PROCEDURE

The case originated in an application (no. 46295/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Dennis Stafford (“the applicant”), on 24 July 1998.

The applicant was represented before the Court by Mr M. Purdon, a lawyer practising in Newcastle-upon-Tyne. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.

The applicant, sentenced to mandatory life imprisonment for murder, alleged that his detention after recall on life licence had ceased to be justified by the original sentence and that he had no opportunity for the lawfulness of that continued detention to be reviewed by a court. He relied on Article 5 §§ 1 and 4 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 29 May 2001 it was declared admissible by a Chamber of that Section, composed of the following judges: Mr J.-P. Costa, President, Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza and Mr K. Traja, and also of Mrs S. Dollé, Section Registrar [Note by the Registry. The Court's decision is obtainable from the Registry]. On 4 September 2001 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government each filed written observations on the merits. In addition, third-party comments were received from Justice, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).

A hearing took place in public in the Human Rights Building, Strasbourg, on 20 February 2002 (Rule 59 § 2). There appeared before the Court: (a) for the Government Mr D. Walton, Agent, Mr D. Pannick QC, Mr M. Shaw, Counsel, Ms M. Morrish, Mr T. Morris, Advisers; (b) for the applicant Mr E. Fitzgerald QC, Mr T. Owen QC, Counsel, Mr M. Purdon, Solicitor. The Court heard addresses by Mr Fitzgerald and Mr Pannick.

On 24 April 2002 Mr B. Zupančič and Mrs H.S. Greve, who were unable to take part in the further consideration of the case, were replaced by Mr V. Butkevych and Mr R. Türmen.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad.

Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”.

In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990.

In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence.

In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment.

In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision.

In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said: “This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.”

By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms: “... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release. For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.”

On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review.

On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act).

The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences.

On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public.

On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however: “The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.”

Lord Justice Buxton, concurring with the latter remarks, added: “The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...”

On 16 December 1997 the applicant was moved to open conditions.

By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review.

On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law.

On 22 December 1998 the applicant was released on licence by the Secretary of State.