e n t co n ten d th a t an a d d itio n al facto r, n am e ly , th e c o n sid e r­ atio n o f th e m a in te n a n c e o f p u b lic c o n fid en ce in th e crim in a l ju stic e sy stem , is o p era tiv e in m a n d a to ry cases, w e n o te th at in th e 1987 p o licy sta tem en t,48 th is w a s re le v a n t to th e sta g e o f d e cid in g a s to th e a p p ro p ria te len g th o f th e tariff and w as n o t stated to b e a fa cto r w h ich cou ld re q u ire th e con tin u ed d eten tio n o f a p erso n w h o had serv ed h is ta riff an d w a s n o lo n g er co n sid ere d a risk. W e fu rth e r h a v e d o u b ts a s to w h eth e r th e crite rio n o f m a in ta in in g p u b lic co n fid e n ce is n o t m ere ly a re sta tem en t o f th e risk p rin cip le.

T h e E uropean C ou rt of H um an R igh ts' acceptance that the m an d atory life sen tence for m u rd er is essentially different w as su ccessfu lly ch al­ lenged in 2002 in the case o f Stafford v. U K.49

The cases of Hussain and Singh50 T h e n ext im portan t challenge to the w ay that ind eterm inate sentences are im plem ented in the U nited K ingdom to reach the E uropean C ou rt of H um an R ights concerned you ng people u n d er the aged o f 18 convicted o f m urder. H ussain and Singh argued su ccessfu lly that they, unlike those w ho are convicted o f m u rd er as adults, should be allow ed the benefits o f A rticle 5(4). 48 Discussed at p. 28 above. 49 See Preface. 50 (1996) 22 EHRR 1.

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A b e d H u ssa in A b e d H u ssa in , a P a k ista n i n a tio n a l, w a s b o rn in 1962 an d w a s c o n v ic te d in 1978, a g e d 16, o f th e m u rd e r o f h is b ro th e r, a g e d 2. H e re c e iv e d th e m a n d a to ry s e n te n c e o f d e te n tio n 'd u r in g H e r M a je s ty 's p le a s u re ' p u rs u ­ a n t to s e c tio n 5 3 (1 ) o f th e C h ild re n an d Y o u n g P e rso n s A ct 1 9 3 3 .51 In p a s sin g s e n te n c e , th e ju d g e state d : I regard you as som eone who has dem onstrated him self to be a cruel and unfeeling young man. I think you are - certainly for the time being - a dangerous person. L a ter th e tria l ju d g e w ro te to th e S e c re ta ry o f S ta te: Over the two or three days im m ediately preceding the baby's death, [Hussain] had undoubtedly treated him with very considerable violence by slapping, kicking and shaking. The baby w as covered with over 60 bruises and his brain and spine were injured. Since [he] denied ever having laid hands on him, it was not possible to discover why he had acted with such violence. [Hussain] is unquestionably an unscrupulous young liar, but the most unusual feature of him was his impassivity. He dem onstrated no feeling w hatsoever for his brother's injuries and death. This gave m e the impression that he is very probably a very dangerous young man who is quite unmoved by brutality. I am anxious that this aspect of his character should be borne fully in mind w henever the question of release arises. He still has three young siblings and their safety must be a predominant consideration. I am deeply concerned at the appearance of norm ality this young man gives; it is probably very misleading. I cannot recommend any period for his detention. It will have to continue until one can say with reasonable certainty that maturation has rendered him safe. The difficulty is that he is already 'old for his years', as one police officer described him. Maturation here involves much more than simply a young boy growing up. I can do no more than sound this som bre note of warning.52 H e a p p e a le d a g a in s t b o th h is c o n v ic tio n an d s e n te n ce . T h e C o u rt o f A p p e a l d is m is se d h is a p p e a l o n 5 M a rc h 1980. H e w a s first d e ta in e d in th e y o u th w in g o f L iv e rp o o l p riso n and th en in a y o u n g o ffe n d e rs' in s titu tio n b e fo re b e in g tra n sfe rre d to an a d u lt p riso n . It w a s n o t u n til 1986 th a t th e H o m e S e c re ta ry (d e sp ite c o n fid e n tia l ju d ic ia l re c o m m e n d a ­ tio n s o f te n y e a rs) s e t H u s s a in 's tariff a t 15 y e a rs. T h is w a s th e e q u iv a le n t o f a d e te r m in a te s e n te n c e o f m o re th a n 2 0 y e a rs, im p o s e d o n a 1 6 -y e a r-o ld . H u s sa in first le a rn t o f th e ju d icia l re c o m m e n d a tio n s in a le tte r fro m th e H o m e O ffice o f 6 O c to b e r 1994, s e n t in a c c o rd a n c e w ith 51 N ow section 90 o f the Pow ers o f Crim inal C ourts (Sentencing) A ct 2000; see p. 8 above. 52 Q uoted at (1996) 22 EH RR 1, para. 10.

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Beyond the tariff

the H ouse o f L ord s' ju dgm ent in D oody.53 By the tim e o f the hearing before the E uropean C ou rt o f H um an Rights, the P arole Board had alread y consid ered H u ssain 's case on four occasions. T h e first Parole Board review took p lace in D ecem ber 1986. The reports o f progress w ere p ositive and, as H ussain learnt later, the Local R eview C om m ittee felt that he w as suitable to b e given a provisional release date. T h e Parole Board did not, how ever, recom m end release, but only that he be transferred to a less restrictive C ategory C prison w ith a further review to com m ence in A ugust 1990. In accord ance w ith usual practice at that tim e, he did not see any o f the reports before the P arole Board and had no op p ortu nity to appear before it. The second P arole Board review took place in 1990. A gain he learnt later that the Local R eview C om m ittee had recom m ended that he should be given a provisional release date. But the Board did not recom m end release, rath er his transfer to open conditions w ith a further review to com m ence 18 m on ths later. H ow ever, the H om e Secretary rejected the B oard 's recom m en d ation and d irected that he should m ove to another C ategory C prison w ith a further review to com m ence in O cto ber 1992. A gain he did not see any o f the reports on him and had no oral hearing before the P arole Board. H e w as given no reasons for the d ecisions taken. A fter the third review , in 1992, the P arole Board recom m en ded that he be transferred to open con ditions w ith a further review in six m on ths' tim e. H ow ever, the H om e S ecretary again rejected this recom m en dation, d irecting that he rem ain in closed conditions w ith a further review to com m ence in M arch 1995. H ussain w as inform ed in M arch 1993 that his release had not been recom m en ded and about the d ate o f his next review . H e had by now served 15 years. In Ju n e 1993, H ussain applied for ju dicial review o f the decision com m u nicated in M arch 1993 on the basis that he had not been show n the reports on him placed before the Board. H e relied on the case o f Prem Singh54 as establish ing that persons detained d uring H er M ajesty 's pleasure had a right at com m on law to disclosure o f reports. O n 13 O ctober 1993, the P arole Board gave the H igh C ou rt an u n dertakin g to reconsid er his case im m ed iately and to disclose their case file to him so that he could m ake inform ed representation s. H e w ithd rew his ap p lica­ tion for ju dicial review . In Jan u ary 1994 H ussain w as show n the reports on him that w ere before the Parole Board, but he w as not given the opportu nity to appear in person. Follow in g this review , the Secretary o f State accepted the P arole B o ard 's recom m en d ation to transfer him to open conditions. By 53 R v. Secretary o f State ex parte Doody 11994] 1 AC 531; see p. 6 above. ^ R v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993, unreported (discussed below).

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the tim e o f the E uropean C ou rt o f H um an R igh ts' hearing H ussain w as 33 years old, and had b een d etained for over 17 years. Prem S in g h Prem Singh w as born in 1957 and in 1973, aged 15, he w as convicted o f the m u rd er o f a 72-year-old w om an, w hom he strangled and had sex w ith at around the tim e of her death. H e w as released on licence in O ctob er 1 9 9 0 ,1 5 years later, bu t w as arrested the next year in connection w ith alleged offences o f d eception and using threatening behaviou r. His licence w as revoked and the Parole Board did not recom m end his release. The P arole Board consid ered his case again in D ecem ber 1991 and in M arch 1992 the crim inal charges against him w ere dism issed becau se the p rosecu tion had presented the ind ictm ent out of tim e. Singh asked the S ecretary o f State to refer his case back to the P arole Board becau se o f this d evelopm ent, b u t in Ju ly 1992 the P arole Board again decided not to recom m end release. In A pril 1993 the D ivision al C ourt quashed the P arole B o ard 's d ecision o f D ecem ber 1991 on the ground that there had been a breach o f natural ju stice becau se o f the B oard 's failure to disclose the reports before it.55 A s a result, he w as given his com p lete d ossier and w ith the help o f a solicitor m ad e w ritten represen­ tations to the Parole Board w ho reconsidered his case in Ju n e 1993. H e w as not present at the hearing. T h e Board did not recom m end release. In Ju ly 1994 a further hearing o f the Parole Board recom m ended his release, subject to six m onths spent in a P re-R elease E m ploym en t Sch em e (PRES). H ow ever, the S ecretary o f State did not accept this recom m en­ dation. T his d ecision too w as quashed by the D ivisional C ou rt in M arch 1995 on the ground s that the reasoning process follow ed by the S ecretary o f State had been flaw ed, becau se he had not explained how the findings he had m ad e related to the test o f d angerou sn ess, defined as a d anger to the 'life and lim b' of the pu blic.56 In S ep tem ber 1995, Singh joined the P R ES w ith a provisional release date in M arch 1996. T h e C o u rt's d ecisio n H ussain applied to the C om m ission on 31 M arch 1993. The C om m ission declared the application ad m issible on 30 Ju n e 1994. The C ou rt agreed un anim ously that both H ussain and Singh w ere entitled u n d er A rticle 5(4) to have the law fulness o f their d etention decided by a cou rt at reasonable intervals:

55 R v. Secretary o f State for the Home Department, ex parte Prem Singh, 20 April 1993, unreported; this was the case relied on by Hussain - see p. 54 above. 56 R v. Secretary of State for the Home Department, ex parte Prem Singh (No. 2), 16 March 1995, unreported.

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50. The Court notes at the outset that, as has been com monly accepted, the central issue in the present case is w hether detention during H er M ajesty's pleasure, given its nature and purpose, should be assimilated, under the case-law on the Convention, to a mandatory sentence of life im prisonm ent or rather to a discretionary sentence of life imprisonment. In dealing with this issue the Court must therefore decide w hether the substance of a sentence of detention under section 53 is more closely related to that at the heart of the cases of Weeks v. the UK57 and Thynne, Wilson and Gunnell58 or to that in the more recent case of Wynne v. the United Kingdom.59 51. It is true, as submitted by the governm ent, that a sentence of detention during Her M ajesty's pleasure is mandatory: it is fixed by law and is imposed autom atically in all cases where persons under the age of 18 are convicted of murder, the trial judge having no discretion. It is also the case that the 1991 Act as well as recent policy statem ents treat the sentence at issue in the present case in an identical m anner to m andatory life sentences as regards proceedings for release on licence and recall. On the other hand, it is undisputed that, in its statutory origins, the expression 'during Her M ajesty's pleasure' had a clearly preventive purpose and that - unlike sentences of life custody or life im prisonm ent - the word 'life' is not mentioned in the description of the sentence. 52. Nevertheless, important as these argum ents may be for the understand­ ing of the sentence of detention under section 53 in English law, the decisive issue in the present context is w hether the nature and, above all, the purpose of that sentence are such as to require the lawfulness of the continued detention to be examined by a court satisfying the requirem ents of Article 5(4). 53. . . . In the case of young persons convicted of serious crimes, the corresponding sentence undoubtedly contains a punitive elem ent and accord­ ingly a tariff is set to reflect the requirem ents of retribution and deterrence. However, an indeterm inate term of detention for a convicted young person, w hich 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 assessm ent of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developm ents in the young offender's personality and attitude as he or she grows older. A failure to have regard to the changes that inevitably occur with maturation would mean that young persons detained under section 53 would be treated as having forfeited their liberty for the rest of their lives, a situation which, as the applicant and the Delegate of the Com mission pointed out, might give rise to questions under Article 3 of the Convention. 54. Against this background the Court concludes that the applicant's sentence, after the expiration of his tariff, is more com parable to a discretion­ 57 (1988) 10 EH RR 333. 58 (1991) 13 EH RR 666. 59 (1994) 19 EH RR 333.

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a ry life sen te n ce. T h is w as, a lb eit in a d ifferen t co n text, th e v ie w ex p resse d b y th e D iv isio n a l C o u rt in its ju d g m e n t o f 20 A p ril 1993.60 T h e d e cisiv e grou n d fo r th e a p p lic a n t's co n tin u ed d eten tio n w as and co n tin u es to b e h is d a n g e r­ o u sn e ss to so ciety , a c h a ra cteristic su sce p tib le to c h a n g e w ith th e p a ssa g e o f tim e.

The C ou rt w ent on to decide that judicial review did not provide an ad equ ate rem ed y w hich satisfied the requ irem ents o f A rticle 5(4). C iting W eeks,61 £. v. N orw ay,62 and Thynne, W ilson and G unnell,63 the C ourt conclud ed that not only that the P arole Board did not satisfy the requ irem ents of A rticle 5(4) becau se it could not ord er release, bu t also that 'the lack o f adversarial proceedings before the P arole Board also prevents it from being regarded as a court or cou rt-like body for the pu rposes o f A rticle 5 (4 )'.64 Finally: T h e C o u rt is o f th e v ie w th a t, in a situ a tio n su ch as th at o f th e ap p lica n t, w h ere a su b sta n tia l term o f im p riso n m e n t m a y b e a t sta k e an d w h ere ch a ra cteristics p erta in in g to h is p erso n a lity an d lev el o f m a tu rity a re o f im p o rta n c e in d e cid in g o n h is d a n g e ro u sn ess, A rticle 5(4) re q u ires an o ral h ea rin g in th e co n tex t o f an a d v ersa ria l p ro c ed u re in v o lv in g leg al re p rese n ta tio n an d th e p o ssib ility o f c a llin g and q u e stio n in g w itn esses. It is n o t an a n sw e r to th is re q u ire m e n t th at th e a p p lic a n t m ig h t h av e b een a b le to o b ta in a n o ral h ea rin g b y in stitu tin g p ro c ee d in g s for ju d icial review . In th e first p lace, A rticle 5(4) p re su p p o ses th e e x isten ce o f a p ro ced u re in c o n fo rm ity w ith its re q u irem en ts w ith o u t th e n e c e ssity o f in stitu tin g sep a ra te legal p ro cee d in g s in o rd er to b rin g it abo u t. In th e seco n d p lace, lik e the D eleg a te o f th e C o m m issio n , th e C o u rt is n o t co n v in ced th at th e a p p lic a n t's p o ssib ility o f o b ta in in g an o ral h ea rin g b y w ay o f p ro c ee d in g s fo r ju d icial re v iew is su fficie n tly certa in to b e re g a rd ed as sa tisfy in g th e re q u irem en ts o f A rticle 5(4) o f th e C o n v e n tio n .65

The C ou rt gave no aw ard for non-p ecun iary dam ages, b u t aw arded costs o f £19,000, less 14,475 French francs already paid by w ay o f legal aid, in respect of fees and travel and su bsistence expenses. T hu s, the outcom e o f H ussain and Singh w as that the E uropean C ourt o f H um an R ights decided that you ng people convicted o f m u rd er (w ho o f cou rse like H ussain and Singh them selves are no longer you ng people by the tim e they com e to be consid ered for release) should n ot be treated R. v. Secretary o f State for the Home Department, ex parte Prem Singh, see note 54 above. (1988) 10 EHRR 333. (1994) 17 EHRR 30. (1991) 13 EHRR 666. At para. 58. It may well be that all the Court meant by an adversarial procedure was an oral hearing. 65 At para. 61.

60 61 62 63 64

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Beyond the tariff

as ad ult m u rd erers, d espite the fact that they are by then adults w ho have been convicted of m urder. Instead, they w ere entitled to the sam e due process rights as those w ho, for very different reasons, received d iscretionary life sentences. The C ou rt gav e its ju d g m ent on 21 February 1996, and the C rim e (Sentences) A ct 1997, as w e shall see, extended the D L P process to those sentenced for H er M ajesty 's pleasure. For Singh this m ean t he w as even tually released for the second tim e in M arch 1996 and at the tim e of w riting, he rem ains on licence. H ussain w as released on life licence in A u g u st 1997 and he too rem ains un der the supervision o f the P robation Service. This leaves tw o ind eterm inate sentences w e have not d iscussed in this C hapter: cu stod y for life, the m an d atory sen tence from those aged over 18 and under 21 convicted o f m urder, and the m ore m odern invention, 'au tom atic' life sentences. In Brom field v. U nited K ingdom 66 and Ryan v. U nited K in g d o m 67 the E uropean C om m ission held that those sentenced to custod y for life w ere rightly treated as ad u lt m u rd erers fo r w hom the sen tence auth orises life-long d etention and thus they do not have the right to the benefit of A rticle 5(4). 'A u tom atic' life sentences are being treated for release pu rposes as d iscretionary life sentences.

Summary This chap ter has described certain key ru lings o f the E uropean C ou rt of H um an Rights w hich led to the creation o f the D iscretionary Lifer Panels o f the Parole Board. It started w ith the case o f R obert W eeks, beneficiary o f the p rerogativ e o f m ercy after his success in the E uropean C o u rt of H um an Rights. H e w on his arg u m en t that the p roced u re before the P arole Board, w ithout an oral hearing and w here the P arole Board had no pow er to d ecide the issue, infringed his rights under A rticle 5(4). T hynne, G u nn ell and W ilson w ere equally successfu l before the C ourt (though less successfu l personally) and it w as their cases w hich forced throu gh the changes w hich led to the creation o f D iscretion ary Lifer Panels o f the P arole Board. T h ese cases did not lead to a change for all lifers: the E uropean C ou rt o f H um an R ights held in W ynne that the sen tence for m u rd er w as essentially d ifferent to the d iscretionary life sentence. D espite this, the C ou rt subsequ ently held in H ussain and Singh that ju venile m u rd erers should be entitled , like d iscretionary lifers, to the p rotection o f A rticle 5(4). This is not the end o f the story. W e shall see in C h apter 7 how tw o d iscretionary life sen tence prisoners have m ore recently been successfu l 66 (1988) 26 EHRR CD 138. 67 (1999) 27 EHRR CD 204.

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in the E uropean C ou rt o f H um an Rights in challengin g the 'tim elin ess' o f their D LP review s. A nd now Stafford, a m an d atory lifer w ho had been released on licence but later recalled, has taken his case to the E uropean C ou rt o f H um an R ights later in 2002 hoping to overrule the d ecision in W ynne. H ow ever, it is tim e to turn ou r attention to how the British governm ent reacted to the d ecisions discussed so far. H ow the reasoning o f the E uropean C ou rt o f H um an R ights has been interpreted by the U nited K ingd om P arliam en t is the su bject o f the n ext chapter. Later, in C h ap ter 7, w e w ill analyse the argum en ts w hich lie behind the decisions in m ore depth.

4 Parliamentary and governmental responses In this chap ter w e look at the response o f the B ritish go v ernm ent to the d ecisions o f the E uropean C ou rt o f H um an Rights in the three key cases: W eeks decided in 1987, T hynne W ilson and G unnell in 1990, and Singh and H ussain in 1996. In this chap ter w e trace the painful birth o f D iscretion­ ary L ifer Panels o f the Parole Board, con centratin g on am endm ents added at a late stage to the C rim in al Ju stice Bill 1990. It appears that the go v ernm ent w as forced to act m ore sw iftly than it w anted to, and produced a new 'co u rt' to d ecid e on the release o f d iscretionary life sen tence prisoners w ith som e reluctance.

The Criminal Justice Bill 1990 T h e go v ernm ent w as alread y com m itted to a substantial C rim in al Ju stice Bill in 1990, long before the E uropean C ou rt o f H um an R ights gave its d ecision in Thynne. T he roots of the Bill lay in the W hite Paper, Crim e Ju stice and P rotecting the P ublic,’ and before that in a sem in ar convened by D ouglas H urd in 1987 at Leeds Castle. T h e W hite P aper had m ad e no reference at all to life or ind eterm inate sen tence prisoners. Its m ain proposals w ere d irected tow ards the sen tencing fram ew ork, although the go v ernm ent also intended to replace the existing system o f parole to ensure that prisoners served at least half their sen tences in cu stod y and that 'prisoners serving sentences o f 4 years or m ore w ould not get parole if this w ould put the public at risk '.2 H ow ever, once the Bill reached the H ouse o f C om m ons life sentences w ere firm ly on the agenda: a call for the reintrod uction o f the death penalty on the one hand, and, on the other, a call for the im plem entation o f the recom m en d ations of the

1 Cm % 5. 2 The changes in the early release procedures for determinate sentence prisoners were based on the proposals of the Carlisle Committee (1988), which are discussed further in Chapter 6.

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H o u s e o f L o r d s S e le c t C o m m itte e o n M u r d e r a n d L ife I m p r is o n m e n t, c h a ir e d b y L o rd N a th a n .3 T h is S e le c t C o m m itte e , w h ic h h a d b e e n a p p o in te d o n 21 J u ly 1 9 8 8 a n d h a d s a t fo r th e b e s t p a r t o f a y e a r b e fo r e r e p o r tin g in J u ly 1 9 8 9 , in c lu d e d s e n io r ju d ic ia l fig u r e s a s w e ll a s th o s e w ith e x p e r ie n c e o f th e p e n a l s y s te m : L o rd A c k n e r, L o rd W in d le s h a m , L o rd H a rris , L o rd N a th a n .4 T h e s u m m a r y o f th e ir u n a n im o u s c o n c lu s io n s in c lu d e th e fo llo w in g : M urders differ so greatly from each other that it is w rong that they should attract the sam e punishm ent. The right w ay to deal w ith this m atter is not to divide m u rd er into categories, but to give the judge d iscretion to im pose the sentence appropriate to the particular offence, taking into account all the relevant circum stances . . . W here a life sentence is aw arded the judge should specify his reasons for im posing that sentence rather than a determ inate sentence. In every case, the judge should specify in open court the period o f years w hich he considers necessary to satisfy the requirem ents of retribution and deterrence. The C om m ittee refer to the period as the 'penal sanction'. W hen the judge im poses a life sentence on the ground o f risk, the penal sanction w ill be the period of years he would have im posed in the absence o f this factor. W here he im poses a life sentence becau se o f the heinousness o f the offence, the penal sanction w ill be the period of years he w ould have im posed if the life sentence w as not available. The penal sanction set by the judge should not be subject to revision by M inisters. It should, how ever, be open to appeal by either side . . . Up to the expiry o f the penal sanction, parole arrangem ents should apply to life sentence prisoners as they do to prisoners on fixed term sentences. T he decision to release should be an entirely judicial one. A ju dicial tribunal for considering life sentence release and recall decisions after the expiry o f the penal sanction should be established. T he tribunal should be com posed of a H igh C ourt judge, a consultant psychiatrist and a ch ief probation officer. T he prisoner should have the right to see all relevant docum ents. He should have the right o f appearance and the right to be legally represented. The tribunal should have the characteristics of a cou rt under the E uropean C onvention, and in particular, should be entirely independent of the executive.

3 H L Sessio n 1 9 8 8 -8 9 , P ap er 78-1. For an analy sis, s e c M organ (1990), R ich ard son (1990), W in d lesh a m (1990). 4 Lord A ck n er w as a sen io r ju dge, and Law Lord from 1986 to 1992; Lord W in d lesh am , a h ered itary p eer, had b een a C o n serv ativ e H om e O ffice M in ister and then L ead er o f the H ou se o f Lords in th e early 1970s, and w as C h airm an o f the P arole Board 1 9 8 2 -8 8 ; Lord H arris w as D irecto r o f P u b licity for the L ab o u r P arty in the 1960s and later joined the L iberal D em ocrats. H e had chaired the P arole Board from 1979 to 1982; Lord N athan, a n o th er h ered itary p ee r and so licito r by training, had chaired the C om m ittee.

62

Beyond the tariff T h e d e cisio n o f th e trib u n a l sh o u ld b e fin al. H o w ev e r, if th e trib u n al o rd ered th e re le a se o f a p riso n er, th is w o u ld b e re le a se on lice n ce, an d w o u ld afford th e p u b lic th e sa m e d e g re e o f p ro tectio n as th e p re sen t lice n ce sy stem p ro v id es. T h e lice n ce w o u ld en title th e trib u n al, to w h o m th e m a tter w ou ld b e referred b y th e H o m e O ffice, to recall a licen cee. S u ch a recall w o u ld im m e d ia te ly b e re ferred to th e trib u n a l fo r its d e cisio n . If th e trib u n a l refu sed re le a se on lice n ce, it sh o u ld state th e tim e w h en th e case sh o u ld a g a in b e re ferred to th e trib u n a l. T h e d ate o f su c h re-co n sid era tio n sh o u ld b e w ith in th ree y e a rs . . .

It is w orth con sid erin g the political con text in w hich the Bill w as being debated: perh aps tw o issues dom inated the political consciou sness. First, the resignation o f M argaret T hatcher as P rim e M inister on 28 N ovem ber 1990. T his resulted in im portan t C abinet reshuffles w hich m u st have had an im pact on p olicy im plem entation.5 D ouglas H urd had been the H om e Secretary from 1985 until David W ad dington6 succeed ed him in O ctober 1990. W ad dington lost this post after a very short tim e, in Jo h n M ajo r's first reshuffle, w hen he becam e L eader o f the H ouse of Lords instead of Lord Belstead. K enneth B aker took over as H om e Secretary on 29 N o vem b er 1990. Thu s the B ill evolved un der D ouglas H u rd 's stew ard ­ ship, d eveloped un der D avid W ad d ington , and w as steered through P arliam en t by K enneth Baker. H e held the post o f H om e S ecretary only until succeed ed by K enneth C larke in A pril 1992. The second m ajor event d om inatin g the political scene at the tim e w as the G u lf W ar. Iraq had invaded K uw ait on 2 A u g u st 1990, and failed to leave by the 15 Jan u ary deadline. 'O p eration D esert S torm ' took place in Ja n u a ry / February 1991. O ther events w hich attracted political attention included a m ortar bom b launched at D ow ning S treet from a v an in W hitehall on 7 February 1991 and the release o f the B irm ingh am Six on 14 M arch.

The Bill in the House of Commons T h e C rim inal Ju stice Bill 1990 (Bill 6) had its first read in g in the H ouse o f C om m ons on 8 N o vem b er 1990, som e three w eeks after the d ecision o f the European C ou rt o f H um an R ights in Thynne. T here w as at this stage absolu tely no reference to release p roced u res for life sen tence prisoners. The Second R ead ing took p lace on 20 N ovem ber.7 The Bill w as introd uced by the then H om e Secretary, David W addington. There w as

5 See, for example, the political memoirs of Kenneth Baker (1993). 6 Interestingly, David Waddington was the only Conservative Home Secretary since the 1960s to favour the return of capital punishment. 7 Hansard, vol. 181, cols 139-236.

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a lively d ebate, in clu ding strid ent calls for the reintrod uction of the death penalty, led by Ivan L aw rence (a C on serv ative M P). Sin ce a vote on the death p enalty alw ays takes place on the floor o f the H ouse (although tech nically in the C om m ittee stage), a d ebate on new clau ses on the death penalty took place on 17 D ecem ber 1990. T h e proposal that the penalty for m u rd er o f a police officer should be death w as defeated by 350 votes to 215,8 and a m ore general death penalty clau se w as defeated by 367 votes to 182. A clau se, w hich w ould have abolished the death p enalty for treason etc, w as defeated by 289 v otes to 257,9 and another clau se w hich w ould have introd uced the d eath penalty for certain m u rd ers, subject to a judicial d iscretion, w as defeated by 349 votes to 186. C o m m ittee S tag e: the S h e e rm an p ro p o sa ls10 By the tim e that the Bill reached C om m ittee Stage, K enneth Baker had replaced D avid W ad dington as H om e Secretary. T h e Bill w as considered in C om m ittee from 29 N ovem ber 1990 until 7 February. T h e first issue raised by the O pposition w as w hether d raft R ules w ould be available before the Bill com pleted its con sid eration in C om m ittee. T he A ct w hich ev en tu ally reached the statu te bo o k had 18 section s granting enabling pow ers to the H om e Secretary (described v ariou sly as rules, regulations, ord ers, directions) and it is not surprising that m em bers o f the O pposition felt that to get the real 'flavou r' o f the A ct they needed to see the d raft Rules. John Patten, a H om e O ffice M inister, argued that since any Rules w ould be subject to the negative resolu tion procedu re, they w ould be su bject to d ebate in the H ouse o f C om m ons later. M r A ndrew B en nett respond ed that this w as 'n on sense': 'in an hou r and a half's d ebate on regulations, w e have v ery little control and no pow er to am end . . . O n the floor o f the H ouse one has to take regulations or reject th e m '.11 T his d iscu ssion is im portant, given the subsequ ent history o f the P arole Board R ules m ade un der section 32(5). U nlike the pow ers granted to the H om e S ecretary un der Part I o f the A ct, these pow ers w ere not exercisable only by statu tory instrum ent. T h ey w ere sim p ly placed in the H ouse of C om m ons library, and only after the new procedu res had com e into force. They have not been discussed in Parliam ent. T here w as also con sid erable con cern expressed that the Bill w as being d iscussed in C om m ittee shortly before the pu blication of the W oolf 8 Hansard, vol. 183, col. 113. 9 The death penalty for treason and piracy was finally abolished by section 36 of the Crime and Disorder Act 1998. This section was introduced at a late stage (on Report in the House of Lords) by Lord Archer of Sandwell, a Labour peer and senior lawyer, and was not opposed by the new Labour government. 10 Session 1990-1991, Official Report, Standing Committee A. 11 Session 1990-1991, Official Report, Standing Committee A, col. 8.

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R ep o rt,12 w hich had b een com m issioned to report fully into the causes o f the unrest and riots in a nu m ber o f E nglish prisons in the spring of 1990 and w as led by a senior ju d g e.11 T h e Report w as published on 25 February 1991 and the O pposition argued that the find ings o f the Report could u sefully have inform ed their ow n debate. T he failu re to w ait for the findings o f the Report w as presum ably also o f som e irritation too to those w orking on it. It w as in C om m ittee on 15 Jan u ary that the E uropean C o u rt's decision in T hynne w as first raised. Barry Sheerm an (L abou r M P for H ud d ers­ field) introd uced am en d m en ts and new clau ses to im plem ent the E uropean C ou rt o f H um an R ights' judgm ent. These new clau ses had the support o f the civil rights organisations Ju stice and L iberty and w ould have: • given all life sen tence p risoners (m andatory and d iscretionary) the righ t to have their cases review ed by the P arole Board every 12 m onths; • given the P arole Board the pow er to release lifers on licence or un con dition ally; • once a prisoner w as on licence, it w ould have given the P arole Board the d uty to review licence conditions ev ery five years; • given the Lord C h ancellor au th ority to institute rules to enable the Parole Board to becom e a 'co u rt' for the pu rposes o f the C on vention; • enabled the P arole Board to d ispose of an application w ithout a form al hearing w here such a hearing w as not requested by the applicant. It is interesting to note how d ifferent these proposals are from those ev en tu ally enacted: fo r exam ple, the provisions w hich M r Sheerm an proposed w ould have applied to all life sen tence prisoners, unlike the p rovisions w hich w ere ev en tu ally enacted, w hich apply only to d is­ cretionary life sen tence prisoners. N or did the governm ent accept that it should be p ossible to release prisoners un con dition ally. Im portantly for the question o f 'in d ep en d en ce', the pow er to d raft R ules w as in the end given to the H om e S ecretary and not to the Lord C h an cello r.14 John Patten, a H om e Office M inister, responded that, since it w as only three m onths sin ce the d ecision in T hynne and tw o m onths sin ce the appointm en t o f a new H om e Secretary, the gov ernm ent needed m ore tim e to con sid er 'the issues'. T hese issues inclu ded the view s o f the

12 Cm 1456; published on 25 February (see below). ,5 Lord W oolf was then a judge of the Court of Appeal, and became a Law Lord in 1992. He was later to become Master of the Rolls and then Lord Chief Justice. 14 This is discussed in detail at pp. 134-5 below.

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H ouse o f L ords Select C om m ittee (the N athan C om m ittee) on tariff setting. H e also argued , som ew hat d isingenu ously, that the d iscu ssion w as also u n tim ely as certain key issues relating to tariff-setting w ere sub iudice (Pegg, Pierson, Sm art, D oody w ere seeking ju dicial rev iew )15, con clud ing that 'I am inclined neither to accept the am en dm en ts nor to say at this stage w hen or how w e shall im plem ent the Strasbou rg ju d g m en t'.16 M r Sheerm an, although he w as 'flabbergasted ' by the M in ister's rem arks on 'u n righ t tim e' (sic), agreed not to p u sh the m atter to a vote if the M inister agreed in princip le to am end the Bill eith er in the H ouse o f L ords or in the H ouse o f C om m ons on Report. M r Sheerm an also proposed a clau se to abolish the m an d atory life sentence for m u rd er but he w ithd rew it on 7 February. R ep ort S tage A t the R ep ort Stage, on 20 February, Barry Sheerm an reintrod uced his new clau ses.1' O ne o f his m ain argum ents for applying the provisions to all lifers w as the g ov ern m en t's ow n arg u m en t before the E uropean C ourt o f H um an Rights in T hynne that it w ould be w rong in princip le and im practical in operation for tw o sets o f ru les to be operated by Parole Board d ep en ding on w hether it w as a m an datory or a d iscretionary case. H e criticised the d elay in introd ucin g the changes, since this had been necessitated not ju st by T hynne but since the d ecision in Weeks, decided tw o years earlier. H e also insisted that the Parole Board should have the pow er to set a period for the licence that w as less than life. M rs R u m bold, for the governm ent, replied sim ply that the H om e S ecretary w ould put proposals befo re the H ouse w hen he had com pleted his consid erations. O n a division, M r Sh eerm an 's clau ses w ere defeated by 279 v otes to 195. There follow ed som e d ebate on a clau se w hich w ould have abolished the m an datory life sen tence for m u rd er, proposed by the L abou r M P M r A rcher, but this w as w ithdraw n w ithout a vote. The R eport Stage of the Bill w as conclud ed on 25 February (the day the W oo lf R eport w as published and also d ebated in the H ouse o f C om m ons), and the Bill w as read a third tim e.18

The House of Lords It w as in the H ouse o f L ords that the m ost significant cam paign for reform of the law w as launched. But the cam paign w as spearhead ed 15 16 17 18

See [1993] 3 All ER 92 and p. 6 above. Official Report, Standing Committee A, 15 January 1991, col. 337. Hansard, vol. 186, col. 350. Hansard, vol. 186, col. 748-54.

66

Beyond the tariff

m ore by the N athan C om m ittee recom m en dations than by the decisions o f the E uropean C ou rt of H um an Rights. The initial em ph asis w as on the p roposal to abolish the m an d atory sen tence for m u rd erers, not on the rights o f d iscretionary lifers (indeed all lifers) to a fair release process. T h e C rim in al Ju stice Bill received its Second Reading in the H ouse o f Lords on 12 M arch 1991. A nu m ber o f p eers19 hoped that d uring the p assage o f the Bill the law w ould be changed in line w ith the Select C om m ittee report gen erally, and the d ecision in Thynne w as m entioned. For Lord C am p bell of A llow ay, the failure to im plem ent the Select C om m ittee Report alm ost beggared belief.20 W ind in g up the d ebate for the governm ent, Earl Ferrers m ad e clear that the governm ent had no intention to abolish the m an d atory life sentence. H ow ever, they w ere now 'looking for' an alternative release procedu re w hich w ould both m eet the requ irem ents of the E uropean C ou rt o f H um an R ights and w hich w ould be accep table to pu blic opinion. C o m m ittee S tag e: Lord N ath an 's 'L ife S e n te n c e s R ev iew T rib u n a l' T h e H ouse o f L ords m oved on to the C om m ittee Stage o f the Bill on 26 M arch 1991, w here the H ouse o f L ords passed a nu m ber o f am endm ents to give effect to the N athan C om m ittee recom m endations. O n 18 A pril, the C om m ittee agreed by 177 votes to 79 on Lord N ath an 's am en dm en t to abolish the m an datory life sentence.21 The argum ents relied o v er­ w helm ingly on the report o f the Select C o m m ittee, those w ho disagreed largely relying on the argum en t that abolition w as not acceptable to the public. T h e next am en d m en t w as a clau se to force the trial ju d g e to state in open cou rt 'the penal term ', w hich w as d efined as 'the sen tence of im prisonm ent the court w ould have passed if it had not been open to it to pass a sen tence o f im prisonm ent for life and it had not taken into accoun t the risk o f seriou s harm to the public if the offender w ere to be released after a d eterm inate nu m ber o f years' im prisonm ent'. This w as agreed to by 120 votes to 68. Lord N athan proposed the next am en d m en t introd ucin g a 'L ife Sentences R eview T ribu n al'. H e explained: T h e Se le ct C o m m itte e c o n sid ere d th at th e d e cisio n sh o u ld b e an en tirely ju d icia l o n e in w h ich th e H o m e S e creta ry and th e P aro le B oard sh o u ld n o t b e in v o lv ed . W e c o n sid ere d th at th e co u rt sy stem is n o t w ell a d ap ted to co n sid er th o se m a tters an d th erefo re re co m m en d ed th a t a ju d icial trib u n al sh o u ld b e esta b lish ed to c o n sid e r life se n te n c e re le a se an d recall d e cisio n s a fte r th e

w Including Lord Lane, the Lord Chief Justice, and Lord Windlesham. 20 Hansard, vol. 527, col. 112. 21 Hansard, vol. 527, col. 1583.

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ex p iry o f th e p en a l term . T h e trib u n a l sh o u ld b e co m p o sed o f a H ig h C ou rt ju d g e, a c o n su lta n t p sy ch ia trist an d a c h ie f p ro b atio n o fficer.22

This body w ould have d ealt w ith all life sen tence prisoners. Lord N athan m ad e clear that in the con text o f life prisoners convicted o f an offence other than m urder, the T ribun al w ould be able to release the prisoner on licence or u nconditionally. W hen releasing on licence, the Tribunal w ould be able to direct the length o f tim e that the licence rem ained in force. If the T ribun al gave no d irection as to the length o f the licence it w ould be review ed at three-yearly intervals. In the case o f m urderers, the licence w ould con tin ue for life. D avid W ad dington (recently created a life p eer and now L eader o f the H ouse o f Lords) w as cautious: T h e id ea th a t th e ju d icia ry sh o u ld ta k e re sp o n sib ility fo r d e cisio n s a b o u t o ffen d ers a fte r th ey h a v e b e e n sen te n ced is co m p le te ly n ew in th e law o f th is co u n try an d w e m u st th in k th ro u g h its im p lica tio n s.23

H e also pointed out that m ost o f the criticism s in the N athan Report about m inisterial inv olv em ent concerned the pow er o f m inisters to lengthen tariffs. H e raised tw o im portan t question s at this early stage: w ould there be any role for the S ecretary o f State in the m aking o f the representation s to the T ribun al? A nd w ould there be an appeal? H ow ever, once the gov ernm ent u n d ertook to con sid er the issues raised and to com e back to the m atter, no vote w as taken on this am endm ent. The R ep ort Stage started on 14 M ay24 and continued on 20 M ay.25 The go v ernm ent appeared to have d one nothing at all follow ing the earlier d iscu ssion, and so Lord W ind lesham m oved an am en dm en t to insert a clau se introd ucin g the Life Sentences R eview Tribunal. This w as, he explained , closely m odelled on the M ental H ealth R eview T ribun al and w ould transfer the d ecision on the release o f a lifer to 'an ind ep endent tribunal w ith the ch aracteristics o f a co u rt'.26 A gain the em p h asis o f his speech w as on the Select C om m ittee's report, w ith second ary support gained from the E uropean C ou rt o f H um an R ights' d ecision in Thynne. In his response, the Lord P rivy Seal and L ead er o f the H ouse (Lord W ad dington ) accepted that the law w ould have to be am ended becau se the E uropean C ou rt had held that 'it is approp riate for the p risoner's release to be consid ered by a bod y having the status o f a cou rt' once the tariff period had expired: ~ 23 24 25 26

Hansard, Hansard, Hansard, Hansard, Hansard,

vol. vol. vol. vol. vol.

527, 527, 528, 529, 529,

col. col. col. col. col.

1588-9. 1598. 1480. 9. 61.

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68

Clearly, the body should operate in a judicial manner, giving the prisoner the opportunity to appear before it and to be legally represented.27 H e a n n o u n c e d th a t th e g o v e rn m e n t h ad d e c id e d to in tro d u c e a m e n d ­ m e n ts to th e B ill d u rin g its la te r s ta g e s b u t th e s e w o u ld d iffe r fro m th e N a th a n C o m m itte e p ro p o sa ls: W e believe, for instance, that it may be preferable for the tribunal function to be carried out by the Parole Board, operating under a special procedure in the cases concerned rather than that a com pletely new tribunal should be set up. The relevant panel of the Parole Board would, however, be constituted under the chairm anship of a judicial mem ber of the board, which reflects the proposal in the amendm ents we arc considering. H e a lso m a d e c le a r th a t th e g o v e rn m e n t w o u ld n o t b e a c c e p tin g th e p ro p o s a l th a t s o m e life s e n te n c e p ris o n e rs m ig h t b e re le a se d u n c o n d i­ tio n a lly o r th a t th e lic e n c e m ig h t a t s o m e fu tu re s ta g e b e lifted . T h e life s e n te n c e w o u ld n o t th e n , h e sa id , b e a life sen te n ce . T h e first to s p e a k a fte r th e L e a d e r o f th e H o u s e w a s V is c o u n t C o lv ille (w h o h ad b e c o m e c h a irm a n o f th e P a ro le B o a rd in 1988) w h o s ta te d that: There will have to be a proper tribunal because, otherwise the procedure will not com ply with Article 5 of the European Convention. If it is a proper tribunal, it is likely that the M ental Health Review Tribunals will be a good model. They involve a substantial body of statutory procedure and hearings with witnesses and representation. There is therefore a considerable com m it­ ment of time and personnel in any such procedure.28 H e a c k n o w le d g e d

th a t th e P a ro le

B o a rd

c o u ld

d o it in

te rm s

of

p e rs o n n e l, b u t n o t at th a t m o m e n t in te rm s o f re so u rc e s. L o rd R ich a rd fo r th e O p p o s itio n c a u tio u s ly w e lc o m e d th e L e a d e r o f th e H o u s e 's s ta te m e n t b u t m a d e it c le a r th a t th e O p p o s itio n w o u ld no t s u p p o rt th e in tro d u c tio n o f a p a n e l fo r d is c r e tio n a r y c a se s an d n o t fo r m a n d a to ry ca se s. L ord H a rris, fo r th e L ib e ra l D e m o c ra ts , a g re ed th at n o th in g cou ld b e s tra n g e r th an th is d iv isio n . H e h o p ed that the governm ent would persist in their intention to have a High Court judge as chairman, a consultant psychiatrist (who in my view will be absolutely essential) and a chief probation officer, and I em phasise the word 'chief'. In my view, those three must be mem bers of the tribunal. I do not have a view as to w hether there should be other mem bers.29 27 H ansard, vol. 529, col. 64. 28 H ansard, vol. 529, col. 66. 29 H ansard, vol. 529, col. 70.

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Lord N athan also w elcom ed the statem ent but pressed the am endm ents w hich w ere agreed to w ithout a vote. T he Report S tage continued the next day (21 M ay) w ith his am en dm en ts agreed to. T h e Third R ead ing took place on 4 Jun e, w hen the Bill w as passed and returned to the C om m ons w ith am endm ents. The d ebate had con cen­ trated exclu siv ely on the need for procedu ral change, the need for a new ju dicial body. T here w as no d iscu ssion at all o f the criteria for release.

Back in the Commons: the government reacts O n 25 Ju n e 1991, the H ouse o f C om m ons consid ered the Lords' am endm ents. First, they voted d ow n the am en d m en ts to abolish the m an d atory life sen tence for m urder. The d ebate w as led by K enneth Baker, the H om e Secretary, w ith Roy H attersley, Shad ow H om e Secre­ tary, leading for the O pposition. The am en d m en t w as rejected by 236 votes to 158.30 From there, the H ouse m oved on to con sid er the Lords' am en d m en t to prov id e that the sen tencing cou rt should state the 'pen al term ' in open court, and M Ps then had their first opportu nity to d iscuss the go v ern m en t's ow n proposals. P erhaps the d eath knell o f the Lords' proposals w as sounded by the Sp eaker w ho had ruled that the am en dm en ts w hich sou ght to set up a L ife S entence T ribun al w ere out o f ord er on the ground that they w ere o utsid e the m on ey resolu tion.31 A t last, M rs R u m bold presented the gov ern m en t's p roposals, com ­ m enting that the H om e Secretary w ould have preferred a little longer to 'd igest all the im plications o f the ju d g m ent'. H ow ever, she ann ou nced, the gov ernm ent now proposed that the Parole Board should be required to sit as an in d ep e n d en t b o d y h a v in g th e sta tu s o f a co u rt . . . o p era tin g u n d e r a sp ecial set o f p ro ced u res w h ich w o u ld b e laid d o w n in ru les m a d e b y th e S e creta ry o f S ta te u n d e r cla u se 26(5). W e in ten d th at th e p an el o f th e P a ro le B oard w h ich w ill c o n sid e r d isc re tio n a ry life se n te n c e c ases w ill b e ch aired b y a ju d g e w h o is a m e m b e r o f th e b o a rd , and o n e o f its m em b ers w ill b e a p sy ch iatrist. T h e p riso n e r w ill b e en titled to a p p e a r b e fo re th e p an el an d b e leg a lly rep resen ted . If th e p a n el c o n c lu d es th a t th e p riso n e r's co n tin u ed d e te n tio n is n o lo n g er n e c e ssa ry to p ro tect th e p u blic, th e P a ro le B oard w ill d irect th e S e creta ry o f S ta te to re le a se h im . T h e S e cre ta ry o f S ta te w ill th en b e o b lig ed to re le a se th e p riso n e r o n licen ce, su b ject o n ly to a p o w er, e x cep tio n a lly , to d e lay re le a se for u p to six m o n th s if it is in th e p u b lic in terest to d o so - fo r ex am p le, b e c a u se 30 Hansard, vol. 193, col. 894. 31 Viewed in this way the money resolution, decided on Second Reading, is a useful device for stifling dissent from government proposals. Once it is agreed that a Bill will not cost more than a certain amount of money, more expensive proposals can easily be ruled out.

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th e re le a se o f a terro rist p riso n e r w o u ld o th erw ise c o in c id e w ith som e sen sitiv e te rro rist in cid e n t.32

She confirm ed that prisoners appearing before the P arole Board in such cases w ould be eligible for legal aid. The O p p o sition 's response, given by M r Sheerm an , w as that since the proposals from the Lords w ere su p erior to the g ov ern m en t's reaction, the O pposition w ould be op p os­ ing the gov ern m en t's am endm ents. First, he believed that the Secretary o f S tate's proposed p o w er to d efer release by six m onths flew in the face o f the E uropean C ou rt w hich w ould not accept such executive interfer­ ence. The P arole Board could and should be given the approp riate pow er. H e w as also, once again, concerned that the H om e S ecretary w as to be given the pow er to m ake Rules, insisting that the basic rights o f the p risoner should be on the face o f the Bill. T hu s, for exam ple, th e b u rd en o f p ro o f a s to w h e th e r a p riso n er is safe see m s to h a v e b een rev ersed . N o w , th e p riso n er m u st sa tisfy th e B oard th a t h e o r sh e is safe, rath er than th e b o ard h a v in g to d e m o n stra te th at th e p riso n e r's in ca rce ra tio n is n ecessa ry . T h e M in ister d id n o t m a k e th at c lea r.33

H ere M r Sheerm an is raising for the first tim e an im portan t evidential point. But there w as no further d ebate on the objects and policies behind these new pow ers. T h e spokesm an for the Liberal D em ocrats (M r M aclennan) supported M r Sheerm an , but the g o v ern m en t's proposals w ere quickly accepted by 219 votes to 147.34 T h e H ouse then returned to d ebate other Lords am en d m en ts un related to life sentences.

Back to the House of Lords The Bill returned from the C om m ons on 27 Ju n e 1991 and am endm ents w ere consid ered in the L ords on 3 July. A t this stage the Lords decided not to persist in their attem pts to abolish the m an d atory life sen tence for m u rd er, d espite w id espread acceptance that the H ouse o f C o m m ons' ap proach w as 'n on sen se'. Lord ITailsham in characteristic langu age stated that: O n e d a y p eo p le w ill se e sen se, ev en in a n o th e r p lace, an d th e h airy heel o f p o p u lism w h ich th ey h a v e fo llo w ed w ill u ltim a tely d isa p p ea r.35 31 33 34 35

Hansard, Hansard, Hansard, Hansard,

vol. vol. vol. vol.

193, col. 904. 193 col. 906. 193, col. 911. 530, col. 993.

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Lord N athan perhaps sum m ed up the m ood o f the H ouse by suggesting that it w as w orth avoid ing a con frontation w ith the C om m ons on this issue, since other C om m ons am en dm en ts w ere m ore constructive. This w as a tim e o f con sid erable d ispute b etw een the tw o H ouses, and feelings w ere raw in the H ouse o f Lords in relation to the W ar C rim es Bill and the C ou rt and Legal Services Bill, as w ell as the C rim inal Ju stice Bill. T here w as a sense in w hich it w as agreed that the H ouse o f Lords could not win all o f their battles all o f the tim e, and that som e battles w ere better not fought and lost. The H ouse o f C om m ons' proposals w ere presented to the H ouse by Lord W ad d ing ton w ho explained: It w o u ld , u n d e r th e g o v e rn m e n t's p ro p o sa ls, b e o p en to th e trial ju d g e, e x cep tio n a lly , n o t to se t a term . T h is w ou ld b e an in d icatio n th at th e crim e w h ich had b een co m m itted w a s so w icked th at d e ten tio n for life w as ju stified a c co rd in g to th e se rio u sn e ss o f th e o ffen ce alo n e, irresp ectiv e o f th e risk to th e p u blic. S u ch a life sen te n ce p riso n er w o u ld th erefo re b e in th e sam e p o sitio n a s a m a n d a to ry life se n te n c e p riso n er. T h e q u estio n o f h is ev en tu a l re le a se w o u ld b e a m a tte r fo r th e S e cre ta ry o f S ta te.36

He argued that it w ould be incom patible w ith the reasoning o f the E uropean C ou rt to apply the new procedu re to m an d atory life sentence cases. N or should the ju d g e have to d eclare a tariff: he chose the exam ple o f a terrorist w ho is discovered to have placed a bom b on a plane ju st before it takes off and is convicted o f the attem pted m u rd er o f hund reds o f people. In such a case, although the life sen tence w as d iscretionary, the ju dge should not fix a tariff (the unstated im plication presum ably bein g that a 'w h ole life' tariff w ould be ap prop riate).3' The P arole Board had been chosen as the approp riate b od y becau se o f 'its great expertise and kn ow led ge in m atters relevan t to assessing the early release o f p risoners'. A cknow led ging the need for the Board to have the p ow er and statu s of a court, a ju dicial m em ber w ould chair panels, and one o f its m em bers w ould be a psychiatrist. T he S ecretary o f State w ould be obliged to follow 'd irections' o f the P arole Board subject to a pow er excep tion ally to d elay release for up to six m onths if it w as in the public interest to do so. T h e E uropean C ou rt of H um an R ights had recognised that a pow er to d elay m ight in som e circu m stan ces be justified on the ground s o f 'exp ed iency ': 36 Hansard, vol. 530, col. 1009. 37 We shall see in the next chapter that the judiciary did not accept this: the Lord Chief Justice issued a Practice Statement soon after the new law came into effect which stated that judges should, save in exceptional circumstances, fix a tariff. Even if he thought that detention for life was justified by the seriousness of the offence alone, he should so state in open court when passing sentence: see 119931 1 WLR 223.

72

Beyond the tariff We would fail in our duty to protect the public from offenders of that kind if we did not retain that ability to supervise their activities and prevent their committing further offences for the rest of their days.38

L o rd N ath an m ad e h is d isap p o in tm e n t clear: It is rare, if not unique, for a substantive amendment to be introduced after Third Reading in both Houses, especially when the subject has for long been known and under discussion.39 H e in v o k ed the su p p o rt o f the H o u se as a re v isin g C h a m b e r to im p ro v e the d ra ftin g and to e n su re co m p lian ce w ith the E u ro p ean C o n v e n tio n on H u m an R igh ts. H e had th ree m ain im p ro v e m e n ts to su gg est: the H om e S e cre ta ry sh o u ld h av e n o p o w e r to d efe r release; the n ew co u rt sh o u ld hav e the p o w er to b rin g the licen ce to an end ; the trial ju d g e sh ou ld hav e a d u ty to fix the tariff. Approving our amendments in your Lordships' House will enable them to be considered by another place. To do so does not create conflict or confrontation but would, I hope and believe, promote the substantial step forward represented by the Commons amendment.40 M an y o th ers criticised the g o v e rn m e n t's p ro p o sals. L ord R ich ard co n ­ d em n ed the g o v e rn m e n t's 'h a lf-w a y h o u se '. L ord C am p b e ll o f A llo w ay p oin ted ou t that: Superimposed on the text of the Bill is a four-tier drafting process which tends to obscure the nature of the essence of the disagreement as it now arises between the two Houses. There are the Lords' amendments; there are the Commons proposed amendments and new clauses; there are the Lords proposed amendments and the Commons proposed new clauses; and there is a Lords amendment to a Lords proposed amendment .. . That interesting, if somewhat perplexing process of law making, is worthy of the pen of A.P. Herbert and the satirical revelries of the honourable Mr Justice Cocklecarrot.11 L ord M o rto n and L ord A ck n e r co n cen trated on w h at th ey saw as the w ro n g fu l ex clu sio n o f m a n d a to ry lifers fro m the n ew p ro cess. L ord L o n g fo rd arg u ed that the C o m m o n s sh o u ld b e resisted sin ce a m atte r o f p rin cip le w as at stake: w h e th e r th o se serv in g m a n d a to ry life sen ten ces are treated h u m an ely . L ord H ailsh am a n n ou n ced that if h e had b e e n a b e ttin g m an , w h ich h e w as not, he w o u ld h av e b een prep ared to w ag er 38 39 10 41

Hansard, Hansard, Hansard, Hansard,

vol. vol. vol. vol.

530, 530, 530, 530,

col. col. col. col.

1012. 1013. 1015. 1017.

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2 0-1 that the E uropean C ou rt of H um an R ights w ould shortly decide that that the sam e p rinciple should be applied to m an d atory as d iscretionary life sen tence prisoners.42 H e argued passionately against any rigid d istinction betw een the sentence for m u rd er and that for m an slaughter. Lord H utchinson spoke o f 'T hy nne the hu m an b ein g ', pointing out w ith som e ind ignation that som e four m on ths after the E uropean C o u rt's d ecision, the H om e O ffice had sim ply w ritten that th is ju d g e m e n t d o es n o t h a v e an y im m e d ia te effect on M r T h y n n e 's c a se . . . h is c a se w ill c o n tin u e to b e d e a lt w ith u n d e r th e ex istin g arran g em en ts. It h as b een d e cid ed th at h is c a se sh o u ld b e re ferred to th e local re v iew c o m m itte e at h is lo cal p riso n in F e b ru a ry 1992.43

Lord H arris, a form er C h airm an o f the P arole Board, did not 'begin to u n d erstand ' how one could possibly differentiate betw een m an d atory and d iscretionary life sen tence prisoners. Lord W ad dington replied. In relation to Lord C am p b ell's point that H igh C ou rt ju d g es should chair the tribunals, he said he had discussed the m atter w ith the Lord C h ancello r w ho felt strongly that experienced p eople on the P arole Board could carry out the function and that h e b e lie v e s th at h e w o u ld fin d it v e ry d ifficu lt to o p era te th e sy ste m if it had to b e o p era ted e n tirely b y H ig h C o u rt ju d g es.'14

Lord H unt intervened by rem ind ing the H ouse that w ithin a m atter o f m onths o f the P arole Board b ein g set up w e fo u n d a p re tty sca n d a lo u s sta te o f affairs in th e H o m e O ffice. W e fo u n d a g rea t p ile o f d o ssie rs re la tin g to fo rg o tte n m en in th e ro o m o f th e th en U n d er-S e creta ry . It w as tw o H igh C o u rt ju d g e s - in d eed , th e o n ly tw o w h o m w e h ad on th e B o ard - w h o clea red th e lo g jam .45

T h e go v ernm ent w as defeated w hen the H ouse voted 1 3 4 -8 3 in favour o f Lord N ath an 's am en d m en t to m ake the new procedu re ap p licable to m andatory as w ell as discretionary lifers. T here w as a series o f sim ilar votes to rem ove the w ord 'd iscretion ary' from the clau ses and to create a flexible licence period. A gain, the em ph asis throu ghou t w as on the d eterm ination o f a m ajority o f peers to introd uce a 'fairer' release p roced u re for all life sen tence prisoners. T he criteria for release w ere not in issue.

42 He would of course have lost the bet: we saw in the previous chapter how the European Court of Human Rights four years later in Wynne v. United Kingdom upheld the distinction. 43 Hansard, vol. 530, col. 1026. 44 Hansard, vol. 530, col. 1030. 45 Hansard, vol. 530, col. 1030.

74

Beyond the tariff

Lord H arris's am en dm en t that a judge of the H igh C ou rt, sitting w ith a p sychiatrist and ch ief probation officer, should chair the tribunal w as the next to be debated. T here w as support for the suggestion that if m ore H igh C ou rt ju d g es w ere need ed , m ore should b e appointed . In a b rief d iscu ssion on w hether the Parole Board w as 'in d ep en d en t', the Lord C h ancellor stated that he believed that the qualification for bein g the chairm an o f a Panel should be that o f a ju d g e of the H igh C ou rt or o f a circu it judge. H e felt that a circu it ju d g e approved to try m u rd er cases m igh t be perfectly suitable. Lord A ckner, a Law Lord, protested that there w as all the d ifference in the w orld betw een the fun ction of a judge presiding in the trial o f a m u rd er case - not usually the m ost difficult o f cases - w here the d ecision is m ade by the jury, and that o f the judge presid ing ov er such a tribunal w here he m ust take a leading part in m akin g w hat m ay often be a difficult d ecision.46 Lord W ad dington agreed w ith the Lord C h an cellor about the practical problem s o f insisting upon a H igh C ou rt judge: T h e p a n el th a t w e p ro p o se w ill, in a d d itio n to th e ju d g e, in clu d e a m ed ical m em b er w ith a p sy ch ia tric q u a lifica tio n . T h e th ird m em b er m ig h t w ell b e a c h ie f p ro b a tio n officer. H o w ev e r, it is n o t d e sira b le to m a k e an in flex ib le ru le a b o u t th at b e c a u se m a n y w ise an d d istin g u ish ed m e m b e rs o f th e P aro le B oard a re n o t c h ie f p ro b a tio n o fficers an d th ey m a y b e eq u a lly su ita b le to u n d e rta k e th ese d u ties. I sh o u ld n o t lik e to ru le th em out. I a m sa tisfied th at ta k en to g e th e r th e p ro v isio n s se t o u t in th e C o m m o n s a m e n d m e n ts w ill en su re th at th e E u ro p e an C o u rt o f H u m a n R ig h ts w ill re g a rd th e P a ro le B o ard a s a co u rt in S tra sb o u rg term s. T h e E u ro p e an C ou rt w ill n o t b e co n cern e d a b o u t w h eth e r p ro v isio n s a p p e a r in th e B ill, in th e ru les, o r in a m ix tu re o f b o th ; it w ill lo o k a t th e su b sta n ce o f o u r arra n g em en ts. T h e g o v e rn m e n t h a v e n o d o u b t th a t it w ill find o u r a rra n g e m e n ts ad eq u ate.

Lord H arris continued to insist that a H igh C ou rt ju d g e should chair Panels, b u t this am en d m en t w as lost b y 73 v otes to 65. Lord H arris then repeated a question he had asked earlier, w hether the C ou ncil on Tribun als w ould oversee the P arole Board. T his C ou ncil w as created after the C om m ittee on A d m in istrative T ribun als and Inquiries u n d er the C h airm anship o f Sir O liver Franks (later Lord Franks) reported in 1957.47 T h e C om m ittee had concluded fam ou sly that the general characteristics w hich should m ake for the good ad m inistration o f the grow in g nu m ber of tribunals w as 'openn ess, fairness and im p artiality '. The C ou ncil on T ribun als w as created to act as a w atchd og, and as an ad visory body rep orting to the Lord C hancellor. W hile m any

46 Hansard, vol. 530 1046-7. 47 (1957), Cmnd 218.

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have com m ented on the relative pow erlessness o f the C ou ncil,48 its annual reports reveal that it provides useful advice. Thu s Lord H arris insisted that the C ou ncil on T ribu n als should be fully involved, pointing out that in their annual reports they had criticised the substantial delays w hich occu r in hearing cases in M ental H ealth R eview Tribunals. Since criticism s o f p recisely that character had been m ad e o f the parole system , it w as therefore highly d esirable that the C ou ncil on T ribu n als had the righ t to look into the m atter. To this Lord W ad dington replied: W e h a v e n o t m a d e sta tu to ry p ro v isio n s fo r th at b u t w e sh all ex p lo re th e p o ssib ility o f th e C o u n cil p ro v id in g a d v ice on an in fo rm al b a sis a b o u t th e p ro ced u res w h ich th e P a ro le B o a rd w ill ad o p t in d isc re tio n a ry life sen te n ce cases. I a lso g iv e a n u n d e rta k in g th at w e sh all c o n su lt th e C o u n cil on th e d raft ru les to b e m a d e for th at p u rp o se u n d e r C la u se 2 6 (5 ).49

W e w ill return to the significance o f the exclu sion o f the D LP from the supervision o f the C ouncil on T ribu n als in C h ap ter 7. B a ck to the C om m on s again T h e Bill returned briefly to the C om m ons on 16 Ju ly 1991.50 A ngela Rum bold d efended the g o v ern m en t's position, facing a spirited , lastd itch attack from B arry Sheerm an. She insisted that the m an d atory life sen tence w as different to a d iscretionary life sen tence becau se the elem ent o f risk w as not d ecisiv e in han ding dow n the m an d atory life sentence. T he reason the governm ent w anted the trial ju dge not to have to specify the period in cou rt w as becau se som etim es then court w ould be im posing a d iscretionary sen tence based on the seriou sn ess o f the offence, not on risk: In su ch cases, it w o u ld b e in a p p ro p ria te an d illo g ical to re q u ire th e co u rt to sta te a term w ith in th e se n te n c e w h ic h w as a p p ro p ria te to th e se rio u sn e ss o f th e offence. In th o se c ircu m sta n ces, th e w h o le p u n ish th e o ffen ce, n o t ju st p a rt o f it.51

o f th e life se n te n c e is th ere to

T h e gov ernm ent also rejected the am en d m en t that the P arole Board should be able to d irect that a licence should be lifted after a certain period on the ground that it m ad e nonsense o f the w hole con cep t o f a life sentence: it w ould be w rong 'to d eny the pu blic protection for the

48 49 50 51

See, for example, Williams (1984). Hansard, vol. 530, col. 1047. Hansard, vol. 195, col. 307. Hansard, vol. 195, col. 312. This stands oddly with the purposes of discretionary life sentences as explained in the case law: see Chapter 1 above.

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rem aind er o f the offend er's life'. The g o v ern m en t's one con cession w as to the L ords' am en d m en t to rem ov e the H om e S ecretary 's pow er to keep a d iscretionary life sen tence prisoner in cu stod y for up to six m onths after his release had been ordered by the P arole Board. A lthou gh the governm ent believed that such a lim ited resid ual p o w er for the H om e S ecretary accorded w ith the European C o u rt's agreem ent that the executive should be able to d etain a prisoner on ground s of exped iency, they w ithdrew : the H om e Secretary h a s c o m e to th e c o n clu sio n th a t th e kin d o f situ atio n w h ich th is p o w e r is in ten d e d to co v er co u ld b e h a n d led w ith o u t re co u rse to th e ex e rc ise o f th at k in d o f re serv e p o w er.52.

This appears to m ean that the H om e Secretary did not need this statu tory pow er since he had it anyhow ! In C h apter 5 w e w ill note the con sid erable d elays to w hich the new process has been subject: could it be argued that the governm ent is m an ip ulatin g a 'p ow er' to delay? M r Sheerm an, for the O p p osition, carefully w ent throu gh all four of the am en dm en ts m ad e in the H ouse o f L ords w ith the w arning that 'w hen the E xecu tive nakedly interferes w ith the ju d iciary it can only be at the cost o f ju stice '.53 The four am en dm en ts were: • to extend the proposed panels to m an d atory lifers; • to rem ove the pow er o f the cou rts to d eterm ine that new release procedu res for d iscretionary lifers should not apply to the case before them ; • to give the Parole Board the option o f end in g the licence after a period o f time: T h e Thynne ju d g m e n t m a d e it c le a r th at w h en it co m e s to a d iscre tio n a ry life p riso n er, a co u rt o r th e P a ro le B o ard m u st h a v e th e p o w er to b rin g th e lice n ce to an en d .54

• to rem ove the pow er o f the H om e Secretary to d efer release for up to six m onths. Since the go v ernm ent w as prepared to accept the last one, he ru efully accepted a success rate o f 25 p er cent. Y et again he asked w hen M Ps w ould see the regulations: It see m s odd th a t w e a re re a ch in g th e en d o f th e B ill's p assag e th ro u g h th e H o u se w ith o u t k n o w in g th e c o n tex t o f th e re g u la tio n s th at a re to flow fro m it. 52 Hansard, vol. 195, col. 313. 53 Hansard, vol. 195, col. 313. 54 Hansard, vol. 195, col. 316.

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It is im p o ssib le to ju d g e w h e th e r o r not th ey a re a cce p ta b le w ith o u t h av in g sig h t o f th e m .'5

Jo h n G reen w ay and Ivan Law rence justified treating m an d atory lifers differently and said p resciently that the E uropean C ou rt w ould not be strikin g them dow n. G erald B irm ingh am added a final im passioned plea for the H ouse o f L ords' am en d m en ts but the rem aining three am en d ­ m ents w ere defeated 1 5 3 -5 2 .56 Finally the Bill returned to the C om m ons on 23 Ju ly to agree a drafting change that resulted from the H ouse of C om m o n s' acceptance o f the rem oval o f the H om e S ecretary 's pow er to d efer for six m onths, and the Bill received Royal A ssent on 25 Ju ly 1991. The final text o f sections 32 and 34 o f the A ct are to be found in A ppend ix 2.

Drafting the regulations Section 32(5) perm itted the H om e S ecretary to m ake 'ru les' and section 32(6) to give 'd irection s' to the P arole Board. T he Rules w ere to be procedu ral and the 'd irections' on m atters w hich should be taken into account by the P arole Board w hen d isch arging its function. It w ould seem that O pposition fears about the d rafting o f rules w ere w ell placed. T here w as nothing in the A ct w hich said that these rules had to be subject to P arliam en tary control, or indeed to be in the form o f a statu tory instrum ent. The P arole Board Rules w ere not m ad e until 31 A ugust 1992. It w as in response to a question from Sir Jo h n W heeler that the H om e S ecretary annou nced in a w ritten answ er on 27 O ctober 1992 that a copy o f the Rules had been placed in the Libraries o f both H ouses.57 They w ere not d ebated on the floor o f the H ouse. T he Rules had in any case alread y com e into effect on 1 O ctober 1992. They are attach ed, as am ended in 1997,58 at A p p end ix 4. T he only other inform a­ tion that the H om e S ecretary reported to the H ouse w as that he had w ritten to the C h airm an of the Parole Board asking him to b ear in mind the follow ing criteria w hen selecting panel m em bers: C h a irm a n P a n els sh o u ld b e ch a ired b y a H ig h C o u rt ju d g e m e m b e r o f th e B oard w h ere c a ses in v o lv e: te rro rist o ffen ces; th e a ttem p te d m u rd e r o r w o u n d in g o f a p o lice o r p riso n officer; th e sex u a l a ssa u lt o r m u tila tio n and k illin g o f a child (i.e. in 55 56 57 58

Hansard, vol. 195, col. 316. Hansard, vol. 195, col. 322. HC Deb 27 Oct. 1992, col. 580W. See also HL Deb of the same day, cols 99-100W A. See below, p. 80.

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th e sa m e in cid e n t); seria l ra p e ; m a n sla u g h te r fo llo w in g re le ase fro m p riso n on a p re v io u s m a n sla u g h te r sen te n ce; o ffen ces g iv in g rise to m u ltip le life sen te n ces. O th e rw ise , a c ircu it ju d g e o r re co rd e r m a y ta k e th e chair. S eco n d m em b er T h e seco n d m em b er sh o u ld g e n e ra lly b e a p sy ch iatrist. B u t, if th ere is c o n clu siv e m ed ica l ev id e n c e th a t n o serio u s co n cern ex ists a b o u t th e p riso n e r's sta te o f m in d at th e tim e o f th e o ffen ce o r su b seq u en tly d u rin g im p riso n m e n t, a p sy ch o lo g ist o r p ro b a tio n o fficer m a y b e a p p o in ted . T h ird m em b er T h e th ird m em b er o f th e p a n el sh o u ld b e a lay m em b er, a crim in o lo g ist, o r a p sy ch o lo g ist o r p ro b a tio n o fficer (w h e re h e o r sh e is n o t a lre a d y th e seco n d m em b er).59

D espite the pow er granted to the H om e S ecretary in section 32(6),60 d irections have never been issued .61 T h e H om e Secretary has issued d irection s (and training gu idance) to the P arole Board on the release of d eterm inate sen tence p risoners, on the release o f m an d atory life sen tence p risoners, on the transfer of life sentence prisoners to open conditions and on the recall o f m an datory life seiitence prisoners. T here is no gu id ance on the m atters to be taken into account by the D LP in d eciding on the release o f d iscretionary life sentence prisoners - presum ably becau se the H om e S ecretary believ es that it w ould be inapprop riate for him to give d irection s to an 'ind epend en t cou rt'. W hile this m ay be con stitutionally correct, it does not m ean that Parliam ent itself should not have laid d ow n further guidance. It is hard not to agree w ith G en evra R ich ard son 's com m ents on the 'p ov erty of legislative involve­ m en t'62 in this area: P arliam ent has left the policies on release u n speci­ fied, w hich m ake it particu larly difficult for the any 'co u rt' to review the legality o f d ecisions taken. P arliam en t's interest in creatin g the D LP w as pu rely procedural: the governm ent ev en tu ally decided to com ply w ith the procedu ral requ irem ents o f the E uropean C ou rt o f H um an Rights, and even other propon ents o f change, the supporters o f the N athan C om m ittee p roposals, w ere p u shing for procedu ral im provem en ts. (W e shall look in the n ext ch ap ter at how the D LP actually discharges its functions u n d er the C rim in al Ju stice A ct 1991 (as am ended ), and w hether the D LP has enou g h gu idance on the factors w hich it should take into account w hen d ecid ing on the release o f d iscretionary life sen tence prisoners.) 59 The letter, dated 1 September 1992, ends: 'I recognise these criteria will reduce your flexibility in scheduling panels. If they cause too much difficulty in scheduling panels, I hope you will let me know'. 60 See Appendix 2. 61 This is confirmed in the Annual Report of the Parole Board 1999-2000, at p. 9. 62 Richardson (1993), at p. 324.

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M eanw hile, the Lord C h ief Ju stice issued a P ractice D irection 63 explaining that d espite the w ord ing o f section 34 of the C rim in al Ju stice A ct 1991, w hich m erely perm itted the ju d ge to specify the 'relev ant part' o f the sentence, in fact the ju dge should do this w hen ever im posing a d iscretionary life sen tence, giving reasons. The relevan t part specified w ould con sist o f 'the period of d etention im posed for p u nishm ent and d eterrence, taking into accoun t the seriou sn ess o f the offence'. T he C ou rt o f A ppeal m ad e it clear that only in very exceptional cases should a ju d g e not specify a p erio d . 64

The Crime (Sentences) Act 1997: extending the procedure A fter the d ecision o f the European C ou rt o f H um an R ights in H ussein and Singh v. U nited K ingdom ,6S the gov ernm ent accepted that those detained d u ring H er M ajesty 's p leasu re should also be able to put their case before a D iscretion ary Lifer Panel o f the P arole Board. The change w as introduced d u ring the C om m ittee Stage o f the C rim e (Sentences) Bill in the H ouse o f L o rd s . 6 6 H ow ever, the gov ernm ent specifically did not change the procedu re for setting the tariff at the beginn ing o f the sen tence (see section 28(4)). Baroness Blatch in the H ouse of Lords defended this: O u r w ell esta b lish ed p o sitio n is th at th e H o m e S e creta ry h as a le g itim a te an d v a lu a b le ro le in th e se n te n c e im p o sed o n th o se co n v icted o f th e u n iq u e and h ein o u s c rim e o f m u rd er, w h eth e r th ey b e a d u lts o r ju v e n iles. T h is ro le is esse n tia l in esta b lish in g th e d istin c tiv e n a tu re o f th e p en alty for m u rd er. T o re m o v e th e ro le o f th e H o m e S e creta ry w o u ld d o w n g ra d e th e u n iq u e serio u sn ess o f th e offence. It w ou ld m ean th at th e p en a lty fo r m u rd er co m m itted b y ju v e n ile s w o u ld o p era te ex actly th e sa m e w ay as th e life se n te n c e fo r th o se o ffen ces w h ere it is th e m a x im u m ra th e r than th e on ly p en alty .'’7

In com plex language, the new A ct sim ply brou ght H M P prisoners w ithin the existing D LP procedu re: section s 2 8 -3 2 o f the C rim e (Sentences) Act 1 9 9 7 6s g jnce i 9 9 7 / the law has changed several tim es. First, section 119 65 Practice Direction (Imposition of Life Sentence) (1993) 1 WLR 223. M See, for example, Hollies (1994) 16 Cr App R (S) 463; [1995] Crim LR 171; D (1994) 16 Cr App R 564. 65 Hussain and Singh v. UK (1996) 22 EHRR 1; see Chapter 3. 66 HL Cttee, 20 Feb. 1997. 67 HL Cttee, 20 Feb. 1997, col. 819. 68 See Appendix 3.

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o f the C rim e and D isord er A ct 1998 introduced m inor am en dm en ts, as did the P ow ers o f C rim in al C ou rts (Sentencing) A ct 2000. This A ct w as enacted as an attem pt to cod ify the law of sentencing, but unfortunately, P arliam en t did not recognise the difficulties of cod ifying the law on im posing sentences o f im priso n m en t w ithout d ealing at the sam e tim e with the law on release from sentences. N or did it deal w ith the question o f fixing the tariff in life sen tence cases. Second ly, a m ore substantial change w as m ad e by section 60 of the C rim in al Ju stice and C ou rt Serv ices A ct 2000. This section reflects the go v ern m en t's acceptance of the d ecisions o f the E uropean C ou rt o f H um an R igh ts in T v. UK and V v. UK,69 that it w as not com p atible w ith A rticle 6 of the C on vention for the H om e S ecretary to set the tariff in cases o f d eten tion d uring H er M ajesty 's Pleasure. Section 60 creates a new section 82A o f the Pow ers o f C rim in al C ou rts (Sentencing) A ct 2000. Section 82A , again in extra­ ord in arily com plex langu age, m akes provision for the sen tencing court to set the tariff in all d iscretionary life sen tence cases and in any life sen tence passed on an offend er u n d er the age o f 18 w hen the offence w as com m itted. A p p end ix 3 contains the cu rren t version o f sections 2 8 -3 2 o f the C rim e (Sentences) A ct 1997, and section 82A o f the P ow ers of the C rim in al C ou rts (Sentencing) A ct 2000. T h e P arole B oard R u le s 1997 T h e inclusion o f those sen tenced to d etention at H er M ajesty 's pleasu re into the D iscretionary Lifer Panel o f the P arole Board process necessi­ tated som e m inor am en d m en ts to the P arole Rules. T hese am endm ents w ere m ade and annou nced in a sim ilar w ay to the 1992 Rules, b y w ay o f a w ritten an sw er to a P arliam en tary question after the new R ules had com e into force: Fion a M a cta g g a rt: T o a s k th e S e creta ry o f S ta te for th e H o m e D ep a rtm en t if h e h as m a d e p ro v isio n fo r th o se d e ta in ed d u rin g H er M a je sty 's p lea su re to h a v e th eir c a ses co n sid ere d b y th e P a ro le B oard at o ral h earin g s. M r. S tra w : T h e P a ro le B o a rd R u les 1997, w h ich w e re m a d e on 6 O c to b e r 1997 u n d e r sectio n 3 2 (5) o f th e C rim in a l Ju stic e A ct 1991, c a m e into fo rce o n 6 O cto b er. A c o p y o f th e R u les h as b e e n p laced in th e lib rary . T h e ru les a p p ly to th o se d e ta in ed d u rin g H er M a je sty 's p lea su re an d to all d isc re tio n a ry lifers, in c lu d in g th o se sen te n ced u n d e r se c tio n 2 o f th e C rim e (S en ten ces) A ct 1997. A p a rt fro m m in o r c h a n g e s to sta tu to ry re feren ces an d in terp retatio n , th e ru les a re id e n tica l to th eir p re d ecesso rs, th e P aro le B oard R u les 1992.70 69 (1999) 30 EHRR 121; see p. 9 above. 70 HC Deb 28 Oct. 1997, col. 774W.

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The P arole Board R ules 1997, w hich rem ain the current Rules, are found in A p p end ix 4.

Summary Follow ing the d ecisions o f the E uropean C ou rt o f H um an Rights in Weeks v. U.K. and Thynne, Wilson and G unnell v. UK, d iscussed in the previous chapter, three different proposals for reform em erged d u ring the passage o f the C rim in al Ju stice Bill 1990. The L abou r P arty in o pposition in the H ouse o f C om m ons ad opted the proposals o f L iberty and Ju stice w hich w ould have given the P arole Board the pow er to review all life sentences every 12 m onths and the pow er to release un con d ition ally or con d i­ tionally. T he N athan P roposals, su ccessfu lly ad opted in the H ouse of Lords bu t rejected in the C om m ons, w ould have created a m u ch stronger and m ore obviou sly 'in d ep en d en t' Life Sentences R eview Tribunal. H ow ever, n either o f these proposals w as accepted by the governm ent. They w ere pushed into creatin g a m ore m od est reform o f the Parole Board, the D iscretion ary Lifer Panel. In subsequ ent chapters w e w ill con sid er w hether these 'm in im alist' proposals have satisfied the requ ire­ m ents o f the E uropean C on vention on H um an Rights, as interpreted by the E uropean C ou rt of H um an Rights. B oth the C ou rt and Parliam ent w ere concerned sim ply w ith procedu ral reform . P arliam en t, in p articu­ lar, failed to d iscu ss at all the su bstantiv e ground s for release to be applied by the DLP. G enevra R ichard son, com m enting on the options facing the gov ernm ent in late 1990, stated som ew hat p resciently that 'w h atev er the p recise com position o f the d ecision-m ak ing body, how ­ ever, its ability to provide a real m eans o f testing the substantive law fulness of a priso n er's continued d eten tion w ill d epend, in large part, on the nature of the criteria that it is required to ap p ly '.71 H ow D LPs have w orked in p ractice is the subject o f the next chapter.

71 Richardson (1991), at p. 38.

5 DLPs in practice In this chapter w e review how Panels have w orked in practice. D oubtless there w as m uch activity in the Parole Board as they w orked to get the new Panels up and ru nning by O ctob er 1992. T hese preparations included visits to M ental H ealth Review T ribun als as a precursor to the d rafting o f the P arole Board R ules 1992. In 1999, the H om e O ffice com m issioned the first observational stud y o f the natu re and quality of d ecision-m aking at D iscretion ary L ifer P an els,' and this research is the sou rce o f m u ch o f the inform ation contained in this chapter. A n average o f ov er 200 D LP cases have been con sid ered each year: m ore than 1,500 hearings in total (see Table 5.1). A bout 17 per cent of hearings have resulted in a d irection for release, although over the years this figure has varied, from 20 p er cent in 1993 to 9 p er cent in 1 9 9 8 -9 to 16 per cent in 2 0 0 0 /0 1 . A pproxim ately 20 per cent o f prisoners w hose cases have been heard every year have been recom m en ded for transfer to open conditions. The nu m ber o f prisoners w ho have been recalled has also increased : eleven released d iscretionary life sen tence prisoners w ere recalled to prison in 199 8 -9 , nine each in 1999-2000 and 2 0 0 0 -1 , com pared w ith only four in 1993. T h e first review W e have alread y noted that although the C rim in al Ju stice A ct 1991 did not com pel a judge to specify a 'tariff' period, this has since the Lord C h ief Ju stice's P ractice Statem ent2 been norm al practice. Section 34 o f the 1991 A ct has now been repealed and replaced by section 28 o f the C rim e (Sentences) A ct 1997, w hich itself has been repealed in part and replaced by section 82A o f the P ow ers o f C rim in al C ou rts (Sentencing) A ct 2000.3 In practice, all lifers w hose cases fall to be considered by a D LP will now have a tariff period specified in open court by the sen tencing ju d g e.4 1 See Padfield and Liebling (2000). The research was carried out between March and December 1999. After a period of pilot work, information was collected on a total of 69 cases. Fifty-two cases were observed (49 including the deliberations, normally held in private). These hearings took place in 22 different prisons. Eight of the observed cases were recalled prisoners. 2 [1993] 1 WLR 223 - see p. 79 above. 3 See Appendix 3.

DLPs in practice Table 5.1

83

O u tc o m e s o f D L P h ea rin g s 1 9 9 2 -9

DLP Decisions 1 9 9 2 -9 D irected fo r relea se R eco m m e n d ed fo r tra n sfer to o p en co n d itio n s R eco m m e n d ed fo r tra n sfer to P R E S /R e s e ttle m e n t R eco m m e n d ed fo r tra n sfer to o th e r p riso n s R eco m m e n d ed fo r c o n sid era tio n o f sp e cia list trea tm en t N o re co m m en d a tio n o r rem a in in cu rren t lo cation R eco m m e n d ed fo r re le a se fo r d e p o rta tio n 6 7 p riso n ers relea sed b y D L P s h a v e b een recalled to p riso n ; a reca ll ra te o f 31 p e r cen t (e x clu d in g d e p o rtees) Total

216 (17% ) 254 (20% ) 20 (1.6% ) 150 (11.8% ) 222 (17.5% ) 407 (32% ) 2

(0.2% )

1,271

Source: Padfield and Liebling (2000), table 2.3.

T hree years (or three and a half years) before tariff expiry, a 'pap er' review o f the case w ill take place. T his is not a full DLP, bu t has im portan t im plications for the prisoner. The pu rpose o f this review is to allow the P arole Board to recom m end suitable prisoners for open con ditions at this stage so that they m ay be consid ered for release w hen they reach the point o f 'tariff': it is therefore a key but invisible stage in the D L P process. P risoners do not have the right to be heard at this hearing. It is only on com pletion o f the 'tariff' part o f the sen tence that the p risoner is entitled to a full D LP hearing. N o research or published data exists w hich com m ents on the efficacy o f this early review . H ow ever, few lifers are released as soon as they com plete their tariff, su ggesting that m ore could be done to speed esp ecially the nond angerou s throu gh the prison system . Thu s the increasing nu m ber o f 'au tom atic' life sen tence prisoners w ith short tariffs p otentially face a p articular disadvantage: clearly there is a need to m on itor the speed of their progress throu gh the system .

Preparing for the DLP A d iscretionary life sen tence p risoner w ho has com pleted his 'tariff' is entitled to a new hearing befo re a D L P at least every tw o years. The D LP itself m ay recom m en d an earlier review , and indeed there have now been d ecisions o f the E uropean C ou rt o f H um an Rights, w hich d eclare

1 The continuing uncertainties which surround the appropriate length of such 'tariff' periods were noted in Chapter 1.

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the need for a m ore flexible approach to the tim ing of hearings.’ Contrary to w hat m ight be expected from the w ording of A rticle 5(4) of the European Convention on H um an Rights, it is not the prisoner who initiates the DLP process but the H om e Secretary (or in practice the Prison Service). Referrals are m ade on a quarterly basis: seven m onths before the beginning of a particular quarter, the Lifer Unit of the Sentence M anagem ent Group6 of the Prison Service provides the Parole Board secretariat with a list of prisoners w hose DLP should be heard during that quarter. The Parole Board secretariat then com pile a skeleton Panel program m e for the quarter. Parole Board m em bers w ho have been selected and trained to do DLP w ork are notified of the date and location of each proposed Panel and are asked about their availability. A final program m e is then draw n up by the Parole Board secretariat and a copy sent to the m em bers who will form the Panels and to the Lifer Unit. 'A s soon as practicable thereafter'7 the prisoner receives a standard letter inform ing him that the H om e Secretary has referred his or her case to the Parole Board (as required by section 28(6) of the Crim e Sentences Act 1997) and the letter inform s him w here and when the case has been listed for hearing. The oral hearing is not alw ays held, but only the prisoner can w aive it: the letter states that 'You have the right to insist on an oral hearing at w hich you can be present . . . You are required w ithin five w eeks of the date of this notice to notify the Board and the Secretary of State w hether or not you wish to attend'. The prisoner is also inform ed of his right to be represented and his duty to inform the Board and the Secretary o f State w ithin five weeks of the nam e, address and occupation of his representative. The process then follow s a strict tim etable, follow ing the prescriptions of the Rules.

The dossier W ithin eight w eeks of listing, the Hom e Secretary (again, in reality the Lifer Unit of the Prison Service) serves on the Parole Board and on the prisoner all the inform ation and reports required by Schedule 1 o f the Parole Board Rules. This is the Parole Board dossier, a large bundle of docum ents. A typical dossier is som ew here betw een fifty and a hundred pages long. It starts with an index and a sum m ary of the relevant legal provisions. A useful sum m ary of the latest reports and recom m endations is follow ed by a thick bundle of docum ents w hich includes particulars

5 See page 139 below. 6 Before the reorganisation of 2000, it would have been the Lifer Review Unit of the Prison Service. 7 See Parole Rules 1997, Rule 4 (see Appendix 4).

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o f the original crim e and sentence, prison history, a sum m ary o f previous parole reports as w ell as those prepared for this occasion. The d ossier end s w ith the d ocu m ents subm itted b y the prisoner him self. T h e d ossier is not alw ays easy to negotiate: reports are not alw ays clearly dated, and it can b e difficult to w ork out w hether a report w as w ritten for this hearing, a previous hearing or som e o ther sen tence planning purpose. The d ossier is not sim ply a collection o f d ocu m ents, bu t has been constructed from various sources. The m ain body o f the d ossier is m ade up o f reports w ritten by prison staff, often on standard form s not necessarily d esigned for the parole process. R eports tend to be subjective and ju dgm ental, and negative labels stick.8 O ne report w riter m ay w ell have read the reports o f others.9 There is a u seful literatu re highlighting the d angers inherent in relying on such rep o rts,10 and m uch research rem ains to be done. H aw kins, in a p ap er w hich stresses the m oral character o f crim inal ju stice d ecision-m aking, points o ut that 'the act of d efining w hat is "re le v a n t" or "sig n ifica n t" enough to w arrant inclusion in the records - quite apart from the actual langu age em ployed in the accoun t - is an opportu nity for the su p p lier o f " fa c ts " and "d e s crip ­ tio n s" to absorb the u ltim ate d ecision-m aker into his or her ow n m oral u n iv e rse '.11 The m aterial is likely to be organised in such a w ay that the case is 'constru cted ' accord ing to the P rison S erv ice's p ersp ectiv e.12 T here is a d anger that opinions form ed early in a priso n er's career are reinforced and bu ilt on as the years go by and that o ut-of-d ate m aterial is reused. A 'fact' repeated over and over again can develop a significance it does not m erit.13 There is very often a tim e lag betw een the preparation of the reports and the hearing itself. In C h ap ter 6 w e will exam in e the procedu res follow ed at M ental H ealth R eview Tribunals. T here, it is the Tribunal secretariat w ho prepare the paperw ork, not the hospital staff. P erhaps a sim ilar p roced u re m igh t im prov e the quality and tim eliness o f D LP dossiers. s See Coker and Martin (1985), at p. 47. 9 In their study of Discretionary Conditional Release (see Chapter 5), Hood and Shute found that prison staff and probation officers, asked how they collected the information for their reports, said they relied on prison and probation records as well as their interview with the prisoner. Seconded and home probation officers liaised with each other on at least 80 per cent of prisoners before writing their individual reports (Hood and Shute (2000), at p. 13). 10 See, for example, Hawkins (1983a and b), McConville, Saunders and Leng (1991), Liebling (1992). 11 Hawkins (1983b), at p. 114. 12 McConville, Saunders and Leng (1991) argue similarly in relation to the way police files are 'constructed' for the Crown Prosecution Service. 13 See Padfield and Liebling (2000), at p. 83, for a graphic example of how a prisoner's lies can get repeated in the dossier and 'come back and haunt him'.

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Beyond the tariff

The final con tribution to the d ossier is the 'Secretary o f S tate's v iew '. In the early years o f the D LP this w as not presented in w ritten form but orally b y the presenting officer at the hearing. H ow ever, in ord er to help the presenting officer, w ho as w e shall see is usu ally a m em ber o f the g ov ernor grade personnel in the prison, this view has evolved into a b rief w ritten statem ent o f the H om e S ecretary 's view of a satisfactory outcom e or d ecision at the hearing. In reality, it is prepared by a senior civil servan t in the Lifer U nit: only if the L ifer U nit w ish to recom m end that the prisoner should be released or transferred to open con ditions is a M inister actually consulted . It w ould be interesting to explore the extent to w hich the iieed to seek M inisterial approv al for these positive recom m en dations encourages the Lifer U nit to propose m ore cautiou s outcom es. In six of Padfield and L ieb lin g's 52 observed hearings, the S ecretary o f S tate's view d isagreed w ith a m ajority o f the report w riters: in each o f these cases, he took a m ore cautiou s ap p roach .14 Som etim es 'th e S ecretary o f S tate's v iew ' offers no view : this is usually becau se o f the late arrival o f key reports. W e w ill return to con sid er the im pact of this d ocu m ent later in this chapter.

T h e p riso n ers The rev iew o f the statistics15 in C h apter 2 show ed that the v ast m ajority o f lifers (73 per cent in 2000) are m u rd erers subject to the m an datory life sentence. T h ese people, as w e shall see in C h ap ter 6, do not have an oral hearing before a panel. D iscretion ary lifers m ake up a sm all proportion o f the w hole lifer population. A lthou gh the tribunals u n d er review are called D iscretion ary Lifer Panels, a surprisingly large proportion o f the p risoners w hose cases are consid ered are in fact m u rd erers: those d etained d uring H er M ajesty 's p leasu re becau se they w ere convicted w hen children. In Padfield and L ieb lin g's study, 14 (27 per cent) o f the 52 prisoners w hose cases w ere observed w ere convicted o f m u rd er, 13 (25 per cent) o f m an slaughter, 9 (17 per cent) o f arson, 7 o f rape (13 per cent), 6 (12 per cent) of o ther violent offences and 3 (6 per cent) o f other sexual offences. O f the 11 recalled lifers, 6 w ere H M Ps. T here is no reason to believe that the prisoners in this stud y w ere untypical. T h e average length of their 'tariffs' w as eight years, w ith a ran ge o f tw o to 17 years. The total length of tim e served by discretionary life sen tence prisoners is often m u ch longer than this. T h e av erage length o f tim e alread y served post-tariff by the prisoners in the sam ple w as five years, w ith the longest tim e served since tariff expiry bein g alread y m ore than 15 years. M any o f these people w ere o f cou rse now h ere near 14 See Padfield and Liebling (2000), al p. 107. 15 See Chapter 2, p. 18.

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release. In one case, a m an with a tariff of two years, had already served four years and as a Category B prisoner, was unlikely to be released for som e years. As w e have seen, a prisoner can expect to progress through the prison estate from Category B (or A) to Category C and then on to an open (Category D) prison, w here he will norm ally spend som e time before release. A key finding of the study was that while the Parole Board m ay direct the release of a discretionary lifer, the reality was that no prisoner in the study was released unless he was already in open (Category D) conditions.16 O nly 23 per cent of prisoners in the study w ere in open conditions, even though they had all com pleted their 'tariffs', som e m any years earlier. Padfield and Liebling therefore concluded that the spotlight should not be focused only on the DLP process, the release process narrow ly construed, but also on the w ider process that leads towards release, the entire life sentence process.17 In preparing for a DLP, a prisoner has to decide on w hat he or she hopes to achieve from the hearing: perhaps release or sim ply a recom m endation which will help speed his or her progress through the prison system . A prisoner facing a DLP in a closed prison m ay realistically have a different 'agenda' to that of a prisoner hoping that his release will be ordered by a DLP held in an open prison. The letter telling the prisoner of the date of his hearing does not inform him of his legal aid eligibility. Yet it hardly needs to be said that the quality of legal representation m ay have a significant im pact, not only on the w ay the case is presented at the DLP but also in the thoroughness of the preparation. Effective legal representation can also help a prisoner develop realistic expectations of the DLP. In Padfield and Liebling's study, all the prisoners w ere represented by law yers, or em ployees of firm s of solicitors. It was not possible within the confines of that study to explore the am ount of pre-hearing research and preparation solicitors w ere able to do for the case. But it was clear that there was considerable concern am ongst law yers that legal aid funding restrictions prevented them for preparing the prisoner's case as fully as they felt that they should be able to do. A num ber of firms have developed reputations in this area and are recom m ended by prisoners to each other. It was rare for a prisoner to be represented by the firm of solicitors who had represented him at trial, and so the new firm has to undertake considerable research preparing for the hearing. Legal representation, recognised as an essential by the European C ourt,18 especially good

16 This is not to say that release from closed conditions never happens, simply that it is relatively rare. 17 See also the recommendations of Her Majesty's Inspectorates of Prison and Probation (2001) Through the Prison Cate: A Joint Thematic Review (London: Home Office). 18 Colder v. United Kingdom (1975) 1 EHRR 524, Campbell v. United Kingdom (1992) 15 EHRR 137.

88

Beyond the tariff

quality representation, is not cheap and it is im portant that it be m ade m ore secure for those challengin g their fun dam ental righ t to liberty against the state. T h e P anel T h e P arole Board curren tly has ov er 100 m em bers, but not all m em bers sit on D iscretion ary L ifer Panels. Ju d ges and psychiatrists w ill certainly do so. A fter they have served on the Board for a nu m ber o f years, other m em bers o f the Board m ay, or m ay not, be invited to sit on D LPs, as 'ind ep end en t m em bers', i.e. the third m em ber o f the Panel. A D LP is alw ays chaired by a ju d g e19 and Panels also alw ays inclu d e a psychiatrist (d espite the letter of 1 Septem ber 1992 w hich had suggested only that psychiatrists should 'gen erally ' be appointed 20) , though the psychiatrist is not alw ays a forensic p sychiatrist. The third m em ber o f the Panel is a 'lay' or 'ind ep end en t' m em ber, perhaps a sen ior probation officer or a crim inologist, or a full-tim e m em ber o f the P arole Board, or a part-tim e m em ber, w ho com e from a w id e v ariety o f background s: teachers, businessp eop le and so on. T he Panel w ill receive the d o ssier perhaps tw o w eeks before the hearing. T h e size o f the d ossiers m ean s that a con sid erable am ou nt of tim e is needed to read the papers. O nly the judge is likely to be involved in p re-h earin g directions. P re-h earin g d irectio n s From the tim e the case is listed until the hearing, there will be frequent inform al con tact betw een the L ifer U nit o f the Prison Service, the Parole Board secretariat and perhaps the p riso n er's legal representative. The Parole Board Rules are clear: w ithin 12 w eeks o f the case being listed for hearing, any party w ish in g to call w itnesses m ust ap p ly to the Board giving the su bstance o f the evid ence he or she proposes to ad du ce (Rule 7). The C h airm an of the Panel m ay grant or refu se an ap plication, and m u st give reasons in w riting in the case o f a refusal (Rule 7(2)). T h e Rules provide that the C h airm an o f the Panel m ay 'give, vary or revoke d irection s for the con d u ct o f the case'. A n appeal from such d irections lies to the C h airm an o f the Parole Board w ithin 14 days (Rule 9). In practice, the ju dge as C h airm an receives the d ossier before the other Panel m em bers and any d irections w hich he or she m ay give are dealt w ith very inform ally. M ost often the ju dge sim ply agrees requ ests over the telephone to the P arole Board secretariat, w ho d eal w ith the paperw ork. By 1999, there had b een only one oral pre-hearing applicaw The judge is more often a circuit judge than a High Court judge. Judges do not necessarily chair mandatory lifer Panels: see Chapter 6. 20 See p. 77 above.

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89

tion, heard by the ju d ge in the C ou nty C ou rt w here he norm ally sat. This w as a recall case, w hich involved challenges to factu al evidence. There has not yet b een an appeal to the C h airm an o f the P arole Board. G reater form alisation o f the pre-hearing d irection s stage m ight red u ce the frequ en cy of delays and deferrals.

The DLP in practice T h e second review , w hich should take p lace on (but frequ en tly in p ractice shortly after) tariff expiry, is the first to take place at the priso n er's prison, and the first at w hich he or she appears in person. It is, as w e have seen, the L ifer U nit o f the P rison Serv ice w ho initiate the process: not the prisoner, nor indeed the P arole Board itself. But it is the Parole Board secretariat w ho con du ct the practical arrangem en ts for hearings, in liaison w ith the prison w here the hearing is to take place. T here is a clear attem p t to plan hearings efficiently: norm ally tw o, occasionally three, cases are sched uled for one d ay.21 O n arrival, Panel m em bers are seen to the room allocated for the hearing. T h ey are p rim arily looked after by a Panel secretary, a m em ber o f the P arole Board secretariat, w hose role seem s to extend from coffee m aker to legal adviser. T he extent to w hich this person involves them selves in the d ecision-m ak ing process varies. Padfield and Liebling cite the w ord ing of the Panel secretary 's job d escription in ord er to highlight som e o f the am bigu ities in their role, w hich seem s partly that o f ad m inistrativ e assistan t and partly that o f p ro fe ssio n a l/le g a l ad viser:22 • Ensure that all Panels are conducted effectively by the due date, in accord ance w ith internal instructions, and provide sound , considered and thorou gh ad vice and gu id ance to the Panel m em bers, p articu lar­ ly in respect o f d raftin g their d ecisions and recom m endations. • E nsure the efficient p reparation o f cases due to be consid ered by lifer Panels inclu ding the issue o f prom pt and accu rate responses to all w ritten and teleph one enqu iries from solicitors and the Prison Service, and offering sound ad vice to Panel chairm en in the preparation o f their directions. • Ensure the practical arrangem en ts for the oral hearings are efficient, and take pro p er accoun t o f bud get im plications and that d etails of arrangem en ts are con veyed to all parties.

21 It is this administrative efficiency which led the High Court to uphold the three-monthly listing system in Noorkoiv, holding that a delay of up to three months did not breach Article 5: see p. 140 below. 22 These ambiguities are discussed further at p. 99 below.

Beyond the tariff

90

• E nsure Panel d ecisions ad here to curren t gu id elin es and d irections and are circu lated w ithin the requ ired tim e scale. D eal effectively and as p rom ptly as possible w ith any enqu iries resulting from those d ecisions.23 A hearing can be divided into four stages: the pre-h earin g d iscu ssion; the hearing itself; the d eliberation; and the d rafting o f the reasons for the decision. The p re-h earin g discu ssion, often inform al and held over coffee, som etim es m ore structured, is an im portant part of the process during which the Panel explore the key issues and exchange provisional views on the likely outcom e. Late papers, m ost frequently the Secretary o f State's opinion, m ay w ell be received on the m orning o f the hearing or shortly befo re the Panel m eet and these have to be read sw iftly before the parties are brou ght in. O nce the Panel is read y to start, the Panel S ecretary invites all those w aiting outsid e to com e in. T h e m ain parties norm ally sit around a table: see Figure 5.1. F ig u re 5.1

Plan o f a typical DLP hearing

Source: Parole Board, The DLP Panel H earing - A Guide for Participants, available from the Parole Board w ebsite and reproduced here w ith permission.

A ll participants, inclu d ing possible w itnesses, are invited into the hearing at the sam e tim e. A fter a few w ord s by w ay o f introd uction, the judge w ill invite the 'S ecretary o f S tate's rep resentative' to present the Secretary o f S tate's view . The S ecretary o f S tate's rep resentative is usually the lifer g ov ernor or lifer liaison officer in the prison. C learly the 23 See Padfield and Liebling (2000), at p. 99.

DLPs in practice

91

original expectation was that this role would be minimal. The original w ritten G uidance stated that: T h e ro le o f the presen tin g g o v ern o r is not to act as a law y er m ight in court. It is n ot for him or her to seek to u n d erlin e th e p riso n er's case or to try to arg u e the P anel rou nd to a p articu lar d ecisio n for or again st release . . . It m ay of co u rse b e th e case th at th e p resen ter can u se his or h er exp ertise and kn o w led ge o f the system to ch allen ge th e p riso n er's sid e on an y claim s w hich m ight b e m ad e regard ing suitab ility for release. But, generally speaking, this w ill be a m atter for the P anel.24

In Padfield and Liebling's study m any representatives w ere clearly uncom fortable with their role, and wished to follow this 'm inim alist' advice. They w ere prepared to help the Panel w here necessary, but they preferred to be generally detached from the questioning. W e will return to the position of the Secretary of State's representative in Chapter 7: given the huge im portance of this decision to keep som eone in prison beyond tariff, it is curious that no one is there strongly putting the case for detention. The absence of any strong representative of the state m eans that the Panel can be forced to take on that role them selves.25 As w e have noted, all the prisoners in Padfield and Liebling's study w ere legally represented, som etim es by a barrister but m ore often by a solicitor or an unqualified practitioner who specialised in DLP or prison work. The m ore successful seem ed to be those w ho w ere able to support the prisoner, perhaps acting as friend and 'translator' of com plex questions. As elsew here in the crim inal justice process, prisoners can som etim es be significantly disadvantaged by the negative effect of their advocate. Those w ho let the prisoner him self do the talking seem ed to be the m ost effective: the prisoner him self has a key role in persuading the Panel that he can be released, or moved on to open conditions. The evidence at a DLP is tested through the questioning of w itnesses, who norm ally all sit in the room throughout the hearing. The order in which the w itnesses are heard will be agreed at the beginning of the hearing. The Policy and Procedures M anual of the Parole Board says that 'it is custom ary but not obligatory to take the prisoner's evidence first, assum ing of course that he w ishes to give evidence'.26 A lthough the order of witnesses is not prescribed, once a w itness is called, he or she is likely to be questioned as in a traditional court hearing: witnesses will be asked questions first by the representative w ho called them, then by the representative of the other party and finally by the Panel them selves. 24 See Page (1998). 25 See below pp. 140-2. 26 Para. 13.A18.

92

Beyond the tariff

The psychiatrist norm ally takes the lead, especially w hen m ental health issues are im portant. W hen psychiatric issues are less relevant, psychia­ trists vary in the extent to w hich they get involved in questioning. H ow ever, there is no binding form ality here: som e Panel m em bers interrupt and ask questions much m ore than others, som e judges preside with m uch greater form ality than others. The level of inform ality largely depends on the personal style of the judge as Chair. For any prisoner seeking release, the key w itness is his hom e probation officer: w ithout the strong support of the hom e probation officer, release is totally im probable. In the Padfield and Liebling study, only one prisoner was released w ithout the hom e probation officer having been personally quizzed by the Panel. But experts such as a psychologist or psychiatrist are also frequently called, as are family m em bers, prison staff or even friends. Rule 12 of the Parole Board Rules specify that the hearings should be in private, but that 'the Chairm an of the Panel m ay adm it to the hearing such persons on such terms and conditions as he considers appropriate'. N ot everyone w ho attends a hearing necessarily know s at the beginning of the hearing w hether or not they will be called as a witness, and in Padfield and Liebling's study, som e prison staff would intervene even w hen they w ere not form ally w itnesses. Because the onus27 appears to be on the prisoner to prove that he is safe to be released (and indeed it is certainly the prisoner w ho has the prim ary interest in changing the status quo), w itnesses are more often called by the prisoner or his legal representative. The Secretary of State's representative is more likely to rely on the dossier, except when refuting argum ents raised by the prisoner. Padfield and Liebling concluded that w itnesses 'played a very influential role but their appearance seem ed som ew hat haphazard'.28 A fter all the w itnesses have been questioned, the representatives of both parties are invited by the judge as C hairm an to m ake their concluding rem arks, w ith the prisoner's representative having the final word. The Chairm an then asks everyone to leave so that the Panel can deliberate in private (though the Panel Secretary rem ains present throughout). The prisoner is inform ed that he or she will receive the Panel's decision in w riting w ithin seven days. The Chairm an advises the parties that they m ay be called back for further questions, but after a few m inutes they will be told that they are no longer required to wait. Evidence o f risk The Parole Board m ay not give a direction for release unless it is satisfied that it is no longer 'necessary for the protection of the public' that the 27 The burden of proof at DLPs is discussed further at p. 143 below. 28 Padfield and Liebling (2000), at p. 103.

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p risoner should be confined.29 Risk to the public is, in the w ords o f the P arole Board M anu al, 'the d eterm inative con sid eratio n'. Panel m em bers are advised b y the M anu al to take into account the ev id ence in the d ossier; the evid ence heard on the day; the S ecretary o f S tate's view and the last Parole Board decision letter. But w hat is this evid ence? The d iscretionary life sen tence prisoner should only be detained post-tariff if they are a 'g rav e d anger to so ciety '.30 W e noted in C h ap ter 4 that P arliam en t has failed to clarify the criteria w hich ju stify d etention, and that the D L P has no form al gu idelines. W hat evid ence do they take into account? Panels in Padfield and L ieblin g's stu d y took into account the obviou s factors, w hich inclu ded the offend er's index offence, his curren t secu rity classification and location in the prison system , his attitu d e and beh av iou r in prison, his insight into his offending (largely m easured by the com pletion o f offending behav iou r cou rses), his release plan, his attitu d e to his victim . T h ey also noted his relation ships w ith his fam ily and other 'risk factors' such as m ed ical treatm ent. Som e validated risk factors, such as age, experience o f local auth ority care, nu m ber of con viction s at an early age, w ere not discussed. 'W h eth er w hat panels did d uring a h earing could accu rately be called 'risk assessm en t' w ithout m ore standardised and v alid ated techniques at their disposal w as a q u estion w hich troubled us throu gh ou t the research p ro cess'.31 T his gap at the heart of the process raises im portan t question s about the fairness o f the D LP process. A re the 'rig h t' prisoners detained? It is w idely agreed that p red icting risk in this popu lation o f prisoners is highly problem atic. The literatu re on risk assessm en t is v a s t 32 It show s that even the m ost sop histicated actuarial tools have lim itations: 'the p ropen sity for violence is the result o f the accu m ulation o f risk factors, no one o f w hich is eith er necessary or sufficient for a person to behave agg ressively tow ard others. P eople w ill be v iolent by virtue o f the presence o f different sets of risk facto rs'.33 N ot everyone accu rately categorised to be in a high-risk group w ill com m it a v iolent act. As B uchanan and Leese11 show , the danger of 'false p ositives' is likely to result in the d etention of m any people w ho are not likely in fact to com m it a v iolent act. By d oing a detailed analysis of existing studies using current pred ictors, B uchanan and Leese d em onstrated that at least six people diagnosed as 'd ang erou s severely personality d isord ered' 29 See section 34(4) of the Criminal lustice Act 1991; now section 28(6) of the Crime (Sentences) Act 1997. 30 See, for example, R v. Parole Board, ex parte Bradley (1991) 1 WLR 134. 31 Padfield and Liebling (2000), at p. 140. 32 For example, Clarke et al. (1993), Nash (1999), Monahan et al. (2001), Buchanan and Leese (2001). 33 Monaghan (2001), at p. 142. 34 See note 32 above.

94

Beyond the tariff

(D SPD ) w ould have to be detained for a year to p revent one v iolent act. T heir o verall 'estim ate for sen sitivity' suggests that for every ten people w ith D SPD w ho w ould be violent, five w ould be identified and detained and five w ould b e m issed. E ven w ith a cautiou s ap proach to risk, som e p eople w ho are released w ill 'u np red ictably' reoffend ('false n egativ es'). M any will be detained un necessarily ('false p ositiv es'). Risk assessm ent in this p opu lation of offenders is a 'rou gh and read y' clinical, not an actuarial, process.

Decisions and outcomes Padfield and L iebling w ere surprised b y the speed w ith w hich Panels reached their decisions: w hile hearings ranged from eight m inu tes to four hours in length, the d eliberation itself nev er lasted for m ore than 20 m inu tes.35 It w as the d rafting o f the letter to the prisoner, w hich contains the reasons for the d ecision, w hich took longer: up to 50 m inutes. There w as often con sid erable consensu s. Even w hile they w ere d rafting the reasons, Panels continued to com m ent on the strength o f the evid ence and the factors w hich influenced their decision. W hile the B o ard 's sole statu tory function is to decide w hether or not to d irect his release (and on w hat licence con ditions), they often recom m end o ther progressive m oves or an early review . T h e Panel also often used the d ecision letter to fulfil m any functions inclu ding relaying a m essage to the Prison Service, for exam ple, that they felt it w as tim e a prisoner w as m oved nearer to his hom e.36 D ecision s to release37 In Padfield and L ieblin g's study, nine (out o f 52) prisoners w ere released (see Figu re 5.2). A ll the prisoners w hose release w as d irected w ere released w ithin 29 d ays o f receiving the d ecision letter. A ll o f those w hose release w as d irected w ere in an open prison at the tim e of the D LP, and in term s of status, three w ere H M Ps, five w ere d iscretionary lifers and one w as a recalled priso n er on his third review post-recall. Tw o o f the prisoners w ere released after their first oral hearing. The av erage tim e served o f those released w as 14 years and 7 m onths 35 See Padfield and Liebling (2000) p. 64. 36 Jow ell's review of the impact of recent developments in judicial review suggests that a practical implication of 'the new constitutional litigation' is that 'in order to demonstrate that the decision pursued the least restrictive alternative, the decision-maker will have to consider alternative courses of action' (see Jowell, 2000, at p. 681). The implications of this for the DLP process could be significant. 37 Taken from Padfield and Liebling (2000), p. 78.

DLPs in practice F ig u re 5.2

95

D e cisio n s m a d e a t h ea rin g s o b serv ed b y P ad field an d L ieblin g

Panel decisions (n=52)

Directed release

15% Recommended transfer to open t 23%

recommendation/remain in current location 37%

Recommended transfer to other prisons

15% Source: Padfield and Liebling (2000), figure 4.1.

(ranging from 8 years 4 m on ths to 21 years) and they had served an average o f 4 years 10 m onths beyond tariff (w ith a ran ge from 0 to 14 years). In term s of index offences, the three H M Ps had been convicted of m u rd er; the others o f rape (3), m an slau g hter (2) and w oun ding w ith intent to cause actual b odily harm (1). In every case w itnesses had been called (a psychologist in four cases and a hom e p robation officer in all cases but one). O f those prisoners w hose release w as directed, the Secretary of State's view in three cases had been that the prisoner presented an acceptable risk and had suggested licence conditions. In another four cases the Secretary o f S tate's v iew had b een that they w ere not suitable for release, but the Panel had decided against the S ecretary of S tate's view . In tw o further cases the Secretary of State had not been 'in a position to provide a view on suitability for release'. Padfield and L iebling only w itnessed one full hearing at an open prison at w hich the Panel m ad e the d ecision not to release. In this case both the prison p robation officer and the hom e probation officer w ere w itnesses at the hearing and all the reports w ere in support o f release to a hostel. H ow ever, the S ecretary o f State had stated that he w as 'n ot in a position to provide a v iew on su itability for release due to the continued un certainty reg ard ing the release plan'. (Suitable acco m m od a­ tion had not been found for the prisoner.) T he Panel recom m ended a further review in 12 m on ths and stated in the d ecision letter that this 'w ould allow tim e for those responsible for the preparation o f a release

96

Beyond the tariff

plan to find out w hether a specialist housing association or charity could provide accom m odation and intensive support, w hich w ould provide ad equ ate protection for the p u blic'. In every case w here release w as directed, the hom e p robation officer had recom m ended release. In all seven o f the release cases w here a psychiatrist had m ad e recom m en dations, their reports too had su p ­ ported release on licence. A prison p sycholog ist had recom m ended release in five o f the release cases, the lifer liaison officer had recom m en­ ded release in eight o f the cases, and the personal officers and prison p robation officers had recom m en ded release in six cases each. In three o f the release cases all the reports recom m ended release. In seven o f the nine cases w here prisoners w ere released , the P an el's d ecision to release accorded w ith the m ajority o f the reports.38 Som e prisoners sought release from closed con ditions, all unsuccessfully. The im portan ce o f this analysis is to un d erline the key point that it is vital for a p risoner seekin g release to have m oved through the prison system to open conditions. Successfu l negotiation o f the categorisation and allocation hu rd les earlier in his prison sen tence is an essential p rerequ isite to release. R ecom m end ation s for open conditions A s w e have seen, a key hu rd le for a lifer is to reach open conditions. Panels m ay only recom m end this, not d ecid e it, and the Secretary o f State then d ecides w hether or not to accept the recom m endation. H e controls the decision. In Padfield and L ieb lin g's stud y, o f the 12 prisoners w hom the Panel recom m en d ed for transfer to open con ditions, several m onths later only tw o prisoners had actually been transferred and in five further cases the S ecretary o f State had agreed to the m ove, but the p risoner had not yet been transferred. T he other cases w ere still u n d er consid eration by the S ecretary o f State. In all but tw o o f these 12 cases the prisoner had been located in a C ategory C prison at the tim e o f the D LP (one w as in a C ategory B prison and the other w as a recalled prisoner in a local prison). In half o f the 12 cases, the Secretary of S tate's view had been that the p riso ner should not be m oved to open conditions. In another four cases he had had no view . Thus in only tw o cases w here transfer to open con ditions w as recom ­ m ended by the Panel had the Secretary o f State supported this m ove at the tim e o f the Panel hearing. In tw o o f the four cases w here the S ecretary of State had expressed no view , bu t w here the Panel had 38 Perhaps therefore it is fair to conclude that Panels do not acquiesce or endorse recommendations made to them quite as 'routinely' as did Peay's Mental Health Review Tribunals (see Peay (1989) at p. 202). She concluded that the MHRT's decision amounted largely to a ratification of a decision which had been structured by earlier choices.

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recom m en ded transfer to open, the prisoners had m oved to open conditions. T here w as no d iscernible pattern in the cases in w hich the Panels recom m en ded transfer to open con ditions in term s of w hich report w riters' recom m en d ations w ere follow ed. In three o f the 12 cases the m ajority o f reports had not recom m ended open and in these three cases the S ecretary o f S tate's view had been against transfer to open. In four cases w here transfer to open had been recom m en ded , it had been the p riso n er's first oral hearing. In total 12 prisoners had sou ght a recom m en d ation fo r transfer to open con ditions (som e of those w ho w ere recom m en ded for transfer to open con ditions had asked for release). O f these only tw o w ere unsu ccessful, and in b oth cases the S ecretary o f State had not supported transfer to an open prison. In both cases the Panel had felt that m ore w ork on sexual offending w as requ ired , d espite the fact that in one case the p risoner had been in open con ditions for tw o years bu t had been transferred back to closed con ditions in ord er to u n d ertake the SO T P (w hich he did). It is difficult (and perhaps d angerou s) to attem p t to d raw con clusions from this sm all study, but it m ight be possible to con clud e that the Panel is less cautiou s than the S ecretary o f State at the tim e o f the D L P hearing, but that the Secretary o f State is som etim es persuaded to act after a Panel recom m en dation. H ow ever, becau se the S ecretary o f State is ultim ately not obliged to take any notice o f a D L P recom m en dation, in such cases, the priso n er is very un likely to be released ev en at his next hearing since he will not have spent tim e in open conditions. O th er recom m en dations Panels som etim es m ake other recom m en d ations in o rd er to try to help m ove the p riso ner through the system . O f the nine cases w here the Panel recom m en ded transfer to another prison other than to open con ditions, five w ere recom m en d ations by the Panel to transfer the p risoner from a C ateg ory B to a C ateg ory C prison, tw o w ere recom m en d ations for transfer for pu rposes o f sp ecifically identified offending behaviou r w ork and one w as in su pport of transfer from one C ateg ory C prison to another.39 A ll these recom m en dations built on suggestions w hich em erged either in the reports, or at the hearing. O ne prisoner m oved w ithin a m onth o f the recom m en dation, and another w as transferred 39 The Panel's view was often worded in the decision letter in such a way as to encourage the Prison Service to take a particular action but without wording it too strongly, for example, 'the Panel recommend that serious consideration be given to your transfer to a Category C prison', and 'the Panel believes that consideration should be given by the Prison Service to assessing you for a move to a Category C prison'. Sometimes they added a reminder that the decision did not fall within the remit of the Panel.

98

Beyond the tariff

after three m onths. In one case a recalled priso n er w as transferred from a local prison to a resettlem ent prison 16 d ays after the Panel hearing (w hich w as held som e eight m onths after his recall). In three cases the p risoner w as actually transferred to another C ateg ory B establishm ent (d espite the recom m en dation by the Panel of transfer to C ateg ory C) and three recom m en d ations for transfers w ere sim ply rejected. Thu s the Prison Serv ice rejected the P anel's recom m en d ation in tw o-third s o f the nine cases, in effect con firm ing the lim ited role the Panel p erform s at this stage. In 12 cases the Panel recom m en ded further offending behaviou r w ork in the form o f specific accred ited program m es and in seven cases they suggested further assessm ent. Padfield and L ieblin g concluded that, given the im portan ce of such recom m en d ations to the prisoner, they should create a 'legitim ate exp ectation ' for the prisoner unless rejected by the H om e S ecretary w ithin a fixed tim e-fram e and w ith w ritten reasons.40 In 13 cases, Panels had recom m ended an early review , the m ajority for 12 m on th s' tim e (three for 18 m on th s' tim e), though it is not know n w hether these recom m en dations w ere accepted. W e return to the thorny question o f 'early review s' in C h apter 7.41

Key issues T he P an el's function T h e assessm en t o f risk lies at the heart o f the D L P 's function, yet w e have already seen how the Panel has rem arkably little gu id ance on how to assess risk, and even on how m u ch risk is acceptable. A lth ou gh Panels need to w eigh both seriou sn ess and certain ty o f risk, Padfield and Liebling w ere struck by the extent to w hich Panels seem ed to avoid d iscu ssing levels o f risk. A gain, there w as little d istin ction betw een the m an agem en t o f risk and the assessm ent o f risk: a prisoner m ay rem ain in prison sim ply becau se the facilities do not exist in the com m u nity w hich allow the P robation Serv ice con fid ently to m an age the (sm all or large) risk that he con tin ues to present ad equ ately. Som e prisoners stayed in prison sim p ly becau se cou rses from w hich they w ould benefit w ere available in prison and not in the com m unity. 40 Padfield and Liebling (2000), at p. 143. The doctrine of 'legitimate expectations' is used in administrative law to put a certain limit on the executive's discretion to change its mind by affording the claimant some procedural protection and (more controversially) substantive protection: 'it is . . . the court's duty to protect the interest of those individuals whose expectation of different treatment has a legitimacy which in fairness outtops the policy choice which threatens to frustrate it' (per Sedley J in K v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd [1995J 2 All ER 714, at p. 731. 41 See p. 139.

DLPs in practice

99

The extent to w hich the risk factors consid ered really are ind icators of risk w as not explored by Padfield and Liebling: it m ay be that som e of the beliefs on w hich the d ecision-m aking process is based are u n­ founded. W e will note in C h apter 6 that H ood and Shute in their research on D iscretionary C on d ition al R elease concluded that panels only released half o f those w ho an actuarial risk pred ictor suggested w ere low -risk.42 Padfield and Liebling questioned w hether w hat Panels did d u ring a hearing could accu rately be called 'risk assessm en t'. The Panel form ed a cum u lative picture o f the p risoner from the d o ssier and throu ghou t the hearing. Panels arrived at hearings w ith con cern s they w ished to address. They looked for evid ence of change, insight into the offence, evid ence o f offending beh av iou r w ork su ccessfu lly undertaken and realistic release plans, w ith the prospect o f effective supervision. Level o f risk w as rarely d iscussed. W e noted in C h ap ter 4 how P arliam ent w hen creating the D LP had concentrated on procedu ral reform : the D LP had rem arkably little substantiv e guidance. At a D LP the scales seem firm ly in favour o f protectin g the public, and not in the d irection of prom oting the prison er's righ t to liberty. P erhaps this is inevitable, given the w ord ing of section 28(6) o f the C rim e (Sentences) A ct 1997. But this reinforces the view that inad equ ate attention w as given by P arliam en t to the priso n er's special status once he has served the tariff part o f his sentence. A lth ou gh D LPs w ere created in response to the E uropean C ou rt o f H um an R igh t's recognition o f this special status, it plays alm ost no part in the thinking o f D LPs. In fact, som e Panel m em bers w ere clear that a long period o f tim e spent in prison post-tariff could in itself ind icate a high level o f risk. So, the first question here con cern s the function o f the Panel in assessing risk. It is as im portan t to qu estion the function o f the Parole Board in relation to the functions o f o ther crim inal ju stice agencies. It w as noted above that a prisoner m u st su ccessfu lly negotiate a v ariety of P rison Serv ice hurdles (categorisation, allocation, offending b ehav iou r cou rses and so on) as a p rerequ isite to release. W e w ill return to this in the final tw o chapters o f the book. The role of the Panel Secretary W e have already noted the am bigu ous role o f the Panel Secretary. Peay, in her rev iew o f M ental H ealth R eview T rib u n als,43 suggests that the role o f the tribunal clerk should be enhanced: 'their role is presently ill-d efined , but in p ractice they act as a sort o f M aster o f C erem onies. They serve the coffee, usher in w itnesses, pay their expen ses, reassu re 12 See p. I l l below. 43 See Chapter 6.

100

Beyond the tariff

patients, sort out unexpected problem s, phone the H om e O ffice w hen so re q u ire d '.14 She suggests that legal training and an en h an cem en t o f their role m ight act as 'a d eterrent effect on w hat m ight otherw ise be errant d ecision s'. It is not obviou s that in the context o f the D L P that it w ould be the Panel Secretary w ho w ould function as the safeguard for p riso n er's rights. Padfield and L iebling w ere concerned that som e Panel secretaries becam e over-in volved in the d ecision-m ak ing process, con tri­ bu ting their ow n view s on the evid ence d uring the d eliberations. It w ould indeed be useful if they had m ore (legal) training on the precise con tours o f their role. H ow ever, w hether the role should be enhanced is a v ery different question. The role of the parties A t a typical D L P, the S ecretary o f S tate's rep resentative introd uces the case, bu t often plays only a m inor role thereafter. T he onus is on the prisoner and his representative to con vince the Panel that they should d irect release, or m ake som e other recom m en dation. W hile the law is cu rren tly clear that the D LP can d irect release only if it is satisfied that 'it is no longer necessary for the protection o f the public that the prisoner should be con fin ed' (section 34 o f the C rim inal Ju stice A ct 1991, as am ended ), we w ill return in later chapters to explore w hether the burden o f pro of should in fact be put firm ly on the H om e O ffice /P riso n Service to ju stify d etention.45 H earings also vary in the extent to w hich they are accu satorial: som etim es the question in g o f w itnesses is d one en tirely by the parties (or en tirely by one party, the priso n er's legal representative), at other hearings, the question in g m ay com e m ore strongly from the Panel itself, w ho w ould 'test' w itnesses such as hom e p robation officers, p sychiatrists and psychologists in a probing w ay. In practice, becau se the D LP tends to be an ad v e rsarial/in q u isito rial hybrid, the question of burden o f p roof is rarely raised as an issue. W e will return in C h apter 7 to question the burden o f p ro o f and the in q u isito rial/ad v ersarial procedu ral balance at D LPs, su gg esting that the S ecretary o f State's representative should take a m ore active role. D elays P adfield and Liebling (2000) found that although Panel m em bers received d ossiers about tw o or three w eeks before a hearing, they w ere inv ariably supplem ented w ith (often crucial) late reports at or shortly before the hearing. Late reports and papers w ere received either on the 44 Peay (1989), at p. 220. 45 W e shall look in Chapter 6 at the recent changes in relation to Mental Health Review Tribunals.

DLPs in practice

101

day or shortly before the Panel date in m any cases, which som etim es led to deferral of cases (for about six m onths), either before or som etim es at the hearing, w asting public m oney and risking considerable unfairness to the prisoner. An auditable standard on the tim eliness of subm itting reports has now been introduced. M ore serious than late papers, were delays to the process itself. In Padfield and Liebling's sam ple of 69 cases, 13 w ere deferred before the hearing (19 per cent of the cases). M ost of these deferrals were due to factors beyond the Panel's control, but som e w ere related to disputed evidence (or evidence w hich m ight have been disputed): one case w here a key probation w itness failed to appear (the case was deferred more than four m onths); one case w here the prisoner had a serious adjudica­ tion pending (the case was deferred for two m onths pending the adjudication); one case w here the prisoner said he wanted legal representation but had failed to contact his solicitor. He com plained that he had not been assisted (the case was relisted four months later). Prisoners them selves som etim es agree to defer hearings when they have been waiting for a place on a course or for an 'im m inent transfer' to a low er category prison. It is obviously in their interests to m ove as far as they can through the system before a hearing so that the hearing may 'nudge' them further, but this raises the question of w hy they had not already m oved. The most frequent reason for deferrals was the late arrival of reports: legal representatives applied shortly before the hearing for a deferral because the dossier was incom plete. This w as both unfair on the prisoner and wasteful of resources. O ther hearings open, but are deferred part way into the hearing. This happened in three of Padfield and Liebling's hearings in open prisons: one because the hom e probation officer and psychologist w ere not present; one due to lack of up-to-date reports by the hom e probation officer, psychologist or psychiatrist; and the third because the prisoner was aw aiting the outcom e of an adjudication. At the subsequent deferred hearing, the Panel decided to release this prisoner. The cost (and anguish) of such last-m inute delays are an im portant factor in suggesting that the pre-hearing review could be m ore effective. M any cases are heard outside the agreed timetable: from the dossiers, this appeared to be the case in 20 of Padfield and Liebling's 52 cases. W hile this was no m ore than five m onths delay in 17 of these cases, the rem aining three had been delayed nine months, 13 m onths and 21 m onths respectively. O ne of these concerned a man w ho had been released in 1983 but had been recalled in 1990. At a DLP in 1992, the Panel had recom m ended his transfer to Category C w ith a 12-m onth review after the date of transfer, w hich had taken place in April 1993. Since then, the case w as regularly deferred w hile he underw ent behaviour m odification therapy. A Panel m et in January 1999 but was

102

Beyond the tariff

again d eferred follow ing the late subm ission o f a psych o log ist's report. It w as again deferred in M ay 1999 for the reports to be rew ritten, ready for hearing in Ju ly 1999, at w hich it w as recom m en ded that he should m ove to open conditions. The tim etable o f the D LP process seem ed to have fitted u n com fortably w ith the Prison S erv ice's ow n tim etable o f treatm ent for this and other prisoners. D elays also appeared to happen becau se o f the bu reau cratic co n ­ strain ts o f the D LP process. The P arole Board fixed a provisional tim etable for hearings som e eight or nine m onths in ad vance, on the assu m ption that the prisoner w ould rem ain in the sam e prison. There w as evid ence that a prisoner m ight not be m oved on to another prison d uring that tim e, since he w as w aitin g for a D LP. T here w ere dangers that the prison er's progress w ould freeze pend ing the next hearing. Thus w hile the D L P m igh t w ell help to 'n u d ge' som e prisoners through the lifer system , it seem ed also inad verten tly to slow others dow n. R ecall hearings T h e d ifferences betw een first oral recall hearings and ord in ary D LPs are stark. An 'o rd in ary ' D LP is held regularly as a d iscretionary lifer m oves, albeit som etim es im perceptibly, tow ards open con ditions and release. A recalled lifer on the other hand finds him self sud denly returned to a local prison and, o f course, is unlikely to have been given ad van ce notification o f his recall. Few have com m itted further seriou s offences before they are recalled .46 W ithin a few w eeks, the case is con sid ered by a 'Frid ay m orning' Panel of the P arole Board. T hese Panels, w hich norm ally m eet to con sid er m an d atory life sen tence cases, m eet in the P arole Board head quarters.47 The prisoner is not represented and m ay not even know that his case is being considered. The first full D LP for recalled lifers m ay not happen for several m onths. T he focus o f the d iscu ssion and o f the evid ence at a recall D LP is on 'w h at w ent w ron g' in the com m u nity rather than on any release plan. Panels are asked both to confirm the recall d ecision and to consid er w hether it is still necessary for the protection o f the pu blic that the p risoner should be con fin ed.48 H ow ever, sin ce the P robation Serv ice w ill not have prepared a release plan (it w ill usually have been as a result of P robation Serv ice concerns that the prisoner w as recalled), question s of release are usually glossed over, or at least easily decided. 46 Weeks, Wilson and Gunnell were all recalled lifers. The facts of their cases were spelt out in Chapter 3 and reveal the factors which lead to the recall of those who had previously been deemed 'safe' to release. 47 See Chapter 6 below, at p. 113. 18 See R v. Parole Board, ex parte Watson [1996] 2 All ER 641, where the Court confirmed that both functions are necessary.

DLPs in practice

103

In Padfield and L ieblin g's research there w ere five cases w here the Panel w as con sid erin g representation s against recall at the first oral hearing since the p rison er's return to prison. In each case, the recall w as confirm ed. The P anels' failu re ad equ ately to d istingu ish the confirm ation o f the recall from the fresh assessm en t on the necessity o f detention and w hether this should be in open con ditions gave rise to concerns. The reality o f p ow er in recall cases seem s to lie w ith the Probation Service, w ho having m ade the d ecision that they can no longer safely supervise the prisoner in the com m u nity, w ere u n likely to be sw ift to p repare a new release plan.49 Tud d en ham , in a critiqu e o f risk assessm en t in probation practice, states that 'cu rrent practice rem ains d efen sive; it o v er-estim ates d angers, errs too far on the sid e of caution and , d espite the rhetoric, lacks an evid ence base . . . O ne of the m ain reasons for this is the im pact o f w ider social and political im peratives on bo th the p robation organisation and its staff, som ething w hich m uch m u st be recognised and responded to if risk assessm en t is to d ev elo p '.50 W hether o r not this d efen siv e approach is d ue to a shortage o f staff and other resources, o r a d esire to avoid the 'b lam e cu ltu re', the hum an rights im plications fo r prisoners are too easily ignored. W om en and the D LP process R ed ressing the im balance o f the past, there is now a con sid erable literatu re on the problem s faced by w om en in the prison system 51 and, ev en m ore im portantly, an increasing literatu re w hich seeks to un der­ stand fem ale crim inality.52 But there is still little w ritten on w om en lifers.53 The fact that so few w om en com m it crim es w hich result in life sentences m eans that research into w hy they com m itted the crim e that resulted in the life sen tence is particu larly difficult. M any w om en lifers have suffered violence and sexual abuse. W om en prisoners have often had particularly chaotic lifestyles prior to their im prisonm ent, and m any have m ental and physical health, drug, alcohol and su bstance abuse problem s.54 H igh rates o f self-harm am on gt w om en prisoners and their child care and fam ily responsibilities are other factors w hich m ay d istin gu ish w om en prisoners from their m ale equivalents. 49 See K v. Secretary of State for the Home Department, ex parte Cummings 12001] EWCA Civ 45, 22 January 2001, for a depressing account of the powerlessness of a recalled mandatory lifer. 50 Tuddenham (2000), at p. 173. He calls for a more dynamic and 'reflexive' approach to risk assessment. 51 See, for example, Prison Reform Trust (2000), HM Chief Inspector of Prisons for England and Wales (1997) and (2001). 52 For a review of the literature, see Hedderman (1997). 53 But see Genders and Player (1987b). 54 See Maden (1996).

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O n 30 Ju n e 2000, there w ere 153 w om en serving a life sen tence (including seven you ng offenders).3"’ O nly one w om an 's case fell w ithin Padfield and L ieb lin g 's sam ple. H er D L P w as held in the closed prison w here sh e w as held, and the p risoner w as recom m en ded for a 'p rogressiv e m o v e' or hospital. T here rem ains a sh ortage o f program m es for fem ale lifers,56 and this is p articularly seriou s in view o f the finding that progress tow ards release often turns on com pleted accredited offending behaviou r w ork. T he C h ief Insp ector o f Prison noted that short tariff fem ale lifers are p articularly d isad v an tag ed .57 The other obviou s d isad v an tag e faced by w om en lifers is the lack o f p re-release hostels in urban centres. The C h ief In sp ector's follow -u p report in 2001 called for 'tran sitio n al prisons in urban cen tres' to be developed to serve the needs o f w om en prisoners. It is to be hoped that the g o v ern m en t's strategy for w om en offenders58 m ay release m ore resources to su pport w ork w ith this group o f offenders. E th n icity and release T here has long been concern at the o v errepresentation o f black people w ithin the prison system , but little w ork had been done until recently on ethnicity and release decisions. T he Public A ccounts C o m m ittee's 10th Report o f 2 0 0 0 -1 , on P arole59 conclud ed that: A la ck o f in fo rm a tio n m ea n s th a t th e P riso n S e rv ic e an d P aro le B oard a rc not a b le to d e m o n stra te fu lly th a t p a ro le a p p lic a tio n s a re d e a lt w ith in a co n sisten t and e q u ita b le m a n n er, fo r e x a m p le a c co rd in g to th e ty p e o f offen d er, e d u ca tio n a l a tta in m en t an d re g io n o f o rig in . F ig u res fro m th e P aro le B oard su g g est th at p a ro le ra tes vary c o n sid e ra b ly b etw ee n e th n ic g ro u p s. W h ile re ce n t re sea rc h 60 co n d u cte d fo r th e H o m e O ffice co n clu d ed th at m o st o f th e v a ria tio n co u ld be e x p la in ed b y th e ty p e o f o ffen ces c o m m itted an d o th er re le v a n t fa cto rs, th e P a ro le B o ard an d P riso n S e rv ic e sh o u ld m o n ito r the re la tiv e su c c ess ra tes o f d iffere n t p riso n e r g ro u p s on a re g u la r b a sis to en su re p a ro le a p p lica tio n s are b e in g h a n d led co n sisten tly and fairly.

Padfield and L iebling w ondered w hether the P arole Board som etim es subcon sciou sly sou gh t to cou nter the bias w hich they felt prisoners m igh t have suffered in prison. An obvious exam p le w as w here a p riso n er's p oor English seem ed to have m ad e him p articularly difficult 55 56 57 58

Prison Statistics 2000, table 5.1. See HM Chief Inspector of Prisons for England and Wales (2001), para. 2.141. HM Chief Inspector of Prisons for England and Wales (2001), para. 2.142. A strategy document was produced by a joint Home Office/Prison Service working group in October 2000. 59 Published on 29 March 2001. 60 This is a reference to Hood and Shute (2000).

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to assess in prison, and had slow ed dow n his progress from C ateg ory B. T h e Panel w as keen to try and get him 'm oved along'. A nother concern is the problem of foreign nationals aw aiting d ep ortation.61 P rison Service p olicy is that such prisoners are not held in open conditions. They m ay therefore be p articularly d isadvantaged in the release process. If a p risoner subject to a d ep ortation o rd er is not held in open con ditions, and the Parole Board is very u n likely to release anyone not in open con ditions, such a p risoner finds him self in an invid ious position. There w as ju st such a prisoner in Padfield and L ieblin g's sam ple. Low in tellectu al ab ility and release A nother area w hich has been unexplored is the im pact o f intellectual ability on release decisions. It is w ell know n that the average prisoner has a low IQ, thou gh it is o f cou rse also kn ow n that social class and socio-econom ic d isadvan tage them selves affect IQ scores.62 The im p o rt­ ant role played by the p risoner him or herself in the D LP process suggests that bein g articu late m ay w ell help a prisoner obtain release. Padfield and L iebling (2000) observed that the successfu l com pletion o f offending b ehav iou r courses w as often a requ irem ent before a prisoner w ould be consid ered for a p rog ressive m ove through the prison system . This ech oes the finding o f Price (2000) that the com pletion, or otherw ise, o f offending b ehaviou r program m es is a vital factor in persuad ing the C ategory A C om m ittee to d ow ngrad e a prisoner from C ategory A status, w hich clearly has m ajor con sequ ences for the overall length o f sen tence in lifer cases. Yet a low level o f learning ability m ay m ake a prisoner ineligible for a course. It seem s clear that som e lifers, perhaps p articular­ ly arsonists, m ay find that their low IQ lim its their ability to progress tow ards release. The less literate as w ell as the less intelligent m ay find anger m an agem en t and other sim ilar cou rses a struggle. W e should perh aps view w ith som e con cern the g o v ern m en t's suggestions in Skills fo r Life: a N ational Strategy fo r Im proving A dult Literacy67, (at p aragraph 38): W e a re a lso c rea tin g a litera cy and n u m era cy sk ills p a th fin d e r p ro je c t to d e v elo p an d th en d isse m in a te b e s t p ractice. P riso n e rs in p ath fin d e r area p riso n s w ill, fro m S e p te m b e r 2 0 0 1 , h a v e a c ce ss to tu to rs train ed in th e n ew litera cy an d n u m e ra c y sta n d a rd s, co re c u rricu lu m a n d N a tio n a l T ests. W e are a lso ex p lo rin g w h e th e r th e P riso n S e rv ic e can re q u ire all p riso n ers e lig ib le for e a rly re le a se w h o h a v e litera cy a n d n u m e ra c y sk ills n eed s to atten d literacy and n u m e ra c y cla sses as a co n d itio n o f licen ce. W e are d e term in ed to m a k e a sig n ifica n t im p a ct o n th e n u m b ers o f p eo p le in p riso n o r su p erv ised in th e 61 Also highlighted in the House of Commons Public Accounts Committee (2001) report. 62 See for example, Mackintosh (1998). 63 Department for Education and Skills (2000).

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co m m u n ity w ith literacy and n u m eracy needs. E v id en ce from ou r prison pathfin d er w ill h elp u s d eterm in e h o w w e can b est tackle this need. W e exp ect o u r strategy to en ab le at least 40,000 p eop le in p rison and th ose sup erv ised in the co m m u n ity to h ave im proved their literacy and n u m eracy skills by 2004.

W hatever the m erits of im proved literacy, they can never justify prolonging im prisonm ent! D uration of licences and licence conditions Lifers are released on licence, and this licence continues in force until his or her death. This is an im portant point, com pletely m isunderstood by m any of those who com plain that lifers are released too early. In practice supervision as a condition of licence m ay be lifted at any tim e by the Secretary of State (although in practice not sooner than four years after release). H owever, the governm ent resisted attem pts in the Crim inal Justice Bill 1990 to give the Parole Board the right to give a prisoner unconditional release. There has been no published research on licence conditions. W hen the police w ere given the power to grant conditional bail, there was significant concern that this would not result in m ore people being granted bail who would previously have been rem anded in custody, but that it would sim ply result in people finding greater restrictions im posed on their liberty.M Sim ilar concerns arise if people are granted conditional liberty who could or should be granted unconditional release. The standard life licence contains six conditions: 1. H e /sh e shall place h im /h e rse lf under the supervision of whichever probation officer is nom inated for this purpose from time to time. 2. H e /sh e shall on release report to the probation officer so nom inated, and shall keep in touch with that officer in accordance with that officer's instructions. 3. H e /sh e shall, if h is /h e r probation officer so requires, receive visits from that officer w here the licence holder is living. 4. H e /sh e shall reside only w here approved by h is /h e r probation officer. 5. H e /sh e shall w ork only w here approved by h is /h e r probation officer and shall inform h is /h e r probation officer at once if h e /s h e loses h is /h e r job. 6. H e /sh e shall not travel outside Great Britain w ithout the prior perm ission of h is /h e r probation officer. 64 See, for example, Bucke and Brown (1997).

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In m ost cases Panels sim ply im pose the standard licence con ditions, but they m ay add others such as a resid ence or treatm ent requ irem ent, or a requ irem ent that the licensee avoid a certain geographical area. N ot only are such con ditions som etim es difficult to enforce, they clearly infringe the p riso n er's liberty. The Parole Board has no p o w er to grant an unconditional licence. It w ill be rem em bered that the Sheerm an proposals in the H ouse of C om m ons w ould have given the P arole Board the d uty to review licence con ditions every five years. T here has been no subsequ ent d ebate as to w hether a form al review o f parole licence con ditions w ould be approp riate. A s H ood and Shute suggest, 'w h eth er or not it is realistic to expect so m any con ditions to be fulfilled by the prisoner and provided and enforced b y the p robation service are issues w orthy o f research '.65 It w ould certain ly be w orth inv estigating further w hether the stringent con d itions im posed on lifers are 'n ecessary ' restrictions on their liberty. T h e Parole Board could d iscu ss in their letter m aking the decision to release w hether less onerou s con ditions m igh t be appropriate.

Summary In this chapter w e have seen how D L Ps w ork in practice. D ossiers prepared by the P rison Serv ice are studied by Panels in advance. Panels m eet in the prison w here the prisoner is held, and hear evid ence from w itnesses in a fairly con sisten t yet inform al m anner. The S ecretary of S tate's representative, presenting the case against the prisoner, takes a m in o r role. C learly w itnesses can play a vital role, but the ru les governing their appearan ce at hearings can appear haphazard. Even m ore im portan t is the role o f the prisoner, w hose chances of success can be increased by good, realistic legal representation. W hile the procedu ral 'ru les' at a D L P are relatively clear if flexible, the sam e cannot be said o f either the evid ential hu rd les faced by the prisoner or the sub stantiv e risk p rinciples to be applied. P erhaps the m ost striking con clusion o f Padfield and L ieblin g's research w as that although the 'p ro cess' w orked w ell, it had little im pact in practice. O nly prisoners held in an open prison are likely to be released. A ll recalls in the stud y w ere confirm ed. A ll nine prisoners w ho w ere released w ere in open con ditions and had the su pport o f their p robation officers. Fu ture research m igh t be able to explore w hether those prisoners w ho w ere released w ere released earlier or later than they m ight otherw ise have been if there had not been a D L P process. But before w e m ove on to evalu ate the D LP process further, w e w ill divert to look at other release procedures. 65 Hood and Shute (2000), at p. 32.

6 Release procedures compared It is o f cou rse not only d iscretionary lifers w ho are detained against their w ishes. T h e sam e is true o f all prisoners, and in this chapter w e will seek to describe the p rocedu res w hich are follow ed before other long-term p risoners are released , as w ell as the p rocedu res w hich are follow ed before those sentenced to a m an d atory life sen tence for m urder, and those w ho have been detained against their w ill in m ental hospitals, are released. U ntil the introd uction o f the D LP in 1992, all life sen tence prisoners had been d ealt w ith in a sim ilar fashion. Sin ce then the H om e S ecretary has retained the right to d ecide on the release of m an d atory lifers. U ntil 1983 the H om e S ecretary also had the pow er to release, or to refu se to release, m entally abnorm al offenders, but after an ad verse d ecision o f the European C ou rt o f H um an Rights, this pow er w as transferred to a new tribunal, the M ental H ealth Review Tribunal, by the M ental H ealth A ct 1983. T hese Tribun als w ere in som e sense, as w e have seen ,1 the m odel for the DLP. Both system s w ill be d escribed and com pared. But let us start w ith a sh o rt d escription o f the process w hich u n derlies the release o f those facing long d eterm inate sentences.

Determinate sentences In C h apter 1 w e saw how ind eterm inate 'life' sen tences o f im prisonm ent fitted into the general sen tencing fram ew ork. The length o f d eterm inate (fixed length) sentences should be, as w e saw , eith er com m ensu rate w ith the seriou sn ess o f the offence, or w here the offence is a v iolent or sexual offence, for such longer term as in the opinion of the cou rt is necessary to protect the pu blic from seriou s harm from the offend er'.2 Until recently d eterm inate sen tence prisoners had been treated sim ilarly w hen it cam e to release and recall w hether or not they had been sentenced to a com m ensurate or longer than com m ensu rate sentence. H ow ever, this is no longer true. 1 See p. 82 above. 2 See sections 79 and 80 of the Powers of Criminal Courts (Sentencing) Act 2000.

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A new early release schem e w as introduced in the C rim in al Ju stice A ct 1991, follow ing the recom m en d ations o f the C arlisle C om m ittee. H ere w e w ill only explore the d iscretionary release system applicable to those sentenced to four years or over. A t the halfw ay point in their sentence, they are eligible for D iscretion ary C on dition al R elease (DCR). If early release is not granted, they are released autom atically at the tw o-thirds point in the sentence. They rem ain u n d er licence, i.e. un der the supervision o f the p robation service, until they reach the three-qu arter point in their sen tence (and som e sex offenders for con sid erably lo n g e r’). U ntil recently, the P arole Board had not taken into accoun t the different ju stifications for w hich the sen tence m ight have been im posed. T he point w as consid ered by the E uropean C om m ission on H um an R ights in M ansell v. U nited K ingdom ,4 in 1997, w ho w ere un anim ous that A rticle 5(4) had no application to sentences o f this kind: T h e se n te n c e im p o sed on th e a p p lica n t w as a fixed term se n te n c e o f fiv e y ears. T h e re is n o q u es tio n o f th e se n te n c e b e in g im p o sed b e c a u se o f th e p re sen ce o f fa cto rs w h ic h 'w e re s u sce p tib le to c h a n g e w ith th e p a ssag e o f tim e, n am e ly m en ta l in sta b ility a n d d a n g e ro u sn e ss' (Thynne, Wilson and G unnell, p ara. 73). R ath er, th ere w a s an elem en t o f 'sim p le ' p u n ish m e n t as w ell as an e lem en t o f d eterren ce. It is tru e th at th e la tter p a rt o f th e se n te n c e w as im p o sed p u rsu an t to Sectio n 2 o f th e C rim in a l Ju stic e A ct 1991, w h ich p ro v id es for se n te n c e s in th e c a se o f v io len t o r sex u a l o ffen ces to b e lo n g e r th an 'n o rm a l' in o rd e r to p ro tect th e p u b lic fro m serio u s h arm . S u ch an 'in cre a se d ' sen te n ce is, h o w ev er, n o m o re th a n th e u su a l ex e rc ise b y th e sen te n c in g co u rt o f its o rd in ary sen te n c in g p o w ers, ev en if th e 'in cre a se ' h as a sta tu to ry b asis. In p a rticu lar, n o th in g in th e se n te n c in g p ro c ed u re in d ica tes th at th e fixed term se n te n c e o f fiv e y e a rs' im p riso n m e n t w a s a n y th in g o th er th an a se n te n c e w h ich w as im p o sed a s p u n ish m e n t fo r th e o ffen ces co m m itted .

H ow ever, the question w as explored once again in 2001 in an application for judicial review . In R (G iles) v. P arole Board and the Secretary o f State fo r the H om e D epartm ent* Elias J had to rule on the legality o f the procedures and principles applied by the P arole Board w hen con sid erin g ap p lica­ tions for parole from prisoners sentenced u n d er section 80(2)(b) (previ­ ously section 2(2)(b) o f the C rim in al Ju stice A ct 1991). G iles had been sentenced to seven years' im prisonm ent for tw o offences: the trial judge m ad e it clear that he w as passing the sentences un der section 2(2)(b) of the C rim inal Ju stice A ct 1991 becau se o f the d anger that G iles posed to the public. H is appeal had been refused. A lth ou gh he had been released

3 See section 44 of the Criminal Justice Act 1991, and section 20 of the Crime (Sentences) Act 1997, now sections 85 and 86 of the Powers of Criminal Courts (Sentencing) Act 2000. 1 Application No. 32072/96, decided 2 July 1997. 5 [20011 EWHC Admin 834.

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on 17 M ay 2001, Elias J agreed that the ap plication for judicial review should be heard becau se the argum en t w as quite ind ep en den t o f any p articular factual context. H e found that A rticle 5(4) applied to the con tin uing d etention of persons detained pu rsu ant to section 80(2)(b) in circu m stan ces w here they w ould have been released but for the ap plication of that subsection: in his view , there w as no d istinction if a person is subject, for exam ple, to a sen tence o f tw o years as pu nishm ent and ten years as p reventative, as opposed to a discretionary life sentence. The im plications o f this d ecision w ere obviou sly huge. H ow ever the d ecision in G iles w as reversed on appeal by the C ou rt o f A ppeal (Civil D ivision) on 4 Ju ly 2002 (see Tim es, 23 Ju ly). The P arole Board w ould have had to be staffed and resourced to deal w ith a large nu m ber o f extra oral hearings. A lread y, it has been accepted that prisoners serving extended sentences6 w ho are recalled m ay m ake representation s to an oral hearing o f the Parole Board, organised on sim ilar lines to a D LP, and this has already happened in a very sm all nu m ber o f cases. Release decisions The pow er to release is given to the H om e Secretary, acting on the recom m en dation o f the Parole Board, bu t in p ractice the H om e Secretary has delegated to the Parole Board the final decision in relation to prisoners sentenced to less than 15 years.7 As w e have seen, the C rim inal Ju stice A ct 1991 gave the H om e Secretary the pow er to issue ru les w ith resp ect to the p roceedings o f the Board and d irections as to m atters to be taken into account by the Board w hen d isch arging its functions. In giving such d irections, he shall in p articular have regard to (a) th e n eed to p ro tect th e p u b lic fro m serio u s h arm fro m o ffen d ers; an d (b) th e d e sira b ility o f p re v en tin g th e c o m m issio n by th em o f fu rth er o ffen ces and o f se c u rin g th eir re h a b ilita tio n .s

W hereas no d irection s have been issued to the Board concerning d iscretionary lifers, the H om e S ecretary has issued d irection s for the release and recall o f d eterm inate sen tence prisoners. T he first, issued in 1992, w ere replaced in 1996. T h e Report o f the C arlisle C om m ittee9 on

6 See Parole Board Annual Report 2000-1, at p. 29. 7 Until December 1998, the Parole Board made only recommendations in the case of those sentenced to seven years or more. # Section 32(6) of the Criminal Justice Act 1991: see Appendix 2. 9 Carlisle, Lord (1988) The Parole System in England and Wales. Report o f the Review Committee, Cm 532 (London: HMSO).

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which the 1991 changes w ere based had m ade it quite clear that the C om m ittee hoped that a higher proportion of prisoners would be released at the halfw ay point. The Report stated that the risk to be assessed, w hich was w hether a further serious offence m ight be com m itted, had to be balanced against the benefit to the prisoner and to the public of his release under supervision 'w hich m ight assist his rehabilitation and thereby lessen the risk of his re-offending'. H owever, the H om e Secretary's directions have put the priority firm ly on the protection of the public. The 1996 directions explicitly state that the Parole Board 'shall take into account that safeguarding the public m ay often outw eigh the benefits to the offender o f early release'. The Parole Board decides betw een 5,000 and 6,000 cases every year, sitting in Panels in London. D ossiers are prepared by parole clerks in the prisoner's prison (unlike lifer dossiers, w hich as w e have seen, are prepared in the Lifer Unit at Prison Service headquarters). The prisoner will have been interview ed by a m em ber of the Board in his prison, but this m em ber will not be part of the final Panel. The results have been, not surprisingly, very cautious. In 1996-7, for exam ple, only 36.4 per cent of those eligible w ere aw arded release. This figure has been creeping upw ards and by 2000-1 46.3 per cent of eligible prisoners w ere awarded parole. But this rem ains low er than the percentage released under the pre-1991 system , and a far cry from the aspirations of the Carlisle C om m ittee. W hy is this? The m ost detailed analysis of decision-m aking by the Parole Board in DCR cases has been carried out by Roger Hood and Stephen Shute. They have published three m ajor reports: the first on parole before the im plem entation of the Crim inal Justice A ct 1991, the second looking at parole 'in transition' and the third assessing the im pact of the changes over a decade.10 They have 'no doubt' that the H om e Secretary's D irections (and the training guidance) have created a 'generally cautious approach'. They also found that Parole Board m em bers believed that the chance of a prisoner reoffending was substantially higher than that indicated by an actuarially based risk of reconviction score. It is hardly surprising that they com m ent: 'in a system w hich gives priority to risk, it is essential that risk should be re-assessed as accurately as possible, both to protect the public and to ensure that the liberty of prisoners who do not pose a high risk to the public is not unnecessarily restricted'.11 The Parole Board w hen deciding on Discretionary Conditional Release is deciding on the early release of prisoners. D iscretionary Lifer Panels are deciding on 'late release': post-tariff release. W e will return to the im plications of this im portant distinction in Chapter 8. 10 Hood and Shute (1994), (1995) and (2000). 11 Hood and Shute (2000), at p. 78.

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The release of mandatory lifers A s w e saw in C h ap ter 1, although m an datory life sen tence prisoners are treated in a sim ilar fashion to d iscretionary life sen tence prisoners w ithin the prison setting, the procedu re governing their release rem ains very different. A fter som e tim e (often longer than a y ear12) the p risoner will d iscov er w hat the ju d ge and the Lord C h ief Ju stice suggested as their tariff, and they are perm itted to m ake representation s to the H om e Secretary, w ho then fixes the tariff. It w ill be rem em bered that in the H ouse o f Lords in 1990, d uring the d ebates on the introd uction o f D LPs, a num ber o f peers w ere convinced that soon the E uropean C ou rt o f H um an Rights w ould im pose a sim ilar system on m an d atory lifers as on d iscretionary lifers. This has not happ ened. In W ynne v. UK, as w e saw' in C h apter 3 ,13 the E uropean C ourt o f H um an R ights accepted the 'essential d istin ction' betw een m an datory and d iscretionary life sen tences, and so the changes introduced fo r d iscretionary lifers are not applicable to m an d atory lifers.14 T h e procedu ral im provem en ts introduced b y the H ouse o f L ords in D oody v. Secretary o f State fo r the H om e D epartm ent15 w ere m entioned in C h apter 1. T here the H ouse of Lords granted a declaration that: (1) T h e S e creta ry o f S ta te is req u ired to afford to a p riso n er serv in g a m a n d a to ry life se n te n c e th e o p p o rtu n ity to su b m it in w ritin g re p rese n ta ­ tion s a s to th e p erio d h e sh o u ld se rv e fo r th e p u rp o se o f re trib u tio n and d e te rre n c e b efo re th e S e creta ry o f S ta te sets th e d a te o f th e first re v iew o f th e p riso n e r's sen ten ce. (2) B e fo re g iv in g th e p riso n er th e o p p o rtu n ity to m a k e su ch rep rese n ta tio n s, th e S e cre ta ry o f S ta te is re q u ired to in fo rm h im o f th e p erio d re co m m e n ­ ded b y th e ju d ic ia ry a s th e p erio d h e sh o u ld se rv e fo r th e p u rp o se o f re trib u tio n an d d e terren ce, an d o f an y o th e r o p in io n ex p resse d b y the ju d icia ry w h ich is re le v a n t to th e S e creta ry o f S ta te 's d e cisio n as to the ap p ro p ria te p erio d to b e serv ed fo r th ese p u rp o ses. (3) T h e S e creta ry o f S ta te is o b lig ed to g iv e re aso n s fo r d e p a rtin g fro m th e p erio d re co m m en d ed b y th e ju d ic ia ry as th e p erio d w h ich h e sh o u ld serv e fo r th e p u rp o se o f re trib u tio n a n d d e te rre n c e .16

Y et Lord M ustill, giving the m ain speech in D oody, w as at p ains to repeat em ph atically that 'P arliam ent has left the d iscretion to release w ith the 12 Sparks (1998) found that even those convicted after the decision in Doody (see below) had made tariff disclosure automatic were waiting as long as three years for information on their proposed tariffs. 13 See p. 51. 14 But note the decision of the European Court of Human Rights in the case of Stafford v. UK (see Preface). 15 [1994] 1 AC 531. 16 At p. 567.

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H om e Secretary, and that he has done nothing to yield u p '.17 T hu s it is im portan t to note that the procedu ral im provem en ts introd uced by D oody ap p ly only to the first stage o f the m an d atory life sentence, the tariff setting stage. R elease decisions W ithin the prison system , a convicted m u rd erer w ill follow the sam e 'career' as does the d iscretionary life r;18 how ever, w hen he com es to be considered for release, it is the H om e Secretary not the Parole Board w ho m akes the final decision. Section 29 o f the C rim e (Sentences) A ct 1997 p rovides that: (1) If re co m m en d ed to d o so b y th e P a ro le B o ard , th e S e creta ry o f S ta te m ay, a fter c o n su lta tio n w ith th e Lord C h ie f Ju stic e to g eth er w ith th e trial ju d g e if a v a ila b le, re le a se o n lice n ce a life p riso n e r w h o is not o n e to w h om sectio n 28 a b o v e a p p lies. (2) T h e P a ro le B o ard sh all n o t m a k e a re co m m en d a tio n u n d e r su b sectio n (1) a b o v e u n less th e S e creta ry o f S ta te h as re ferred th e p a rticu la r case, o r th e c la ss o f ca se to w h ich th at ca se b elo n g s, to th e B oard fo r its ad v ice.

Thu s it is clear that in these cases the P arole Board m akes reco m m en d a­ tions only. T h e d ossier is com piled by the Prison Service, and the case is referred to the P arole Board by the H om e Secretary, but as the Parole B o ard 's P olicy and Proced ures M anual explains: T h e S e creta ry o f S ta te is n o t o b lig ed b y law to re fer a m an d ato ry life r's case to th e B o ard a t an y p a rticu la r tim e, ev en a fte r ex p iry o f th e tariff, th o u g h in p ra c tic e a n d as a m a tter o f a d m in istra tiv e p o licy , th e tim in g o f re v iew s is v ery m u ch in lin e w ith th e p ra c tic e in th e d isc re tio n a ry life r c a s e s .19

C ases are considered by a panel o f the P arole Board, bu t in the Parole Board head quarters in London (housed w ithin the Prison Service). The p risoner is not present. M and atory life sen tence cases have been heard for m any years on a Friday m orning. M ost cases w ill be heard for the first tim e three years before the tariff expiry date. The prisoner does not have the righ t to ap p ear before the Panel b u t w ill have had the op p ortu nity to present his case, both in w riting and by w ay o f an interview w ith a m em ber o f the P arole B oard.20 W ritten representation s m ay w ell b e prepared by a solicitor. The P arole Board m em ber w ill m ake 17 18 19 20

At p. 556. See p. 21 above. Para. 3.37. Prior to 1992, the reports in the dossiers were not disclosed to prisoners, which made something of a mockery of their 'right' to make representations.

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a detailed report on the interview w ith the prisoner, but w ill not be a m em ber o f the Panel w ho con sid er the recom m en d ation for the H om e Secretary .21 T he Panel w ill have studied the d ossiers in ad vance, and the three m em bers w ill take in turns to lead the d iscu ssion o f individual cases, several o f w hich w ill be consid ered in one m orning. T h e prisoner is not inform ed o f the precise d ate o f the hearing, nor o f the result until the H om e S ecretary has decided w hether or not to accept the B oard 's recom m endation. T o repeat, the H om e Secretary does not have to accept the recom m en d ation o f the Board. Betw een 460 and 630 cases are heard every year, w ith som ew here betw een 1 8 -2 5 per cent recom m en ded for release.22 The P arole Board does not pu blish w hether the recom m en d ations are accepted by the H om e Secretary.23 In 1999-2000, 39 m an datory lifers w ere recalled to prison, and 26 w ere recalled in 2 0 0 0 -1 . T here has been little published research on the release o f m an d atory lifers. H ood and Shute observed d u ring 1 9 9 2 -4 a nu m ber o f panels but this research has not been p u b lish e d 24 They analysed 122 m an d atory life sen tence cases, and found that 86 per cent (54 out o f 63) o f the m an datory lifers in their sam ple w ho w ere b ein g review ed before their tariff expired received a recom m en d a­ tion from the Board w hich, if all w ent w ell and the M inister did not object, m eant that they could hope to be released at or very near their tariff. Fou rteen per cent (9) could not realistically have hoped to be released w ithin a year o f their tariff expiring. Thus H ood and Shute conclud ed that, if their sam ple o f cases w as representative, a m ajority o f m an d atory lifers can expect to be released at o r near tariff. H ow ever, 22 prisoners in their sam ple w ere already three years or longer post-tariff. T h e m ajority of these prisoners rem ained in closed con ditions and their p rospects for release seem ed bleak. Even w here the P arole Board recom m en ded a m ove to open con ditions, the H om e S ecretary exercised his veto in a nu m ber o f cases. It does not seem surprising that m any m u rd erers are released on tariff: their recid ivism rate is lo w er than that of d iscretionary lifers, and m an y are u n likely to be considered 'd ang erou s'. H ow ever, the m inority w ho are consid ered 'd ang erou s' are u n d erstand ­ ably aggrieved that they do not b enefit from the D LP procedure. The S entencin g A dvisory P an el's (2001) con su ltation paper on tariffs in m u rd er cases also p rovides an insight. It states that the av erage tariff 21 Before 1992, the interview would have been conducted by a member of the local Review Committee, and in practice were significantly briefer than current reports. 22 See Parole Board Annual Report 2000-1 (House of Commons, 2001). 23 Unfortunately, they stopped doing so after 1996/7. It would be useful if the Board reintroduced the practice of publishing these figures, and indeed an analysis of the veto figures over the years might be revealing. 21 They submitted a memorandum to the Chief Inspectors of Prisons and of Probation which is cited in the Chief Inspectors' Thematic Review of Lifers (HMIPP, 1999).

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of the 119 m andatory lifers released in 2000 was 12.6 years, and that the average time served after sentence w as 14.3 years. If one takes into account the tim e likely to have been spent on rem and (which counts tow ards time served), m andatory lifers continue to serve on average a couple of years or m ore post-tariff. This figure is difficult to analyse. An average can disguise wide fluctuations. It m ay be that som e m urderers are perceived to pose a significant risk to the public. H owever, process delays and vetoes by the H om e Secretary of Parole Board recom m enda­ tions are also likely to be part of the explanation. The C hief Inspectors state that the H ood and Shute research indicated that for the years 1992, 1993 and 1994, the recom m endations for release w ere vetoed in 14.5, 9 and 19 per cent of cases respectively.25 These figures are astonishingly high. W hy does the M inister veto release? Perhaps it is because of political concerns about the 'public acceptability' of the release of m urderers. Perhaps it is because the M inister is yet m ore cautious than the Parole Board about taking risks. It would be interesting to know if Labour M inisters follow sim ilar practices. W e return to the question of m inisterial veto in the next section. W hy the d ifference? The system applicable to m andatory lifers is in essence the sam e system that was applied to all lifers before 1992 (though it is now som ew hat m ore open). It is difficult to assess w hether it is necessarily a 'w orse' system . W hat is undoubtedly true is that prisoners perceive the system to be less fair than the DLP system . M andatory lifers envy the discretionary lifer their 'hearing', their 'day in court'. The issues are undoubtedly explored in greater depth at a DLP, w here a hearing may w ell last half a day: the Parole Board deals w ith m any m andatory cases in a morning. But it has to be rem em bered that the tw o types of case are often very different. M any m urderers represent significantly less risk than do discretionary lifers: they are less 'dangerous'. If m urderers were routinely released on tariff, subject to a brief check for 'risk', it m ight be appropriate to argue that the detailed review process should be reserved for the truly dangerous. But as we have seen, this does not appear to be the case. O f Hood and Shute's sam ple, half had already served the tariff w hen the Parole Board considered their case. The explanation for the different treatm ent of m andatory and d is­ cretionary life sentence prisoners w ould appear to be purely political. As w e saw in Chapter 4, the governm ent was forced to introduce changes to the release process for discretionary lifers only reluctantly. They 25 Her Majesty's Inspectorates of Prison and Probation (1999) Lifers: A Joint Thematic Review (London: Home Office), para. 3.21.

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adopted a m inim alist approach. Both the Sheerm an proposals and the N athan proposals introduced during the passage of the Crim inal Justice Bill 1990 would have applied to all life sentence prisoners. H ow ever, the governm ent insisted that the new procedures should only apply to discretionary lifers (the only group to whom the Tlnjnne judgm ent applied). It is disappointing for those who would have w elcom ed w ider reform that the Labour governm ent elected in 1997 seem s to have moved so far aw ay from the position they held when in opposition in 1991. This is not the place to rehearse in detail the argum ents against the m andatory life sentence, but there have been m any calls for its abolition, to add to those of the N athan Com m ittee, discussed in Chapter 4. For exam ple, in an im portant review of the concept of dangerousness and the tariff, M aguire et al. (1984) com m ented that it would have been more satisfactory to allow judges to pass determ inate sentences for m urder in open court. The Lane Com m ittee on the Penalty for H om icide (1993), a C om m ittee set up under the auspices of the Prison Reform Trust, concluded that 1. The m andatory life sentence for m urder is founded on the assum p­ tion that m urder is a crim e of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free. 2. That assum ption is a fallacy. It arises from the divergence between the legal definition of m urder and that w hich the lay public believes to be murder. 3. The com m on-law definition of m urder em braces a wide range of offences, som e of w hich are truly heinous, som e of which are not. 4. The m ajority of m urder cases, though not those which receive most publicity, fall into the latter category. 5. It is logically and jurisprudentially wrong to require judges to sentence all categories of m urder in the sam e way, regardless of the particular circum stances of the case before them. 6. It is logically and constitutionally w rong to require the distinction betw een the various types of m urder to be decided (and decided behind the scenes) by the executive as is, generally speaking, the case at present. H ow ever, there seem s to be no m ore political will at this tim e to abolish the m andatory life sentence than there w as in 1984. The H om e Affairs C om m ittee of the House of Com m ons held an inquiry in 1994-5 into the m andatory life sentence for m urder. Their proposed solution w as to

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m a in ta in th e m a n d a to ry s e n te n c e b u t to re m o v e th e H o m e S e c re ta ry fro m th e p ro c e ss an d in 1 9 9 5 -6 th e y h e a rd fu r th e r e v id e n c e o n th is p ro p o sa l. In th e ir m e m o ra n d u m to th e S e le c t C o m m itte e , th e P a ro le B o a rd w a s c a u tio u s ly e n c o u ra g in g : The Com m ittee recommended in paragraph 98 of its Report that the Parole Board procedures for assessing the risk of releasing m andatory life sentence prisoners should follow the DLP model. The Parole Board does not dissent from that conclusion: indeed we said in our evidence to the Com m ittee that we felt it would make sense to extend the DLP system to all future lifer prisoners. Nevertheless we did also point out the considerably high cost of such a system and the need for the Board to have much greater resources if it w ere to undertake the responsibility.26 T h e S e le c t C o m m itte e 's 1996 s u p p le m e n ta r y re p o rt c o n c lu d e d th a t th e m a n d a to ry life s e n te n c e sh o u ld b e re ta in e d an d th e p o litic a l m o o d h as n o t s o fte n e d s in ce th e n . H o w e v e r, it is w o rth n o tin g th a t th e S e le c t C o m m itte e d id re c o m m e n d th a t th e re s p o n s ib ility fo r se ttin g th e tariff a n d fo r ta k in g d e c isio n s o n re le a se sh o u ld b e re m o v e d fro m th e H o m e S e cre ta ry . T h e y su g g e ste d th a t th e tariff sh o u ld b e se t b y th e trial ju d g e , w ith a rig h t o f a p p e a l to th e C o u rt o f A p p e a l. O n d e c isio n s to re le a se , th e S u p p le m e n ta ry R e p o rt c o n clu d e d that: W e see no reason why Parole Board Lifer Panels should not have the power to direct the release of prisoners convicted of murder and sentenced to life im prisonm ent (para. 16) W e recommend that Lifer Panels formed to consider the possible release of m andatory life sentence prisoners should consist of four mem bers to include a judge, a psychiatrist and a senior probation officer (para. 17) W e favour the suggestion that victim s' relatives might have the right to nom inate a legal representative to attend the panel hearing as an observer on their behalf (para. 19) W e believe that, if questions of releasing prisoners convicted of m urder are to be determined by Parole Board Lifer Panels, steps should be taken to ensure that the concerns of the Home Secretary are fully represented during the hearing; consideration should also be given to the provision of a right of appeal on behalf of the H ome Secretary against decisions taken by Lifer Panels (para. 20). T h e s e re c o m m e n d a tio n s h a v e n o t b e e n h e e d e d : th e E u ro p e a n C o u rt o f H u m a n R ig h ts h a s c o n tin u e d to a c c e p t th e fu n d a m e n ta l d is tin ctio n 26 See A ppendix F, A nnual Report o f Parole Board for 1995 and 1995-6.

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betw een m an datory and d iscretionary life sen tences; the D L P procedure still applies only to d iscretionary lifers.27

Mental Health Review Tribunals28 It w ill be rem em bered from C h ap ter 4 that D iscretionary Lifer Panels o f the P arole Board w ere m od elled in certain respects on M H RTs. T hese w ere strengthened as a result o f the d ecision o f the E uropean C ou rt of H um an R ights in X v. U nited K ingdom 29 that A rticle 5(4) requ ired the 'court' review ing the law fulness o f the d etention o f a patient to have the pow er to ord er his or her d isch arge w here the d eten tion w as unlaw ful. The legal stru ctu re for com p u lsory detention in hospital is now governed by the M ental H ealth A ct 1983 (as am ended ). A hospital order m ay be im posed as a crim inal sentence, and a patient so detained m ay be released by the hospital or a M ental H ealth R eview Tribunal. A restriction ord er m ay also be im posed by a C row n C ou rt in cases w here m entally disord ered offenders are believed to be likely to inflict serious harm on others (see sections 37 -4 1 of the M ental H ealth A ct 1983). The effect o f a 'restriction ord er' w as, until 1983, that a patient detained in hospital un der such an ord er could not be d ischarged w ithout the con sent o f the H om e Secretary. T h e M ental H ealth A ct 1959 created M ental H ealth R eview Tribun als, on the ad vice o f the Royal C om m ission on the law relating to m ental illness and m ental d eficiency (the Percy C om m ission30), but originally a p atient u n d er a restriction ord er had no righ t to apply to a tribunal for his d ischarge, nor w as the S ecretary of State requ ired to accept the ad vice of a Tribunal. H ow ever, as a resu lt of X v. United Kingdom , the law w as am ended to provide that a restricted patient m ay apply to a M ental H ealth R eview T ribun al in the period betw een the expiration o f six m onths and the expiration o f 12 m onths beginn ing w ith the date of the relevan t hospital ord er, hospital d irection o r transfer d irection, and in any su bsequ ent period o f 12 m onths (see section 70). Section 71 gives the Secretary o f State the pow er to refer the case o f a restricted patient to a M ental H ealth R eview Tribunal, and im poses on him the d uty to do so every three years. T h e pow ers o f the M H RT, to be found in sections 72 and 73, are to be found in full at A ppend ix 5. T h e T ribun al m ay ord er that the patient is discharged 27 And, of course, 'automatic' life sentence prisoners, and children convicted of murder since the decision in Hussein and Singh: see p. 55 above. But now see Stafford v. UK (in Preface). 28 For detailed analysis of MHRTs, see Peay (1989), Richardson (1993), Eastman and Peay (1999), Holloway and Grounds (forthcoming). 2y (1982) 4 EHRR 188. 30 Percy Report (1957) Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954-7, Cmnd 169 (London: HMSO).

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'absolu tely ', in w hich case the restriction ord er ceases to have effect, or he m ay be disch arged conditionally, in w hich case the S ecretary o f State has the pow er to recall him . A M ental H ealth R eview Tribunal is com prised o f three m em bers: a legal m em ber (a circuit judge or recorder), a psychiatrist and a lay m em ber, w ho m ay well be a social w orker or psychologist. U nd er sections 7 0 -7 2 , restricted patients are entitled to a review o f their case every 12 m onths, all cases m u st be review ed every three years; and the H om e S ecretary m ay refer a case at any tim e 'he thinks fit'. The p roced u re is governed by the M ental H ealth R eview T ribu n als R ules 1983,31 m ad e by the Lord C h ancellor un der pow ers granted b y section 78 o f the 1983 A ct. H e has a duty to consu lt w ith the C ouncil on T ribunals before m aking am endm ents to the Rules (see section 8 o f the T ribun als and Inquiries A ct 1992). O nce an application has been lodged w ith the M H R T Secretariat, reports are gathered from a w ide variety o f sources. T h ey m u st inclu de an up -to-d ate m ed ical report from the p atien t's responsible m edical officer (R M O ), and a statem ent from the H om e Secretary. A copy of every d ocu m ent relevan t to the application m u st be sen t to the patient, the responsible au th ority and the H om e Secretary. The role of the p sych iatrist A key difference w ith the D LP is that the m edical m em ber o f the T ribun al is required to interview the patient and to m ake an assessm ent o f his or her m ental condition. H ollow ay (2000), in a rev iew of M H RT cases heard betw een 1990 and 1999, found that the oral reports that the psychiatrist gave to h is /h e r colleagues at the pre-h earin g d iscu ssion w ere particularly influential (indeed her question naires revealed that T ribun al m em bers found this oral rep ort o f greater assistan ce than the R M O 's oral report). G iven that this oral report w as heard in private and w as not open to challenge, it su rely con trav enes the p rinciple o f an oral hearing. It is not surprising that the recent W hite P ap er32 on reform in g the M ental H ealth A ct proposes to sep arate out the role o f expert ad visor from the role of M ental H ealth Tribunal d ecision-m aker. W hen the go v ernm ent brings forw ard its Bill to change the M H RTs to M ental H ealth T ribunals,33 a d octor from an 'ind ep end en tly ap p ointed ' expert panel w ill assess the p atient and report to the Tribunal. H ollow ay and G round s (forthcom ing), how ever, concluded that the greatest influence on T ribun als w as the w ritten opinion of the patien t's RM O . T he fact that the tribunal d ischarged p atients against the R M O 's 31 SI 1983/942, as amended e.g. by SI 1996/314; SI 1998/1189; SI 2000/3712. 32 Department of Health (2000), Cm 5016-1 and II. 33 See p. 123 below.

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ad vice in only 4 p er cent of cases led her to con clud e that the Tribunal w as ap p aren tly 'ru bber-stam p ing' the R M O 's view s. It w as the rep u ta­ tion o f the in d ividu al RM O or h is /h e r inability to com m u nicate effectively in E nglish w hich led the Tribunal to d iverge from the R M O 's opinion. T his correlates closely w ith Padfield and L ieb lin g's find ing that D L Ps w ere very u n likely to o rd er release against the recom m en dation o f key report w riters.34 H ollow ay singled out other factors associated w ith the d ecision (not) to discharge: • the typ e o f hospital in w hich the p atient w as detained - p atients in m axim um security hospitals w ere u n su rprisin gly less likely to be disch arged than patients detained in m ed ium or low er security; • the long w aiting lists for therapy and the lack o f con tin u ity of care; • the absen ce o f ind ep endent psychiatrists - the fact that an in d ep en ­ dent psychiatrist w as con fid ent enough to assu m e responsibility for the p atient once released reassured Tribunals. T his reflects the findings o f Padfield and Liebling: the p resence o f a con vincing hom e p robation officer w as im portan t in con v incing the D LP to d irect release; • the repu tation of ind ep en den t psychiatrists; • m arital status: single patients w ere less likely to be discharged. It is hard ly surprising that psychiatric evid ence in these cases is crucial. W hat is interesting is that H ollow ay, like Padfield and L iebling, found that the d ecision-m ak ing o f the M H R T is seriou sly constrained by factors far o utsid e its sphere o f control. The burden of proof U ntil 26 N ovem ber 2001, sections 72 and 73 com pelled a p atient to prove that he or she w as no longer a risk. T hu s, section 72(1) provided that: (1) W h ere a p p lica tio n is m a d e to a M en tal H ealth R ev ie w T rib u n a l b y o r in re sp ect o f a p a tien t w h o is lia b le to b e d e ta in ed u n d e r th is A ct, th e trib u n al m a y in a n y ca se d irect th a t th e p a tie n t be d isch arg e d , an d (a) th e trib u n a l sh all d irect th e d isch a rg e o f a p a tie n t lia b le to b e d etain ed u n d e r sectio n 2 a b o v e if th ey a re satisfied (i) th a t h e is n o t th en su fferin g from m en tal d iso rd er o r from m en tal d iso rd e r o f a n a tu re o r d e g re e w h ich w a rra n ts h is d e ten tio n in a h o sp ita l fo r a ssessm e n t (o r fo r a ssessm e n t fo llo w e d b y m ed ica l trea tm en t) fo r at lea st a lim ited p erio d ; or (ii) th a t h is d e ten tio n a s a fo resa id is n o t ju stifie d in th e in terests o f his o w n h ealth o r sa fe ty o r w ith a v ie w to th e p ro tectio n o f o th e r p erso n s;

34 See pp. 92, 96 above.

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(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied (i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairm ent or mental im pairm ent or from any of those form s of disorder of a nature or degree w hich makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself. T h is n e g a tiv e d e fin itio n h ad lo n g b e e n critic is e d . T h u s E a stm a n an d P ea y (1999) c o m m e n te d th a t p ro v in g a n e g a tiv e is a 's u fficie n tly p ro b le m a tic if n o t im p o s sib le ' ta s k to a c h ie v e .35 H o w e v e r, it w a s th e d e c isio n o f th e C o u rt o f A p p e a l in R (ex p. H ) v. M en ta l H ea lth R ev iew T ribu n a l, N orth a n d E ast L o n d o n R eg io n a n d the S ecreta ry o f S tate fo r H ea lth (in terv en o r)36 w h ic h fo rce d a c h a n g e . H w a s c o n v ic te d o f m a n sla u g h te r in 1988, an d o rd e re d to b e d e ta in e d u n d e r s e c tio n s 3 7 an d 41 o f th e M e n ta l H e a lth A ct 1983. In 1999 h e ap p lied to an M H R T fo r a d is c h a rg e , b u t th e T rib u n a l d ecid e d o n 29 M a rc h 2 0 0 0 to re je c t th e a p p lica tio n . T h is h e c h a lle n g e d b y w a y o f ju d icia l re v ie w , s p e c ific a lly c h a lle n g in g th e n e g a tiv e fo rm u la tio n u sed in se c tio n 72(1 )(b ). T h e C o u rt o f A p p e a l w a s p e rs u a d e d to iss u e a d e c la ra tio n o f in c o m p a tib ility u n d e r th e H u m a n R ig h ts A c t 1998. A s th e M a ste r o f th e R o lls e x p la in e d : In the course of argum ent it was suggested that, in the context of review of a patient's detention, the phrase burden of proof w as not appropriate. The phrase suggests an adversarial process, whereas proceedings of a Mental Health Review Tribunal are inquisitorial in nature. Furtherm ore, a reference under section 71 may not be made by the patient. There is som e force in this. The essential question is the nature of the test to be applied when determining the entitlem ent of a patient to release. Does the tribunal have to order discharge of the patient if it is not satisfied that each of the criteria is made out, or is the patient only entitled to release if the tribunal is satisfied that at least one of the criteria is not made out. If the latter is the position, however, it is not inappropriate, where a patient makes an application under section 73, to say that the burden of proof is on the patient. To speak of reversing the burden of proof is a useful shorthand to describe the effect of the section (para. 24). . . . It is of course the duty of the court to strive to interpret statutes in a m anner com patible with the convention and we are aware of instances where 35 At p. 10. See also Richardson and Thorold (1999), at p. 117. 36 [2001] 3 W L R 5 1 2 .

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th is h as in v o lv ed stra in in g th e m ea n in g o f sta tu to ry lan g u ag e . W e d o not c o n sid e r h o w e v e r th at su ch an a p p ro a ch e n a b le s u s to in te rp re t a re q u irem en t th a t a trib u n a l m u st a c t if satisfied th a t a sta te o f affairs d o e s n ot e x ist as m ea n in g th a t it m u st a ct if n o t sa tisfied th a t a sta te o f affairs d o es exist. T h e tw o a re p a ten tly n o t th e sam e. If th e re q u irem en ts o f th e C o n v e n tio n c a n on ly b e sa tisfied if th e trib u n a l is req u ired to o rd e r th e d isc h a rg e o f a p a tie n t u n less sa tisfied th at th e th ree crite ria ju stify in g a d m issio n a re m a d e ou t, sectio n 72 an d 73 a re in c o m p a tib le w ith th e C o n v e n tio n (para. 27).

Thu s the M aster o f the Rolls held that although the courts are un der a d uty to interpret statu tes in a w ay w hich is com p atible w ith the E uropean C on vention o f H um an R ights w here possible, it w as not possible to do so here. T he burden o f proof should be clearly on the state, not the patient. M eanw hile, the W hite P aper on reform ing the M ental H ealth A c t/7 published in D ecem ber 2000, had alread y suggested a new M ental H ealth Tribunal. P art I explains the new legal fram ew ork. A lth ou gh the issue o f the burden o f p ro o f is not confronted directly it w ould ap p ear that the go v ernm ent had accepted that the tribunal w ould not have a 'reversed onu s of proof'. Thus, at para. 3.42: T h e T rib u n a l h ea rin g w ill tak e p la ce w ith in 7 d a y s o f re ce ip t o f th e ap p licatio n fo r rev iew . If th e T rib u n a l d e cid es th a t th e c o n d itio n s fo r co n tin u ed u se o f c o m p u lso ry p o w ers a re

n o t m et,

th e

p a tie n t w ill b e d isch arg e d

from

c o m p u lso ry ca re an d trea tm en t stra ig h t a w a y . . .

T h e gov ernm ent accepted the need to rem ov e the incom patibility w ithout w aitin g for the new Bill. The Secretary o f State at the D epart­ m en t of H ealth therefore issued a rem ed ial ord er on 18 N ovem b er 2001, w hich took effect on 26 N ovem ber 2001. T his am ended , by w ay o f statu tory instrum ent, section s 72(1) and 73(1) and (2).38 It is the am ended versions w hich appear in A p pend ix 5. The role of the C ouncil on T rib u nals It w as noted in C h ap ter 4 that there w as a con cern in the H ouse o f Lords d uring the p assage o f the C rim in al Ju stice Bill 1990 that the Parole Board should be supervised by the C ouncil on T ribunals. For exam ple, Lord H arris had pointed o ut that the C ou ncil had usefu lly d raw n attention to the substantial d elays w hich occu r in hearings before M H RTs. It is w orth

37 Cmnd 5016-1. 38 The constitutional significance of SI No. 3712 seems to have passed without remark: one would have expected the first example of a government minister using his powers under the Human Rights Act 1998 to amend primary legislation by delegated legislation to have had much greater publicity.

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noting that these criticism s have not abated d uring the 1990s. In its A nnu al R ep ort o f 1 9 9 8 /9 9 , the C ou ncil on T ribu n als stated that: O v e r m a n y y e a rs w e h a v e ex p resse d serio u s co n c e rn s a b o u t th e w o rk in g o f M H R T s. W e h a v e d ra w n a tten tio n to u n a c ce p ta b le d e lay s in listin g and h ea rin g ca ses, to p re ssu res o n a d m in istra tiv e sta ff a risin g fro m la ck o f re so u rces, to th e n eed fo r tra in in g fo r trib u n al m em b ers, an d to th e lack o f cen tra l ju d ic ia l d irectio n w h ich a p re sid en tia l sy ste m can p ro v id e. W e h av e a lso had c o n cern s a b o u t th e co n fu sio n cau sed b y th e sep a ra te sy stem o f m a n a g e r's h ea rin g s, a b o u t th e la te su b m issio n o f h o sp ital rep o rts, a b o u t th e in crea sin g in c id e n c e o f u n clerk ed h ea rin g s, a b o u t a sh o rta g e o f m ed ical m em b ers, a b o u t th e in a d e q u a c y o f trib u n al acco m m o d a tio n , an d a b o u t th e c a p a c ity o f th e sy stem to h a n d le an in crea sin g w o rk lo ad .39

In 2000 the C ouncil produced a Special R eport on M H R Ts w hich sought to exam ine the operation o f M H R T s w ithin the fram ew ork o f the proper con ditions for ind ep en d en ce and integrity o f tribunals set out in other C ou ncil on T ribu n als d ocu m ents. T his recom m ended , am on g other changes, that: • a con sisten t p olicy should be in place to ensure that every tribunal hearing is p roperly supported by a tribunal clerk;-10 • there w as a need for good quality C om m u nity Legal Serv ice funded rep resentation at tribun al hearings to be m ad e m ore av ailable to m ental health patients; • there should b e a rev iew o f M H R T accom m od ation w ith a view to securin g greater con sisten cy and an im provem ent in standards. T h e success or o therw ise o f the C ou ncil on T ribun als in achieving im provem en ts rem ains a m oot point. M any o f the C o u n cil's recom m en­ d ations appear not to have been ad opted by the governm ent in the W hite Paper. H ow ever, the inv olv em ent o f the C ou ncil in the su p erv ision of these tribunals is som e recognition o f the im portan ce o f the M H R T as an 'ind ep end en t' tribunal. The future for those w ith severe p erson ality disorders T h e law in this area is soon to change. A Bill w ill be published shortly (later in 2002?) w hich will p ropose new criteria for com pulsory treatm ent un der the M ental H ealth A ct. The C rim in al Ju stice and C ou rt Services A ct 2000 has alread y im posed a d uty on the p olice and probation 39 At para. 2.112. 10 We noted at pp. 99-100 above Peay's concerns that Tribunal clerks needed greater training and an 'enhanced' role.

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services to assess and m anage relevant sexual o r v iolent offenders (as w ell as p u blish annual reports on the arrangem en ts established to d isch arge this duty).41 U nd er the proposed new legislation , the relevant statu tory agencies w ill be able to refer the individual for an initial assessm en t and, if the initial criteria are satisfied , apply for a 28-d ay period o f com pulsory care and treatm ent to allow for m ore detailed assessm ent. Beyond 28 days, com pulsory care w ill have to be authorised by a new body, the M ental H ealth Tribunal. T h e W hite P aper confirm s that all those detained un der com pulsory pow ers w ill also have the right to: • free legal representation ; • access to ind ep endent specialist ad vocacy services; and, • provisions to cover the use o f certain specified treatm en ts for m ental d isord er and all long-term treatm ent w ithout consent. T h e W hite P aper also prom ises new arrangem en ts for the 'ov ersig ht of the new legislation ' and for the provision o f annual reports throu gh the creation o f a new C om m ission for M ental H ealth.

Conclusions In this chapter w e have looked at the p rocedu res w hich govern the release o f several 'catego ries' o f people w ho are detained against their w ishes. O u r d ivision fell into three categories: • those subject to long d eterm inate sentences; • those sen tenced to a m an d ato ry life sentence; • those detained under the M ental H ealth A ct 1983. L aw (and practice) applies differently to each category. For exam ple, the M H R T schem e m ay w ell b e m ore 'cou rt' like in m any w ays than is the D LP, and it is m ore obviou sly 'ind ep en d en t'. But w hat is particularly strikin g abou t this categorisation is the im pact o f the categorisation itself: once a person is labelled a restricted patient, he or she has different procedu ral rights than does the 'd ang erou s' person detained in prison. Yet people w ith sim ilar ch aracteristics m ay find them selves in one, rather than another, category. A nd, con versely, the people w ithin the different categories do not necessarily share the sam e characteristics. T hu s, for exam ple, the cou rts are beginn ing to recognise that the D iscretion ary C on dition al R elease schem e includes w ithin it m any 41 See section 67.

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people detained not only becau se their crim e 'd eserved ' a sen tence o f a certain length, bu t also those w ho are detained beyond this tim e becau se o f the risk that they present. It is tim e to use the d escrip tions o f these alternative release schem es d escribed in this chap ter to assess the D LP, the m ain focus o f this book.

7 The spirit of Weeks/Thynne and the reality In the last tw o chapters w e looked first at how D iscretion ary Lifer Panels o f the P arole Board have developed in practice, and then at other processes follow ed in England and W ales for d ecid ing the qu estion o f w hether those com pulsorily detained should be released. N ow the tim e has com e to return to the reasoning o f the E uropean C ou rt o f H um an R ights in ord er to con sid er w hether the p ractice d eveloped in D LPs lives up to that reasoning. W ere the exp ectation s generated in the m ind s o f d iscretionary life sen tence prisoners and their ad visers exaggerated ? The first point w hich m u st be stressed is that the C o u rt's role is to set a m inim u m standard o f fairness and it leaves to d om estic cou rts the duty o f d ev elop in g the detail. The principles established in C on vention case law have to accom m od ate h u gely d ifferent legal system s . . . a s d iv e rse a s th o se o f th e fo rm e r so v ie t leg al sy stem s o f C en tra l and E a stern E u ro p e, co n tin e n ta l leg al sy stem s an d co m m o n law sy stem s, w ith an em p h a sis on ju ry trial. It is in e v ita b le th at a n y c o n stitu tio n a l sta n d a rd s w h ich a re a p p lic a b le to so m a n y d iffere n t legal trad itio n s w ill b e in su fficien tly d e ta iled to afford a c o m p re h e n siv e g u id e to th e a p p lica tio n o f th e C o n v e n tio n in th e U n ited K in g d o m crim in a l la w .1

In this chapter w e explore in m ore depth w hat it w as the E uropean C ourt seem ed to be seekin g to achieve.

The judicial function T h e E uropean C ou rt o f H um an Rights in W eeks2 m ade it clear that the judicial function is lim ited: A rticle 5(4 ) d o es n o t g u a ra n te e a rig h t to ju d ic ia l co n tro l o f su c h sco p e as to e m p o w e r th e 'c o u rt', o n all a sp e cts o f th e case, in c lu d in g q u estio n s o f

1 Emmerson and Ashworth (2001), at p. 255. 2 (1988) 10 EHRR 666.

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e x p ed ien cy , to su b stitu te its o w n d iscre tio n fo r th at o f th e d e cisio n -m a k in g au th o rity . T h e re v iew sh o u ld , h o w ev er, b e w id e en o u g h to b e a r on th ose c o n d itio n s w h ich , a c co rd in g to th e C o n v e n tio n , a re esse n tial for th e law fu l d e ten tio n o f a p erso n su b ject to th e sp e cial kin d o f d e p riv a tio n o f lib erty o rd ere d a g a in st M r. W ee k s.3

Thu s the E uropean C ou rt o f H um an R ights does not requ ire the 'court' to substitu te its ow n d iscretion, b u t sim ply to review the conditions w hich ju stify detention. The first question w e w ill ask is w hy judicial review is inad equ ate. Ju d icial rev iew is the classic E nglish rem ed y w hereby anyone sufficiently affected by a decision can ask the H igh C ou rt to review the legality, the law fulness, o f the exercise o f executive pow er. It has nev er been easy to d efine this role precisely: the role o f the cou rt is to review the legality of the d ecision-m ak ing process, but not the m erits o f a p articular decision. The d istin ction is a fine one. T he classic su m m ary o f the m od ern ground s for judicial review is the statem ent o f Lord D iplock in Council o f Civil Service U nions v. M in ister fo r the Civil Service:4 O n e ca n c o n v e n ie n tly c la ssify u n d e r th ree h ead s the g ro u n d s u p o n w h ich a d m in istra tiv e a ctio n is su b ject to co n tro l b y ju d icial re v iew . T h e first grou n d I w ou ld call 'ille g a lity ', th e seco n d 'irra tio n a lity ' and th e th ird 'p ro ced u ral irre g u la rity '.5

H aving d escribed these three ground s in m ore d etail, Lord D iplock read ily recognised that there could in futu re be ad dition s to the three head s w hich he had identified. C on stitu tional law yers have been p articularly interested by the p rinciple o f 'p ro p o rtio n ality', w hich is recognised in the ad m inistrativ e law of m any other EU cou ntries as w ell as in the ju risp ru d en ce o f the E uropean C ou rt o f Ju stice and European C o u rt o f H um an Rights.6 H ow ever, English courts have been reluctant to ad opt the d octrine since it is argued that to do so is to blur the im p ortan t d istinction betw een appeal and review : the cou rts in an ap plication for ju d icial review are rev iew ing the legality and not the m erits o f a decision. W hy did the E uropean C ou rt in H um an Rights d ecid e in W eeks, and the o ther cases, that judicial review w as an inad equ ate rem edy? A s th e C o m m issio n p o in ted o u t, th e sc o p e o f the c o n tro l afford ed is th u s n o t w id e en o u g h to b e a r on th e c o n d itio n s esse n tial for th e 'la w fu ln e ss', in th e 3 4 5 6

At para. 59 (see Appendix 1). 11985] AC 374; [1984J 3 All ER 935. [1984] 3 All ER 935, at p. 950. See Emmerson and Ashworth (2001) pp. 92-8.

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sen se o f A rticle 5 (4 ) o f th e C o n v e n tio n , o f M r. W ee k s' d e ten tio n , th at is to say, w h e th e r it w a s co n sisten t w ith an d th erefo re ju stified b y th e o b je ctiv es o f the in d e te rm in a te se n te n c e im p o sed on h im . In th e C o u rt's v iew , h av in g regard to th e n a tu re o f th e co n tro l it a llo w s, th e re m e d y o f ju d icial re v iew can n eith er itse lf p ro v id e th e p ro cee d in g s req u ired b y A rticle 5(4) n o r serv e to re m e d y th e in a d eq u a cy , fo r th e p u rp o ses o f th at p ro v isio n , o f th e p ro ced u re b efo re th e P a ro le B o ard .'

T h e C ou rt does not explore this issue further. It is to be noted that the three d issenting ju d g es w ere im pressed by ju dicial rev iew as a speedy rem ed y for those w ho w ished to challeng e the legality o f Parole Board d ecision-m aking. But for the m ajority, it lacked som ething essential. R eview in g an executive process In requ iring a process o f ju dicial control, the E uropean C ou rt o f H um an Rights could be m ean in g one o f tw o d ifferent processes. W hichever route is taken, the review has to be w ide enough to bear on those conditions w hich are essential for som eone to be law fully detained. T he first possible process o f ju dicial control w ould leave to experts on risk the task o f m aking d ecisions about risk. T his d ecision w ould then be subject to review by a court. O n this scenario, w here the executive (perhaps the H om e O ffice or one o f its 'offshoots') decided that a p risoner should not be released , the p risoner w ould be able to challenge this d ecision before a ju dicial tribunal. The ad van tage o f such a process is that 'exp erts' on risk assessm ent m ake the prim ary decision. A ssessin g risk, esp ecially risk o f d angerou s­ ness, is no easy task, and, it can be argued, should be left to experts. W e saw in C h apter 5 how , w ith this p op u lation of prisoners, assessing risk is a com plex and u n pred ictable business, requ iring a clinical not only an actuarial approach. U nd er this 'rev iew in g an executive process' m odel, the judicial tribunal w ould sim ply assess or review an earlier process, un dertaken by experts. T h e review ing cou rt to satisfy the European C ou rt o f H um an Rights has to have the p o w er to review the conditions w hich ju stify detention. The con ditions w hich ju stify the post-tariff d etention o f d iscretionary lifers is their 'd an g erou sn ess'. T hu s the review ing cou rt has to review the factors w hich m ake the prisoner a d anger to the public. If this option w ere to be follow ed , the 'review ' pow ers o f the H igh C ou rt w ould have to be m ore extensive. W e will explore later in this chapter recent d evelopm ents in ju dicial review w hich m ay m ake this a m ore realistic option. But the governm ent in 1991 chose the second option, w hich w e will now describe.

7 At para. 69 (see Appendix 1).

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M ak in g the prim ary d ecision The second route to satisfactory judicial supervision is a process whereby a judicial tribunal m akes the prim ary decision and decides the law ful­ ness of the detention, including the question w hether the conditions which justified the original detention (in this case, the 'risk' posed by the prisoner) continue to exist. The tribunal takes in effect two decisions: the decision on the law fulness of the detention rests inevitably on a prior decision on risk, also to be taken by the 'court'. This involves 'judges' having to assess 'dangerousness' and m aking decisions on risk. The involvem ent of the judiciary in decisions on risk is not necessarily problem atic, as long as the process in which they are involved provides them with relevant expert evidence. Judges m ay not be in a position to predict dangerousness, but they should be able to w eigh up expert opinion, and to explain to a prisoner w hy they have chosen to accept one 'expert' opinion rather than another.8 Indeed, John Allison, in his A Continental Distinction in the Common Law,9 goes further, pointing out that in adm inistrative disputes, judges are frequently involved in policy issues, and a judge is an expert in m uch more than just due process. He argues that the judge m ust be not only independent but also an expert. This adm inistrative expertise com bined with that of other experts, in this context a psychiatrist, is invaluable. The N athan proposals, it will be rem em bered, had proposed that the third m em ber of the Tribunal should also be an 'expert': a chief probation officer. W ithout such expertise, A llison argues that the judge becom es the 'enem y' of the adm inistration. Thus he praises the French conseil d'etat: w ith this adm inistrative expertise, French judges have been able to develop principles ('les principes generaux de droit et le principe de proportionalite', for exam ple) which have worked to the benefit of victim s. A contrast can be drawn by looking at the position w ithin the Prison S erv ice/H om e Office w here the judge is often perceived as a threatening presence, 'the judge on your shoulder'.10 The governm ent chose the judicial m odel. Indeed a m odel w hereby the decision-m aking body would be a judicial body was also the preferred option of both the other proposals considered in Parliam ent. But it is im portant to rem em ber that, traditionally, English judges have been wary of involving them selves in such decision-m aking. In traditional legal theory, judges should not step into the political or policy arena: their proper constitutional role is to apply fundam ental rules of natural justice and fairness to the treatm ent of prisoners, for exam ple, but not to

# See the discussion on adversarial/inquisitorial procedures below. 9 Allison (2000). 10 This is the name of a booklet prepared for civil servants on the judicial review process.

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second -gu ess executive d ecision-m akers. In practice, o f course, things are not so straightforw ard . But before w e explore further the approp riate ad m inistrative procedu re, w e should return to Weeks.

What is a court? In W eeks, the E uropean C ou rt o f H um an Rights explained that the 'court' referred to in A rticle 5(4) did not necessarily have to be a classic 'co u rt o f law ': T h e 'c o u rt' re ferred to in A rticle 5(4 ) d o es not n e c e ssa rily h a v e to b e a cou rt o f la w o f th e cla ssic kin d in teg ra ted w ith in th e stan d ard ju d icia l m a ch in ery o f th e c o u n try ." T h e term 'c o u rt' serv es to d e n o te 'b o d ie s w h ich exh ib it n o t on ly c o m m o n fu n d a m en ta l fea tu res, o f w h ich th e m o st im p o rta n t is in d ep e n d en ce o f th e e x e cu tiv e an d o f th e p a rties to th e c a se . . . b u t also th e g u a ra n tee s . . . a p p ro p ria te to th e kin d o f d e p riv a tio n o f lib erty in q u estio n . . . o f [a] ju d icial p ro c e d u re ', th e fo rm s o f w h ich m a y v a ry fro m o n e d o m a in to a n o th e r.12 In a d d itio n , a s th e text o f A rticle 5 (4 ) m a k es clear, th e b o d y in q u estio n m u st not h a v e m ere ly a d v iso ry fu n ctio n s b u t m u st h a v e th e co m p e te n c e to 'd e cid e ' the 'la w fu ln e ss' o f th e d e te n tio n an d to o rd e r re le a se if th e d e ten tio n is u n la w fu l.11

This paragraph build s on w hat w as said in De W ilde, O om s and V ersyp v. B elgiu m u , the case o f the Belgian vagrants, w here the C ou rt explored the m ean in g o f the C on vention by com p aring the official texts in both English and French. This led them to con clud e that, although at first sight the w ord ing o f A rticle 5(4) m ight m ake one think that it gu arantees the right of the detainee alw ays to have supervised by a 'court' the law fulness o f a previous d ecision to dep rive h im o f his liberty, this w as not necessarily the case. The C ou rt pointed out the E nglish text spoke of 'p roceed ing s' and not o f 'ap p eal', 'recou rse' or 'rem ed y ' and that in A rticle 5(4) the w ord 'co u rt' ('trib u n al') is used in the sin gular and not in the plural. T h is led them to con clud e (at para. 76) that: W h ere th e d e cisio n d e p riv in g a p erso n o f h is lib erty is o n e tak en b y an a d m in istra tiv e b o d y , th ere is n o d o u b t th a t A rticle 5(4) o b lig es th e C o n tra ctin g S ta tes to m a k e a v a ila b le to th e p erso n d e tain ed a rig h t o f re co u rse to a co u rt; b u t th ere is n o th in g to in d ica te th a t th e sa m e a p p lies w h en th e d e cisio n is m a d e b y a co u rt at the c lo se o f ju d ic ia l p ro cee d in g s. In th e la tter case, the su p erv isio n req u ired b y A rticle 5 (4 ) is in co rp o rate d in th e d e cisio n ; th is is so, 11 12 13 14

See X v. United Kingdom (1982) 4 EHRR 373, para. 53. See De Wilde, Ooms and Versyp (1979) 1 EHRR 373, paras 56 and 58. At para. 61. See note 12 above.

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for exam ple, where a sentence of im prisonm ent is pronounced after 'convic­ tion by a com petent court' (Article 5(1) (a) of the Convention). It may therefore be concluded that Article 5(4) is observed if the arrest or detention of a vagrant, provided for in paragraph (l)(e), is ordered by a 'court' within the meaning of paragraph (4). It results, however, from the purpose and object of Article 5, as well as from the very terms of paragraph (4) ('proceedings', 'recours'), that in order to constitute such a 'court' an authority must provide the fundam ental guaran­ tees of procedure applied in matters of deprivation of liberty. If the procedure of the com petent authority does not provide them, the State could not be dispensed from making available to the person concerned a second authority w hich does provide all the guarantees of judicial procedure. In sum, the Court considers that the intervention of one organ satisfies Article 5(4), but on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. T h e C o u rt w e n t o n to e x p la in th a t th e C o n v e n tio n u s e s th e w o rd 'c o u rt' (F ren ch : 'trib u n a l') in A rticle s 2, 5 an d 6 in o rd e r to m a rk o u t 'o n e o f th e c o n stitu tiv e e le m e n ts o f th e g u a ra n te e a ffo rd e d to th e in d iv id u a l' b y th e p ro v isio n in q u e stio n . T h u s: In all these different cases, it [the word 'court' or 'tribunal'] denotes bodies which exhibit not only com m on fundam ental features, of which the most im portant is independence of the executive and of the parties to the case,15 but also the guarantees of judicial procedure. The form s of the procedure required by the Convention need not, however, necessarily be identical in each of the cases where the intervention of a court is required. In order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circum stances in which such proceedings takes place. Thus, in the Neumeister case, the Court considered that the competent courts remained 'courts' in spite of the lack of 'equality of arm s' between the prosecution and an individual who requested provisional release, neverthe­ less, the same might not be true in a different context and, for exam ple, in another situation which is also governed by Article 5(4).16 L a te r, in X v. U n ited K in g d o m ,'7 th e d e c isio n w h ic h led to th e c re a tio n o f th e M e n ta l H e a lth R e v ie w T rib u n a ls , th e E u ro p e a n C o u rt e x p la in e d m o re b rie fly that: 53. It is not within the province of the Court to enquire into what would be the best or m ost appropriate system of judicial review in this sphere, for the Contracting States are free to choose different methods of perform ing their 15 See Neumeister v. Austria (No. 1) (1968), 1 EH RR 91, 132, para. 24. 16 At para. 78. 17 (1982) 4 EH RR 188.

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o b lig a tio n s. T h u s, in A rticle 5 (4 ) th e w o rd 'c o u rt' is n o t n e c e ssa rily to be u n d e rsto o d a s sig n ify in g a co u rt o f la w o f th e cla ssic k in d , in teg rated w ith in th e sta n d a rd ju d icia l m a ch in ery o f th e co u n try . T h is te rm , as em p lo y e d in sev era l A rticle s o f th e C o n v e n tio n (in clu d in g A rt. 5(4)), serv es to d e n o te b o d ie s w h ich e x h ib it n o t o n ly co m m o n fu n d am en tal featu res, o f w h ich the m o st im p o rta n t is in d ep e n d en ce o f th e e x e cu tiv e an d o f th e p arties to th e case, b u t a lso th e g u a ra n tee s ('a p p ro p ria te to th e kin d o f d e p riv a tio n o f lib erty in q u e s tio n ') o f [a] ju d icia l p ro ced u re, th e fo rm s o f w h ich m ay v a ry fro m o n e d o m a in to a n o th e r.1®

Thu s the European C ou rt enforces the m inim u m standard o f hum an rights, leaving in d ividu al states to choose the approp riate route to achieving those standards. T he essential elem ents o f a cou rt seem to be its ind ep en d en ce and the ap p rop riaten ess o f its procedures. B oth key valu es are difficult to interpret. The C ou rt in W eeks also stressed the im portan ce o f the cou rt's 'com p etence to d ecid e'. D oes the D LP live up to the standard set?

The independence of the Parole Board T h e P arole Board w as set up by P arliam en t in 1967 sim p ly to 'ad v ise' the H om e Secretary. A ll cases w ere subject to m inisterial veto. Section 59 of the C rim in al Ju stice A ct 1967 set out the constitution and fun ctions o f the Parole Board (and o f local review com m ittees, w hich w ere abolished in 1991). Subsection (1) provides that the P arole Board should consist o f a chairm an and not less than four other m em bers to be appointed by the S ecretary o f State. A ccord in g to subsection (4), the Board (a) sh a ll d eal w ith th e c a se o n c o n sid era tio n o f a n y d o cu m e n ts g iv en to it b y the S e cre ta ry o f S ta te an d o f a n y re p o rts it h as called fo r an d an y in fo rm a tio n w h eth e r o ral o r in w ritin g th at it h as o b tain ed ; and (b) if in an y p a rticu la r c a se th e B o ard th in k s it is n ecessa ry to in terv iew th e p erso n to w h o m th e c a se re la tes b e fo re re a ch in g a d e cisio n , th e B oard m ay req u est o n e o f its m em b ers to in terv iew h im an d sh all ta k e in to a cco u n t th e re p o rt o f th at in terv iew b y th a t m e m b e r . . .

S ubsection (6) gave the H om e S ecretary the pow er to m ake rules for the establish m ent and con stitution o f local rev iew com m ittees and for the interv iew ing o f prisoners by a m em ber o f a local rev iew com m ittee. Sch ed u le 2 to the 1967 A ct provided m ore details: 18 See De Wilde, Ooms and Versyp v. Belgium (No. D (1979), 1 EHRR 373,407, 408, paras. 76, 78.

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1. T h e P a ro le B oard sh a ll in clu d e a m o n g its m em b ers - (a) a p erso n w h o h o ld s o r h as h eld ju d ic ia l office; (b) a re g iste red m ed ica l p ra c titio n e r w h o is a p sy ch ia trist; (c) a p erso n a p p e a rin g to th e S e creta ry o f S ta te to h a v e k n o w led g e an d e x p erien c e o f th e su p erv isio n o r a fte rc a re o f d isch arg e d p riso n ers; and (d) a p erso n a p p e a rin g to th e S e cre ta ry o f S ta te to h a v e m a d e a stu d y o f th e cau ses o f d e lin q u e n c y o r th e trea tm en t o f offend ers.

W hen con stitu ting the Board in the autu m n o f 1967, the H om e Secretary m ade 16 appointm en ts for an initial period o f 18 m o n th s.19 The Report o f the P arole Board for 1969 noted that 'there is a need for ad equ ate con tin u ity o f m em bersh ip to preserve con sisten cy and d evelopm ent of policy, and there is also a need to m aintain, w ithin the m em bersh ip, the categories of m em bers required by the A ct, Sch ed u le 2. In order to m eet these need s the H om e S ecretary has inform ed the Board that it is his intention to appoint m em bers for a three-year term , one-third o f the m em bersh ip retiring each y e ar'.20 The nu m bers have increased steadily, m ost d ram atically from 62 to 86 in 1992, m ainly to deal w ith the extra w o rk arising from the abolition o f local review com m ittees and the creation o f DLPs. In practice, the Board has alw ays sat in sm all panels w hen d eciding d eterm inate as w ell as lifer cases. O nly in the case o f life sen tence p risoners m u st the panel inclu d e a judge and a psychiatrist. T h e Parole Board has alw ays had a H igh C ou rt ju dge as V ice-C hairm an , and a nu m ber o f other H igh C ou rt and circu it ju dges have sat on the Board. T hen as now , the H om e S ecretary appointed the ju dges on the Board after con su ltation w ith the Lord C h ief Justice. Sin ce 1 Ju ly 1996 the Parole Board has been an E xecu tive N onD epartm ental P ublic Body, an executive agen cy o f the H om e Office, sponsored by the P rison Service. W hat does this m ean? A ccord in g to the R ep ort o f the P arole Board for 1995 and 1995-6, the Board w as establish ed as an Execu tive N D PB 'because of' their new executive responsibility in regard to the release o f d iscretionary lifers and 'because of' the need for greater accoun tability.21 But agen cy statu s does not in itself create ind ep en d en ce from the H om e Office; agen cy status w as created to pu t greater em ph asis on the financial and m anagerial responsibility o f the ind ividu al agency. T he Parole Board rem ains an executive agency of the H om e Office. It is housed w ithin the Prison Service head quarters in London. T h e Prison Serv ice is regarded as a 'related p arty ', prov id ing grant-in-aid , seconded staff, accom m odation, facilities m an agem en t, p ersonnel, postage, IT, telecom m unications, etc. 19 House of Commons (1969). 20 House of Commons (1970), para. 3. 21 House of Commons (1996), para. 3.

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all at nil cost to the P arole B oard.22 T hat the staff o f the P arole Board secretariat have often w orked fo r the P rison Service, and m ay indeed be on second m ent from the Prison Send ee, is surprising for an 'in d ep en ­ d en t' body. T hese close links betw een the Prison Service and the Parole Board obviou sly sm ooth the w heels o f the ad m inistration. T h e C h airm an o f the P arole Board w as keen to highlight these links in the latest Parole Board annual report: he noted that the excellent results o f the Parole Board are 'a testam ent to the close links the Board has w ith staff in the P rison S erv ice'.23 W hile the effectiveness and efficiency of the Board m ay w ell be fostered by close links, they m ay also u n derm ine its in d ep en ­ dence. It is o f cou rse the m em bers o f the Parole Board and not the staff w ho m ake the d ecisions at a D LP. But question s can also be asked about their ind ep en den ce. The H om e S ecretary appoints them for periods o f six years. In W eeks, the C ou rt concluded that th e C o u rt is satisfied th a t th e ju d g e m em b er and th e o th e r m e m b e rs o f th e B o ard rem a in w h o lly in d ep e n d en t o f th e e x e cu tiv e an d im p artial in th e p erfo rm a n ce o f th eir d u ties.

It is not clear on w hat ground s the C ou rt found this to be proved. T hey cited in support o f their con clusion the case o f Cam pbell and Fell v. United K ingdom ,24 w here the C ou rt d isagreed w ith the C om m ission , w ho had concluded that a p rison 's Board o f V isitors w as not an ind ep endent tribunal. Boards o f V isitors are statu tory bod ies25 w ith the d uty to 'satisfy them selves as to the state of prison prem ises, the ad m in istratio n o f the prison and the treatm en t o f the p rison ers'.26 U ntil 1991, they also had the d uty o f ad jud icating on d isciplinary offences in prisons. The C ou rt in C am pbell and Fell w ere asked to rule on the 'ind ep end en ce' o f Boards. But here too the C ou rt does not explain the factu al basis, the ev id ence on w hich they relied, for the find ing o f independence. The H om e S ecretary 's control ov er the P arole Board extend s to the m akin g o f rules and d irection s.2' (W e have alread y noted how , in relation to d iscretionary lifers, rules but not d irection s have been issued.) M ost tribunals com e u n d er the um brella o f the Lord C h an cello r's D epartm ent, and the Lord C h ancellor therefore draw s up the rules for m ost 'ind ep end en t' tribunals. A com parison can be m ade w ith the 22 See the Annual Report and Accounts of the Parole Board (House of Commons, 2001), p. 47. 23 Ibid., at p. 2. 24 (1985) 7 EHRR 165. 25 See section 6 of the Prison Act 1952, as amended. 26 Rule 77, Prison Rules 1999 (SI 1999 No. 728). 27 Section 32(5) and (6) of the Criminal Justice Act 1991.

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recently drafted regulations for the new C are Stand ard s Tribunal w hich w as the subject o f a con su ltation d ocu m ent at the end o f 2001.28 The 50-page d etailed d ocu m ent (to be the subject m atter o f a statutory instrum ent) stand s in contrast to the lack o f detail in the P arole Board Rules. N ot only are these Rules drafted by the H om e Secretary, they are not even delegated legislation. They thus avoid P arliam en tary scrutiny. T h e objections to this by both the O pposition in the H ouse o f C om m ons and by sig nificant nu m bers o f peers in the H ouse o f L ords d uring the p assage of the C rim in al Ju stice Bill 1990 w ere noted in C h apter 4. A nother exam ple o f the H om e S ecretary 's con tin uing control over the P arole Board has b een his refusal to allow the D L P to be supervised by the C ou ncil on T ribunals. In the last chapter, the C o u n cil's long-stand in g critiqu es o f the M ental H ealth R eview Tribunal w ere noted. It w as not only peers in the H ouse o f L ords w ho tried to bring the D L P u n d er the sam e um brella, but also the C ouncil on Tribun als itself. In its 199 4 -5 A nnual Report, the C ou ncil reports that the gov ernm ent rejected their claim to supervision o f DLPs. The reasons given by the gov ernm ent seem to un d erm ine the very pu rpose o f the C ouncil: it w as argued that form al ju risd ictio n w ould enable the C ou ncil to do no m ore on a form al basis than they alread y did by w ay o f inform al visits and consu ltations. U nsu rp ris­ ingly the C ou ncil on Tribun als w as d isappointed by this response: W h ile w e v a lu e the o p p o rtu n ity to c o m m en t on p ro ced u ra l ru les an d to atten d h ea rin g s, w e d o n o t c o n sid e r th at th e p re sen t a rra n g em en ts afford a real o p p o rtu n ity fo r a d e q u a te o r in -d ep th stu d y o f th e w o rk in g o f d iscre tio n a ry life r p a n els, su ch a s w e a re a b le to u n d e rta k e in re sp ect o f trib u n a ls u n d e r ou r su p erv isio n . W e feel th at o u r e x p erien ce o f trib u n a l sy stem s su ch as th e M en ta l H ea lth R ev ie w T rib u n a ls (w h e re th e p re se n ce o f se n io r ju d ic ia l m em b ers h a s n o t b een th o u g h t to d e tra c t fro m th e d e sira b ility o f ou r su p erv isio n ) w ou ld e n a b le u s to m a k e a h elp fu l co n trib u tio n to th e w o rk in g o f th e p a n els, if w e w e re g iv en a fo rm a l ro le.29

G iven that their claim to o v ersigh t w as rejected and that the C ou ncil on T ribun als has to focus on their allotted responsibilities, it is perhaps not surprising that they do not appear to have m aintained their interest in D LPs. T h e H om e O ffice's response revealed here is perh aps sym p tom atic o f their attitu d e to D LPs generally: this is a quasi-cou rt or tribunal in the m ost lim ited sense o f the term .30 A gain, the new C are Stand ard s Tribunal p rovides an interesting con trast since it w ill be clearly u n d er the um brella o f the C ou ncil on T ribunals. Bradley, com m enting in 1991 on 28 ww w.doh.gov.uk/rht/carcstandardtribunal/htm . 2y Para. 2.98-102. 30 Another explanation for the exclusion of the Council might be the ongoing 'power struggle' between the Lord Chancellor's Department and the Home Office.

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the num erous bodies outside the supervision of the Council on Tribu­ nals, stated that 'presum ably these procedures are not adm itted to the benefits of supervision by the Council on Tribunals because in terms of fairness, openness and im partiality, they are not thought to m ake it to the starting gate'.31 It would be depressing to conclude that the governm ent thought that the DLP did not m ake it through the starting gate of fairness, openness and im partiality. It would be a 'vote of confidence' in the DLP to adm it it to supervision by the Council. It is also w orth rem em bering that the European C ourt of H um an Rights recognised that w hatever their analysis of the 'objective' indepen­ dence of Parole Board m em bers, independence also includes the require­ ment of 'an appearance of independence', notably to the prisoners involved. Prisoners are well aw are of the close connection betw een the Parole Board, the Prison Service and the H om e Office. The pow er to decide The 'court' in question m ust have not m erely advisory functions but also the com petence to 'decide' the 'law fulness' of the detention and to order release if the detention is unlaw ful. The European Court of Human Rights in Weeks held that the 'right to judicial control' m eant that the tribunal m ust have the pow er to give a binding decision on the m atter before it.32 The British governm ent took a narrow interpretation of the decision in question. The DLP has the pow er to decide only questions of release. Yet the 'm atter before' the DLP is frequently not release. It is well understood by prisoners and their legal representatives that the Parole Board is very unlikely to order the release of a prisoner who has not spent a period of time in open conditions, in a Category D prison. H e or she will also be expected to have done the appropriate accredited courses in prison. In Padfield and Liebling (2000), only 23 per cent of DLPs were held in open prisons.33 For virtually all the other prisoners the im portant 'decision' that they wanted from the DLP was a recom m endation, probably that they should be moved on to a low er category prison or given priority for suitable courses. As w e saw in Chapter 5, such recom m endations are m uch more com m on than a direction for release. Yet such recom m endations can be (and frequently are) vetoed by the H om e Secretary, and this final decision is not subject to appeal or challenge.34 It w ould be useful to research further w hy this is: the culture of the relevant parts of the H om e Office and Prison Service headquarters, or the tension betw een prison establishm ents and headquarters, m ay 31 32 33 31

Bradley (1991), at p. 9. At para. 64. Padfield and Liebling (2000), at p. 5. See ex parte Burgess, discussed below at p. 149.

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lead to a certain 'institu tional inertia'. It m ay also be a question o f lim ited resources. This is in lin e w ith the find ings o f P eay (1989) w hose stud y of M H R T s concluded sim ilarly that sufficient resources and a suitable com passionate attitu d e in staff are also necessary for the law ad equ ately to protect the ind ividu al prisoner (or patient, in h er study). A cou rt-like bod y alone is inad equ ate to the task. W e have alread y noted that the prim ary d ecision requ ired o f the court or tribunal con cern s 'd an g erou sn ess'. But it seem s also to be accepted that prisoners should be requ ired to show that they are 'safe' to be released by sp en d in g tim e in an open prison. T h e d ecision o f the D LP in reality hangs on a chain o f earlier d ecisions taken prim arily by the Prison Serv ice (but also, o f course, the sen tencing ju dge).35 The role o f the D LP as m onitor of speed y progress tow ard s possible release on tariff, or as soon as possible afterw ard s, is also im portant. It w as for this reason that Padfield and L iebling (2000) recom m ended that Parole Board recom m en­ d ations should, unless rejected by the H om e S ecretary w ithin a fixed tim e fram e and w ith w ritten reasons, create a substantive 'legitim ate exp ectation ' for prisoners that the recom m en d ations will be acted on.36 A n alternative w ould , o f course, be a m ore pow erfu l tribunal w ith au th ority to d ecid e these m atters. P rop er p articip ation of the p rison er T h e E uropean C o u rt o f H um an R ights in W eeks appeared som ew hat am bivalen t about the role that the prisoner should p lay before the court or tribunal. C om m enting on the rights of the p risoner in the 1980s to m ake representation s to the P arole Board, the cou rt m ild ly com m ents that 'there rem ains a certain procedu ral w eakn ess in the case o f a recalled p riso n er'.37 But all three proposals consid ered in P arliam ent, inclu d ing that o f the gov ernm ent itself, read ily accepted the need for the p risoner to be present. In fact, it is difficult to assess w hether an oral hearing results in a 'better' d ecision than a p ap er review 38 It is clear that m ost participan ts 35 36 37 38

See Pad field and Liebling (forthcoming). For a discussion of this concept, see p. 98 above. At para. 66. It is interesting to note that Coker and Martin (1985), in criticising changes taking place at the time they were writing felt able to say that their research showed 'the life sentence policy and procedures evolved by the Home Office to be one of the unsung achievements of that much maligned departm ent. . . in many of its acts it was trying to practise its traditional paternalism in ways that do not satisfy the legalistic temper of the age . . . we have examined the handling of over 200 licences, and our abiding impression is that of the care, impartiality and integrity shown in their cases. Within the limits of the politically possible the Home Office evolved an effective procedure' (pp. 246 and 248). Open procedures do not necessarily lead to better decision-making.

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in the DLP process considered an oral hearing im portant. M ost obvious­ ly prisoners appreciated being present in order that they could assess w hether the process w as 'fair and open'. Perhaps this point should not be exaggerated: prisoners are also well aw are that real decisions were m ade elsew here in the Prison Service. But m andatory life sentence prisoners are keenly aw are of the extra level of personal involvem ent by discretionary lifers, and o f the opportunity that they have to be legally represented by an advocate. They sense too that the m andatory sentence process is more 'secret'39 and universally seem to press for an oral hearing. Risk decisions in these cases are 'hum an judgem ents' and there was clear evidence that just seeing the prisoner could inform the decision (rightly or wrongly). In Padfield and Liebling (2000), one independent m em ber was quoted as saying that 'by seeing him , it's taken aw ay my concerns', and another com m ented repeatedly that the particular prisoner gave her the creeps.40 Clearly the im pact of the oral hearing on decision-m aking in practice is an area for further research. As im portant as the presence of the prisoner is the requirem ent for legal representation. In Chapter 5 w e saw the im pact that the legal representative could have on a DLP hearing. M any legal studies of courts and court processes put the em phasis entirely on the judicial role: the role played by other participants is equally im portant.41 In this context, the availability of good quality Com m unity Legal Service funded representation is of huge significance. Research into the interpretation of funding rules would be useful. In Chapter 5 we also saw how at a DLP, the Prison Service will have prepared the dossier, the paperw ork which the DLP receives in advance of the hearing. These reports tend to be subjective and judgm ental. A nother problem with dossiers was the tim e-lag betw een the prepara­ tion of the reports and the hearing itself. In Chapter 6 we saw how , in contrast, the M ental H ealth Review Tribunal procedure requires the tribunal secretariat to prepare the paperw ork, not the hospital itself. This does not seem to have resulted in a m ore tim ely procedure, but it may create less 'one-sided' dossiers. Given the enorm ous im portance of a prisoner's dossier, it is curious that they have not been subject to greater critical analysis. Thus it would be useful if a contents analysis and a process analysis of the construction of the DLP dossier w ere to be carried out w hich focused on the quality and usefulness of the various item s in the dossier. Com parative w ork w ith the preparation of files for other

39 The reality is, of course, that the deliberation stage is equally secret for both mandatory and discretionary lifers. 40 At p. 60 and p. 51. " For a challenging call for socio-legal analysis of all players in court processes, and not just judges, see Schlanger (1999).

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d ecision-m ak ing bod ies w ould also be useful. For exam ple, the analysis by M cC onville, Saund ers and Leng (1991) o f the w ay in w hich C row n P rosecution Serv ice files are 'constru cted ' by the police could be usefully applied to the con struction o f D LP dossiers. A 'sp eed y ' decision The E uropean C ou rt of H um an R ights has acknow ledged on m any occasions that the requ irem ent in article 5(4) that a court should decide 'sp eed ily' on the law fulness o f a priso n er's detention also im plies that an autom atic review m u st follow at reasonable intervals.42 Recently, in O ldham v. UK ,43 the E uropean C ou rt o f H um an R ights has found that a tw o-year d elay betw een review s w as not reasonable. O ldh am w as a recalled d iscretionary lifer w ho had com pleted a nu m ber o f relevant cou rses in eight m onths and the C ou rt held that requ iring him to w ait another 16 m onths for another review w as not sufficiently speedy. In an attitu d e rem iniscent o f their response to the d ecision in W eeks in the case o f Thynne, W ilson and G unnell, the U K governm ent tried to lim it the im plications o f O ldham in the later case o f H irst v. UK.44 T h ey argued (unsu ccessfully) that m ental d isord er in the con text o f m ental illness is m ore su scep tible to change over tim e than m ental instability posin g risks o f d angerou sn ess, and that therefore a tw o-year review w as sufficient for a post-tariff d iscretionary lifer. T h e E uropean C ou rt of H um an Rights d isagreed : on the facts o f the case, periods o f 21 m onths and tw o years w ere not ju stified by con sid erations o f rehab ilitation and m onitoring. The D L P process is therefore having to becom e less rigid in term s o f the norm al b ien nial review . H ow ever, the C ou rt o f A ppeal m ad e it very clear in M acN eil v. D iscretionary Lifer P an el45 that the d ecision o f the E uropean C ou rt o f H um an R ights in O ldham v. UK gave rise to no general p roposition about the m axim um perm issible period betw een review s. On the facts o f this case (a recalled m u rd erer w ith a tariff o f ten years w ho has now served nearly tw enty years), a tw o-year review w as reasonable. It is not only the length o f tim e betw een review s w hich is problem atic but also the frequ en t d elays found at m any stages in the process. A s w e saw in C h apter 5, Padfield and L iebling (2000) found that late reports and papers w ere received eith er on the d ay o r shortly befo re the hearing d ate in m an y cases, w hich som etim es led to d eferral o f cases (for about six m onths), either before, or som etim es at the hearing, w astin g public m on ey and risking con sid erable u nfairness to the prisoner. T h e m ost 42 A T v. UK (commission report 29 November 1995); Herczegfalvy v. Austria (1992) 15 EHRR 437. 43 (2000) 31 EHRR 813; [2000J Crim LR 1011. 44 [2001] Crim LR 919. 45 [2001] EWCA 448, 21 March 2001.

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frequent reason for deferrals w as the late arrival of reports w hich was both unfair on the prisoner and w asteful of resources. A 'speedy decision' m ight not happen because of the bureaucratic constraints of the DLP process. As w e saw in Chapter 5, the Parole Board fixes a provisional tim etable for hearings som e eight or nine m onths in advance, on the assum ption that the prisoner would rem ain in the same prison. A prisoner m ight not be m oved on to another prison during that time, since he is w aiting for a DLP. There is a danger that a prisoner's progress freezes pending the next hearing. Thus while the DLP process m ay well help to 'nudge' som e prisoners through the lifer system , it m ay also slow others down. This listing procedure has been held to be lawful, even w hen it m eans that som e lifers m ay not have a review until a couple of m onths after their tariff expires.46 The court held that piecem eal referrals would be less efficient and would result in longer delays for som e prisoners. But it is certainly worth considering w hether the low 'status' of the DLP as a quasi-court m ay explain the significant problem of delays. If the N athan proposals had been adopted, and a new tribunal well outside the um brella of the H om e Office had been created, would the executive have done m ore to m eet deadlines? W e return to this in the final chapter.

The 'court' must follow appropriate procedures In itiatio n o f proceedings The language of A rticle 5(4) m akes it clear that the prisoner should 'be entitled to take proceedings', i.e. initiate proceedings. W e have already noted that the Court in Weeks was som ew hat am bivalent about the proper participation of the prisoner.47 The Court was content, perhaps surprisingly, to decide that since the Hom e Secretary is obliged to refer certain cases to the Parole Board, this gives sufficient access. The fallacy in this argum ent is the assum ption that that the H om e Secretary refers cases efficiently. As w e have seen, not all discretionary lifers find their cases referred on time to the Parole Board: it can therefore be argued that a greater em phasis should be put on the prisoner's 'right' to initiate proceedings. A dversarial or in q u isito rial? The European Court of H um an Rights in H ussain and Singh put particular em phasis on the need for an 'adversarial procedure' involving 46 R (on behalf of Noorkoiv) v. Secretary o f State for the Home Department, 2 July 2001, Criminal Laiv Week 0 1/26/70. 47 See p. 137 above.

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legal representation and the calling and question in g of w itnesses.'18 The term 'ad v ersarial' is usually taken to d escribe a system in w hich the ju d ge takes the role o f um pire, leaving the presentation o f the case to the p arties on each side. T he parties sep arately p repare their case and call, exam in e and cross-exam ine their w itnesses. T he term 'inqu isitorial' d escribes system s w here ju d g es m ay superv ise the pre-trial preparation o f the evid ence and play a m ajor p art in the p resentation o f the trial.49 U sed in this w ay, the p roced u re at a D L P is in som e sen se a hybrid, lying som e w ay betw een the tw o m odels. T he Panel m ay enter the arena by asking qu estion s and indeed by choosing w hich w itnesses they w ish to call. They need this pow er to inv estigate the case properly.50 It w ould ap p ear that, w hen the D LP w as created , an inquisitorial m odel w as preferred in ord er to facilitate the P an el's search for the 'right' answ er. But as the years have gone by the process has m oved in a m ore accu satorial direction. T his is not sim ply becau se the ju dges w ho chair p roceedings are used to the m ore accu satorial form at o f the traditional English cou rt hearing. The ad versarial m odel has advantages: it forces the parties to clarify the key issues and to argue their case. G iving the parties the key role legitim ates the process. W hy is it that prisoners un anim ously w elcom e the oral hearing? W hy is it that m an d atory lifers are jealou s o f the d iscretionary lifers 'd ay in cou rt'? It is, it is argued , becau se the prisoner becom es part o f the process. In a certain sense, he or she is m ad e party to the d ecision w hether or not he should be released. H e is, in a certain sense, em pow ered . T revor A llan, is his recent Constitutional Justice: A Liberal T heory o f the Rule o f Law, goes further and argues that it is the essentially collaborative natu re of ad versarial ad jud ication that explains its special m oral force as an im partial m ean s of dispute settlem ent: T h e a d v ersa ria l h ea rin g e m b o d ies th a t e lem en t o f re sp ect fo r p erso n s th at co n sists, n o t m ere ly in trea tin g th em co rre ctly , a c co rd in g to fo rm a lly ad o p ted ru les, b u t w ith p ro p e r d ig n ity , in a m a n n e r th at re sp o n d s d irectly to th eir ow n p erce p tio n s o f th eir d u e a s eq u a l citiz en s . . . T h e g reate r th e litig a n t's p a rticip a tio n - th e stro n g er h is co n tro l o v e r th e n a tu re o f th e p ro cee d in g s th e g re a te r th e m o ra l a u th o rity o f th e o u tcom e.^1

A llan robu stly d efends ad versarial procedu res, prim arily becau se they oblige governm ent agen cies to account for their d ecisions in term s that the ord in ary person can understand : 'if the legitim ate need s o f the 48 See p. 57 above. 49 See Report of the Royal Commission on Criminal Justice (1993), p. 3. 50 Richardson's important Law, Process and Custody: Prisoners and Patients (1993) argues strongly for an 'actively inquisitorial model'. 51 Allan (2001), at p. 87.

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adm inistration cannot be satisfactorily explained to a non-expert court, they cannot be justified to the citizen w hose interests are directly affected'.52 But this argum ent im plies that in an adversarial procedure both adversaries take part. At present, the DLP can appear rem arkably one-sided: the Prison S erv ice/H om e Office present a dossier of reports and then leave the prisoner (or his representative) to try and prove why he should be released. It could be described as adversarial, but with a sleeping adversary. O f course the adversarial and inquisitorial m odels are sim ply models. There is no reason w hy the body charged w ith deciding the legality of a prisoner's detention should not be a hybrid. But this discussion serves to underline the need for clarity. At present the DLP m ight be seen as adopting the w orst of both worlds: because the Secretary of State's representative takes a m inor role at the hearing, it is left to the Panel to enter the arena, but not on the side of the prisoner who is at that stage well represented. In its search for 'tru th', there is a danger that the Panel appears on the side of the Prison Service. The 'independence' o f the Panel would be enhanced if the Secretary of State's representative took a greater role at the hearing, intervening m ore actively to establish the need for continued detention, leaving the Panel to judge. But even then the DLP as an adversarial process can only reach a fair outcom e if both sides can put their case w ith equal effectiveness. At a DLP, the H om e Office has constructed the dossier and has greater access to experts. It is im portant that an actively inquisitorial Panel can search for the genuine justifications for the continued detention of the prisoner. A pplying A llison's analysis51 to the DLP, it is clear that A llison would call for the greater involvem ent of the tribunal itself: W h en proced ures are a d v ersarial rath er than inq u isitorial courts are ju d icially inform ed o n ly b y the rep resentatives o f tw o parties to the ad m in istrative d isp u te - u su ally the ad m in istratio n and the com p lain an t - and are u n able p ro p erly to inv estigate th e com p lex rep ercu ssion s o f ju dicial interven tion . Im p ro p erly info rm ed , th e co u rts are un ab le to in terven e confid en tly. And inform ed as if th e a d m in istrative d isp u te on ly inv olves tw o parties, they stru g gle to d ev elo p accep tab le prin cip les sufficiently different from those d esign ed for the b ip o lar d isp u tes o f priv ate law'.5'1

Padfield and Liebling (2000) concluded that Panels could be consciously proactive in two senses: testing for risk /safe ty and testing w hether the Prison and Probation Services are respecting the prisoner's human rights. This raises the difficult question of who has to prove what. 52 Ibid., at p. 10. 53 See note 9 above. 54 Allison (2000), at p. 39.

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The burden of proof If the D LP w as tru ly inquisitorial, then it m igh t be argued that any d iscu ssion o f burdens o f proo f in this con text w as m islead ing. The law states sim ply that the P arole Board cannot release unless they are satisfied that 'it is no longer necessary for the protection o f the public that the prisoner should be con fin ed '.5'’ In p ractice it is not surprising that Panels ap p ear to feel that the prisoner has a 'p ersu asive' bu rd en o f proof. Richard son (1990) com m ented b efo re the D LPs had been created that it w ould be essential that the burden o f pro of be clearly located: 'there m u st eith er be a d uty on the d etaining auth ority to prove the existen ce o f a real risk that the b ehav iou r w ill recur after release, or the tribunal m u st be required to satisfy itself o f the existen ce o f such a risk '.;,A Padfield and L ieblin g concluded that the D LP should operate w ith tw o legal presum ptions: • a safety presum ption: they cannot release unless they are satisfied that 'it is no longer necessary . . . that the prisoner should be con fin ed '; and • a hum an rights presum ption : post-tariff d iscretionary lifers m u st be released as soon as possible, and should be given every opportu nity to be 'tested for safety'. It is this second p resum ption w hich needs to be reinforced and w hich led the C ou rt o f A ppeal in R (ex p. H ) v. M ental H ealth R eview Tribunal, N orth and East London Region and the Secretary o f State fo r H ealth (intervenor) f d iscu ssed in C h apter 6, to issue a d eclaration of incom p ati­ bility. A s w e saw , the M aster o f the R olls held the bu rd en o f proof should not be on the patient.5* W e saw in C h apter 6 how the g ov ernm ent has now am ended the M ental H ealth A ct to m ake clear that the burden lies on the hospital auth orities to p rove the m ental disorder. In ord er to satisfy the requ irem ents of the European C ou rt o f H um an Rights, a sim ilar burden should surely be applied at the D LP. A p risoner should be entitled to release unless the D LP is satisfied that it is not safe to release him or her. T hese d evelopm ents suggest that, in the con text o f the D LP, it should be m ad e clear that the post-tariff lifer shall be released unless the 'co u rt' is satisfied (on a balance o f probabilities) that it is not safe to do so. T he burden should be clearly on the H om e O ffice to show w hy it rem ains necessary to detain the prisoner. 55 Section 34(4) of the Criminal Justice Act 1991, now section 28(6) of the Crime (Sentences) Act 1997: see Appendices 1 and 2. 56 Richardson (1990), at p. 39. 57 [2001] 3 WLR 512. 58 At para. 24.

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W e have seen that m any discretionary lifers spend m any years in prison post-tariff. O ne interpretation of this is that they are particularly dangerous. The longer a prisoner has been in prison the less likely he is to be 'releasable'. But taking a hum an rights agenda, the opposite can also be true: the longer a prisoner has spent in prison after the tariff part of his sentence has been com pleted, the m ore certain the court should be that it is necessary to detain him. This w as the approach taken by Stuart-Sm ith LJ in Bradley.59 Explaining the Parole Board's test of dangerousness, that they had to be convinced that the level of risk w hich the prisoner presented was 'a substantial risk of further offences dangerous to life or lim b, including serious sexual offences', he added: T h e P arole Board h ave to carry out a balancin g exercise b etw een the legitim ate conflictin g interests o f both p riso n er and public. T hey m u st clearly recognise the p rice w h ich th e priso n er p erso n ally is payin g in ord er to giv e p rop er effect to the interests o f pu blic safety. T hey sh ould recog nise too that it is a p ro g ressiv ely h ig h er price. A ccord in gly, th e lon g er th e p rison er serves beyond th e tariff period, th e clearer sh ould be the P arole B o ard 's p ercep tion o f pu blic risk to ju stify the continu ed dep rivatio n o f liberty in v olved .60

W hile this does not reflect the current position, it is an im portant argum ent in support of greater recognition of the rights of post-tariff life sentence prisoners.

Recent developments in judicial review So far we have seen that decisions of the European Court of Hum an Rights are am biguous, and indeed have not explored the appropriate procedures to be followed in any depth. But it is doubtful w hether the DLP lives up to the requirem ents of the Court. It is doubtful w hether the Parole Board is truly 'independent'. It has very lim ited powers. Its procedures are not obviously alw ays appropriate. Before reaching conclusions on w hy this m ight be, w e should consider recent develop­ m ents in dom estic law. H ave dom estic courts had an im pact in achieving fair procedures and fair outcom es? Indeed, have they gone further than the European Court sought to go? As w e saw at the beginning of this chapter, the standard of judicial review is not rigid. There is no doubt that the standards of judicial review are being refashioned, partly as a result of the incorporation of the European Convention of H um an Rights into dom estic law by the 59 See p. 27 above. 60 At p. 146.

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H um an Rights Act 1998. As Craig and Schonberg put it, the courts are increasingly w illing to recognise the totality of the tools available to them .61 A leading case now is R (Daly) v. Secretary o f State fo r the H om e Department62 w here the H ouse of Lords had the opportunity to explore w hether the contours of judicial review had changed as a result of the Hum an Rights Act 1998. The case concerned a prisoner's challenge to the policy w hich required prisoners to leave their cells even when their legally privileged correspondence was being exam ined (but not read!) during cell searches. Lord Bingham , the Lord C hief Justice, delivered the m ain speech. H aving decided that such cell searches infringed the prisoner's right to legal professional privilege, he had to consider w hether the policy could be justified as a necessary and proper response. To do this, he explored the policy in detail, as well as looking at the policy as applied in Scotland, and at a report of the Prisons O m budsm an. He concluded that the policy provided for a greater degree of intrusion than was justified. He agreed with the additional observations of Lord Steyn on the differences in approach betw een the traditional grounds of judicial review and the proportionality approach, w hich m ust be applied in cases involving Convention rights. In a Convention case, the court must be able to decide, if there was a prim a facie justified interference w ith a person's right, w hether the interference was really proportionate to the legitim ate aim being pursued. The im portant difference, their Lordships stress, betw een the 'traditional' heads of judicial review and proportionality is the question of balance. W ith proportionality, as Lord Steyn m ade clear, the review ing court m ay have to assess the balance that the decision-m aker has struck in w eighing the relative w eight to be accorded to different interests and considerations. H aving adm itted that the different approaches could som etim es lead to different results,63 Lord Slynn ended rather enigm atically by saying that the respective role of judges and adm inistrators will rem ain fundam entally distinct and that the intensity o f the review will depend on the subject m atter in hand: 'In law context is everything'.64 Lord Cooke hinted m ore boldly that that the standard of review must be robust: 'it m ay well be that the law can never be satisfied in any adm inistrative field m erely by a finding that the decision under review is not capricious or absurd'.65 61 Craig and Schonberg (2001), at p. 701. 62 [2001] 2 AC 532. (’3 A clear example is the decision of the Court of Appeal in R v. Ministry of Defence, ex parte Smith [1996] QB 317 and the decision of the European Court of Human Rights in Smith and Grady v. United Kingdom (1999) 29 EHRR 493. The European Court applying a test of proportionality struck down the policy ban on homosexuals serving in the armed forces whereas the domestic courts had not done so. 64 At para. 28. 65 At para. 32.

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W e need to investigate w hether there is any evid ence that the intensity o f ju dicial review in this area is in fact increasing. C ertainly there has been a striking increase in the nu m ber o f ap plications for ju dicial review o f P arole Board d ecisions sin ce the H um an R igh ts A ct 1998 cam e into force: during 2 0 0 0 -1 , 71 applications w ere lodged against the Parole Board, m ore than d ouble the figure for 1 9 9 9 - 2 0 0 0 . The Parole Board suggests that this increase arises from greater aw areness on the part of prisoners o f the process. H ow ever, the likelihood o f success rem ains very sm all. O nly five prisoners w ere successfu l in 1999-2000, and three in 2 0 0 0 -1 . H ow ever, even the rare successes m ay have a large im pact: after the C ou rt o f A ppeal in R v. P arole B oard, ex parte O yston67 held that the P arole Board had given un du e w eight to O y sto n 's continued d en ial of his offences, there w as a m arked increase in applications from prisoners w ho felt that their case w as com parable.68 There are other strikin g exam ples o f cases w here ju d g es have struck dow n the decision o f the Parole Board as either irrational or unlaw ful. In R (on the application o f Jordan) v. P arole B oard,69 H enriques J quashed a d ecision o f the Parole Board as irrational w here the d ecision letter referred to further w o rk b ein g requ ired on 'im p u lse con trol and p erspectiv e taking' w hen three reports w ere forcefu lly in Jo rd an 's favour, w ith none o f them identifying any necessary further w ork and w here the d ecision letter m ad e no reference to these reports. This follow ed ano ther d ram atic exam ple o f the potential role o f judicial rev iew in the con text o f the life sen tence prisoner (though here a m an d atory lifer): in R v. Parole Board, ex parte H art,70 T u rn er J held that not only w ere the reasons given to H art deficient, bu t also that the d ecision o f the Parole Board not to recom m end a transfer to open con ditions w as itself irrational. H art had been convicted o f m u rd er in 1975 aged 23 and at the tim e o f the d ecision u n d er review had already served 23 years, ten years post-tariff. H avin g quoted extensively from the m an y reports before the Board, T urner J concluded: T h e re w e re . . . m a n y p o sitiv e fa cto rs in fa v o u r o f th e risk , w h ich u n d e n iab ly ex ists, b ein g ca p a b le o f b e in g co n ta in e d and m o n ito red if th e a p p lic a n t w ere to b e tra n sferred in to o p en co n d itio n s ... It w a s as th o u g h th e le tte r w as co n cern e d a n d co n cern e d o n ly w ith risk.

Tu rn er J em phasised that the Board should m ake it clear that they had consid ered the positive efforts that the prisoner had m ad e and the benefit “ 67 68 69 70

Parole Board (2001), p. 31. (2000) 1 March, unreported. Parole Board (2001), p. 21. (2000) EWHC Admin, 26 October; [2001] ACD 261, Criminal la w Week 0 1 /1 3 /9 . (2000) 70 24 May, unreported.

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that he w ould derive from bein g able to ad dress areas o f con cern about his behav iou r in an open prison. A nother m an d atory lifer to benefit from a sim ilar d ecision w as R oss G ordon. H e had been convicted o f m u rd er in 1977, and had already served m ore than ten years beyond his tariff o f 13 years. H e had appeared to have been on the cusp of release in 1992 w hen he w as w ithd raw n from a Pre-R elease E m ploym en t Sch em e becau se o f incidents inv olv ing drink: he had returned to C ategory C conditions. In 2000 the P arole Board continued to refuse to recom m end that he should be returned to C ateg ory D (open) conditions. In R v. P arole Board, ex parte Gordon,7' Sm ith J ordered that the Board should reconsid er their decision prom ptly. She w as concerned that the basis on w hich the risk w as said to be u n accep table w as fallacious: past failures on PR ES w ere the only reasons given for w hy he could not now be transferred to con d itions in w hich he had not p rev iou sly failed and w hich w ere in any event m ore closely supervised than PRES. She said that she w as not sure that she w ould have quashed the d ecision if the only ground had been that of irrationality, but she had no d oubt that the d ecision w as un law fu l as there had been no real balancing o f risk and benefit. Sm ith J also m ade it clear that she w as shocked that G ordon had been left in som ething of a lim bo. N othing had happened in G o rd o n 's treatm ent sin ce the Parole Board d ecision o f ten m on ths earlier. T hese cases m ay reflect a m ore intervention ist H igh C ou rt bench. But they w ere m an d atory cases, in w hich ju d g es w ere able to rely on the d irection s issued by the H om e S ecretary in m an datory life sen tence cases. A s w e saw in C h ap ter 4, the H om e S ecretary has n o t issued d irection s in d iscretionary life sen tence ca se s.'2 D iscretion ary lifers m ay be disadvan taged by the absen ce o f substantive criteria against w hich to m easure the D L P 's d ecision-m aking. T here seem s to be a grow in g trend in judicial review cases for the cou rts to look beyond the narrow im pact o f the P arole B oard 's d ecision-m ak ing and to acknow led ge the role o f the P rison Serv ice in release decisions. T hu s, in R v. Secretary o f State fo r the H om e D epartm ent, ex parte H ir s t/3 A p ost-tariff prisoner had been recategorised from C ategory C to C ategory B. The D ivisional C ou rt had held that it should be very slow to im pose procedu ral standards up on the internal w orkings o f the prison system in so sen sitive a context. H ow ever, the Lord C h ief Ju stice, in the C ou rt o f A ppeal, recognising that the recategorisation of a p risoner significantly affects the prospects o f his bein g released on licence, concluded: 71 (2000) 7 November, unreported. 72 See p. 78 above. 73 [2001] EWCA 378 , 3 March 2001.

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. . . th e ru les o f fairn ess and n atu ral ju stice are flexible and not static; they are cap ab le o f d evelo p in g not o n ly in relatio n to the exp ectation s o f co ntem p orary society , b u t a lso to m eet p ro p er o peration al requ irem en ts. T he ability o f the P rison Serv ice to m eet both th eir o p eration al n eed s and the n eed s for p rison ers to be treated fairly can u su ally be achiev ed w ithin th e p an oply o f the requ irem en ts o f fairness.

The Court of Appeal therefore m ade a declaration that a post-tariff discretionary lifer is 'entitled to be told prior to his category being changed retrogressively, the reasons for the proposed change and given a reasonable opportunity to make representations as to the change'. (They added that the fact that a decision to change the category of a prisoner has not been m ade does not prevent a prisoner being m oved for operational reasons.) This case was followed in R (on the application o f Blagden) v. Secretary o f State fo r the H om e D epartm ent74 The H om e Secretary acknow ledged that although the Prison Service was entitled to m ove Blagden, an arsonist serving a discretionary life sentence, back to closed conditions, it had failed form ally to reclassify him. He undertook to return Blagden to open conditions w ithin ten days. Very recently in Williams v. Secretary o f State fo r the H om e D epartm ent75 the Court of A ppeal has held that a prisoner m ay be entitled to an oral hearing before the Category A Com m ittee. W illiam s had appealed against the dism issal of his application for judicial review of the decision of the Director of High Security Prisons that his classification as a category A prisoner should continue. W illiam s, serving five discretion­ ary life sentences, and who had m ade two escape attem pts, one of which had been successful, had been categorised as a 'high risk' prisoner. In rejecting his referral for parole on the ground that he continued to represent a risk to the public, the Discretionary Lifer Panel o f the Parole board had recognised that he had made as m uch progress in addressing his offending behaviour as had been possible in Category A conditions. He therefore sought recategorisation, subm itting that his continued classification as a Category A prisoner would prevent any future DLP concluding he was fit for release. A request for an oral hearing before the Category A review com m ittee and for full disclosure of reports had been denied. The Court of Appeal, led by the M aster of the Rolls, in allow ing the appeal, held that there w ere exceptional cases w here a prisoner w ho sought recategorisation was entitled to an oral hearing before the Category A review com m ittee and to full disclosure of the reports on w hich his categorisation was based subject to the require­ m ents of public interest im m unity. Such cases w ould occur w here the 74 [2001] EWHC Admin 393, 11 April 2001. 75 [2002] EWCA Civ 498,17 April 2002.

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differing ap proach taken b y the D L P and the review com m ittee to public safety issues w ould , as in the instant case, result in the p ossibility o f incon sisten t decisions. T his d ecision provides a w elco m e recognition of the vital im portan ce o f protectin g the rights of p ost-tariff lifers. But it is im portan t to stress that ju dicial review should not be seen as a panacea for all ills. M any m ore challenges are u nsu ccessful than successful. T he Parole Board m ay face an increasing nu m ber o f ch al­ lenges a year, but the v ast m ajority are unsu ccessful. For exam ple, we have already seen how in M acN eil v. D iscretionary Lifer P anel,76 the C ou rt o f A ppeal su ccessfu lly resisted the argum en t that the E u rop ean C ou rt of H um an Rights had forced a m ore flexible review tim etable. In any case, the P arole Board, as w e have seen, has lim ited pow ers, and judicial rev iew is u n likely to curb the vast pow ers of the H om e Secretary. Thus in R (on the application o f Burgess) v. Secretary o f State fo r the H om e D epartm ent77 the court held that A rticle 5 o f the European C onvention is concerned w ith the law fulness o f d eten tion, and not w ith w here prisoners are detained w ithin the prison system . A rticle 5(4) w as not engaged by the H om e S ecretary 's d ecision not to accept the ad vice o f a DLP to m ove Burgess to open con ditions, even though such a refu sal w as accepted in p ractice to be likely to d elay his eventual release. The d ecision w as p articularly d isappointing to B urgess and his legal ad visers sin ce they had not been given a copy o f the civil serv an t's ad vice on w hich the H om e S ecretary had based his decision. T hey w ere given no op p ortu nity to m ake representation s on new points w hich w ere raised at this late stage. But the cou rt held that this w as not a case of recategorisation, bu t sim ply a refusal o f a recom m en d ation w ith w hich the cou rt w ould not interfere. In the con text o f M H R Ts, R ich ard son and M ackin have recently show n that the influence o f ju d icial rev iew is at best patchy, even w ith regard to proced u ral fairness.78 It is u n likely that its im pact is any greater in this area. A brief rev iew o f recent relevant judicial review cases show s that 'tren d s' are difficult to identify. O n a positive footing, judicial review has been im portant in safeg u ard ing the rights of individual prisoners. The careful review of the release process as applied to such prisoners as Jord an, H art and G ordon has speeded them on their w ay tow ards release. T he spectre o f the 'ju d g e on their shou ld er' has d oubtless created a culture o f greater care, certainly in the preparation of the reasons for d ecisions, than m ight otherw ise exist. R ecen t d evelopm ents, notably in relation to the use o f p roportionality follow ing the incorp oration o f the H um an R ights A ct 1998, m ay lead to further im provem ents. But at the 76 See p. 139 above. 77 (2000) EWHC, 3 November; Daily Telegraph, 5 December; Criminal Law Week 0 0 /4 4 /1 7 . 78 See Richardson and Mackin (2000).

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sam e tim e one should be aw are that the p roliferation o f judicial review cases m ay not be so m u ch p roof o f successfu l activism bu t, as A llison m ight suggest, a sym p tom o f the end uring u n certainties w hich con tin ue to hang ov er the D L P process, about the required procedu re, the relevant substantive principles, and the likely ju dicial role.79 A shw orth, for exam ple, is w ary o f the cou rts' attraction to 'balan cin g' com peting hum an rights: 'th e notion o f "b a la n cin g " is itself rather nebu lou s, unless a clear ind ication is given o f the relative w eight o f the factors being balanced , and unless the notion o f "p u b lic in te re st" is carefully u n­ p acked '.80 In this chapter, w e b egan by exploring in m ore d etail the reasoning behind the ju dgm ents o f the E uropean C ou rt o f H um an Rights w hich led to the creation o f D LPs. T h e requ irem ents o f a 'ju d icial pro cess' w ere analysed to see w hether the D LP lives up to the necessary stan d ard . The process o f ju dicial control required m ight sim ply be a cou rt m akin g the prim ary d ecision (the D LP?), or a court review ing an executive process (judicial review ?). But it is im portan t to rem em ber that the European C on vention on H um an Rights lays d ow n m erely m inim u m standards: there is no reason w hy E nglish law should not provide both safeguards and indeed higher standards than those required by the E uropean C onvention. It is tim e to d raw som e final con clusions together.

79 Allison (2000), at p. 183. 80 Ashworth (2001), at p. 871. See also p. 155 below.

8 Theory and practice Summary This book has traced the origins and d ev elopm ents o f D iscretion ary Lifer Panels o f the P arole Board from their roots in the key d ecisions o f the E uropean C ou rt of H um an R ights w hich caused P arliam en t to legislate for a m ore 'co u rt-like' bod y to d ecide the q u estion of the release of post-tariff life sen tence p risoners. W e then looked at the w ay Parliam ent created 'D iscretionary Lifer P anels' o f the Parole Board. The governm ent w as prepared to legislate for the m inim u m procedu ral safeguards required by the C ou rt but w ithout exam in in g in detail w hether the Parole Board w as ind ep en den t or, perhaps m ore im portantly, w ithout laying d ow n the substantive criteria fo r release. C h apter 5 d escribed the w ay D LPs w ork in practice, and C h ap ter 6 offered a d escription o f other com parable release procedu res in England and W ales. C h apter 7 returned to explore the am bigu ities in the d ecisions o f the E uropean C ou rt, raising also the am bigu ities in recent d ecisions o f the d om estic courts in applications for ju dicial review . The m ain question for this final chap ter is w hether D LPs have achieved their purpose. T hat d ep en ds on w hat w e understand their p u rpose to be.

Back to basics A rticle 5(4) p rovides that: E v ery o n e w h o is d e p riv e d o f h is lib erty b y arrest o r d e ten tio n sh all b e en titled to tak e p ro cee d in g s b y w h ic h th e la w fu ln e ss o f h is d e ten tio n sh a ll b e d e cid ed sp e ed ily b y a co u rt an d h is re le a se o rd ere d if th e d e ten tio n is n o t law fu l.

T here is nothing unusual, or un usually d em and ing, in this statem ent. It is a fun dam ental right in m od ern d em ocratic states that people should not be detained w ithout justification. The com m on law o f England provides ju st such a safeguard. Let us go back to the facts o f W eeks: a lad o f 17 is sentenced to prison for life for a m inor robbery. W e should ask tw o questions. W hy w as an ind eterm inate sen tence justified ? W hat

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criteria should be applied to check w hether this d etention is still justified? In d eterm in ate detention Ind eterm in ate or life sen tences m ay be justified in E nglish law for m any reasons, and these ju stification s m u st provide a key to understand ing release criteria. In W eeks v. UK. the ju stification w as clear: the E uropean C ou rt o f H um an Rights held that he w as detained becau se o f the risk that he presented, or, in their w ords, for 'social protection and rehab ili­ tation . . . ground s [w hich] are by their natu re su scep tible to change w ith the p assage o f tim e '.1 T h e 'd ang erou s' m ay be detained in ord er to incapacitate them and to allow for their rehabilitation. O thers (i.e. m u rd erers) are detained becau se o f the gravity o f their initial offence. A life sen tence m ay also be im posed as a deterrent (see, for exam ple, autom atic life sentences im posed un der the C rim e (Sentences) A ct 1997). Ind eterm in ate sentences on child ren have been justified b oth becau se of the seriou sn ess o f the offence and on the ground s o f the w elfare o f the in d ividu al offender. It is not a central am bition of this book to un d erm ine the ju stification s for ind eterm inate 'life' sentences, though there is an increasing literature that seeks to refu te all such ju stification s. Thus, for exam ple, V an Zyl Sm it (2001) review s an im portan t book by the G erm an H artm u t-M ichael W eber, w hich v an Z yl Sm it d escribes as a 'fu ll throated call for the total repeal o f the law providing for life im prisonm ent as a penal san ctio n '.2 T hese argum ents m erit further d iscu ssion in E nglish .3 For exam ple, there is no evid ence that d eterrence is likely to have an effect on those w ho com m it the m ost seriou s crim es for w hich a life sentence is likely to be im posed. N or can d eterrence itself ju stify d isproportionate penalties. As soon as one accepts that not all lifers are 'd ang erou s' one has adm itted that the sen tence is som etim es d isproportionate. N or can life im p rison­ m en t be easily ju stified as an incapacitation or as social protection: m any p eople w ill be falsely included in the net of the incapacitated. 'R isk ', as w e have seen, is n otoriou sly difficult to predict. W eber also stresses the ' See para. 58. 2 At p. 301. 3 See van Zyl Smit (1999), and his Taking Life Imprisonment Seriously in National and International Law (2002), which adds a welcome comparative analysis to the literature. For example, he states that 'the fear of indeterminacy as a source of uncontrolled executive power has been one of the factors that has persuaded some modern states to outlaw life imprisonment' (1999, p. 29), citing Portugal, Brazil and Columbia. He also points out that the Spanish constitution specifies that each offender must be given a realistic opportunity to return to society to exercise the basic freedoms that they may have learnt to use responsibly. Such a principle is not adequately evident in English law or practice at the moment.

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u n d esirability o f coerced rehabilitation, giving as it does w id e d iscretion­ ary pow ers to prison authorities. It is tim e for P arliam en t to lay dow n for the first tim e a clear statem ent o f the purposes and function of im prisonm ent. At the m om ent, the go v ernm ent seem s to be inclined tow ard s 'g reater use o f life sen ten ces'.4 T hey should think long and hard about the ju stification s for so doing. In England the in con sisten cies and d oubtful philosoph ical ju stifica­ tions for life sen tences are exacerbated by the m an datory life sen tence for m urder. The E uropean C ou rt o f H um an R ights has now had the chance to review its ow n d ecisions on the d istin ction betw een m an d atory and d iscretionary lifers in Stafford v. UK5. O nce it is recognised , as it is, that the sen tence o f life im prisonm ent for m u rd er authorises, b u t does not requ ire, lifelong pu nitive d eten tion, and is im posed regard less o f the facts o f a p articular case and the circu m stan ces of the individual offender, it is difficult to m aintain the distinction. Such argum en ts led ju d g es in both the D ivisional C ou rt and in the C ou rt o f A ppeal in the recent case o f A nderson and T aylorh to ad m it openly that they hoped that the E uropean C o u rt of H um an R ights w ould reconsid er their position. It m ay be that this book serves in som e sm all w ay to u n d erline the incon sisten cies w hich underlie the m any d ifferent (and inconsistent) ju stifications for life sentences. But this argum ent, w elcom e as it is, should not d ivert us from the m ain subject o f this book w hich is the release p rocedu res ap p licable to those w ho find them selves befo re a DLP. A theoretical fram ew ork W e have alread y noted that pred icting futu re 'd ang erou s' offending is an u n reliable business, becau se o f the infrequen cy o f such even ts and the 'blu n tness' o f p red iction tables.' W ith this in m ind , w e should be w ary o f ju stifying the d eten tion o f people on ground s o f prevention alone. The threat for civil liberties has long been recognised : reporting in England in 1981, the influential Floud Report” argued that the w holly ind eterm i­ nate life sen tence o f im p risonm ent should cease to be av ailable for n on­ h om icid e offences and that any d eterm inate protectiv e sen tence should be restricted to those w ho had proved to be 'likely to do further grave harm '. Strong procedu ral and evid eiitial safeguards (including a 'qu asiju dicial' review tribunal) should, they argued, lim it the use o f such protectiv e sentences. 4 Home Office (2002), at p. 18. 5 See also the decision of the House of Lords in R v. Secretary of State, ex parte Stafford [1999] 2 AC 38, and the comments in the Preface, added when this book was at proof stage. 6 [2001] EWCA Civ 1698. 7 See p. 93 above. 8 See Floud and Young (1981).

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The renewed interest in protective sentences was at that time 'pushed' by a desire to reduce sentence lengths for non-dangerous offenders. This elem ent of the equation seem s to have disappeared from the current debate. The Floud Report also generated an interest in the theoretical justifications for protective (incapacitative) sentences. W alker (1983), adopting a utilitarian or protectionist approach, argued that the difficul­ ties of defining dangerousness should not be exaggerated and that detention can be accepted as a last resort. However, argum ents justifying the detention of people for social protection reasons need to be considered in the context of the language of rights. A starting point is D w orkin's fam ous Taking Rights Seriously (1977). Dw orkin, as the title suggests, defends the case for individual rights. The courts have a duty to safeguard these rights of individuals against undue interference by other social institutions w hich m ay act in the pursuit of w ider goals such as the general w elfare of society. In his analysis, Dworkin holds that courts should decide hard cases on grounds of principles, not policy: principles, w hich can be seen as requirem ents of justice or fairness, define rights, and individual rights operate as 'political trum ps held by individuals' (p. xi). Policies m erely define the collective goals of the com m unity as a whole. H e is keen to m arginalise the role of discretion in defending his liberal theory of law and does this by arguing that judicial decisions are based on argum ents of principle. Thus he argued that a person should only be detained against his will for preventative reasons if the 'danger he presents is vivid',9 not w henever w e calculate that it would probably reduce crim e if w e did. Bottom s and Brownsword (1983) argued that this concept of vivid danger needed m ore analysis than Dw orkin gave it: W e su g gest that it [the co n cep t o f vivid danger] has three m ain com p onen ts:

seriousness (w hat type and d egree o f injury is in contem p lation ?); temporality, w h ich breaks do w n in to frequency (ov er a given period, h ow m an y injuriou s acts are exp ected ?) and immediacy (h ow soon is th e n ext injuriou s act?) and certainty (how sure are w e th at this p erson has acted as pred icted ?). T he certainty elem en t is pivotal. If there is a very low score on the certainty factor, then w h atever th e d an ger it is certain ly n ot vivid. H ow ever, as th e sco re increases on certainty, the risk b eco m es increasing ly vivid and w e then have to look v ery carefu lly at the kind o f d an ger th reaten ed .111

If individual rights are 'political trum ps held by individuals', w e should of course be w ary of any potential 'over-trum ps', or w hat Von H irsch calls 'an override claim ' based on consequentalist notions of future harm: 9 Dworkin (1977), at p. 11. 10 Bottoms and Brownsword (1983), at p. 17.

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'N o single intellectu al cu rren cy exists into w hich these com peting con sid erations can be translated and c o m p a re d '.11 T he d anger is that a narrow ju stification for d ep artin g from a p erso n 's right to liberty m ay be expanded in the nam e o f protection of the public. In Padfield and Liebling (2000), the Parole Board concluded in 83 per cent o f the cases that the priso n er w as sufficiently d angerou s that their detention w as necessary to protect the public. Did all these prisoners present a 'v ivid ' d anger? Such a test d em and s that the level o f risk as w ell as its presence or absen ce should be consid ered, and that both the seriou sn ess and the certainty o f the risk m u st be assessed as rigorou sly as possible. T hat is, high certain ty o f a m inor offence is insufficient, and very low certainty o f a seriou s offence is insufficient, to con stitu te a substantial risk. In D w ork in 's term s, clear p rinciples, based on ju stice or fairness, need to be d eveloped to ensure that argum en ts o f p olicy do not restrict individual rights. W alker proposes five 'ru les' (w hich are 'an appeal to v alu e s'):12 1. P rotective sentences should be used only to p revent serious and lasting hardship to other individuals. 2. There should have to be good reason to believ e that such harm in the past w as not an isolated, ou t-o f-character episode. 3. If it can reasonably be argued that the offender is u n likely to repeat his behav iou r, this argum en t should operate in his favour. 4.

Less d rastic m easures than d eten tion w hich have a reasonable prospect o f protectin g others should be used instead o f detention.

5.

W here d etention is p u rely for pu blic protection, its conditions should be no w orse, apart from the d ep rivation o f liberty, than those w hich a law -abid ing w ag e-earn er w ould enjoy outside.

P rotectionist and libertarian alike agree that clear principles are essential. Release criteria L et us look first at the criteria applicable to 'classic' d iscretionary lifers such as T hynne, W ilson and G unnell. They, like W eeks, w ere detained for 'social protection and rehabilitation' becau se o f the risk that they presented. They are not bein g detained for punishm ent: post-tariff they 11 Von Hirsch (1983), at p. 50. In von Hirsch's words, 'one is left largely with intuitions on these questions, because they involve apple and oranges comparisons'. See also Ashworth's concern about the 'nebulous' notion of balancing, mentioned at p. 150 above. 12 See Walker (1983). Walker recognises that the fifth rule is an idealistic standard to set, but as a principle it is an important one, certainly not respected in the prison system today.

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have served their p roportionate sen tence im posed as punishm ent. Such people have no chance o f early release, bu t are only consid ered for release once they have served the total sen tence w hich w ould be the 'tariff' for the offence itself, ignoring the elem ent o f risk. T his bo o k has sou ght to question not only the p roced u re b u t also the ground s w hich ju stify their continued d etention after they have served the 'tariff'. The follow ing four principles are offered as an alterantive to W alker's five rules m entioned above. Som eone w ho is detained p ost-tariff only becau se o f the risk that they present to the pu blic is entitled: 1. to know the level o f risk that they are held to present, and the p recise criteria w hich ju stify their d etention; 2. to be detained in an env ironm en t w hich allow s them as m uch liberty as the 'risk' allow s; 3. to expect the state to help them 'sp eed ily' red uce that risk; 4. to expect the state to have to prove the n ecessity for their d etention, the evid ence of risk: it should not be the prisoner w ho has to prove the absen ce of ev id ence o f risk. H ow does the current release procedu re satisfy these four principles? As w e have seen, the D L P itself has very lim ited pow ers. T h e m anagem ent o f prisons and prison regim es has been left clearly by P arliam ent in the hands o f the Prison Service. O ne conclusion o f this book is that it would be w rong to expect too m u ch of the D LP in curing the inefficiency o f the lifer system , w hich w as w ell catalogued by the C h ief Insp ectors of Prisons and P robation T hem atic R eview o f Lifers.13 For both m andatory and d iscretionary lifers, the 'process of release' should start from the m om ent o f sentence. T he w heels o f internal P rison Serv ice processes need constant oiling to ensure that suitable lifers have progressed over the c a teg o risa tio n /tra n sfe r/o ffe n d in g behav iou r cou rses hu rd les to en­ sure that suitable prisoners are rou tinely released on tariff. As w e have seen, the need for speed y progress has been accentuated w ith the introd uction o f 'au tom atic' life sen tences, w here ju d g es frequ ently specify very short 'tariffs'. D LPs as curren tly constituted can have little im pact on P rinciples 2 and 3 above. It m ay be that the Parole Board could have d one m ore itself to un d erline the im portan ce o f these principles. It could m ost certain ly have been clearer in its in terpretation o f P rinciples 1 and 4. But it w as argued in C h apter 4 that P arliam en t itself w as rem iss in failing to lay d ow n clear criteria for release. W e saw how w hen the C rim in al Ju stice A ct 1991 13 H M IPP (1999).

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created D LPs, P arliam en t delegated to the H om e S ecretary the pow er to give to the D LP d irections as to the m atters it should take into account w hen con sid erin g release. The H om e Secretary has not done this, though d irections do exist on the release of m an d ato ry lifers and d eterm inate sen tence prisoners. T his leaves a vacu um at the heart o f the D LP process. W hile it m ay be con stitutionally right that the H om e S ecretary has not sou gh t to issue d irection s to an ind ep en d en t ju dicial tribunal, it is not surprising that, given the vacuum , the Parole Board appears to apply sim ilar criteria w hen releasing d iscretionary lifers as it does w hen d ecid ing w hether to release o ther prisoners. Yet this ignores the fu n dam ental d ifference betw een d iscretionary lifers and the other categories o f offenders w hose cases are con sid ered b y the P arole Board: d eterm inate sen tence prisoners are bein g considered for early release, for release before they have served their 'tariff'; m u rd erers, the governm ent insists and the cou rts have until now accepted , are serving a different sort o f life sentence, one in w hich d etention for life is justified by the heinousness o f the offence. T h e position of a d iscretionary life sen tence p risoner is different, closer perh aps to the position o f those detained against their w ishes in m ental hospitals only becau se o f the risk that they present to them selves o r the public. P arliam en t has failed to lay dow n clear criteria on any o f the four principles listed above.

Developments elsewhere in the United Kingdom S cottish am en d m en ts B efore w e reach ou r final con clusions it is w orth noting the im portant changes w hich have been m ad e recently elsew here in the U nited K ingdom . T h e C on vention Rights (C om pliance) (Scotland) A ct 2001 w as enacted to ensu re that certain elem ents of Scots law w ere C on vention com patible. The Scottish E xecu tive condu cted a detailed E C H R 'au dit' across all its d ep artm ents and the m ain focus o f the A ct o f the Scottish P arliam ent w hich resulted from it are prisoners and parole. A detailed P olicy M em oran du m w as published w ith the Bill explaining the need for ch an g e.14 The A ct b ring s the arrangem en ts fo r ad ult m an datory life sen tence prisoners into line w ith the arrangem en ts for other prisoners (know n in Scotland as 'd esign ated life prison ers', a term designed to em brace both d iscretionary lifers and those convicted o f m u rd er w hen u n d er the age o f 17). T he Scottish M inisters consid ered th a t th ere is a risk o f a d o m estic co u rt tak in g th e v ie w th at, in p ractice, th e a rra n g e m e n ts fo r th e re le a se o f [a d u lt m a n d a to ry lifers] a re n o d iffere n t from

14 See www.scotland.gov.uk.

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th o se a p p ly in g to o th e r p riso n ers sen te n ced to in d e te rm in a te term s o f im p riso n m e n t. In th o se c ircu m sta n ces, a d o m e stic co u rt w ou ld find a b re ach o f A rticle 5(4 ) (sin ce a fte r th e ex p iry o f th e p u n ish m e n t p eriod th e q u estio n o f risk m u st b e co n sid ere d b y a c o u rt-lik e b o d y ) an d a b re a ch o f A rticle 6 (sin ce th e p u n ish m en t p art w o u ld re q u ire to b e set b y a co u rt) . . . T h e E x ecu tiv e b eliev es th at th e sy stem fo r se n te n cin g life p riso n ers sh o u ld b e c le a r and tra n sp a ren t w ith n o ro o m fo r m isu n d e rsta n d in g .15

This new system has now com e into force, inclu d ing transitional arrangem en ts for the 500 or so existing m urd erers in Scottish prisons. T h e H igh C ou rt is con sid erin g ten cases a w eek, at a special sitting, in ord er that the pu nishm ent part o f their sen tence is fixed in open court. A ll life sen tence prisoners w ill now be entitled to a reg u lar oral hearing before the P arole Board at a 'D esignated L ife T rib u n al', once they have served the pu nishm ent part o f their sentence. T h e P arole Board for Scotland is now able to d irect the release o f any post-tariff lifer. The A ct also strength en s the ind ep en d en ce o f the Parole Board by extend ing the period of initial ap p ointm en t of Parole Board m em bers from three to six years. T he P olicy M anual cites the case o f Findlay v. UK,'h a case w hich concerned the cou rts m artial system , setting out the w ell-establish ed E C H R test for ind ep en d en ce and im partiality: In o rd e r to e sta b lish w h e th e r a trib u n al can b e c o n sid ere d 'in d ep e n d en t' regard m u st b e had in ter alia to th e m a n n er o f a p p o in tm e n t o f its m em b ers an d th eir term o f office, th e e x iste n ce o f g u a ra n tee s a g a in st o u tsid e p re ssu res an d th e q u e stio n o f w h eth e r th e b o d y p re sen ts an a p p e a ra n ce o f in d ep e n ­ d ence.

Scotland has becom e w ell sensitised to the issue o f 'in d ep en d en ce'. The H igh C ou rt o f Ju sticiary in Starrs v. Procurator Fiscal, Lin lithgow 17 fam ou sly held that the post of 'tem p orary sheriff' (junior judges, in the E nglish vocabu lary) did not satisfy the requ irem ents o f ind ep endence and im p artiality since they did not have security o f tenure. The Bail, Jud icial A p pointm ents etc. (Scotland) A ct 2000 m ad e new provisions for p art-tim e sheriffs w ho are now appointed for a five-year term . R eap­ pointm en t is m an d atory un less one o f a nu m ber of con ditions applies. T h e Scottish E xecu tive decided that the system w hereby m em bers o f the Parole Board could be reappointed at the d iscretion o f the E xecutive im m ed iately after their initial term o f three years, to gether w ith the p ossibility o f rem oval by the E xecutive, could be seen as incom patible w ith the C onvention. T he C on vention R ights (C om pliance) A ct 2001 15 www.scotland.gov.uk, at para. 29 and 35. 16 (1997) 24 EHRR 221. 17 [20001 SC 208; [20001 HRLR 191.

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therefore enhances the security o f tenu re o f P arole Board m em bers and seeks to ensu re that their reap p ointm en t does not give rise to the appearan ce of either d ep en d en ce upon or partiality tow ards the execu ­ tive. A ppointm ent is still m ad e b y the Scottish M inisters, but in accord ance w ith published regulations. P arole Board m em bers are now appointed for six years, and m ay be appointed for a further six years but only after a gap in service o f six years. M ost recently, a C rim inal Ju stice (Scotland) Bill, introduced in the Scottish P arliam ent on 26 M arch 2002, w ill am end the C rim in al P ro­ ced u re (Scotland) A ct 1995 to introd uce a new life sen tence o f an 'O rd er o f L ife-long R estriction ' (O LR). T his build s on the recom m en d ation of the M acL ean C om m ittee, w hich w as appointed in 1999 b y the then Scottish H om e A ffairs M inister, H enry M cL eish, to exam ine the law in relation to seriou s v iolent and sexual offenders. C haired b y a H igh C ou rt Ju d ge, Lord M acL ean, the C om m ittee included expert m em bers o f the ju d iciary and representatives o f the legal p rofession, the prison service, the police, social w ork, forensic psychiatry, clinical psychology, p sych o ­ therapy and the volu ntary sector and it reported on 26 Ju n e 2000. U nder the new proposals, the O L R w ill involve 'life-long con trol' o f any offender consid ered by the cou rt to be high risk; R isk M anag em ent Plans for offenders sen tenced to O L R s w ill be d esigned to 'ensu re the offend er's risk is properly m anaged and con tro lled '; and a new expert body, the Risk M anagem ent A uthority (RM A ), w ill be created to assist the agencies responsible for offenders in m an aging the Plans. A key to the 'su ccess' o f these new ord ers will be the new risk assessm en t fram ew ork. W hether Risk M anagem ent Plans w ill ensure 'continu ity o f m an agem en t and su p erv ision o f offenders from prison back into the com m u n ity', as the Scottish executive su gg ests,18 rem ains to be seen. W hat is im portan t for the pu rpose o f our rev iew is to ask w hether sufficient resources w ill be allocated to this initiative to ensure that offenders detained un der these ord ers do not spend unnecessary tim e in u n necessarily restricted conditions. W ill the relevant bodies o p erate un der clearly articu lated p rinciples w hich recognise the hum an rights 'tru m p s' o f the offender? A new b od y in N orthern Ireland M eanw hile, as a result o f both the H um an Rights A ct 1998 and the C rim in al Ju stice R eview w hich arose out o f the G ood Frid ay A gree­ m en t,19 a new bod y w as created in N orthern Ireland in 2001, taking effect 18 For details of the Bill and Explanatory Notes, see the Scottish Parliament's website. 19 A 'questions and answers' news release is available on www.niprisonservice.gov.uk/

news/lifesetenorder.htm.

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from 8 O ctob er 2001. T h e Life Sentences (N orthern Ireland) O rd er 200120 created the 'L ife S entence R eview C o m m ission ers' to replace the previous Life S entence R eview Board. T h e C om m ission ers are an ad visory body, w ith the pow er to d irect the release o f any life sen tence p risoner w ho has served the 'relev ant p art' of his sentence. The Secretary o f State is then u n d er a d uty to release the prisoner. T h e new body consid ers the cases of all life sen tence prisoners. T h e C om m ission ers, appointed by the S ecretary of State, should inclu de a ju dge or senior law yer, a p sychiatrist, a chartered p sychologist, a person w ith kn ow l­ edge and exp erience o f the supervision or aftercare o f d ischarged p risoners, and a person w ho has m ade a stud y o f the causes of d elinqu en cy or the treatm en t o f offend ers.21 The nu m bers o f affected prisoners in N orthern Ireland are v ery sm all: as o f 8 O ctober 2001, there w ere 82 prisoners to w hom the new procedu re applied. Seventeen 'tran sitio n al' C om m ission ers had been appointed until 1 5 -2 0 perm anent C om m ission ers 'can be ap p o in ted ' later in 2002.22 A n A dhoc C om m ittee o f the N orthern Ireland A ssem bly w as set up to con sid er the O rd er, and agreed that there should be a clear statem ent outlining that the C om m ission ers should be ind ep en d en t o f the g o v ern ­ m ent and appointed by open com petition. T he Life S entence R eview C om m ission ers' R u les23 cam e into operation on 8 O ctober. W hile these are closely m od elled on the P arole Board R ules 1997, there are significant differences. For exam ple, the R ules do not sp ecify that the legally qualified m em bers should chair the panel; they specify that, subject to the provisions o f the Rules, the C om m ission ers m ay regulate their ow n p roced u re in d ealing w ith each case as they con sid er approp riate; the Rules inclu d e a provision for the ap p ointm en t o f a special ad vocate in cases in volving confid ential inform ation. It is too early to assess the new procedu res in Scotland and N orthern Ireland, and indeed it is beyond the rem it o f this book to do so. The d ev elop m ents are m entioned for the sake of com pleten ess and to rem ind us that the procedu res in place in England and W ales are in no sense 'fixed in ston e'.

Does the DLP pass the test? It is clearly arguable that the Parole Board is not the approp riate body to decide on 'late release' as opposed to 'early release'. W e have already

20 21 22 23

SI 2001 No. 2564 (N1 2). See Article 3 of the Order. See ww w.niprisonservice.gov.uk/news/lifesetenorder.htm . See Statutory Rules of Northern Ireland 2001 No. 317.

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questioned its 'ind ep en d en ce' and its caution. H ood and Shute (2000) point out, in the con text o f d eterm inate sentenced prisoners, a 'd ram atic d eclin e'24 in the use o f parole in recent years. T h ey have no d oubt that this cautiou s approach to parole is created by the em ph asis placed on risk by the d irections and training given to Parole Board m em bers. U sing existing actuarial pred ictors, H ood and Shute suggest that m any m ore prisoners could be released every year w ithout any increase in the av erage reconviction rate o f parolees as a w hole. To repeat, the Parole Board has developed this culture o f caution w ithin a legal fram ew ork gov erning the release o f d eterm inate sen tence prisoners w hich allow s them to release people even befo re they have served their 'tariff'. It is not obviou s that such caution should operate in a sim ilar w ay on those w ho are alread y post-tariff, w ho have in effect served the d eterm inate part of their ind eterm inate sentence. Y et there is no reason to believe that the P arole Board is less cautiou s in the case of DLPs. In C h ap ter 4 w e looked briefly at the proposals o f the N athan C om m ittee for Life S entence Review T ribunals. If P arliam en t had accepted these proposals, the T ribun al w hich w ould now exist to decide on the release o f d iscretionary lifers w ould not be a Panel o f the Parole Board. It w ould be m ore obviou sly ind ependent. It is im possible to guess w hether it w ould release m ore prisoners, or few er, and w hether it w ould be m ore efficient or effective. But it is difficult not to believe that it w ould have been forced to con sid er its basic criteria, both su bstantiv e and procedu ral, closely. T h e C ou ncil on T rib u n als and other o utsid e bodies m igh t have had a greater influence on the new Tribunal. P roced ural safeguards are required not sim ply becau se procedu ral safeguards are good in them selves b u t becau se fair p rocedu res are likely to lead to fairer outcom es. A re the outcom es o f D LPs fair? It is o f cou rse difficult to say. W hile it has been suggested above that the D LP has seriou s lim itations as an ind ep en den t process, it is equally im portant to un d erline the ad van tages that it has over w hat w ent before. P risoners are given an oral hearing at w hich they and their legal ad visers have the opportu nity to challenge the 'ev id en ce' for continued detention. The Panel gives w ritten reasons for their d ecisions, w hich give som e gu id ance to prisoners as to w hat they have to do to m ove tow ards release. T his d ecision-Ietter m ay also be o f use in giving a m essage to the Prison Service on w hat they should be doing. M easured in term s o f w hat it actually d oes, the process w as perceived by Padfield and L iebling (2000) to be v ery fair. Too m uch should not be expected o f the P arole Board. It is arguable that the creation o f the D L P has d iverted attention aw ay from those w ho have d ay-to-day resp onsibility for helping prisoners m ove tow ards 24 At p. 81.

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release and on those who have the duty to allocate the resources and policy guidance w hich should m ake this possible. Paradoxically this book, w hile focusing on the DLP, concludes that to concentrate on the DLP is to m iss the central point. Padfield and Liebling's research concluded that an em phasis on the operation o f the Discretionary Lifer Panel process was in danger of clouding the larger question of the fairness of the substantive outcom e.25 As we have seen, while the Parole Board m ay direct release, no prisoner, w hose case was observed during that study, was released unless he w as in open conditions. W hen the Parole Board recom m ended a transfer to open conditions (i.e. a necessary step on the journey tow ards release), the Secretary of State held the trum p card and could veto (or delay) the transfer. Thus although for prisoners, and indeed for all those involved, the DLP process w as hugely significant, it appeared that the key decisions w ere taken at the transfer stage and that the pow er to m ake these decisions rested firmly with the Prison Service and the H om e Secretary. The pow er o f the Parole Board to direct release was seriously constrained by pow ers and inertias lying elsew here, to hold up progress. Sim ilarly, this book has sought to show that the procedural im provem ents forced upon the British governm ent by the European Court of H um an Rights have been interpreted narrow ly and have resulted in a process w hich does not survive detailed analysis in hum an rights terms. If the D iscretionary Lifer Panel of the Parole Board fails the test as an independent court, as has been suggested, there are various options to rem edy this : • The pow ers and independence of the Parole Board could be strengthened. Thus the Parole Board could be encouraged to develop clearer guidelines, to dem and of the Secretary of State's representative a clear argum ent in favour of detention, with com pelling evidence of serious risk of 'dangerousness', w hich should be clearly defined. A start was m ade in the decisions of the H igh Court in the 1980s w hich required an actual likelihood of dangerousness, a serious risk to life or lim b.26 Before a strengthened DLP, the Secretary of State's representa­ tive should have to present a clear case, bearing in mind the four principles m entioned above. • The pow er to direct the release of post-tariff lifers, those detained sim ply for 'social protection and rehabilitation' could be given to a more obviously 'independent' body. The proto-type lies in the proposals of the N athan Com m ittee, cast aside by Parliam ent in 1991, w hich would have created a new tribunal under the um brella of the 25 Padfield and Liebling (2000), at pp. 141-3. 26 See p. 28 above.

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Lord C h an cello r's D epartm ent and un der the scru tin y o f the C ouncil on Tribunals. W hichever option is accepted (indeed, esp ecially if n either is accepted ), the 'o rd in ary ' courts should m ore clearly acknow led ge their role in prov id ing an approp riate review . T h e H igh C ou rt should be m ore active in forcin g the DLP to articu late m ore clearly the balancing act that they are forced to confront. U nless the H om e O ffice can con vince the D L P on a balance o f probabilities that the risk that a person seriou sly reoffending is so high as to ou tw eigh his fun d am ental right to liberty, then he should be released. The D LP should be forced to develop a m ore rigorous scru tin y o f the prison er's right to liberty. T he H om e O ffice should be forced to articu late m ore clearly the ground s on w hich they seek to con tin ue to detain the prisoner. To su gg est this is not to ov erestim ate the capacity o f judicial review to change ad m inistrativ e d ecision-m aking. It w ould sim ply be a step in the d irection o f a gen uine recognition o f the im portan ce of the righ t to liberty to everyone in ou r society.

Lessons for the future It is not surprising that there is a lack o f clarity, and indeed a d egree of instability, in the p recise relation ships betw een the d ifferent organs of the state, m ad e w orse perh aps by the absen ce o f a w ritten C onstitution. In theory, there is an efficient system o f checks and balances: P arliam en t m akes law s, the executive carries them o ut and the ju d g es check that they are acting law fully.27 T rad itionally it has been accepted in this cou ntry that the balance betw een hum an rights and com petin g pu blic policy claim s is p rim arily for the executive: the cou rts only intervene if the execu tiv e's ev alu ation o f the relative im portan ce o f the tw o factors is so u n tenable as to be absurd. T his bo ok has sou ght to show in som e sm all w ay how the system in practice break s dow n. P arliam ent does not lay d ow n ad equ ate law s; the executive is left w ith an inad equ ate fram ew ork; the ju d ges, perhaps m ind ful of their unelected status, are w ary o f u n d u e intervention. The rights o f the ind ividu al are liable to be forgotten. The d iscretionary life sen tence is really a fixed-term sen tence w ith a quite sep arate prev entive detention ord er.28 A legal system w hich allow s ind eterm inate sentences, w hile acknow led gin g that only a fixed term w ith in that sen tence is im posed as pu nishm ent, m u st also requ ire its cou rts to scru tin ise the law fulness o f that detention. T hat is the m eaning 27 For a useful analysis, see Elliott (2001), at p. 306. 28 See van Zyl Smit (2002).

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o f A rticle 5(4). There need s to be a form al acknow led gem ent o f society 's obligation to enhan ce the quality of a d etain ee's life in d eten tion as m uch as is possible con sisten t w ith secu rity .29 T h e E uropean C ou rt o f H um an R ights has proved to be a useful backstop , a rem ind er o f m inim u m standards o f hum an rights, leaving to the UK go v ernm ent the choice o f m eth od s for im plem enting its hum an rights obligations. This boo k has painted a dep ressing p ictu re o f a gov ernm ent reluctant to do m ore than the m inim u m to secure com pliance. But if P arliam en t (dom inated o f cou rse by the governm ent) rem ains reluctant to set its ow n clear standards, hu m an rights w ill con tin u e to be underm ined. T here m ay be signs that d om estic courts are likely now to be m ore v igilant in balancing com petin g interests, that ju dicial rev iew m ay becom e a m ore ad equ ate rem edy. Lord Steyn suggested in D aly30 that the d octrine o f p rop or­ tionality m igh t requ ire the review ing cou rt to assess the balance w hich the d ecision-m aker had struck, the balance betw een the protection o f the pu blic (the risk that a person represents) and his or her fundam ental righ t to liberty. But it is not only the ju d g es w ho m u st be vigilant. The 'cu ltu re' o f hum an rights principles m ust affect the thinkin g and d ecision-m ak ing o f all those w ho w o rk w ithin crim inal ju stice agencies, prison, p robation and elsew here. T he beneficiaries o f a m ore principled ap p roach w ould be those ind iv id u als w ho rem ain in prison sim ply and only becau se o f the im precise and undefined risk that they present to the public.

29 This is W alker's argument in Walker (1997), at p. 620. 30 See p. 145 above.

Appendix 1 Extracts from the majority and dissenting opinions in Weeks

41. It must therefore be determined w hether the fresh deprivation of liberty suffered by Mr. W eeks consequent upon that decision complied with Article 5(l)(a). 42. It was not contested that Mr. W eeks' re-detention as from 30 June 1977 was in accordance with a procedure prescribed by English law and otherwise lawful under English law. That, however, is not necessarily decisive. The 'law fulness' required by the Convention presupposes not only conformity w ith domestic law but also, as confirmed by Article 18, conform ity with the purposes of the deprivation of liberty perm itted by sub-paragraph (a) of Article 5(1). Furtherm ore, the word 'after' in sub-paragraph (a) does not sim ply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue o f the 'conviction'. In short, there must be a sufficient causal connection betw een the conviction and the deprivation of liberty at issue . . . 44. The objectives to be pursued by the Home Secretary in exercising his discretion to release and recall are not spelt out in the 1967 Act or in its predecessor, the Prison Act 1952. Nevertheless, the statem ents made by the trial judge and the judges in the Court of Appeal make it quite plain what purpose the life sentence and any subsequent release into the com m unity were meant to serve in Mr. W eeks' case . . . 46. . . . it may be extrem ely difficult, if not impossible, to disentangle different elem ents underlying a particular sentence in a given case and to determine which of those elem ents was accorded more im portance by the sentencing judge; in the present case, however, it was the trial court itself and the Court of Appeal that explained in detail the reasons w hy Mr. W eeks received a life sentence as opposed to a determ inate sentence. The Court agrees with the Com m ission and the applicant that the clearly stated purpose for which Mr. W eeks' sentence was im posed, taken together with the particular facts pertaining to the offence for which he was convicted places the sentence in a special categ o ry . . . The intention was to make the applicant, who was qualified both by the trial judge and by the Court of Appeal as a 'dangerous young m an', subject to a continuing security m easure in the interests of public safety . . . The grounds expressly relied on by the sentencing courts for ordering this form of deprivation of liberty against Mr. W eeks are by their very nature

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susceptible o f change w ith the passage o f tim e, w hereas the m easure will rem ain in force for the w hole o f his life. In this, his sentence differs from a life sentence im posed on a person because o f the gravity of the offence. 47. In this sense, the m easure ordered against M r. W eeks is thus com parable to the Belgian m easure at issue in the V an D roogenbroeck ca se ,1 that is the placing of a recidivist or habitual offender at the disposal o f the governm ent - although in the present case the placem ent w as for a w hole lifetim e and not for a lim ited period. The legitim ate aim (of social protection and the rehabilitation o f offenders) pursued by the m easure and its effect on the convicted person are substantially the sam e in both cases. H aving regard to Mr. W eeks' age at the tim e and to the particular facts of the offence he com m itted, if it had not been for the specific reasons advanced for the sentence im posed, one could have serious doubts as to its com patibility w ith A rticle 3 of the C onvention, w hich prohibits, inter alia, inhum an punishm ent. The rem arks of Salm on L.J. in the C ourt of A ppeal are instructive in this connection: . . . T he sentencing judges w ere hoping for, though could not predict, an early release back into the com m unity. 48. The special character of Mr. W eeks' sentence is further borne out by the statistics: betw een 1 Janu ary 1969 and 31 D ecem ber 1984, o f the 54,580 persons convicted o f robbery only 17 have been sentenced to life im prisonm ent.2 49. A pplying the principles stated in the Van D roogenbroeck judgm ent, the form al legal connection betw een M r. W eeks' conviction in 1966 and his recall to prison som e ten years later is not on its ow n sufficient to justify the contested d etention under A rticle 5 (l)(a ). The causal link required by sub-paragraph (a) m ight eventually be broken if a position w ere reached in w hich a decision not to release or to re-detain w as based on grounds that w ere inconsistent with the objectives o f the sentencing court. 'In those circum stances, a d etention that w as law ful at the outset w ould be transform ed into a deprivation o f liberty that w as arbitrary and, hence, incom patible w ith A rticle 5'. 50. In the subm ission of the applicant, the objectives o f the courts in 1966 and 1967 as regards the length of his loss of liberty w ere satisfied on his release in M arch 1976; the requ isite link w as broken at that stage, so that his full rights under A rticle 5 w ere restored to him and his re-d etention fifteen m onths later w as no longer justified under A rticle 5(1 )(e). The C ourt does not accept this contention. As a m atter o f English law , it was inherent in Mr. W eeks' life sentence that, w hether he w as inside or outside prison, his liberty w as at the d iscretion of the executive for the rest of his life (subject to the controls subsequ ently introduced by the 1967 Act, notably the Parole Board). This the sentencing ju d ges m ust be taken to have know n and intended. It is not for the C ourt, w ithin the context of A rticle 5, to review the appropriateness o f the original sentence, a m atter w hich m oreover has not been disputed by the applicant in the present proceedings. 1 4 EHRR 433, para. 40. 2 Hansard, House of Commons, vol. 90, no. 43, 24 January 1986, col. 325: written answer by the Home Secretary.

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It rem ains to exam ine the sufficiency of the grounds on w hich his re-d etention in Ju n e 1977 and thereafter w as based. In this area, as in m any others, the national authorities are to be recognised as having a certain discretion since they are better placed than the international judge to evaluate the evidence in a particular case.3 51. . . . In view of this unstable, disturbed and aggressive behaviour, there w ere grounds for the H om e Secretary to have considered that the applican t's continued liberty w ould constitute a d anger to the public and to him self. The M inister's decision to re-detain rem ained w ithin the bounds o f the m argin of appreciation available to the responsible national authorities; it cannot be regarded as arbitrary or un reasonable in term s of the objectives o f the sentence im posed on M r. W eeks . . . In the C ou rt's view , therefore, a sufficient connection, for the purposes of sub-paragraph (a) o f A rticle 5(1), existed betw een his conviction in 1966 and his recall to prison in 1977 . . . 53. A ccordingly, the applican t's recall to prison in 1977 and the period o f his subsequent d etention as in issue in the present proceedings w ere not incom patible w ith A rticle 5(1). III. A lleged breach of A rticle 5(4) . . . A. W hether the requ isite judicial control w as incorporated in the original conviction

58. The C ou rt has already held in the context o f paragraph (l)(a ) o f A rticle 5 that the stated purpose of social protection and rehabilitation for w hich the 'ind eterm inate' sentence w as passed on M r. W eeks, taken together w ith the particular circum stances o f the offence for w hich he w as convicted, places the sentence in a special category: unlike the case of a person sentenced to life im prisonm ent becau se o f the gravity of the offence com m itted, the grounds relied on by the sentencing ju dges for deciding that the length of the deprivation o f M r. W eeks' liberty should be subject to the discretion of the executive for the rest of his life are by their nature susceptible o f change w ith the passage o f time. T he C ourt inferred from this that if the decisions not to release or to re-detain w ere based on grounds inconsistent w ith the objectives o f the sentencing court, M r. W eeks' detention would no longer be 'law ful' for the purposes o f sub-paragraph (a) o f paragraph (1) of A rticle 5. It follow s that, by virtue o f paragraph (4) o f A rticle 5, M r. W eeks w as entitled to apply to a 'court' having ju risd iction to decide 'speedily' w hether or not his deprivation o f liberty had becom e 'u nlaw ful' in this sense; this entitlem ent should have been exercisable by him at the m om ent of any return to custody after bein g at liberty and also at reasonable intervals during the course o f his im prisonm ent4 See, inter alia, X v. United Kingdom 4 EHRR 188, para. 43 and Luberti v. Italy (1984) 6 EHRR 440, para. 27. See, mutatis mutandis, Van Droogenbroeck, para. 48 in fine.

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59. Article 5(4) does not guarantee a right to judicial control of such scope as to em pow er the 'court', on all aspects of the case, including questions of expediency, to substitute its own discretion for that of the decision-m aking authority. The review should, however, be wide enough to bear on those conditions which, according to the Convention, are essential for the lawful detention of a person subject to the special kind of deprivation of liberty ordered against Mr. Weeks. B. W hether the proceedings available subsequent to conviction satisfied the requirem ents of Article 5(4) 60. The governm ent submitted in the alternative that the requirem ents of Article 5(4) were sufficiently met by the Parole Board's jurisdiction, supple­ mented as it was by the availability of judicial review before the High Court. Both the applicant and the Com m ission disagreed with this analysis. 1.

General principles

61. The 'court' referred to in A rticle 5(4) does not necessarily have to be a court of law of the classic kind integrated within the standard judicial m achinery of the country.5 The term 'court' serves to denote 'bodies which exhibit not only com m on fundam ental features, of w hich the most im portant is independence of the executive and of the parties to the case . . . but also the guarantees . . . appropriate to the kind of deprivation of liberty in question . . . of [a] judicial procedure', the form s of which may vary from one domain to another.1’ In addition, as the text of Article 5(4) m akes clear, the body in question must not have m erely advisory functions but must have the com petence to 'decide' the 'law fulness' of the detention and to order release if the detention is unlawful. There is thus nothing to preclude a specialised body such as the Parole Board being considered as a 'court' within the meaning of Article 5(4) provided it fulfils the foregoing conditions.7 2.

Parole Board

(a) Independence and impartiality 62. The applicant maintained that the Parole Board is not independent of the Home Secretary, primarily because he appoints the mem bers of the Board, provides its staff and makes the rules under which it conducts its procedures. The Parole Board sits in small panels, each of which in the case of life prisoners includes a High Court judge and a psychiatrist. The m anner of appointm ent of the Board's mem bers does not, in the Court's opinion, establish a lack of independence on the part of the mem bers.” Furtherm ore, the Court is satisfied that the judge mem ber and the other mem bers of the Board remain wholly independent of the executive and impartial in the perform ance of their duties. 5 See X v. United Kingdom, para. 53. 6 See De Wilde, Ooms and Versyp judgment paras 56 and 58. 7 See X v. United Kingdom, para. 61. a See, mutatis mutandis, Cambell and Fell v. United Kingdom (1985) 7 EHRR 165, para. 79.

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There rem ains the question w hether the Board presents an appearance of independence, notably to persons whose liberty it considers. On this point, as the governm ent stated, the functions of the Board do not bring it into contact with officials of the prisons or of the H ome Office in such a way as to identify it with the adm inistration of the prison or of the Home Office. The Court therefore sees no reason to conclude that the Parole Board and its mem bers are not independent and impartial. (b)

Powers and procedural guarantees

63. The Com mission, together with the applicant, took the view that the Board lacked the necessary powers and procedural guarantees for the purposes of Article 5(4). The applicant further contended that the Board's proceedings were not 'speedy'. He pointed out that, whereas his licence was revoked in June 1977, the Board did not give its decision until Decem ber 1977. (i)

Powers

64. According to the wording of the 1967 Act, the duty of the Parole Board is to 'advise' the Home Secretary on the exorcise of his powers to release prisoners on licence and to revoke such licences, and its decisions take the form of 'recom m endations' to the Home Secretary. The Board's functions are without doubt purely advisory, both in law and in substance, as regards the periodic review that it carries out in relation to the question of the possible release on licence of a detained person serving a sentence of life im prisonment. The H ome Secretary may not, it is true, release on licence a life prisoner unless recommended to do so by the Parole Board. However, where the Board does recommend release of such prisoners, the Home Secretary must also consult the Lord Chief Justice, together with the trial judge if available and, as dem onstrated by the facts of Mr. W eeks' own case, the Home Secretary is free, in the light of all the material before him, not to accept the Board's recommendation. Quite apart from any consideration of procedural guarantees, the Board therefore lacks the pow er of decision required by Article 5(4) when dealing with this category of case. On the other hand, the Board's recom m endation to release is binding on the Home Secretary wrhen the Board has to consider, as it did in Decem ber 1977 in relation to Mr. W eeks' recall to prison after release on licence. The procedure applicable in the event of recall must therefore be examined. (ii)

Procedural guarantees

65. The language of Article 5(4) speaks of the detained individual being entitled to initiate proceedings. Under the British system of parole of life prisoners, although only the H ome Secretary may refer a case to the Board, referral is obligatory in recall cases except where a person recalled after a recommendation to that effect by the Board has chosen not to make written representations. In these circum stances, the recalled person can be considered as having sufficient access to the Parole Board for the purposes of Article 5(4).9

9 See X v. United Kingdom, para. 52.

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66. The Board deals with individual cases on consideration of the documents supplied to it by the H ome Secretary and of any reports, information or interviews with the individual concerned it has itself called for. The prisoner is entitled to make representations with respect to his recall, not only in w riting to the Board but also orally to a mem ber of the Local Review Committee. The individual is free to take legal advice in preparing such representations. Furtherm ore, he must be sufficiently informed of the reasons for his recall in order to enable him to make sensible representations. W hilst these safeguards are not negligible, there rem ains a certain pro­ cedural weakness in the case of a recalled prisoner. Thus, the Court of Appeal established in the Gunnell case that the duty on the Board to act fairly, as required under English law by the principles of natural justice, does not entail an entitlem ent to full disclosure of the adverse material which the Board has in its possession. The procedure followed does not therefore allow proper participation of the individual adversely affected by the contested decision, this being one of the principal guarantees of a judicial procedure for the purposes of the Convention, and cannot therefore be regarded as judicial in character.10 67. In view of this finding, the Court does not consider it necessary to rule on the rem aining points raised by the applicant and the Com m ission, that is: firstly, whether, in relation to the special category of deprivation of liberty ordered against Mr. Weeks, this requirem ent of a proper procedure calls for the holding of an oral hearing in addition to the existing possibility of making written subm issions;" and, secondly, w hether the proceedings before the Board were 'speedy'. (c)

Conclusion

68. Consequently, neither in relation to consideration of Mr. W eeks' recall to prison in 1977 nor in relation to periodic exam ination of his detention with a view to release on licence can the Parole Board be regarded as satisfying the requirem ents of Article 5(4). 3.

Judicial review

69. The Court has in previous cases recognised the need to take a com pre­ hensive view of the system in issue before it, as apparent shortcom ings in one procedure may be remedied by safeguards available in other procedures.12 In this connection, an application for judicial review undoubtedly represents a useful supplem ent to the procedure before the Parole Board: it enables the individual concerned to obtain a control by the ordinary courts of both the Parole Board's decisions and the Home Secretary's decisions . . . As the Com m ission pointed out, the scopc of the control afforded is thus not wide enough to bear on the conditions essential for the 'law fulness', in the sense of Article 5(4) of the Convention, of Mr. W eeks' detention, that is to say, whether it was consistent with and therefore justified by the objectives of the 10 See, mutatis mutandis, Sanchez-Reisse v. Switzerland (1987) 9 EH RR 71, para. 51. 11 See, mutatis mutandis, ibid. 12 See, for exam ple, X v. United Kingdom, para. 60.

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indeterm inate sentence imposed on him. In the Court's view, having regard to the nature of the control it allows, the rem edy of judicial review can neither itself provide the proceedings required by Article 5(4) nor serve to rem edy the inadequacy, for the purposes of that provision, of the procedure before the Parole Board. 70.

In conclusion, there has been a violation of Article 5(4).

D issen tin g opinions T h ere w a s tw o d issen tin g op in ion s. F irst, th e p a rtly co n cu rrin g an d p a rtly d issen tin g o p in ion of Ju d g es T h o r V ilhjalm sson , L a g e rg re n , Sir V in cen t E v a n s an d G ersin g , w h o held th at th ere h ad b een n o violation of W eek s' rights: W e share the view of our colleagues that the imposition of a penalty of such severity as life im prisonm ent in the circum stances of this case (as they appear in the m aterial before the Court) can be com prehended only in the light of the explanation given by Thesiger J. and Salm on L.J. that, although seem ingly 'terrible', it was passed with merciful intent. It is true that in this connection the judges emphasised that the sentence was 'indeterm inate', in that it did not predetermine the period for which Mr. W eeks should rem ain in custody but left this to the discretion of the Secretary of State. N evertheless, there can be no doubt whatever that both the sentencing judge and the Court of Appeal were fully aware and must be understood to have intended that, in the absence of the exercise of the Royal Prerogative to pardon Mr. W eeks or to rem it or reduce his sentence, he would rem ain subject thereto with its consequences for the restriction of his liberty for the rest of his life. As a matter of English law therefore and for all practical purposes, the life sentence imposed on Mr. W eeks is indistinguishable from any other sentence of life im prisonm ent imposed by the English courts. Consequently, we are unable to agree with the majority of the Court that it was in a special category distinguishing it from other life sentences and was com parable, for the purposes of Article 5(1 )(a) and (4) of the Convention, to the Belgian measure at issue in the Van Droogenbroeck case, that is the placing of a recidivist or habitual offender at the disposal of the governm ent. In the Van Droogenbroeck case, as the Court pointed out, the sentence imposed on the applicant under Belgian law had two com ponents - he was sentenced to two years' im prisonm ent as a penalty for the offences of theft and attempted theft of which he was convicted and, as a recidivist, he was also placed by the court at the governm ent's disposal for an additional period of ten years pursuant to the 'Social Protection' A ct of 1964, a m easure the execution of which could take different forms ranging from rem aining at liberty under supervision to detention.13 In that case, the Court agreed with

13 See 4 EH RR 433, paras 9 and 39.

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the C om m ission that the Belgian system for the treatm ent of recidivists w hich w as at issue w as 'fund am entally different from that . . . o f the conditional release of prisoners sentenced by a cou rt to a period o f im prisonm ent im posed by the court as being appropriate to the ca se '.14 In our opinion, the m easures to w hich M r. W eeks w as subject fall squarely w ithin the latter category. And it has to be borne in mind that the alternative sentence considered by the British ju dges w as a lengthy determ inate sentence. W hile, therefore, w e agree w ith the conclusion o f the m ajority of the Court that the ap p lican t's recall to prison in 1977 and his subsequ ent d etention w ere com patible w ith sub-paragraph (a) of A rticle 5(1), w e do so for the rather different reasons and w e do not agree w ith the conclusion o f the m ajority that there has been a violation of A rticle 5(4). O n both aspects o f the case, our view s are the sam e as those of the m inority in the Com m ission. A rticle 5(1 )(a) The question at issue is w hether the detention o f M r. W eeks follow ing his recall to prison in 1977 w as 'the law ful d etention of a person after conviction by a com petent court'. W e accept that the w ord 'after' in sub-paragraph (a) d oes not sim ply m ean that the d etention m ust follow the conviction in point o f tim e but 'm ust result from , follow and depend upon or occur by virtue of the con viction '. It is not disputed that, though severe, the life sentence im posed on M r. W eeks w as one w hich the British judges could properly give under English law, and in fact gave, for a crim e o f w hich he had been convicted after a proper trial. N or is it contested that his recall to prison in 1977 and subsequent d etention w ere in accordance w ith dom estic law. In the term s o f section 62(9) o f the C rim inal Justice A ct 1967, he w as re-detained 'in pursuance of' his original life sentence. This m eant that he continued to serve his sentence, the sentence im posed by the trial court. In our opinion, these elem ents w ere enough to satisfy the requirem ents o f A rticle 5 (l)(a ). A rticle 5(4) It is well established in the C o u rt's case law that w hen the decision depriving a person o f his liberty is m ade by a court at the close o f judicial proceedings the supervision required by A rticle 5(4) is incorporated in that d ecision.15 Inasm uch therefore as M r. W eeks continued to serve the sentence im posed by the trial court, no further provision is required by A rticle 5(4) to enable him to take proceedings to test the law fulness o f his detention. W e accept, o f course, that w hat has just been said relates only to the initial decision (in this case the sentence of im prisonm ent) depriving a person o f his liberty and that the ruling referred to in the D e W ilde, O om s and V ersyp ju dgm ent d ocs not go beyond this. Further issues o f law fulness could arise concerning decisions taken by the authorities in exercise o f their pow er of release and recall in regard to the execution o f the sentence. H ow ever, Mr. W eeks did not dispute the law fulness o f his recall or detention in term s of

14 Ibid ., para 47. 15 See, inter alia, De Wilde, Ooms and Versyp v. Belgium 1 EH R R 438, p ara. 76.

Appendix 1

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English law. If he had wished to challenge the decisions of the authorities relevant to his recall or re-detention on grounds of 'illegality', 'irrationality' or 'procedural im propriety', he would have had available to him a rem edy before the ordinary courts by way of an application for judicial review, which could be granted speedily. We conclude, therefore, that there was no violation of Article 5(4) in the present case. Fin ally, th ere w a s th e p artly d issen tin g op in ion of Ju d g e D e M e y e r w h o b elieved , a t th e o th e r en d of th e scale, th at th ere w a s a b reach of both relev an t p a ra g ra p h s of A rticle 5: M y reasons for that conclusion are as follows. 1. The sentence imposed upon the applicant, though form ally a life sentence, was in fact an indeterm inate sentence. It was explicitly so qualified, both at the Ham pshire Assizes and at the Court of Appeal, by the judges who dealt with his case. They sim ply meant to enable him to be 'released much sooner than if a long term of im prisonm ent had been im posed'. They wanted to act 'in mercy to the boy'. It cannot be assumed that their real intention was to put him on a life-tim e's leash to be drawn back at any moment. 2. Life im prisonm ent in its ordinary sense would indeed have been a punishm ent too 'terrible' for a som ew hat aggressive young man of seventeen, guilty of robbing - after m enacing his victim with a starting pistol loaded with blank cartridges - a sum of 35 old pence, w hich he did not even take away. It would have exceeded any reasonable relationship of proportionality with what actually happened. It would have been w hat the Eighth Amendment to the Constitution of the United States of America calls 'cruel and unusual punishm ent', and what Article 3 of the European Convention on Human Rights terms 'inhum an punishm ent'. 3. The sentence was also unique. In their answer to one of the questions put by the Court subsequent to the hearing held on 17 M arch 1986, the respondent governm ent stated that it was 'not aware of any other cases where young people w ere given life sentences for non-hom icide where the circum stances of the offence were com parable to those in the W eeks case'; it further admitted, referring to recent case law, that 'it is obviously open to question whether, if the criteria now followed by the Court of Appeal had been strictly applied' in the applicant's case, 'a life sentence would have been passed and upheld'. 4. In executing the sentence, special care and caution were therefore required. In the circum stances of the case, the sentence of life imprisonment, as explained by Thesiger J., and by Salm on L.J., entitled the Home Secretary to keep the applicant in prison only for such a period of time as was really necessary. 5. When the applicant was first released on licence (31 M arch 1976), more than nine years had elapsed since he was sentenced at the Ham pshire Assizes (6 Decem ber 1966). Except for his mental breakdown in 1969 and his

17 4

Beyond the tariff

subsequent stay at G rend on U nderw ood in 1970, the pleadings, argum ents and docum ents subm itted to the C ou rt reveal nothing either about his behaviou r w hile detained, until his escape from Sw ansea Prison at the end of 1974, o r about any consideration w hich m ight have been given to his situation by the authorities responsible for the execution o f the sentence, before the Parole Board's recom m endation that sam e year. N either has anything been subm itted to ju stify w hy so m uch precious tim e w as w asted. In 1974, the applican t's detention had already lasted long enough to have lost any reasonable connection, not only w ith the offence he w as sentenced for, but also w ith the necessity o f protecting the public and prom oting his rehabilitation. It w as still technically legal under the term s o f the judicial decision on w hich it w as founded and w hich it w as supposed to execute. It had, how ever, ceased to be law ful, since it had gone far beyond the real object and purpose o f that decision. It could therefore no longer be considered as 'the law ful detention of a person after conviction by a com petent cou rt'. N either could it be further justified on any other ground. 6. The applicant has been involved in a certain nu m ber of incidents since 1974. These incidents cannot justify the length of his d etention until 1974. 7. A ccordingly, the ap p lican t's detention had ceased to be com patible with A rticle 5(1) o f the Convention.

Appendix 2 Sections 32 and 34 of the Criminal Justice Act 1991

32. [The Parole Board] (1) T here shall continue to be a body to be know n as the Parole Board ('the Board') w hich shall discharge the functions conferred on it by this Part. (2) It shall be the duty of the Board to advise the Secretary o f State with respect to any m atter referred to it by him w hich is connected w ith the early release or recall of prisoners. (3) The Board shall deal w ith cases as respects w hich it m akes recom m enda­ tions under this Part on consideration o f (a) any docum ents given to it by the Secretary of State; and (b) any other oral or w ritten inform ation obtained by it, and if in any particular case the Board thinks it necessary to interview the person to w hom the case relates before reaching a decision, the Board m ay authorise one o f its m em bers to interview him and shall consider the report of the interview m ade by that m em ber. (4) The Board shall deal w ith cases as respects w hich it gives directions under this Part on consideration of all such evid ence as m ay be adduced before it. (5) W ithout prejudice to subsections (3) and (4) above, the Secretary o f State may m ake rules w ith respect to the proceedings of the Board, including provision authorising cases to be dealt w ith by a prescribed num ber of its m em bers or requiring cases to be dealt w ith at prescribed times. (6) The Secretary o f State m ay also give to the Board directions as to the m atters to be taken into account by it in discharging any functions under this Part; and in giving any such directions the Secretary of State shall in particular have regard to (a) the need to protect the public from serious harm from offenders; and (b) the desirability o f preventing the com m ission by them of further offences and o f securing their rehabilitation. (7) Sched ule 5 to this A ct shall have effect w ith respect to the Board. 34. [Duty to release discretionary life sentence prisoners] (1) A life prisoner is a discretionary life prisoner for the purposes o f this Part i f (a) his sentence w as im posed for a violent or sexual offence the sentence for w hich is not fixed by law ; and (b) the court by w hich he w as sentenced for that offence ordered that this section should apply to him as soon as he had served a part o f his sentence specified in the order.

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(2) A part o f a sentence so specified shall be such part as the court considers appropriate taking into account (a) the seriousness o f the offence, or the com bination o f the offence and other offences associated w ith it; and (b) the provisions o f this section as com pared w ith those o f section 33(2) above and section 35(1) below. (3) A s soon as, in the case o f a discretionary life prisoner (a) he has served the part of his sentence specified in the ord er ('the relevant part'); and (b) the Board has directed his release under this section, it shall be the d uty of the Secretary of State to release him on licence. (4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless (a) the Secretary o f State has referred the p risoner's case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection o f the public that the prisoner should be confined. (5) A discretionary life prisoner m ay require the Secretary of State to refer his case to the Board at any tim e (a) after he has served the relevant part of his sentence; and (b) w here there has been a previous reference o f his case to the Board, after the end of the period of tw o years beginn ing w ith the disposal of that reference; and (c) w here he is also serving a sentence of im prisonm ent for a term , after he has served one-half o f that sentence; and in this subsection 'previous reference' m eans a reference under subsection (4) above or section 39(4) below m ade after the prisoner had served the relevant part o f his sentence. (6) In d eterm ining for the purpose o f subsection (3) or (5) above w hether a discretionary life prisoner has served the relevant part o f his sentence, no account shall be taken o f any tim e during w hich he w as unlaw fully at large w ithin the m eaning of section 49 o f the [15 & 16 Geo. 6 & 1 Eliz. 2 c. 52.] Prison A ct 1952 ('th e 1952 A ct'). (7) In this Part 'life prisoner' m eans a person serving one or m ore sentences o f life im prisonm ent; but (a) a person serving tw o or m ore such sentences shall not be treated as a discretionary life prisoner for the purposes of this Part unless the requirem ents o f subsection (1) above are satisfied as respects each of those sentences; and (b) subsections (3) and (5) above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.

Appendix 3 Sections 28-32 of the Crime (Sentences) Act 1997 (as amended) Section 82A of the Powers of Criminal Courts (Sentencing)

S ectio n s 2 8 -3 2 of the C rim e (S en ten ces) A ct 1997 (as am en d ed ) 28. (1) A life prisoner is one to w hom this section applies if (a) the conditions m entioned in subsection (2) below are fulfilled; or (b) he w as under 18 at the tim e w hen he com m itted the offence for w hich his sentence w as im posed. (2) The conditions referred to in subsection (l)(a ) above are (a) that the prisoner's sentence w as im posed for an offence the sentence for w hich is not fixed by law; and (b) that the court by w hich he w as sentenced for that offence ordered that this section should apply to him as soon as he had served a part o f his sentence specified in the order. (3) A part of a sentence specified in an order under subsection (2)(b) above shall be such part as the court consid ers appropriate taking into account (a) the seriousness of the offence, or the com bination o f the offence and other offences associated w ith it; and (b) the effect o f any direction w hich it w ould have given under section 9 above if it had sentenced him to a term o f im prisonm ent. (4) W here in the case of a life prisoner to w hom this section applies the conditions m entioned in subsection (2) above are not fulfilled, the Secretary o f State shall direct that this section shall apply to him as soon as he has served a part of his sentence specified in the direction. (5) As soon as, in the case o f a life prisoner to w hom this section applies (a) he has served the part of his sentence specified in the ord er or direction ('the relevant part'); and (b) the Parole Board has directed his release under this section it shall be the duty o f the Secretary o f State to release him on licence.

178

Beyond the tariff (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless (a) the Secretary of State has referred the prisoner's case to the Board; and (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. (7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time (a) after he has served the relevant part of his sentence; and (b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and (c) where he is also serving a sentence of im prisonm ent or detention for a term, after the time when, but for his life sentence, he would be entitled to be released; and in this subsection 'previous reference' means a reference under subsection (6) above or section 32(4) below. (8) In determ ining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has served the relevant part of his sentence, no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952. (9) An offence is associated with another for the purposes of this section if it is so associated for the purposes of Part I of the 1991 Act.

29. (1) If recommended to do so by the Parole 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 one to whom section 28 above applies. (2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to w hich that case belongs, to the Board for its advice. 30. (1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circum stances exist w hich justify the prisoner's release on com passionate grounds. (2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circum stan­ ces arc such as to render such consultation impracticable. 31. (1) W here a life prisoner is released on licencc, the licencc shall, unless previously revoked under section 32(1) or (2) below, rem ain in force until his death. (2) A life prisoner subject to a licence shall com ply with such conditions (which shall include on his release conditions as to his supervision by a probation officer) as may for the time being be specified in the licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.

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(3) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a life prisoner, or vary or cancel any such condition, except (a) in the case of the inclusion of a condition in the licence of a life prisoner to whom section 28 above applies, in accordance with recom m endations of the Parole Board; and (b) in any other case, after consultation with the Board. (4) For the purposes of subsection (3) above, the Secretary of State shall be treated as having consulted the Parole Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the im plem entation of proposals of that description generally or in that class of case. (5) The power to make rules under this section shall be exercisable by statutory instrum ent which shall be subject to annulm ent in pursuance of a resolution of either House of Parliament. (6) In relation to a life prisoner who is liable to removal from the United Kingdom (within the meaning given by section 24(2) above), subsec­ tion (2) above shall have effect as if the words in parentheses were omitted. 32. (1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this chapter, the Secretary of State may revoke his licence and recall him to prison. (2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recom m endation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recom m endation is practicable. (3) A life prisoner recalled to prison under subsection (1) or (2) above (a) may make representations in writing with respect to his recall; and (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations. (4) The Secretary of State shall refer to the Parole Board (a) the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and (b) the case of a life prisoner recalled under subsection (2) above. (5) W here on a reference under subsection (4) above the Parole Board (a) directs in the case of a life prisoner to whom section 28 above applies; or (b) recommends in the case of any other life prisoner, his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation. (6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlaw fully at large.

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Beyond the tariff

S ectio n 82A of the P o w ers o f C rim in al C o u rts (S en ten cin g ) A ct 2000 82A D eterm ination o f tariffs. (1) T his section applies if a court passes a life sentence in circum stances w here (a) the sentence is not fixed by law; or (b) the offender w as aged under 18 w hen he com m itted the offence. (2) T h e court shall, unless it m akes an order under subsection (4) below , ord er that the provisions of section 28(5) to (8) of the C rim e (Sentences) A ct 1997 (referred to in this section as the 'early release p rovisions') shall apply to the offender as soon as he has served the part of his sentence w hich is specified in the order. (3) T h e part o f his sentence shall be such as the court considers approp riate taking into account (a) the seriousness of the offence, o r the com bination of the offence and one or m ore offences associated w ith it; (b) the effect [which section 67 o f the Crim inal Justice A ct 1967 w ould have h ad ]16 if it had sentenced him to a term o f im prisonm ent; and (c) the early release provisons as com pared w ith sections 33(2) and 35(1) o f the C rim inal Justice A ct 1991. (4) If the court is of the opinion that, because o f the seriousness o f the offence or o f the com bination o f the offence and one or m ore offences associated w ith it, no order should be m ade under subsection (2) above, the court shall order that, subject to subsection (5) below , the early release provisions shall not apply to the offender. (5) If, in a case w here an ord er u n d er subsection (4) above is in force, the offender w as aged under 18 w hen he com m itted the offence, the Secretary o f State shall at the approp riate stage direct that the early release provisons shall apply to the offender as soon as he has served the part o f his sentence w hich is specified in the direction. (6) T he appropriate stage, for the purposes o f subsection (5) above, is w hen the Secretary o f State has form ed the opinion, having regard to any factors determ ined by him to be relevant for the purpose, that it is appropriate for him to give the direction. (7) In this section 'court' includes a court-m artial; 'life sentence' has the sam e m eaning as in C hapter II o f Part II o f the C rim e (Sentences) A ct 1997. (8) So far as this section related to sentences passed by a court-m artial, section 167(1) below d oes not apply.

Appendix 4 The Parole Board Rules 1997 Made Coming into force

6 O ctober 1997 6 O ctober 1997

Part I In trodu ctory 1. Title and com m encem ent 2. A pplication and interpretation

P art II G eneral 3. 4. 5. 6. 7. 8. 9.

Appointm ent of panel Listing the case for hearing Inform ation and reports by the Secretary of State Representation, etc. W itnesses Evidence of the prisoner Directions

Part III The hearing 10. 11. 12. 13. 14. 15.

Oral hearing Notice of hearing Location, privacy of proceedings Hearing procedure Adjournm ent The decision

Part IV M iscellaneous 16. Tim e 17. Transm ission of docum ents etc.

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Beyond the tariff

18. Irregu larities 19. References to the Board follow ing recall

Schedules 1. Inform ation and reports for subm ission to the Board by the Secretary o f State on a reference to the Board u n d er section 28(6)(a) o r 28(7) o f the A ct 2. Inform ation and reports for su bm ission to the Board by the S ecretary o f State on a reference to the Board u n d er section 32(4) o f the A ct

Part I Introductory T itle and com m encem en t and revocation 1. (I) T h ese Rules m ay be cited as the Parole Board Rules 1997 and shall com e into force on 6th O cto ber 1997. (2) T h e Parole Board Rules 1992 are hereby revoked. A pp lication and in terp retation 2. (1) Subject to ru le 19, these Rules apply w here a p rison er's case is referred to the Board by the Secretary o f State u n d er section 28(6)(a), section 28(7) or section 32(4) o f the Act. (2) In these Rules, unless a contrary intention appears 'B oard ' m eans the P arole Board, continued by section 32(1) o f the C rim in al Ju stice A ct 1991, 'C h airm en ' m eans the chairm an o f the Board appointed un der paragraph 2 o f Sch ed u le 5 to the C rim in al Ju stice A ct, 1991, 'govern o r' inclu des a d irector o f a contracted out prison, 'p an el' m eans those m em bers o f the Board con stituted in accord ance w ith ru le 3, 'p arties' m eans the prisoner and the Secretary o f State, 'p risoner' m eans a person to w hom section 28 o f the A ct applies, 'the A ct' m eans the C rim e (Sentences) A ct 1997.

Part II General A p p oin tm en t of panel 3. (1) T h e C h airm an shall appoint three m em bers o f the Board to form a panel for the p u rpose o f con du cting proceedings in relation to a p riso n er's case.

Appendix 4

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(2) The m em bers of the panel appointed under paragraph (1) shall include a person who holds or who has held judicial office and w ho shall act as chairm an of the panel. L istin g the case for hearing 4. The Board shall list the case for hearing and, as soon as practicable thereafter, notify the parties of the date w hen the case w as so listed. Inform ation and reports by the Secretary o f State 5. (1) W ithin eight w eeks of the case being listed, the Secretary of State shall serve on the Board and, subject to paragraph (2), the prisoner or his representative (a) the inform ation specified in Part A of Schedule 1 to these Rules, (b) the reports specified in Part B of that Schedule, and (c) such further inform ation that the Secretary of State considers to be relevant to the case. (2) Any part of the inform ation or reports referred to in paragraph (1) which, in the opinion o f the Secretary of State, should be withheld from the prisoner on the ground that its disclosure would adversely affect the health or w elfare of the prisoner or others, shall be recorded in a separate docum ent and served only on the Board together w ith the reasons for believing that its disclosure would have that effect. (3) W here a docum ent is withheld from the prisoner in accordance with paragraph (2), it shall nevertheless be served as soon as practicable on the prisoner's representative if he is (a) a barrister or solicitor, (b) a registered m edical practitioner, or (c) a person w hom the chairm an of the panel directs is suitable by virtue of his experience or professional qualification; provided that no inform ation disclosed in accordance with this paragraph shall be disclosed either directly or indirectly to the prisoner or to any other person w ithout the authority of the chairm an of the panel. R ep resentation , etc. 6. (1) Subject to paragraph (2), a party m ay be represented by any person w ho he has authorised for that purpose. (2) The follow ing are ineligible to act as a representative before the Board (a) any person liable to be detained under the M ental H ealth Act 1983,

184

Beyond the tariff

(b) any person serving a sentence of im prisonm ent; (c) any person who is on licence having been released under Part III of the Crim inal Justice Act 1967 or under Part II of the Crim inal Justice A ct 1991 or under Part II of the Act, (d) any person with a previous conviction for an im prisonable offence which rem ains unspent under the Rehabilitation of Offenders Act 1974. (3) W ithin three w eeks of the case being listed, a party shall notify the Board and the other party of the nam e, address and occupation of any person authorised in accordance with paragraph (1). (4) W here a prisoner does not authorise a person to act as his representative, the Board m ay, w ith his agreem ent, appoint som eone to act on his behalf. (5) A party m ay apply, in accordance with the procedure set out in rule 7 (1) and (2), to be accom panied at the hearing by such other person or persons as he w ishes, in addition to any representative he m ay have authorised; but before granting any such application the Board shall obtain the agreem ent of (a) in the case w here the hearing is to be held at a prison, the governor, and (b) in any other case, the person in w hom is vested the authority to agree. W itnesses 7. (1) W here a party w ishes to call w itnesses at the hearing, he shall m ake a w ritten application to the Board, a copy of which he shall serve on the other party, w ithin 12 w eeks of the case being listed, giving the nam e, address and occupation of the w itness he w ishes to call and the substance of the evidence he proposes to adduce. (2) The chairm an of the panel m ay grant or refuse an application under paragraph (1) and shall com m unicate his decision to both parties, giving reasons in writing, in the case of a refusal, for his decision. Evidence of the prisoner 8. (1) W here the prisoner w ishes to m ake representations about his case, he shall serve them on the Board and the Secretary of State within 15 w eeks of the case being listed. (2) A ny other docum entary evidence that the prisoner w ishes to adduce shall be served on the Board and the Secretary of State at least 14 days before the date of the hearing.

Appendix 4

185

D irections 9. (1) Subject to p aragraph (3), the chairm an o f the panel m ay give, vary or revoke d irection s for the con du ct o f the case, inclu ding d irection s in respect o f (a) the tim etable for the proceedings, (b) the v arying o f the tim e w ithin w hich or by w hich an act is required , by these Rules, to be done, (c) the service o f d ocu m ents, (d) as regards any d ocu m ents w hich have been received by the Board b u t w hich have been w ithheld from the prisoner in accord ance w ith rule 5(2), w hether the d isclosure o f such d ocu m ents w ould ad versely affect the health or w elfare o f the prisoner or others, and (e) the subm ission o f evid ence; and follow ing his appointm en t under ru le 3, the chairm an o f the panel shall con sid er w hether such d irections need to be given at any time. (2) W ithin 14 d ays o f b ein g notified o f a d irection u n d er paragraph (l)(d ), eith er party m ay appeal against it to the C h airm an, w ho shall notify the other party o f the appeal; the other party m ay m ake representation s on the appeal to the C h airm an w hose d ecision shall be final. (3) D irections under p aragraph (1) m ay be given, varied or revoked either (a) o f the chairm an o f the pan el's ow n m otion, or (b) on the w ritten ap plication o f a party to the Board w hich has been served on the other party and w hich specifies the direction w hich is sought; but in eith er case, both parties shall be given an opportu nity to m ake w ritten representation s or, w here the chairm an o f the panel thinks it necessary, and subject to p aragraph (6)(b), to m ake oral subm issions at a p relim inary hearing fixed in accord ance w ith paragraph (4). (4) W here the chairm an o f the panel d ecides to hold a prelim inary hearing, he shall give the parties at least 14 d ays' notice o f the date, tim e and p lace w hich has been fixed in respect thereof. (5) A p relim inary hearing shall be held in private and inform ation about the p roceedings and the nam es o f any persons concerned in the p roceedings shall not be m ad e public. (6) E xcep t in so far as the chairm an o f the panel o therw ise directs, at a prelim inary hearing (a) the chairm an of the panel shall sit alone, and (b) the prisoner shall not attend save w here he is un represented.

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Beyond the tariff

(7) The chairm an of the panel shall take a note of the giving, variation or revocation of a direction under this rule and serve a copy on the parties as soon as practicable thereafter.

Part III The hearing Oral hearing 10. (1) Except in so far as both parties and the chairm an of the panel agree otherw ise, there shall be an oral hearing of the prisoner's case. (2) The prisoner shall, w ithin five w eeks of the case being listed, notify the Board and the Secretary of State w hether he w ishes to attend the hearing. Notice of hearing 11. (1) W hen fixing the date of the hearing the Board shall consult the parties. (2) The Board shall give the parties at least three w eeks' notice of the date, tim e and place scheduled for the hearing or such shorter notice to which the parties m ay consent. Location, privacy of proceedings 12. (1) The hearing shall be held at the prison or other institution w here the prisoner is detained. (2) The hearing shall be held in private and, except in so far as the chairm an of the panel otherw ise directs, inform ation about the proceedings and the nam es of any persons concerned in the proceedings shall not be m ade public. (3) The chairm an of the panel m ay adm it to the hearing such persons on such terms and conditions as he considers appropri­ ate. Hearing procedure 13. (1) At the beginning of the hearing the chairm an of the panel shall explain the order of proceeding w hich the panel proposes to adopt. (2) Subject to this rule, the panel shall conduct the hearing in such m anner as it considers m ost suitable to the clarificatioii of the issues before it and generally to the just handling of the proceedings; it shall so far as appears to it appropriate, seek to avoid form ality in the proceedings.

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(3) The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks proper; and the parties m ay hear each others' evidence, put questions to each other, call any w itnesses who the Board has authorised to give evidence in accordance with rule 7, and put questions to any w itness or other person appearing before the panel. (4) The chairm an o f the panel m ay require any person present at the hearing who is, in his opinion, behaving in a disruptive m anner to leave and m ay perm it him to return, if at all, only on such conditions as he m ay specify. (5) The panel m ay receive in evidence any docum ent or inform ation notw ithstanding that such docum ent or inform ation would be inadm issible in a court of law but no person shall be com pelled to give any evidence or produce any docum ent w hich he could not be com pelled to give or produce on the trial of an action. (6) The chairm an of the panel m ay require the prisoner, or any w itness appearing for the prisoner, to leave the hearing w here evidence is being exam ined which the chairm an of the panel, in accordance w ith rule 9 (l)(d ) (subject to any successful appeal under rule 9(2)), previously directed should be withheld from the prisoner as being injurious to the health or w elfare of the prisoner or another person. (7) A fter all the evidence has been given, the prisoner shall be given a further opportunity to address the panel. A d jou rnm ent 14. (1) The panel m ay at any time adjourn a hearing for the purpose of obtaining further inform ation or for such other purposes as it m ay think appropriate. (2) Before adjourning any hearing, the panel m ay give such direc­ tions as it thinks fit for ensuring the prom pt consideration of the application at a resum ed hearing. (3) Before the panel resum es any hearing w hich was adjourned w ithout a further hearing date being fixed it shall give the parties not less than 14 days' notice, or such shorter notice to w hich all parties m ay consent, of the date, time and place of the resum ed hearing. T h e d ecision 15. (1) A ny decision of the m ajority of the m em bers of the panel shall be the decision of the panel. (2) The decision by which the panel determ ines a case shall be recorded in w riting with reasons, signed by the chairm an of the

Beyond the tariff

188

panel, and com m u nicated in w riting to the parties not m ore than sev en d ays after the end o f the hearing.

Part IV M iscellaneous Tim e 16. W here the tim e prescribed by or u n d er these Rules for d oing any act expires on a Saturd ay, Sund ay or pu blic holid ay, the act shall be in tim e if d one on the next w orkin g day. T ran sm ission of docum ents etc. 17. A ny d ocu m ent required or authorised by these R ules to be served or otherw ise transm itted to any person m ay be sen t by pre-paid post or delivered , (a) in the case o f a d ocu m ent d irected to the Board or the chairm an o f the panel, to the office o f the Board; (b) in any other case, to the last kn ow n ad dress o f the person to w hom the d ocu m ent is directed. Irregularities 18. Airy irregularity resulting from failure to com ply w ith these Rules before the panel has determined a case shall not of itself render the proceedings void, but the panel m ay, and shall, if it consid ers that the person m ay have been prejudiced, take such steps as it thinks fit, before determ ining the case, to cure the irregu larity, w hether by the am en d m en t o f any docum ent, the giving o f any notice, the taking of any step or otherw ise. R eferences to the Board follow in g recall 19. W here the S ecretary o f State refers a p risoner's case to the Board un d er section 32(4) o f the A ct, and the prisoner has m ade represen­ tations u n d er section 32(3) o f the A ct, these R ules shall ap p ly subject to the follow ing m od ification s (a) rules 5(1), 6(3), 7(1), 8(1) and (2), 9(2) and (4), 10(2), 11(2), 14(3) and 15(2) shall apply as if for references to the periods o f tim e specified therein there w ere substitu ted a reference to such period o f tim e as the chairm an o f the panel shall in each case determ ine, taking account o f b oth the d esirability of the Board reaching an early d ecision in the p risoners' case and the need to ensure fairness to the prisoner; (b) ru le 5 shall apply as if for the references in p aragraph (l)(a) and (b) o f that ru le to the inform ation and reports specified in

Appendix 4

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Schedule 1 there w ere substituted a reference to the inform ation and reports specified in Schedule 2.

Rule 5 ( 1 )

Schedule 1 Information and reports for submission to the Board by the Secretary of State on a reference to the Board under section 28(6)(a) or 28(7) of the Act Part A In fo rm atio n relatin g to the prisoner 1. The full nam e of the prisoner. 2. The age of the prisoner. 3. The prison in w hich the prisoner is detained and details of other prisons in w hich the prisoner has been detained, the date and reasons for any transfer. 4. The date the prisoner was sentenced and the details of the offence. 5. The previous convictions and parole history, if any, of the prisoner. 6. The com m ents, if available, of the trial judge in passing sentence. 7. W here applicable, the conclusions of the Court of Appeal in respect o f any appeal by the prisoner against conviction or sentence. 8. The details of any life sentence plan prepared for the prisoner which have previously been disclosed to him. Part B Reports relatin g to the prisoner 1. Any pre-trial and pre-sentence reports exam ined by the sentencing court and any post-trial police report on the circum stances of the offence(s). 2. A ny report on a prisoner while he was subject to a transfer direction under section 47 of the M ental H ealth Act 1983. 3. A ny current reports on the prisoner's perform ance and behaviour in prison and, w here relevant, on his health including any opinions on his suitability for release on licence (reports previously exam ined by the Board need only be sum m arised) as well as his com pliance with any sentence plan. 4. An up-to-date hom e circum stances report prepared for the Board by a Probation Officer, including reports on the following: (a) details of the hom e address, fam ily circum stances, and fam ily attitudes towards the prisoner; (b) alternative optioiis if the offender cannot return hom e; (c) the opportunity for em ploym ent on release; (d) the local com m unity's attitude towards the prisoner (if known), including the attitudes and concerns of the victim (s) of the offence(s);

190

Beyond the tariff

(e) the p riso n er's response to previous periods o f supervision; (f) the prison er's beh av iou r d uring any tem porary leave d uring the current sentence; (g) the p riso n er's response to d iscu ssions o f the o bjectives o f su p er­ vision w here applicable; (h) an assessm en t o f the risk o f re-offending; (i) a program m e o f supervision; (j) a recom m en d ation for release; and (k) recom m en d ations regarding any special licence conditions.

R u le 5(1) and 19(b)

Schedule 2 Information and reports for submission to the Board by the Secretary of State on a reference to the Board under section 32(4) of the act Part A In form ation relatin g to the p rison er 1. The full nam e o f the prisoner. 2. The age o f the prisoner. 3. The prison in w hich the p riso ner is detained and d etails o f other prisons in w hich the prisoner has been d etained , the date and reasons for any transfer. 4. The date the prisoner w as sentenced and the details o f the offence. 5. The prev ious convictions and parole history, if any, o f the prisoner. 6. The details o f any life sentence plan prepared for the prisoner w hich have previously been disclosed to him . 7. The d etails o f any previous recalls o f the prisoner inclu ding the reasons for such recalls and su bsequ ent re-release on licence. 8. The statem ent o f reasons for the m ost recent recall w hich w as given to the prison er u n d er section 32(3)(b) o f the Act. 9. The details o f any m em orand um w hich the Board consid ered prior to m akin g its recom m en dation for recall u n d er section 39(1) o f the A ct or confirm ing the S ecretary o f S tate's d ecision to recall un der section 32(2) o f the A ct, in clu ding the reasons w hy the S ecretary o f State con sid ered it exped ient in the pu blic interest to recall that person befo re it w as practicable to obtain a recom m en d ation from the Board. Part B R eports relatin g to the p rison er 1. The reports consid ered by the Board prior to m aking its recom m en­ dation for recall un der section 32(1) o f the A ct or its con firm ation of the S ecretary o f S tate's d ecision to recall u n d er section 32(2) o f the Act. 2. A ny other relevant reports.

Appendix 5 Sections 72 and 73 of the Mental Health Act 1983, as amended by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001 No. 3712) 72 P ow ers of T rib u n als (1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and (a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are satisfied (i) that he is not then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessm ent (or for assessm ent followed by medical treatment) for at least a limited period; or (ii) that his detention as aforesaid is not justified in the interests of his own health or safety or with a view to the protection of other persons; (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied (i) that he is not then suffering from mental illness, psychopathic disorder, severe mental im pairm ent or mental impairm ent or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a m anner dangerous to other persons or to himself. (2) In determ ining w hether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard (a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and

Beyond the tariff

192 (b)

in the case of a patient suffering from mental illness or severe mental impairm ent, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation. (3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal m ay (a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and (b) further consider his case in the event of any such recom m endation not being complied with. (3A) W here, in the case of an application to a tribunal by or in respect of a patient who is liable to be detained in pursuance of an application for adm ission for treatment or by virtue of an order or direction for his adm ission or rem oval to hospital under Part III of this Act, the tribunal do not direct the discharge of the patient under subsection (1) above, the tribunal may (a) recommend that the responsible medical officer consider w hether to make a supervision application in respect of the patient; and (b) further consider his case in the event of no such application being made. (4) Where application is made to a M ental H ealth Review Tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if they are satisfied (a) that he is not then suffering from mental illness, psychopathic disorder, severe mental im pairm ent or mental impairm ent; or (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (4A) W here application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not becom e so subject), and shall so direct if they are satisfied (a) in a case where the patient has not yet left hospital, that the conditions set out in section 25A(4) above are not com plied with; or (b) in any other case, that the conditions set out in section 25G(4) above are not complied with. (5) W here application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not becom e so subject), the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application,

A ppendix 5

193

ord er or direction relating to him , direct that that application, ord er or direction be am ended by substituting for the form o f m ental disorder specified in it such other form of m ental d isorder as appears to the tribunal to be appropriate. (6) Subsections (1) to (5) above apply in relation to references to a M ental H ealth Review Tribunal as they apply in relation to applications m ade to such a tribunal by or in respect of a patient. (7) Subsection (1) above shall not apply in the case o f a restricted patient except as provided in sections 73 and 74 below.

73 P o w e r to d isch arg e restricted p atien ts (1) W here an application to a M ental H ealth Review Tribunal is m ade by a restricted patient w ho is subject to a restriction order, or w here the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute d ischarge of the patient if satisfied (a) as to the m atters m entioned in paragraph (b)(i) or (ii) o f section 72(1) above; and (b) that it is not approp riate for the patient to rem ain liable to be recalled to hospital for further treatm ent. (2) W here in the case of any such patient as is m entioned in subsection (1) above the tribunal are satisfied as to the m atters referred to in paragraph (a) of that subsection b ut not as to the m atter referred to in paragraph (b) o f that subsection the tribunal shall direct the conditional discharge o f the patient. (3) W here a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly. (4) W here a patient is conditionally discharged under this section (a) he m ay be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) o f that section; and (b) the patient shall com ply w ith such conditions (if any) as m ay be im posed at the tim e of d ischarge by the tribunal or at any subsequent tim e by the Secretary of State. (5) T he Secretary o f State m ay from tim e to tim e vary any condition im posed (w hether by the tribunal or by him) under subsection (4) above. (6) W here a restriction ord er in respect o f a patient ceases to have effect after he has been conditionally discharged u n d er this section the patient shall, unless previously recalled, be deem ed to be absolutely discharged on the date w hen the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order. (7) A tribunal m ay defer a direction for the conditional d ischarge of a patient until such arrangem ents as appear to the tribunal to be necessary for that purpose have been m ade to their satisfaction; and w here by virtue o f any

194

Beyond the tariff

such deferment no direction has been given on an application or reference before the time when the patient's case com es before the tribunal on a subsecjuent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given. (8) This section is without prejudice to section 42 above.

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Prison Reform Trust (2000) Justice for Women: the N eed for Reform, Report of the Com m ittee on W om en's Im prisonm ent chaired by Professor Dorothy W edderburn (London: Prison Reform Trust). Richardson, G. (1990) 'The Select Com m ittee and the Sentencing Structure for M urder', 29 Howard Journal o f Criminal Justice 300. Richardson, G. (1991) 'Discretionary Life Sentences and the European Court of Human Rights', Public Law 34. Richardson, G. (1993) Law, Process and Custody: Prisoners and Patients (London: Weidenfeld & Nicolson). Richardson, G. and M ackin, D. (2000) 'Judicial Review and Tribunal DecisionM aking: A Study of the M ental H ealth Review Tribunal', Public Law 494. Richardson, G. and Thorold, O. (1999) 'Law as a Rights Protector: Assessing the Mental H ealth Act 1983', in N. Eastman and J. Peay (eds), Law without Enforcement: Integrating M ental Health and Justice (Oxford: Hart). Royal Com m ission on Crim inal Justice (chaired by Lord Runciman) (1993) Report, Cm 2263 (London: HMSO). Sapsford, R. (1983) Life Sentence Prisoners: Reaction, Response and Change (Milton Keynes: Open University Press). Schlanger, M. (1999) 'Beyond the Hero Judge: Institutional Reform Litigation as Litigation', 97 M ichigan LR 1994. Sentencing Advisory Panel (2001) Tariffs in M urder Cases: A Consultation Paper (Sentencing Advisory Panel). Singleton, N. et al. (1997) Psychiatric M orbidity among Prisoners: Summary Report (Office of National Statistics). Sparks, C. (1998) Prisoners' Views o f the Lifer System: Policy vs Reality (London: Prison Reform Trust). Sunkin, M. and Pick, K. (2001) 'The Changing Impact of Judicial Review: the Independent Review Service o f the Social Fund', Public Law 736. Thom as, D. A. (2002) 'A utom atic Life Sentences after Offen', 3 Archbold News 5. Tidm arsh, D. (1999) 'N ecessary but not Sufficient: the Personal View of a Psychiatric M em ber of the Parole Board', in M urray Cox (ed.), Rem orse and Reparation (London: Jessica Kingsley). Tuddenham , R. (2000) 'Beyond Defensible Decision-Making: Towards Reflexive Assessm ent of Risk and Dangerousness', Probation Service Journal 173. Van Zyl Smit, D. (1999) 'Life Imprisonment as the Ultimate Penalty in International Law: A Hum an Rights Perspective', 9 Criminal Laiv Forum 5. Van Zyl Smit, D. (2001) 'Abolishing Life Im prisonm ent?', 3 Punishment and Society 299. Van Zyl Smit, D. (2002) Taking Life Imprisonment Seriously in N ational and International Law (The Hague: Kluwer). Von Hirsch, A. (1993) Censure and Sanctions (Oxford: Clarendon Press). W alker, N. (1983) 'Protecting People', in J. Hinton (ed.), Dangerousness: Problems o f Assessment and Prediction (London: Allen & Unwin ). W alker, N. (1996) D angerous People (London: Blackstone Press). W alker, N. (1997) 'H arm s, Probabilities and Precautions', Oxford Journal o f Legal Studies 611. W hitty, N., M urphy, T. and Livingstone, S. (2001) Civil Liberties Law: The Human Rights Era (London: Butterworths).

200

Beyond the tariff

W illiams, D. G. T. (1984) 'The Council on Tribunals: The First Tw enty Five Years', Public Law 73. W indlesham, Lord (1990) 'From Tariff to Penal Sanction', 29 Howard journal o f Criminal Justice. W ood, D. (1988) 'Dangerous Offenders and the M orality of Protective Sentences', Criminal Law Revieiv 424. W oolf, Lord Justice (1991) Prison Disturbances 1990, Cm 1456 (London: HMSO).

Index accredited courses, 21 A ckner, Lord, 61, 72, 74 A dhoc C om m ittee, NI A ssem bly, 160 adjournm ents, D LP hearings, 187 ad m inistrative expertise, 129 adult m ales, conditions in local prisons, 21 adversarial procedure, 140-2 A llan, T revor, 141 A llison, John, 129, 142 applications, for judicial review , 146 A shm an, P., 47 autom atic life sentences, 11 -1 4 Baker, K enneth, 62, 63, 69 Bennett, A ndrew , 63 Bingham , Lord, 4, 145 B irm ingham , G erald, 77 black people, overrepresentation in prison system , 104 Blatch, Lord, 79 Boards o f V isitors, 134 burden o f proof DLPs, 143^1 law ful detention, 33 M H RTs, 12 0 -2 bureaucracy, D LP delays, 102 C am pbell of A llow ay, Lord, 66, 72 capital punishm ent, 5 C are Standards T ribunal, 135 C arlisle Com m ittee, 60fn, 109, 110—11 categorisation, of prisoners, 22 C ategory A prisoners, 22 C ategory B prisons, 22 C ategory C prisons, 22 caution, culture of, 111, 161 cell searches, 145 certainty, o f vivid danger, 154

child m urderers, m andatory sentences, 8 -9 children see young persons Clarke, K enneth, 62 coerced rehabilitation, 152-3 Colville, V iscount, 68 com m ensurability, 1 -2 C om m ittee on A dm inistrative Tribun als and Inquiries, 74 C om m u nity Legal Service, 138 com pulsory treatm ent, severe personality disorders, 12 3 -4 conseil d'etat, 129 Constitutional Justice: A Liberal Theory o f the Rule o f Law, 141 C ontinental D istinction in the Common Law , A , 129 Cooke, Lord, 145 Council o f M inisters, 31 C ouncil on Tribunals creation of, 7 4 -5 rejection of claim to supervise DLPs, 135 role of, 122-3 courses, m ale lifers, 2 1 -2 court adversarial or inquisitorial procedures, 140-2 defined, 130-2 initiation o f proceedings, 140 pow er to decide, 136-7 proper participation o f prisoners, 137-9 speedy d ecisions, 139-40 C ourt of A ppeal, guidance, discretionary life sentences, 4 -5 Crim e, Justice and Protecting the Public, 12fn, 60 Crim inal Justice Bill (1990), 6 0 -2

202

Beyond the tariff

drafting the regulations, 77-9 House of Com m ons, 62-5 Sheerman proposals, 63-5 report stage, 65 governm ent reacts, 69-70 return to, 75-7 House of Lords, 65-9 com m ittee stage, 66 -7 report stage, 67-9 return to, 70-7 Crim inal Justice (Scotland) Bill, 159 Criminal Statistics, 17 custodial sentencing, 1 custody for life, 10-11 dangerously severely personality disordered, risk assessment, 93^ dangerousness autom atic life sentences, 13 defining, 154 justification of detention, 128 predicting future, 153 prim ary decisions, 137 death penalty calls for reintroduction, 63 for murder, 5 for treason and piracy, 63fn decision-making, Parole Board, 111 decisions involvem ent of judiciary, 129 judicial reviews of Parole Boards', 146-9 Parole Board Rules, 187-8 power to decide, 136-7 speed in making, 139-40 to release, DLPs, 94-6 deferred hearings, 101 delays consideration for release, 24-5 challenge to system, 26 -7 DLPs, 1 0 0 -2 ,1 3 9 designated life prisoners, 157 Designated Life Tribunal, 158 detention burden of proof for lawful, 33 challenges to legality of H ussain and Singh case, 52-8

parliam entary and governm ental responses, 60-81 Thynne, W ilson and Gunnell case, 39-51 W eeks case, 34-8 W ynne case, 51 -2 judicial reviews, 127 justification of continued, 28 speedy decisions on lawfulness of, 139-40 detention at Her M ajesty's pleasure,

8-10 challenge to legality of, 52 -8 right to DLPs, 79 determinate sentences, 108-10 com m ensurability, 3 decline in use of parole, 161 release decisions, 110-12 deterrence, as justification for sentencing, 152 Diplock, Lord, 127 Discretionary Conditional Release, 109, 111, 124-5 discretionary life sentences, 2, 3 -5 Discretionary Lifer Panels, 82-107 assessm ent of, 160-3 burden of proof, 143-4 creation of, 58 decisions and outcomes, 94 -8 first reviews, 82-3 hybrid model o f procedures, 141, 142 introduction of, 1 key issues, 98-107 outcomes of hearings (1992-9), 83t participation of prisoners, 137-8 power to decide, 136 in practice, 89-94 preparing for, 83-9 proposal for High Court Judges to chair, 74 selection of panel mem bers, 77-8 summ ary, 107 discretionary lifers, 86-8 challenges to legality of detention Thynne, W ilson and Gunnell case, 39-51 W eeks case, 34-8

Index evidence, Parole Board rules, 184 judicial reviews, tariff periods, 29 participation, before tribunal or court, 137-9 post-tariff im prisonment, 144 release criteria, 155-6 release statistics, 20t role, DLP process, 105 dispersal prisons, 22 dissenting opinions, W eeks case, 50, 165-74 domestic burglaries, 2 domestic courts m inimum standards of fairness, 126 protection of human rights, 33 dossiers, DLPs, 84-6, 100, 138 draft Rules, Crim inal Justice Bill, 63, 64 drug trafficking offences, 2 due process im provements, 7 Dworkin, R., 154, 155 early release scheme, 109 Eastm an and Peay, burden of proof,

121 Elias J, 110 ethnicity, and release, 104-5 European Com m ission of Human Rights, 31 European Convention on Human Rights, 30-1 European Court of Human Rights, 30^ challenges to detention, 28 Hussain and Singh case, 52-8 parliam entary and governm ental responses, 60-81 Thynne, W ilson and Gunnell case, 39-51 W eeks case, 34-8 W ynne case, 51 -2 court appropriate procedure, 140-4 defined, 130-2 distinction, m andatory and life sentences, 112, 153 judicial function, 126-30

203

judicial reviews, recent developm ents, 144-50 Parole Board, independence of, 132-40 tariff for child murderers, 9 timing of DLP hearings, 83 -4 evidence delays due to disputed, 101 of prisoners, 184 of risk, 92-4 testing of, 91 exceptional circum stances, 13, 14 expertise, risk decisions, 128, 129 extended sentences, 2 fairness DLP process, 93 m inim um standard of, 6, 126 principles based on, 155 false positives, risk assessm ent, 93 Ferrers, Earl, 66 Fitzgerald, Edward QC, 47 Floud Report, 153, 154 foreign nationals, waiting deportation, 105 Franks, Sir Oliver, 74 Friday morning panels, 102 G enders and Players, 23 governm ent responses, challenge to detention, 61-81 governm ent's position (1980s), tariff period, 28-9 Greenway, John, 77 Gunnell, Edward case of, 44 -6 court's decision, 47-50 outcome for, 50-1 H ailsham, Lord, 70, 72 Harris, Lord, 61, 68, 73, 74, 75, 122 H attersley, Roy, 69 Hawkins, K., 85 hearings, 90-2 deferred, 101 Parole Board Rules, 185-8 H enriques J, 146

Beyond the tariff

204

H igh Contracting Party, right to petition, 31 High Court Judges, proposal to chair DLPs, 74 H olloway, K., 120 H ome Affairs Com mittee, inquiry into m andatory life sentences, 116—17 home probation officers, 92, 95, 96 H ome Secretary control over Parole Board, 133, 134-5 power to recall, 24 release decisions, 76, 78, 110, 113 Hood and Shute Parole Board caution, 161 release decisions determ inate sentences, 111 mandatory sentences, 114, 115 hospital orders, 118 Hunt, Lord, 24, 73 H ussain, Abed case of, 53-5 court's decision, 55-8 H utchinson, Lord, 73 Incentive and Earned Privileges system , 22 independence DLPs, 162-3 Parole Board, 132-40, 158 independent mem bers, Parole Boards,

88 indeterm inate sentences autom atic life sentences, 12 challenge to, 53-8 custody for life, 10-11 justification, 152-3 inquisitorial procedure, 141, 142 intellectual ability, release decisions, 105-6 Joint Parole Board-Home Office Com m ittee, 25 Jorundsson, Gaukur, 47 judges, DLPs, 88fn judicial function, 126-30 judicial reviews justification of detention, 127

recent developm ents in, 144-50 release process, 26-8 judicial tribunals for considering release, 61-2 see also Life Sentences Review Tribunals judiciary, involvement in risk decisions, 129 justice, principles based on, 155 Lane Com m ittee on the Penalty for Homicide, 116 Law, Process and Custody: Prisoners and Patients, 141fn Lawrence, Ivan, 63, 77 legal advice, remand prisoners, 20 legal representation, 87-8, 91, 138 legitim ate expectation, prisoner transfers, 98 liberty, right to, 32 licences, duration and conditions, 106-7 Life Sentence Plans, 21 Life Sentence Review Com m issioners, 160 life sentences forms of, 1-14 N athan Com m ittee conclusions, 61 release under Crim inal Justice Act, 23-9 serving, 20-3 Sheerman proposals, 64 statistics, 17-20 Life Sentences (Northern Ireland) O rder (2001), 160 Life Sentences Review Tribunals, 66-8, 161 Lifer Unit, DLP referrals, 84 literacy, 105-6 Lloyd LJ, 27 local prisons, conditions in, 21 Local Review Com m ittees, 23, 24, 25 Longford, Lord, 72 M acLean Com mittee, 159 M cLeish, Henry, 159 mandatory life sentences, 5-8 , 112-13

Index exclusion from new review process, 7 1 -3 proposal to abolish, 66, 69, 70-1 release d ecisions, 113-15 reason for difference, 115-18 m andatory lifers challenge to legality o f detention, 5 1 -2 exclusion from new review process, 7 1 -3 m argin o f appreciation, doctrine of,

32—4 M ental H ealth Review Tribunals, 1 18-24 burden o f proof, 120-2 C ouncil on T ribunals, 122-3 d ecision leading to creation of, 13 1 -2 Life Sentence Review Tribunals, 67 pow ers of, 191-4 preparation of paperw ork, 138 psychiatrists, 119-20 severe personality disorders, 123—4 tribunal clerks, 9 9-100 M ental H ealth Tribunals, 122, 124 m inim um period, 6, 7 m inim um sentences seven year, 2 three year, 2 m inim um standard o f fairness, 6, 126 m inisterial intervention, fixing tariffs,

8 m oney resolution, 69 M orton, Lord, 72 M oses, A lan Q C, 47 m urder death penalty, 5 N athan C om m ittee conclusions, 6 1 -2 tariff period, 7 -8 M ustill, Lord, 6, 112 N athan Com m ittee, 6 1 -2 , 65, 6 6 -7 , 68, 116 N athan, Lord, 69, 71, 72, 73 N orthern Ireland, 159-60 notional equivalent determ inate sentence, 47fn

205

num eracy, 105-6 offending behaviou r program m es, 21, 105 open conditions recom m endations for, 83, 9 6 -7 requirem ent to spend tim e in, 2 2 -3 oral hearings Parole Board Rules, 186 participation o f prisoners, 137-8 prisoner's right to w aive, 84 O rd er o f Life-Long Restriction, 159 override claim , 154 Padfield and Liebling burden of proof, 143 conclusions, 107 court procedures, 142 delays, 100, 101, 139 discretionary lifers, 86 D LP process, 162 ethnicity and release, 104 evidence o f risk, 93 hom e probation officers, 92 intellectual ability and release, 105 legal representation, 87 oral hearings, 137-8 Panel Secretaries, 89 -9 0 , 100 protective sentences, 155 recall hearings, 103 recom m endations for open conditions, 96 release d ecisions, 94, 95, 120 risk assessm ent, 98, 99 Secretary of State representatives, 91 Secretary of State's view , 86 transfers to other prisons, 98 w itnesses, 92 w om en lifers, DLPs, 104 Panel Secretary job description, 8 9 -9 0 role, D LPs, 9 9 -1 0 0 panels, DLPs function, 9 8 -9 m em bers, 7 7 -8 , 88 Parker LCJ, 4 4 -5

Beyond the tariff

206

parliam entary response, challenge to detention, 61—81 parole d ecline in use of, 161 ethnic groups, 104 introduction of, 23 Parole Board consideration for release, 22 culture o f caution, 161 d irect release, child m urderers, 10 D LP m em bers, 84, 88 evaluation of risk, 28 independence of, 132-40 judicial review s o f decisions, 146-9 Policy and Procedures M anual, 91, 93, 113 pow er to direct release, 162 proposal to consid er life sentences, 6 9 -7 0 release decisions d eterm inate sentences, 109, 110,

111 m andatory life sentences, 113-14, 115 secretariat, 84, 8 9 -9 0 , 99 -1 0 0 Parole Board Rules am endm ents (1977), 8 0 -1 , 181-90 d rafting o f (1992), 77 parties, role, D LPs, 100 pathfinder project, literacy and num eracy, 10 5 -6 Patten, John, 37, 63, 64 penal sanction, 61 penal term , N athan com m ittee proposal, 66 Percy C om m ission, 118 petitions, to European C om m ission, 31 Policy and Procedures M anual, Parole Board, 91, 93, 113 population, life sentence prisoners (1970-2000) estim ated, 18t (1975-2000) by tim e served under sentence, 19f post-tariff detention d iscretionary lifers, 144 d ue to risk, 156

Practice D irection, discretionary life sentences, 79 Practice Statem ent, tariff for defendants under 18, 9 pre-hearing directions, 8 8 -9 pre-hearing d iscussions, 90 pre-hearing review s, 101 P re-R elease Em ploym ent Schem e, 23, 147 prediction of dangerousness, 129, 153 of risk, 93 prim ary decisions, 129-30 principles, case decisions m ade on ground s of, 154, 155 Prison Service DLP dossiers, 85, 138 policy, foreign nationals, 105 role, release d ecisions, 147 Prison Statistics, 18, 19 prisoners w ith autom atic life sentences, 14 categorisation, 22 starting a sentence, 21 see also discretionary lifers; m andatory lifers; w om en lifers privileges, 22 procedural safeguards, 26, 161 prohibition of torture, 31 proportionality, 127, 164 P rotecting the Public - the G overnm ent’s Strategy on Crim e in England and Wales, 11-12 protective sentences, 153-4, 155 psychiatrists DLP hearings, 92 M H RTs, 1 19-20 Parole Board, 88 psychologists, D LP hearings, 96 Public A ccounts Com m ittee, 104 recall, o f prisoners, 24 recall hearings, 102-3 referrals, DLPs, 84 rehabilitation, coerced, 152-3 release, 108-25 criteria, d iscretionary lifers, 1 5 5-7 decisions

Index determ inate sentences, 110-12 D LPs, 9 4 -6 m andatory lifers, 113-15 d iscretionary lifers, 20t ethnicity, 104-5 life sentence prisoners, 17 low intellectual ability, 105-6 M ental H ealth Review Tribunals, 118-24 under C rim inal Justice A ct, 2 3 -9 rem and prisoners, conditions for, 20-1 representation, at D LP hearings, 183-4 representations, by m andatory lifers, 6 -7 ,1 1 2 reprieves, capital punishm ent, 5 Responsible M edical O fficers, 119-20 restricted patients burden of proof, 12 0 -2 M H RTs pow ers to discharge, 193-4 restriction orders, 118 restrictions, on rights, 32 'review ing an executive process' m odel, 128 Richard, Lord, 68, 72 Richardson, G enevra, 78, 81 rights d etention for social protection, 154 and freedom s, ECH R, 3 1 -2 risk evidence of, 92—4 justification o f continued detention, 2 7 -8 post-tariff detention, 156 risk assessm ent by experts, 128 D LPs, 9 8 -9 involvem ent of judiciary, 129 in probation practice, 103 Risk M anagem ent A uthority, 159 Risk M anagem ent Plans, 159 Royal Com m ission on C apital Punishm ent (1953), 5, 17 royal prerogative, release by, 17 Ruddock, Joan, 37 Rum bold, A ngela, 6 9 -7 0 , 75 Salm on LJ, 34, 166, 171, 173

207

Scottish am endm ents, 157-9 Secretary of State D LP representatives, 9 0 -1 , 100, 142 view s DLP dossiers, 86 recom m endations for open conditions, 96, 97 release decisions, 95 security, right to, 32 Select Com m ittees on M urder and Life Im prisonm ent see N athan com m ittee Supplem entary Report, m andatory life sentences, 117 Sentencing A dvisory Panel, 7 -8 , 18, 114-15 serious offences, autom atic life sentences, 13 seriousness, o f vivid d anger, 154 severe personality disorders M H RTs, 123-4 risk assessm ent, 9 3 -4 Sex O ffender Treatm ent Program m e (SO TP), 21 sexual offences, autom atic life sentences, 11 -1 2 Shaw LJ, 42 Sheerm an, Barry, 70, 75, 76 Sheerm an proposals, 6 3 -5 , 116 Singh, Prem case of, 55 cou rt's decision, 5 5 -8 Skills fo r Life: a N ational Strategy for Im proving A dult Literacy, 105 Special Report, M H RTs, 123 speed y d ecisions, law fulness of detention, 1 39-40 standard life licences, 10 6 -7 statistics DLP cases, 82 life sentences, 17-20 Steyn, Lord, 145, 164 Stuart-Sm ith LJ, 27, 28, 144 substantive rights, 3 1 -2 success, judicial review s, 146 Supp lem entary Report, m andatory life sentences, 117

208

Beyond the tariff

Taking Life Im prisonm ent Seriously in N ational and International Law, 152fn Taking Rights Seriously, 154 tariff autom atic life sentences, 14 child m urderers, 8 -9 discussion of Select Com mittee views, 64-5 fixed by sentencing judge, 4 -5 governm ent position, late 1980s, 28-9 m andatory lifers, 6, 114-15 m urder cases, 7-8 use of term, 6 temporality, of vivid danger, 154 temporary sheriffs, independence, 158 Thatcher, M argaret, 62 Them atic Review on Lifers, 21, 22, 23 Thesiger J, 34, 171,173 Thynne, Michael case of, 39-41 court's decision, 47-50 outcom e for, 50-1 torture, prohibition of, 31 transfers recommendations for open conditions, 96 -7 to other prisons, 97-8 within prison system, 22 tribunal clerks, M H RTs, 99-100 Tuddenham , R., 103 Turner J, 146 Universal Declaration of Human Rights, 30 Vilhjalmsson J, 50 violent offences, autom atic life sentences, 11-12 vivid danger, concept of, 154 W addington, David, 62, 63, 67-8, 71, 73, 74, 75

W eber, Hartm ut-M ichael, 152-3 W eeks, Robert case of, 34 -6 court's decision, 36 -7 dissenting opinions, 50 extracts from, 165-74 governm ent's response, 37-8 welfare, child m urderers, 8 W heeler, Sir John, 77 W hite Papers Crime, Justice and Protecting the Public, 60 Protecting the Public - the Government's Strategy on Crime in England and Wales, 11-12 on reform of M ental Health Act, 119, 122, 124 Wilson, Benjamin case of, 41 -4 court's decision, 47-50 outcome for, 50-1 W indlesham , Lord, 61, 67 witnesses DLP hearings, 91, 92 Parole Board Rules 1997, 184 women lifers DLP process, 103-4 path through prison system , 23 wom en suspects, conditions for, 20-1 W oolf, Lord, 64fn W oolf Report, 63-4 W ynne, case of, 51 -2 young persons challenges to indeterm inate sentences, 52 -8 custody for life, 10-11 detention at Her M ajesty's pleasure,

8-10 starting a life sentence, 21 tariff period, 5