In the case of Hussain v. the United Kingdom (1),

        The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court A (2),
as a Chamber composed of the following judges:

        Mr R. Ryssdal, President,
        Mr F. Gölcüklü,
        Mr R. Macdonald,
        Mr A. Spielmann,
        Mr N. Valticos,
        Mrs E. Palm,
        Mr F. Bigi,
        Sir John Freeland,
        Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,

        Having deliberated in private on 28 September 1995 and
26 January 1996,

        Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar

1.  The case is numbered 55/1994/502/584.  The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number).  The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.

2.  Rules A apply to all cases referred to the Court before the
entry into force of Protocol No. 9 (P9) (1 October 1994) and
thereafter only to cases concerning States not bound by that
Protocol (P9).  They correspond to the Rules that came into force
on 1 January 1983, as amended several times subsequently.
_______________

PROCEDURE

1.      The case was referred to the Court on 8 December 1994 by
the European Commission of Human Rights ("the Commission") and
on 23 December 1994 by the Government of the United Kingdom of
Great Britain and Northern Ireland ("the Government"), within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention.  It originated in an
application (no. 21928/93) against the United Kingdom lodged with
the Commission under Article 25 (art. 25) on 31 March 1993 by a
Pakistani national, Mr Abed Hussain.

        The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United
Kingdom recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46); the Government's application referred to
Article 48 (art. 48).  The object of the request and of the
application was to obtain a decision as to whether the facts of
the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 4 (art. 5-4) of the Convention.
The Commission further sought a decision as to whether there had
been a breach of Article 14 (art. 14) of the Convention.

2.      In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).

3.      The President of the Court decided that in the interests
of the proper administration of justice this case and the case
of Singh v. the United Kingdom (no. 56/1994/503/585) should be
heard by the same Chamber (Rule 21 para. 6) and that a joint
hearing should be held.

        The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)).  On
27 January 1995, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr F. Gölcüklü, Mr R. Macdonald, Mr A. Spielmann, Mr N. Valticos,
Mrs E. Palm, Mr F. Bigi and Mr P. Jambrek (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43).

4.      As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Government, the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37
para. 1 and 38).  Pursuant to the order made in consequence, the
Registrar received the Government's memorial on 13 April 1995 and
the applicant's memorial on 18 April.  The Secretary to the
Commission informed the Registrar that the Delegate would submit
his observations at the hearing.

5.      In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 27 September 1995.  The Court had held a preparatory meeting
beforehand.

        There appeared before the Court:

(a) for the Government

Mr I. Christie, Foreign and Commonwealth Office,               Agent,
Mr D. Pannick QC,
Mr M. Shaw, Barrister-at-Law,                                Counsel,
Mr H. Carter,
Mr H. Bayne,
Mr R. Harrington, Home Office,                              Advisers;

(b) for the Commission

Mr N. Bratza,                                               Delegate;

(c) for the applicant

Mr E. Fitzgerald QC,
Mr J. Cooper, Barrister-at-Law,                              Counsel,
Ms K. Akester,                                             Solicitor.

        The Court heard addresses by Mr Bratza, Mr Fitzgerald and
Mr Pannick.

AS TO THE FACTS

I.      Circumstances of the case

6.      Mr Abed Hussain was born in 1962 and is currently
detained in Lindholme prison.

7.      On 12 December 1978, the applicant - then aged 16 - was
convicted at Leeds Crown Court of the murder of his younger
brother, aged 2.  The applicant had inflicted severe injuries on
the infant while looking after him.  He received a mandatory
sentence of detention "during Her Majesty's pleasure" pursuant
to section 53 (1) of the Children and Young Persons Act 1933 (as
amended) (see paragraph 23 below).  Its effect was to render the
applicant "liable to be detained in such a place and under such
conditions as the Secretary of State [for the Home Department]
may direct".

8.      In passing sentence on the applicant, the judge stated:

        "I regard you as someone who has demonstrated himself to
        be a cruel and unfeeling young man.  I think you are -
        certainly for the time being - a dangerous person."

        The applicant appealed against both his conviction and
sentence.  The Court of Appeal dismissed his appeal on
5 March 1980.

9.      Mr Hussain was first detained in the youth wing of
Liverpool prison and then in a young offenders' institution
before being transferred to an adult prison.

10.     Under the administrative procedures governing such
sentences as that received by the applicant, a "tariff" period
is set to fix the number of years' detention necessary to satisfy
the requirements of retribution and deterrence (see paragraph 27
below).

        In this regard, in 1978 the trial judge wrote to the
Secretary of State:

        "Over the two or three days immediately preceding the
        baby's death, [the applicant] had undoubtedly treated him
        with very considerable violence by slapping, kicking and
        shaking.  The baby was covered with over 60 bruises and
        his brain and spine were injured.  Since [the applicant]
        denied ever having laid hands on him, it was not possible
        to discover why he had acted with such violence.

        [The applicant] is unquestionably an unscrupulous young
        liar, but the most unusual feature of him was his
        impassivity.  He demonstrated no feeling whatsoever for
        his brother's injuries and death.

        This gave me 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 whenever 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 normality 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 sombre note of warning."

11.     It was not until 1986 that the applicant's tariff was
set, at fifteen years, by the Secretary of State after a
confidential process of consultation involving the trial judge
and the Lord Chief Justice.  In the course of this process, in
which the applicant had no sight of any of the documents, the
trial judge recommended a period of ten years "in view of the
young age of [the] prisoner at the time of the offence"; the Lord
Chief Justice agreed but stated that this should be "the absolute
minimum".  However, the Secretary of State commented: "I cannot
accept the judicial tariff as matching the gravity of one of the
most appalling offences I have encountered."  He accordingly
increased the proposed tariff by five years.

        The applicant first learnt about these details through a
letter from the Home Office of 6 October 1994, sent in accordance
with the House of Lords' judgment of 24 June 1993 (see
paragraph 30 below).

12.     In the course of the applicant's detention the Parole
Board (see paragraph 37 below) has so far considered whether or
not to recommend the applicant's release on four occasions.

13.     The first Parole Board review took place
in December 1986.  The reports of progress were positive and, as
later disclosed to the applicant:

        "the Local Review Committee [see paragraph 38 below], who
        felt that the risk was acceptable, considered Mr Hussain
        suitable to be given a provisional release date."

        The Parole Board did not however recommend the
applicant's release but it did recommend that he be transferred
to a less restrictive category C prison with a further review to
commence in August 1990.  At the time, the applicant did not see
any of the reports before the Parole Board and had no opportunity
to appear before it.

14.     The second Parole Board review took place in 1990.  A
Home Office summary of the review, disclosed later to the
applicant, stated:

        "The Local Review Committee recommended that Mr Hussain
        should be given a provisional release date ...

        The Board did not recommend Mr Hussain's release, but
        recommended his transfer to open conditions with a
        further review to commence eighteen months thereafter.
        However, the Secretary of State rejected the Board's
        recommendation and directed that he should move to
        another category C prison with a further review to
        commence in October 1992."

        Again the applicant did not see any of the reports on him
and was afforded no hearing before the Parole Board.  He was
given no reasons for the decisions taken.

15.     In the third review in December 1992, the Parole Board
recommended that the applicant be transferred to open conditions
with a further review in six months' time.  However, the
Secretary of State, in exercise of his statutory powers (see
paragraph 29 below), rejected this recommendation, directing that
the applicant remain in close conditions with a further review
to commence in March 1995.  The applicant was only informed
in March 1993 that his release had not been recommended and about
the date of his next review.

16.     In June 1993, Mr Hussain applied for judicial review (see
paragraph 39 below) in respect of the decision communicated in
March 1993 on the basis that he had not been shown the reports
on him placed before the Board.  He relied on the case of
Prem Singh (see paragraph 24 below) as establishing that persons
detained during Her Majesty's pleasure had a right at common law
to disclosure of reports.

17.     On 13 October 1993, the Parole Board gave the High Court
an undertaking to reconsider the applicant's case immediately and
to disclose their case file to him so that he could make informed
representations.  The applicant withdrew his application for
judicial review.

18.     At his most recent review in January 1994, the applicant
was shown the reports on him that were before the Parole Board
but he was not given an opportunity to appear in person before
the Board.  Following this review, the Secretary of State
accepted the Parole Board's recommendation to transfer the
applicant to open-prison conditions, which transfer took place
in February 1994.  The Parole Board will again consider the
applicant's case in February 1996.

19.     The applicant has been detained for over seventeen years.

II.     Relevant domestic law and practice

        A.   Categorisation of detention in the case of murderers

20.     A person who unlawfully kills another with intent to kill
or cause grievous bodily harm is guilty of murder.  English law
imposes a mandatory sentence for the offence of murder:
"detention during Her Majesty's pleasure" if the offender is
under the age of 18 (section 53 (1) of the Children and Young
Persons Act 1933 (as amended) - see paragraph 23 below); "custody
for life" if the offender is between 18 and 20 years old
(section 8 (1) of the Criminal Justice Act 1982); and "life
imprisonment" for an offender aged 21 or over (section 1 (1) of
the Murder (Abolition of Death Penalty) Act 1965).

        Mandatory life sentences are fixed by law in contrast to
discretionary life sentences, which can be imposed at the
discretion of the trial judge on persons convicted of certain
violent or sexual offences (for example manslaughter, rape,
robbery).  The principles underlying the passing of a
discretionary life sentence are:

        (i)       that the offence is grave and

        (ii)      that there are exceptional circumstances which
                  demonstrate that the offender is a danger to the
                  public and that it is not possible to say when
                  that danger will subside.

        Discretionary life sentences are indeterminate so that
"the prisoner's progress may be monitored ... so that he will be
kept in custody only so long as public safety may be jeopardised
by his being let loose at large" (R. v. Wilkinson [1983] 5
Criminal Appeal Reports 105, 108).

        B.   Detention during Her Majesty's pleasure

21.     The notion of detention during Her Majesty's pleasure has
its origins in statutory form in an Act of 1800 for "the safe
custody of insane persons charged with offences" (Criminal
Lunatics Act), which provided that defendants acquitted of a
charge of murder, treason or felony on the grounds of insanity
at the time of the offence were to be detained in "strict custody
until His Majesty's pleasure shall be known" and described their
custody as being "during His [Majesty's] pleasure".

22.     In 1908, detention during His Majesty's pleasure was
introduced in respect of offenders aged between 10 and 16.  It
was extended to cover those under the age of 18 at the time of
conviction (1933) and further extended to cover persons under the
age of 18 at the time when the offence was committed (1948).

23.     The provision in force at present is section 53 (1) of
the Children and Young Persons Act 1933 (as amended) ("the
1933 Act") which provides:

        "A person convicted of an offence who appears to the
        court to have been under the age of eighteen years at the
        time the offence was committed shall not, if he is
        convicted of murder, be sentenced to imprisonment for
        life, nor shall sentence of death be pronounced on or
        recorded against any such person; but in lieu thereof the
        court shall ... sentence him to be detained during Her
        Majesty's pleasure and, if so sentenced he shall be
        liable to be detained in such a place and under such
        conditions as the Secretary of State may direct."

24.     In the case of R. v. Secretary of State for the Home
Department, ex parte Prem Singh (20 April 1993, unreported) Lord
Justice Evans in the Divisional Court held as follows in respect
of detention "during Her Majesty's pleasure":

        "At the time of sentencing, the detention orders under
        section 53 were mandatory.  It is indeed the statutory
        equivalent for young persons of the mandatory life
        sentence for murder.  But the sentence itself is closer
        in substance to the discretionary sentence of which part
        is punitive (retribution and deterrence) and the balance
        justified only by the interests of public safety when the
        test of dangerousness is satisfied.  The fact that the
        mandatory life prisoner may be given similar rights as
        regards release on licence does not alter the fact that
        the mandatory life sentence is justifiable as punishment
        for the whole of its period: see R. v. Secretary of State
        Ex. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK
        (E.C.H.R. 1st December 1992).  The order for detention
        under section 53 is by its terms both discretionary and
        indeterminate: it provides for detention `during Her
        Majesty's pleasure'... I would decide the present case on
        the narrow ground that, notwithstanding Home Office and
        Parole Board practice, the applicant should be regarded
        as equivalent to a discretionary life prisoner for the
        purpose of deciding whether Wilson rather than Payne
        governs his case."

        (transcript, pp. 24C-25B)

        The court accordingly held that the applicant in the
case, detained during Her Majesty's pleasure, should be afforded
the same opportunity as would be given to a discretionary life
prisoner to see the material before the Parole Board when it
decided whether he should be released after his recall to prison
on revocation of his licence.

        The Parole Board has changed its policy accordingly.

25.     However, in a statement in Parliament made on
27 July 1993 (see paragraph 32 below), the Secretary of State,
Mr Michael Howard, explained that he included in the category of
"mandatory life sentence prisoners" those

        "persons who are, or will be, detained during Her
        Majesty's pleasure under section 53 (1) of the Children
        and Young Persons Act 1933 ..."

26.     In R. v. Secretary of State for the Home Department, ex
parte T. and Others [1994] Queen's Bench 378, 390D, Lord Justice
Kennedy in the Divisional Court (with whom Mr Justice Pill
agreed) said:

        "I see no reason to regard him as having any special
        status because he was sentenced to detention [during Her
        Majesty's pleasure] rather than to life imprisonment,
        despite what was said by Evans LJ when giving judgment in
        Reg. v. Parole Board, ex parte Singh (Prem)
        (20 April 1993, unreported).  The issues in that case
        were very different from those with which we are
        concerned.  If Hickey had not been sent to hospital he
        could hope to benefit from the provisions of
        section 35 (2) of the 1991 Act [on mandatory life
        prisoners] ... It will be recalled that in Hickey's case
        the offence was murder, so the sentence was mandatory not
        discretionary."

        On appeal the Court of Appeal stated that in respect of
a person sentenced to detention during Her Majesty's pleasure
under section 53 (1) of the 1933 Act for the offence of murder,
the relevant provisions on release were those in section 35 (2)
of the Criminal Justice Act 1991 (see paragraph 29 below), and
not those relating to a discretionary life prisoner (R.
v. Secretary of State for the Home Department, ex parte Hickey
[1995] 1 All England Law Reports 479, 488).

        C.   Release on licence

27.     Persons sentenced to mandatory and discretionary life
imprisonment, custody for life and those detained during Her
Majesty's pleasure have a "tariff" set in relation to that period
of imprisonment they should serve to satisfy the requirements of
retribution and deterrence.  After the expiry of the tariff, the
prisoner becomes eligible for release on licence.  Applicable
provisions and practice in respect of the fixing of the tariff
and release on licence have been subject to change in recent
years, in particular following the coming into force on
1 October 1992 of the Criminal Justice Act 1991 ("the 1991 Act").

        1.   General procedure

28.     Section 61 (1) of the Criminal Justice Act 1967 ("the
1967 Act") provided, inter alia, that the Secretary of State, on
the recommendation of the Parole Board and after consultation
with the Lord Chief Justice and the trial judge, may "release on
licence a person serving a sentence of imprisonment for life or
custody for life or a person detained under section 53 of the
Children and Young Persons Act 1933".  In this respect no
difference was made between discretionary and mandatory life
prisoners.

29.     By virtue of section 35 (2) of the 1991 Act, persons
detained during Her Majesty's pleasure and those life prisoners
who are not discretionary life prisoners (see paragraph 20
above), may be released on licence by the Secretary of State, if
recommended to do so by the Parole Board and after consultation
with the Lord Chief Justice and the trial judge.  The decision
on whether to release still lies, therefore, with the Secretary
of State.

30.     The Secretary of State also decides the length of a
prisoner's tariff.  Subsequently to a House of Lords judgment of
24 June 1993 (R. v. Secretary of State for the Home Department,
ex parte Doody [1994] 1 Appeal Cases 531, 567G), the view of the
trial judge is made known to the prisoner after his trial as is
the opinion of the Lord Chief Justice.  The prisoner is afforded
the opportunity to make representations to the Secretary of State
who then proceeds to fix the tariff.  Where the Secretary of
State decides to depart from the judicial recommendation he is
obliged to give reasons.  As a matter of practice the prisoner
is informed of the Secretary of State's final decision.

        In the second, post-punitive phase of detention the
prisoner knows that "the penal consequence of his crime has been
exhausted" (ibid., 557A).

31.     A statement of policy issued by Sir Leon Brittan, then
Secretary of State for the Home Department, on 13 November 1983
indicated that release on licence following expiry of the tariff
depended on whether the person was considered no longer to pose
a risk to the public.

32.     On 27 July 1993 the Secretary of State, Mr Michael
Howard, made a statement of policy in relation to mandatory life
prisoners, stating, inter alia, that before any such prisoner is
released on licence he

        "will consider not only, (a) whether the period served by
        the prisoner is adequate to satisfy the requirements of
        retribution and deterrence and, (b) whether it is safe to
        release the prisoner, but also (c) the public
        acceptability of early release.  This means that I will
        only exercise my discretion to release if I am satisfied
        that to do so will not threaten the maintenance of public
        confidence in the system of criminal justice".

33.     In a number of recent court cases involving persons
detained during Her Majesty's pleasure, it has been stated that
the correct test for post-tariff detention was to be whether the
offender continued to constitute a danger to the public (R.
v. Secretary of State for the Home Department, ex parte Cox,
3 September 1991; R. v. Secretary of State for the Home
Department, ex parte Prem Singh, 20 April 1993 - cited above at
paragraph 24; R. v. Secretary of State for the Home Department,
ex parte Prem Singh (no. 2), 16 March 1995).

        2.   Procedure applicable to discretionary life prisoners

34.     The 1991 Act instituted changes to the regime applying to
the release of discretionary life prisoners following the
decision of the European Court of Human Rights in the case of
Thynne, Wilson and Gunnell v. the United Kingdom (judgment of
25 October 1990, Series A no. 190-A).

35.     Pursuant to section 34 of the 1991 Act, the tariff of a
discretionary life prisoner is now fixed in open court by the
trial judge after conviction.  After the tariff has expired, the
prisoner may require the Secretary of State to refer his case to
the Parole Board which has the power to order his release if it
is satisfied that it is no longer necessary for the protection
of the public that the prisoner should be confined.

        Pursuant to the Parole Board Rules 1992 which came into
force on 1 October 1992, a prisoner is entitled to an oral
hearing, to disclosure of all evidence before the panel (see
paragraph 37 below) and to legal representation.  There is
provision enabling a prisoner to apply to call witnesses on his
behalf and to cross-examine those who have written reports about
him.

36.     For the purposes of the 1991 Act, persons detained during
Her Majesty's pleasure are not regarded as discretionary life
prisoners (section 43 (2)).

        D.   Parole Board and Local Review Committees

37.     Section 59 of the 1967 Act set out the constitution and
functions of the Parole Board:

        "(1)      For the purposes of exercising the function
        conferred on it by this Part of this Act as respects
        England and Wales there shall be a body known as the
        Parole Board ... consisting of a chairman and not less
        than four other members appointed by the Secretary of
        State.

        ...

        (4)  The following provisions shall have effect with
        respect to the proceedings of the Board on any case
        referred to it, that is to say -

             (a)  the Board shall deal with the case on
             consideration of any documents given to it by the
             Secretary of State and of any reports it has called
             for and any information whether oral or in writing
             that it has obtained; and

             (b)  if in any particular case the Board thinks it is
             necessary to interview the persons to whom the case
             relates before reaching a decision, the Board may
             request one of its members to interview him and
             shall take into account the report of that interview
             by that member ...

        (5)  The documents to be given by the Secretary of State
        to the Board under the last foregoing subsection shall
        include -

             (a)  where the case referred to the Board is one of
             release under section 60 or 61 of this Act, any
             written representations made by the person to whom
             the case relates in connection with or since his
             last interview in accordance with rules under the
             next following subsection;

             (b)  where the case so referred relates to a person
             recalled under section 62 of this Act, any written
             representations made under that section."

        As to the constitution of the Parole Board, Schedule 2 to
the 1967 Act further provides:

        "1.  The Parole Board shall include among its members -

             (a)  a person who holds or has held judicial office;

             (b)  a registered medical practitioner who is a
             psychiatrist;

             (c)  a person appearing to the Secretary of State to
             have knowledge and experience of the supervision or
             after care of discharged prisoners;

             (d)  a person appearing to the Secretary of State to
             have made a study of the causes of delinquency or
             the treatment of offenders."

        The Parole Board always counts among its members three
High Court judges, three circuit judges and a recorder.  Cases
referred to the Board may be dealt with by three or more members
of the Board (Parole Board Rules 1967).  In practice, the Board
sits in small panels, including, in the case of life prisoners,
a High Court judge and a psychiatrist.  The judges on the Board
are appointed by the Home Secretary (section 59 (1) of the
1967 Act) after consultation with the Lord Chief Justice.

        With the exception of the new rules concerning
discretionary life prisoners, similar provisions apply under the
1991 Act.

38.     Under section 59 (6) of the 1967 Act the Secretary of
State established for every prison a Local Review Committee with
the function of advising him on the suitability for release on
licence of prisoners.  It was the practice to obtain this
assessment before referring a case to the Parole Board.  Before
the Local Review Committee reviewed a case, a member of the
committee would interview the prisoner if he was willing to be
interviewed.

        The first review by the Local Review Committee was
normally fixed to take place three years before the expiry of the
tariff.

        Local Review Committees were abolished by the Parole
Board Rules 1992.  The prisoner is now interviewed by a member
of the Parole Board.

        E.   Judicial review

39.     Persons serving a sentence of detention during Her
Majesty's pleasure may institute proceedings in the High Court
to obtain judicial review of any decision of the Parole Board or
of the Secretary of State if those decisions are taken in breach
of the relevant statutory requirements or if they are otherwise
tainted by illegality, irrationality or procedural impropriety
(Council of Civil Service Unions v. Minister for the Civil
Service [1984] 3 All England Law Reports 935, 950-51).

PROCEEDINGS BEFORE THE COMMISSION

40.     Mr Hussain applied to the Commission on 31 March 1993.
He relied on Article 5 para. 4 (art. 5-4) of the Convention,
complaining that, under the current regulations:

        (a)  he had no right to a periodic review by a court of
             his continued detention;

        (b)  the ultimate decision as to his release lay with the
             executive;

        (c)  he had no right to an oral hearing or to question or
             call witnesses;

        (d)  he had no acknowledged right to see the reports
             before the Parole Board.

        The applicant further complained under Article 14
(art. 14) of the Convention that he had been irrationally
discriminated against on the basis of his status as a person
convicted of murder.

41.     The Commission declared the application (no. 21928/93)
admissible on 30 June 1994.  In its report of 11 October 1994
(Article 31) (art. 31), it concluded, unanimously, that there had
been a violation of Article 5 para. 4 (art. 5-4) as regards the
lack of review by a court of the applicant's continued detention
and that it was not necessary to examine the issues under
Article 14 (art. 14) of the Convention.

        The full text of the Commission's opinion is reproduced
as an annex to this judgment (1).
_______________
Note by the Registrar

1.  For practical reasons this annex will appear only with the
printed version of the judgment (in Reports of Judgments and
Decisions - 1996), but a copy of the Commission's report is
obtainable from the registry.
_______________

FINAL SUBMISSIONS MADE TO THE COURT

42.     At the hearing, the Agent of the Government invited the
Court to conclude that, in the present case, there had been no
breach of the Convention.

        The applicant, for his part, asked the Court to uphold
his complaints and declare that his rights under Article 5
para. 4 (art. 5-4) had been violated, both by the denial of a
review by a court-like body and by the denial at any time of an
oral hearing at which he could have put his case for release in
person.

AS TO THE LAW

I.      SCOPE OF THE CASE

43.     In his memorial to the Court and at the hearing the
applicant complained of the secretive and unfair manner in which
his tariff (see paragraph 27 above) had been established.

44.     The Court notes that this particular complaint was not
dealt with by the Commission in its report or admissibility
decision and that, as pointed out by the Delegate of the
Commission, it is uncertain whether it can be regarded as falling
within the compass of the case before the Court as delimited by
the Commission's decision on admissibility (see, inter alia, the
Powell and Rayner v. the United Kingdom judgment of
21 February 1990, Series A no. 172, p. 13, para. 29).

        In any event, given the fact that the applicant's
punitive period has now expired, the Court does not consider it
necessary to examine this complaint.

        The scope of the case before the Court is therefore
confined to the issues under Article 5 para. 4 (art. 5-4) raised
in connection with the applicant's current situation, that is
post-tariff detention.

II.     ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4) OF THE
        CONVENTION

45.     Mr Hussain complained that he had not been able at
reasonable intervals to have the case of his continued detention
during Her Majesty's pleasure (see paragraph 20 above) heard by
a court.  He invoked Article 5 para. 4 (art. 5-4) of the
Convention which provides:

        "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."

46.     The Court will first examine whether, having regard to
the particular features of detention during Her Majesty's
pleasure, the requirements of Article 5 para. 4 (art. 5-4) are
satisfied by the original trial and appeal proceedings or, on the
contrary, whether that provision (art. 5-4) confers an additional
right to challenge the lawfulness of the continued detention
before a court.

        A.   Whether the requisite judicial control was
             incorporated in the original conviction

47.     In the applicant's submission, a sentence of detention
during Her Majesty's pleasure differed from the mandatory life
sentence imposed on adults (see paragraph 20 above), which the
Court examined in its Wynne v. the United Kingdom judgment of
18 July 1994 (Series A no. 294-A), in that the former is not
solely based on the gravity of the offence but takes into account
the age of the offender.  The principle that crimes committed by
young persons should not be punished as severely as the crimes
of adults is, in the applicant's submission, contained in all
civilised penal codes.  In this respect, the purpose of a
sentence of detention during Her Majesty's pleasure is not wholly
punitive in character but partly punitive and partly preventive.

        In support of his argument the applicant referred to the
historical origins of the expression "during Her Majesty's
pleasure" (the Criminal Lunatics Act 1800 and the Children's Act
1908 - see paragraphs 21 and 23 above) in which context it had
a clear preventive purpose.  He further referred to the wording
of section 53 of the 1933 Act ("a person [under 18] ... shall
not, if ... convicted of murder, be sentenced to imprisonment for
life" - see paragraph 23 above) and to the indeterminacy of the
very formula used in the sentence ("during Her Majesty's
pleasure").

        In view of the above, the applicant concluded that a
sentence of detention under section 53 was closer in its
indeterminacy and preventive objectives to a discretionary life
sentence, as examined by the Court in the case of Thynne, Wilson
and Gunnell cited above than to a mandatory life sentence.  As
in that case, after the tariff has expired, the only legitimate
basis for the applicant's continued detention would be a finding
of his continued dangerousness, a characteristic susceptible to
change with the passage of time (ibid., p. 30, para. 76).  This
was particularly so in the case of offenders who could be as
young as ten at the time of the commission of the offence.  It
follows that at that phase in the execution of his sentence, the
applicant was entitled under Article 5 para. 4 (art. 5-4) to have
the lawfulness of his continued detention determined by a court
at reasonable intervals.

48.     The Commission agreed in substance with the applicant's
submissions and added that the absence of the word "life" in the
sentence reinforced its indeterminate character.  The Commission
further noted the trial judge's comments with regard to the
dangerousness of the applicant (see paragraph 8 above).

49.     The Government, for their part, contended that the
sentence of detention during Her Majesty's pleasure has an
essentially punitive character and is imposed automatically on
all juvenile murderers on the strength of the gravity of their
offence, regardless of their mental state or dangerousness.  This
explains why under the Criminal Justice Act 1991 the same release
procedures govern both mandatory life sentences passed on adults
and sentences of detention during Her Majesty's pleasure and why
the same administrative policies are applied to both (see
paragraphs 25 and 29 above).  Furthermore, after the tariff
period has elapsed, not only the prisoner's dangerousness but
also the acceptability to the public of his early release must
be considered with a view to maintaining public confidence in the
system of criminal justice (see paragraph 32 above).

        It was further contended that, apart from the fact that
persons sentenced to detention during Her Majesty's pleasure
would not be detained in a prison during the early stages of
their detention but in a special institution for young offenders,
the sentence was nothing more than the statutory equivalent for
young persons of the mandatory life sentence for adults.  In
these circumstances, the issues in the present case were
practically identical to those in the Wynne case (cited above at
paragraph 47) where the Court found that the original trial and
appeal proceedings satisfied the requirements of Article 5
para. 4 (art. 5-4) of the Convention.

50.     The Court notes at the outset that, as has been commonly
accepted, the central issue in the present case is whether
detention during Her Majesty's pleasure, given its nature and
purpose, should be assimilated, under the case-law on the
Convention, to a mandatory sentence of life imprisonment or
rather to a discretionary sentence of life imprisonment.  In
dealing with this issue the Court must therefore decide whether
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
United Kingdom (judgment of 2 March 1987, Series A no. 114) and
Thynne, Wilson and Gunnell (cited above at paragraph 34) or to
that in the more recent case of Wynne v. the United Kingdom
(cited at paragraph 47).

51.     It is true, as submitted by the Government, that a
sentence of detention during Her Majesty's pleasure is mandatory:
it is fixed by law and is imposed automatically 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 statements treat the sentence
at issue in the present case in an identical manner to mandatory
life sentences as regards proceedings for release on licence and
recall (see paragraphs 25 and 29 above).

        On the other hand, it is undisputed that, in its
statutory origins, the expression "during Her Majesty's pleasure"
had a clearly preventive purpose and that - unlike sentences of
life custody or life imprisonment - the word "life" is not
mentioned in the description of the sentence.

52.     Nevertheless, important as these arguments may be for the
understanding of the sentence of detention under section 53 in
English law, the decisive issue in the present context is whether
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 requirements of Article 5
para. 4 (art. 5-4).

53.     It is recalled that the applicant was sentenced to be
detained during Her Majesty's pleasure because of his young age
at the time of the commission of the offence.  In the case of
young persons convicted of serious crimes, the corresponding
sentence undoubtedly contains a punitive element and accordingly
a tariff is set to reflect the requirements of retribution and
deterrence.  However an indeterminate term of detention for a
convicted young person, which may be as long as that person's
life, can only be justified by considerations based on the need
to protect the public.

        These considerations, centred on an assessment of the
young offender's character and mental state and of his or her
resulting dangerousness to society, must of necessity take into
account any developments 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
Commission pointed out, might give rise to questions under
Article 3 (art. 3) of the Convention.

54.     Against this background the Court concludes that the
applicant's sentence, after the expiration of his tariff, is more
comparable to a discretionary life sentence.  This was, albeit
in a different context, the view expressed by the Divisional
Court in its judgment of 20 April 1993 (R. v. Secretary of State
for the Home Department, ex parte Prem Singh - see paragraph 24
above).

        The decisive ground for the applicant's continued
detention was and continues to be his dangerousness to society,
a characteristic susceptible to change with the passage of time.
Accordingly, new issues of lawfulness may arise in the course of
detention and the applicant is entitled under Article 5 para. 4
(art. 5-4) to take proceedings to have these issues decided by
a court at reasonable intervals (see, mutatis mutandis, the
above-mentioned Thynne, Wilson and Gunnell judgment, p. 30,
para. 76).

        B.   Whether the available remedies satisfied the
             requirements of Article 5 para. 4 (art. 5-4)

55.     The Government accepted that if, contrary to their
submissions, Article 5 para. 4 (art. 5-4) did confer additional
rights to challenge the lawfulness of the applicant's continued
detention, there would have been a breach of that provision
(art. 5-4) but only to the extent that the Parole Board had no
general power to order the release of the applicant after the
expiry of his tariff.

        In reply to the applicant's submission that the
importance and the nature of the issue, that is the detainee's
mental state, called for an oral hearing, including the
possibility of calling and questioning witnesses, the Government
recalled that Article 5 para. 4 (art. 5-4) does not confer an
absolute right to an adversarial procedure and that to the extent
that fairness did require an oral hearing, this could be secured
by bringing judicial review proceedings.

56.     The Commission found that the Parole Board's lack of
decision-making power meant that it could not be regarded as a
body satisfying the requirements of Article 5 para. 4 (art. 5-4).
As to the need for an oral hearing, the Delegate of the
Commission added that judicial review "is a very uncertain remedy
given the fact that express provision is made for an oral hearing
in the case of discretionary life prisoners, but not in the case
of persons detained during Her Majesty's pleasure".

57.     The Court recalls that Article 5 para. 4 (art. 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-making 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 the applicant (see, inter alia, the
above-mentioned Weeks judgment, p. 29, para. 59, the E. v. Norway
judgment of 29 August 1990, Series A no. 181-A, p. 21, para. 50,
and the above-mentioned Thynne, Wilson and Gunnell judgment,
p. 30, para. 79).

58.     As in Thynne, Wilson and Gunnell (p. 30, para. 80) and
despite the new policy allowing persons detained under section 53
of the 1933 Act the opportunity to see the material before the
Parole Board (see paragraph 24 above), the Court sees no reason
to depart from its findings in the case of Weeks (cited above,
pp. 29-33, paras. 60-69) that the Parole Board does not satisfy
the requirements of Article 5 para. 4 (art. 5-4).  Indeed, to the
extent to which the Parole Board cannot order the release of a
prisoner this is not contested by the Government.  However, the
lack of adversarial proceedings before the Parole Board also
prevents it from being regarded as a court or court-like body for
the purposes of Article 5 para. 4 (art. 5-4).

59.     The Court recalls in this context that, in matters of
such crucial importance as the deprivation of liberty and where
questions arise which involve, for example, an assessment of the
applicant's character or mental state, it has held that it may
be essential to the fairness of the proceedings that the
applicant be present at an oral hearing (see, mutatis mutandis,
the Kremzow v. Austria judgment of 21 September 1993, Series A
no. 268-B, p. 45, para. 67).

60.     The Court is of the view that, in a situation such as
that of the applicant, where a substantial term of imprisonment
may be at stake and where characteristics pertaining to his
personality and level of maturity are of importance in deciding
on his dangerousness, Article 5 para. 4 (art. 5-4) requires an
oral hearing in the context of an adversarial procedure involving
legal representation and the possibility of calling and
questioning witnesses.

61.     It is not an answer to this requirement that the
applicant might have been able to obtain an oral hearing by
instituting proceedings for judicial review.  In the first place,
Article 5 para. 4 (art. 5-4) presupposes the existence of a
procedure in conformity with its requirements without the
necessity of instituting separate legal proceedings in order to
bring it about.  In the second place, like the Delegate of the
Commission, the Court is not convinced that the applicant's
possibility of obtaining an oral hearing by way of proceedings
for judicial review is sufficiently certain to be regarded as
satisfying the requirements of Article 5 para. 4 (art. 5-4) of
the Convention.

        C.   Recapitulation

62.     In conclusion, the Court finds that there has been a
violation of Article 5 para. 4 (art. 5-4) of the Convention in
that the applicant, after the expiry of his tariff, was unable
to bring the case of his continued detention during Her Majesty's
pleasure before a court with the powers and procedural guarantees
satisfying that provision (art. 5-4).

III.    ALLEGED VIOLATION OF ARTICLE 14 (art. 14) OF THE
        CONVENTION

63.     Neither in his written memorial nor in his oral pleading
before the Court did the applicant make any reference to his
complaint under Article 14 (art. 14), which had been declared
admissible by the Commission (see paragraph 41 above).  In these
circumstances, and since no separate issues appear to arise under
that provision (art. 14), the Court sees no reason to entertain
it of its own motion.

IV.     APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

64.     Article 50 (art. 50) of the Convention provides as
follows:

        "If the Court finds that a decision or a measure taken by
        a legal authority or any other authority of a High
        Contracting Party is completely or partially in conflict
        with the obligations arising from the ... Convention, and
        if the internal law of the said Party allows only partial
        reparation to be made for the consequences of this
        decision or measure, the decision of the Court shall, if
        necessary, afford just satisfaction to the injured
        party."

        The applicant's claims under this provision (art. 50)
were for compensation for non-pecuniary damage and reimbursement
of legal costs and expenses referable to the proceedings before
the Convention institutions.

        A.   Non-pecuniary damage

65.     The applicant sought compensation for the slow pace at
which he has progressed towards liberty over the last seventeen
years and, alternatively, for the loss of an opportunity to have
his case examined by a fair and independent tribunal and the
prejudice, anxiety and delay that this loss has caused him.  He
made a claim of £50,000 on the basis that he had had to serve
some five years of additional detention because of the violation
of his rights under the Convention.

66.     In the opinion of the Court, there is no evidence that
the applicant would have regained his freedom had Article 5
para. 4 (art. 5-4) not been breached.  Even assuming that he may
have suffered some "anxiety", the Court shares the Government's
view that, in the circumstances, the finding of a violation
constitutes sufficient just satisfaction for the purposes of
Article 50 (art. 50).

        B.   Costs and expenses

67.     For the legal costs and expenses in bringing his case
before the Convention institutions, the applicant claimed the sum
of £32,459.58 inclusive of value added tax.

68.     The Government found the sum claimed excessive.

69.     In the light of the criteria emerging from its case-law,
the Court holds that the applicant should be awarded the amount
of £19,000 less 14,475 French francs already paid by way of legal
aid in respect of fees and travel and subsistence expenses.

        C.   Default interest

70.     According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at
the date of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Holds that there has been a violation of Article 5
        para. 4 (art. 5-4) of the Convention in that the
        applicant, after the expiry of his punitive period, was
        unable to bring the case of his continued detention
        before a court;

2.      Holds that it is not necessary to examine the complaint
        under Article 14 (art. 14) of the Convention;

3.      Holds that the present judgment constitutes in itself
        sufficient just satisfaction for any non-pecuniary damage
        sustained;

4.      Holds

        (a)  that the respondent State is to pay the applicant,
        within three months, in respect of legal costs and
        expenses, £19,000 (nineteen thousand pounds sterling),
        less 14,475 (fourteen thousand four hundred and
        seventy-five) French francs already paid by way of legal
        aid, to be converted into pounds sterling at the rate of
        exchange applicable on the date of delivery of the
        present judgment;

        (b)  that simple interest at an annual rate of 8% shall
        be payable from the expiry of the above-mentioned three
        months until settlement;

5.      Dismisses the remainder of the claim for just
        satisfaction.

        Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
21 February 1996.

Signed: Rolv RYSSDAL
        President

Signed: Herbert PETZOLD
        Registrar