CEDH · CASELAW;REPORTS;ENG — 14 octobre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          F I R S T    C H A M B E R                          Application No. 15767/89                            Arnold Ernest CLARKE                                   against                             the UNITED KINGDOM                          REPORT OF THE COMMISSION                        (adopted on 14 October 1992)                              TABLE OF CONTENTS                                                                  page   I.     INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2       (paras. 1-16)         A.   The application (paras. 2-4). . . . . . . . . . . . . . . 1         B.   The proceedings (paras. 5-12) . . . . . . . . . . . . . . 1         C.   The present Report (paras. 13-16) . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-4       (paras. 17-25)         A.   Particular circumstances of the case. . . . . . . . . . . 3           (paras. 17-18)         B.   Relevant domestic law and practice. . . . . . . . . . . 3-4           (paras. 19-25)   III.   OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 5-6       (paras. 26-33)         A.   Complaint declared admissible . . . . . . . . . . . . . . 5           (para. 26)         B.   Point at issue (para. 27) . . . . . . . . . . . . . . . . 5         C.   Article 5 para. 4 . . . . . . . . . . . . . . . . . . . 5-6           (paras. 28-32)         D.   Conclusion (para. 33) . . . . . . . . . . . . . . . . . . 6   APPENDIX I        History of the proceedings . . . . . . . . . . . . 7   APPENDIX II       Decision on the admissibility                  of the application . . . . . . . . . . . . . . .8-10   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Arnold Ernest Clarke, a British citizen born in 1955 and currently serving a life sentence of imprisonment in HM Prison Long Lartin.   3.     The application is directed against the United Kingdom.   The Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.     The case concerns the applicant's complaint that he is unable to have the continued lawfulness of his detention reviewed by an independent tribunal.   It raises issues under Article 5 para. 4   of the Convention.   B.     The proceedings   5.     The application was introduced on 9 October 1989 and registered on 15 November 1989.   6.     On 13 March 1990, the Commission decided to give notice of the application to the respondent Government but not to invite them to submit any observations pending the outcome of the Thynne, Gunnell and Wilson case before the Court (Eur. Court H.R., Thynne, Gunnell and Wilson judgment of 25 October 1990, Series A no. 190).   7.     On 2 March 1991, the Commission invited the Government to submit observations on the admissibiility and merits of the application.   8.     The Government submitted their written observations on 13 May 1991.   The applicant submitted his written observations in reply on 6 June 1991.   9.     On 1 July 1991, the Commission referred the application to the First Chamber.   10.    On 14 October 1991, the Commission (First Chamber) declared the application admissible.   11.    The parties were then invited to submit any additional observations on the merits of the application.   On 3 December 1991, the applicant submitted additional observations.   12.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   13.    The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.     J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  Sir   Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER         The text of the Report was adopted by the Commission on 14 October 1992 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   17.    The applicant was sentenced to life imprisonment in January 1984 in Preston Crown Court on one charge of rape.   Psychiatric evidence was adduced by the prosecution during his trial that he suffered from a personality disorder.   He was thus given a discretionary life sentence by the court, as opposed to a fixed term sentence, on the basis that he was a danger to the public.   An appeal against sentence was rejected by the Court of Appeal (Criminal Division) in 1985.   18.    The tariff period of his sentence was completed in 1988 and his case was reviewed by the Parole Board in September 1988.   The Parole Board was unable to recommend his release on this occasion.   His case was reviewed in December 1991 but his release not recommended.   B.     Relevant domestic law and practice         Life sentences   19.    By virtue of section 37 of, and Schedule 2 to, the Sexual Offences Act 1956, the maximum punishment for rape is life imprisonment.   20.    The principles underlying the passing of a discretionary sentence of life imprisonment 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.         The procedure for review   21.    The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament.   22.    Since the introduction in 1983 of a new parole policy in respect of life sentences, the Home Secretary consults the Lord Chief Justice and the trial judge as to the period of detention necessary to satisfy the requirements of retribution and deterrence, i.e. the tariff period. As indicated in the Handscombe judgment (R. V. Secretary of State for Home Department, ex parte Handscombe and others (1988) 86 Cr. App. R. 59 at p. 74-75),         "the Lord Chief Justice and the trial judge are being asked to       provide ... a figure (the tariff) representing a term of years       during which a prisoner should be detained to serve only the twin       purposes of retribution and deterrence.   They are in other words       asked to say what would have been an appropriate tariff in the       circumstances of the case if a determinate and not a life       sentence could have been and had been passed when the prisoner       was sentenced, without considering risk.   The risk element is of       course present in the judicial mind when a discretionary life       sentence is passed.   The element of continuing risk, I should       add, is the concern of the prison authorities and doctors, the       local review committee, the Parole Board and finally the Home       Secretary.   Fourthly, the views of the judges as to tariff are       intended to have a decisive bearing in all cases upon the       decision as to when the first reference to the local review       committee will take place, i.e. three years before the end of the       tariff period.   Special circumstances may serve to bring forward       that time".         Release on licence   23.    Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary of State may only release on licence a person sentenced to life imprisonment if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice and the trial judge if he is available.   24.    Section 59 of the 1967 Act sets out the role of the Parole Board:         "59. (1) For the purposes of exercising the functions       conferred on it by this part of this Act as respects England and       Wales there shall be a body known as the Parole Board ...       consisting of a chairman and not less than four other members       appointed by the Secretary of State.            ...            (3) It shall be the duty of the Board to advise the       Secretary of State with respect to:              (a) the release on licence under section 60 (1) or 61, and       the recall under section 62, of this Act of persons whose cases       have been referred to the Board by the Secretary of State ..."         Recent legislation   25.    Under Section 34 of the Criminal Justice Act 1991, which has come into force on 1 October 1992, a discretionary life prisoner will be able to require that his case be referred to the Parole Board after he has served the "tariff" part of his sentence. The Board will have the power to direct the prisoner's release and the Secretary of State will then be under a duty to release the prisoner on licence.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   26.    The Commission declared admissible the applicant's complaint that he was unable to have the continued lawfulness of his detention determined by a court.   B.     Point at issue   27.    Accordingly, the issue to be determined is whether there has been a violation of Article 5 para. 4 (Art. (5-4) of the Convention.   C.     Article 5 para. 4 (Art. 5-4)   28.    Article 5 para.4 (Art. 5-4) 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."   29.    The case-law of the Commission and Court establishes that prisoners serving a sentence of discretionary life sentence are entitled under the above provision to take proceedings to have the lawfulness of their detention decided by a court where the punitive or "tariff" period of their sentence has expired (see Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114 and the Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190).   30.    In the Thynne, Wilson and Gunnell case (loc. cit. p. 30 para.79), the Court stated:         "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 these       three applicants..."   31.    In light of the above, the Court held that neither the Parole Board nor judicial review satisfied the requirements of Article 5 para. 4 (Art. 5-4). It based itself on its findings in the Weeks case (loc. cit. pp. 30-33, paras. 62-69) in which it found, inter alia , that the Parole Board lacked the power of decision and procedural guarantees required by that provision and that the scope of control afforded   by judicial review was not wide enough to include an examination of whether the detention was consistent with and therefore justified by the objectives of the indeterminate sentence imposed.   32.    The present applicant is serving a discretionary life sentence and the punitive or "tariff" part of his sentence expired in 1988. Since then the question of the applicant's continued detention has been considered by the Parole Board. The powers and procedures of this body have changed with the implementation of new legislation. These changes are however not in issue in the present case which is only concerned with the situation prevailing under the legislation described in paras. 17 to 22 above. In light of the above case-law, the Commission finds   that, under that legislation, the applicant was not able to have the lawfulness of his continued detention reviewed by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.   D.     Conclusion   33.    The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   Secretary to the First Chamber          President of the First Chamber         (M. de SALVIA)                         (J.A. FROWEIN)                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                              Item ________________________________________________________________   09.10.89          Introduction of the application   15.10.89          Registration of the application   Examination of admissibility   13.03.90          Commission's decision to bring the application to the                  notice of the Government   02.03.91          Commission's decision to invite the parties to submit                  observations on the admissibility and merits   13.05.91          Government's observations   06.06.91          Applicant's reply   14.10.91          Commission's decision to declare the application                  admissible   Examination of the merits   14.10.91          Commission's deliberations on the merits   03.12.91          Applicant's observations on the merits   05.09.92          Consideration of the state of proceedings   14.10.92          Commission's deliberations on the merits, final votes                  and adoption of the Report