CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 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 }                     AS TO THE ADMISSIBILITY OF                       Application No. 15484/89                     by Edward Thomas WYNNE                     against the United Kingdom        The European Commission of Human Rights sitting in private on 15 October 1992, the following members being present:             MM.   C.A. NØRGAARD, President                S. TRECHSEL                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS           Mrs. G. H. THUNE           Sir   Basil HALL           MM.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                M.P. PELLONPÄÄ                B. MARXER                  Mr. H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 15 June 1989 by Edward Thomas Wynne against the United Kingdom and registered on 13 September 1989 under file No. 15484/89;        Having regard to   -     the reports provided for in Rule 47 of the Rules of Procedure of the Commission;   -     the written observations submitted by the respondent Government on 10 July 1991 and the observations in reply submitted by the applicant on 11 May 1992 ;   -     the further observations submitted by the Government on 21 September 1992 and the further observations submitted by the applicant on 29 September 1992;       -     the parties' submissions at the oral hearing before the Commission on 15 October 1992;        Having deliberated;        Decides as follows:         THE FACTS        The applicant is a British citizen born in 1939 and currently serving a prison sentence in Gartree Prison.   The facts as submitted by the parties may be summarised as follows.        The applicant was convicted of murder in 1964 and sentenced to mandatory life imprisonment. At that time, the doctor who examined the applicant found no signs of mental illness or abnormality. He was released on licence in May 1980.        In January 1982 he was convicted of manslaughter.   He had been found to be suffering from an abnormality of mind and not responsible for his actions.   A discretionary sentence of life imprisonment was imposed.   The trial judge considered a life sentence was appropriate in view of the extreme danger to the public which the applicant represented.   The applicant's life licence was also revoked by the trial judge.   The applicant submits, inter alia, that he was informed in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was subject to the regime for discretionary life sentences.        An incident occurred on 17 June 1985 during which the applicant was seized by a number of nurses and placed in a strip cell.   The applicant alleged that he had been assaulted and contacted his solicitors with a view to instituting proceedings.        In December 1985 the applicant was transferred to the hospital wing of Parkhurst prison.   Since then he has been transferred to Gartree Prison where he is held as a "category A" prisoner.        The applicant was considered for parole by the Parole Board in January 1989.   The Board recommended that his case be referred again to the local review committee in 1994.   The applicant's Member of Parliament wrote on the applicant's behalf to the Home Secretary.   By letter dated 14 August 1989, the Home Office gave the following information:        "In accordance with paragraph 4, the trial judge and Lord      Chief Justice were consulted in September 1987.   In the      light of their views, it was decided that [the applicant's]      case should be referred to the local review committee, as      the first stage in a formal review by the Parole Board, in      June 1988.        The local review committee considered the case at that time      <June 1988> and the Parole Board considered it in January      1989.   The Board did not feel able to recommend <the      applicant's> release and recommended instead that it should      be referred to the local review committee (as the first      stage in a further formal review) in January 1994.   This      recommendation was accepted and <the applicant> was      informed accordingly.   He should have been told in      February, but owing to an oversight at Gartree I am afraid      that he was not informed until last month.   You will      appreciate that I cannot forecast what the outcome of the      next review will be or say when <the applicant> might be      released.   When the Parole Board consider <the applicant's>      case in 1994 tariff will have been satisfied and the      question of risk will be the overriding consideration.      Indeed, the Parole Board will have borne the question of      risk in mind in making their recommendation as to the date      of the next review.   As you know, the safety of the public      is paramount and no life sentence prisoner will be released      if the assessment of risk is unsatisfactory, no matter how      long he has been detained."          The applicant was informed that his trial judge had fixed his tariff at June 1991.        In a Home Office Memorandum dated 5 June 1992 the applicant was informed that "the tariff in respect of that original offence [the 1964 conviction] has now been served and your continued detention is based on the risk you represent."        Relevant Domestic Law and Practice        Life sentences        The sentence for murder is fixed by law as a mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty) Act 1965).        Discretionary life sentences may be passed in respect of a number of other offences, e.g. manslaughter.        The principles underlying the passing of a discretionary 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.        Release on licence and revocation of licence        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.        Under Section 62(7) of the 1967 Act, if a person subject to a licence is convicted on indictment of an offence the court by which he is convicted may, whether or not it passes any other sentence on him, revoke the licence.        The effect of revocation of the licence, in whichever way it comes about, is that the person is liable to be detained in pursuance of his sentence (Section 62(9) of the 1967 Act).        The procedure for review        Section 61 of the 1967 Act, which provides the statutory framework for the release of life sentence prisoners, does not distinguish between mandatory and discretionary life sentences.   The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament.        After the decision of the Divisional Court in R v Secretary of State for the Home Department, ex parte Handscombe in March 1987 the Home Secretary announced that he would consult the judiciary as soon as practicable following the imposition of a discretionary life sentence.   He also announced that he would apply that procedure in relation to mandatory life sentences.   With effect from 1 October 1987, in relation to all life sentence cases, the practice was as follows: immediately after sentence the trial judge wrote to the Home Secretary, through the Lord Chief Justice, giving his views on the length of detention necessary to meet the requirements of retribution and deterrence.   The Lord Chief Justice added his own view.   In the light of this advice the Home Secretary set the date on which the case was to be referred to the Local Review Committee as the first stage in the first formal review of the case by the Parole Board.   The date set for the first formal review was normally three years before the expiry of the period thought necessary to mark the seriousness of the offence, or 17 years, whichever was the sooner.   In the case of a discretionary life sentence the date of the first formal review was to be fixed strictly in accordance with the judicial view of the requirements of retribution and deterrence for the offence.   In a mandatory life sentence case the Home Secretary took account of the views of the judiciary but also had regard to his overall policy for ensuring that the time served by prisoners serving sentences for the worst offences of violence fully reflected public concern about violent crime.   COMPLAINTS        The applicant complains inter alia of the assault committed in 1985 and the alleged subsequent cover-up.   He complains of being transferred from hospital to prison in November/December 1985.   He further complains of the Home Office ignoring the 1991 tariff set by the trial judge in fixing the next local review committee consideration of parole until 1994.   He submits that he has been prevented from defending himself and that he has no remedy in respect of his complaints.        He invokes Articles 6, 8, 10, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 June 1989 and registered on 13 September 1989.        On 2 March 1991 the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application insofar as it concerned issues under Article 5 para. 4 of the Convention.        The Government's observations were submitted on 10 July 1991 after one extension in the time-limit and the applicant's observations in reply were submitted on 11 May 1992 after two extensions in the time-limit.        On 1 October 1991 the Commission decided to transfer the case to a Chamber.        On 12 May 1992 the Commission decided to transfer the case to Plenary.        On 21 September 1992 the Government submitted further documents. On 29 September 1992 the applicant submitted further written observations.        The hearing took place on 15 October 1992.        At the hearing the Government were represented by     Ms. Diana BROOKES         Agent, Foreign and Commonwealth Office   Mr. D. PANNICK            Q. C., Counsel Mr. H. CARTER             Adviser Ms. V. HARRIS             Adviser Ms. S. REX                Adviser        The applicant was represented by;   Mr. Edward FITZGERALD     Counsel Mr. Richard DEVINE        Solicitor       THE LAW     1.    The applicant, who is serving both a mandatory and a discretionary life sentence, complains of the absence of any procedure under domestic law by which he can have reviewed by a court the continued lawfulness of his detention.   He invokes 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."        The Government have submitted, inter alia, that the applicant is detained under the original sentence of mandatory life imprisonment in respect of which the justification for continued detention is provided by the original trial proceedings.   He therefore is not entitled to a review under the above provision.        The applicant submits that his mandatory life sentence has ceased to have any practical relevance.   He states that he has served the period necessary to satisfy the requirements of retribution and deterrence in respect of both sentences and the sole reason for his present detention is the risk that he may present to the public.   He therefore considers that he is entitled to have the justification for the continued detention reviewed by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.        The Commission recalls that in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190-A) the Court held in respect of the applicants, who were serving discretionary life sentences, that the factors of mental instability and dangerousness which governed their continued detention were susceptible to change with time and that new issues of lawfulness could arise in the course of their detention.   They were consequently entitled under Article 5 para. 4 (Art. 5-4) of the Convention 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.   The Court found that neither judicial review nor the review by the Parole Board satisfied these requirements.        Consequently, the Commission considers that the applicant's complaint under Article 5 para. 4 (Art. 5-4) raises complex issues of law and fact under the Convention, the determination of which should depend on the merits.   It must therefore be declared admissible, no other ground for declaring it inadmissible having been established.   2.    The applicant has complained about a number of other matters. He has complained of an assault committed in 1985 and of being transferred from hospital to prison in 1985.        The Commission however is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention as under Article 26 (Art. 26) of the Convention it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.    Further, Article 26 (Art. 26) provides that the Commission "may only deal with a matter ... within a period of six months from the date on which the final decision was taken."   Where there is no final decision the six month period runs from the date when the matter complained of occurred.        As regards the applicant's complaint of assault, the Commission notes that the applicant did not institute proceedings for assault in the domestic courts.   It follows that he has not complied with the conditions as to the exhaustion of domestic remedies.        As regards the complaint of transfer from hospital to prison, the Commission notes that this occurred in 1985 whereas the present application was submitted to the Commission on 15 June 1989, that is more than six months afterwards.   It follows that this complaint has been introduced out of time.        This part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission by a majority          DECLARES THE APPLICATION ADMISSIBLE,      insofar as it concerns the complaint under Article 5 para. 4      (Art. 5-4) of the Convention, without prejudging the merits of      the case.        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.     Secretary to the Commission                 President of the Commission          (H. C. KRÜGER)                               (C. A. NORGAARD)