CEDH · CASELAW;REPORTS;ENG — 8 janvier 1993

.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. 13195/87                            P., K. and G.                               against                         the UNITED KINGDOM                      REPORT OF THE COMMISSION                     (adopted on 8 January 1993)                          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 . . . . . . . . . . . . . .3-6      (paras. 17-31)        A.   Particular circumstances of the case . . . . . . .3-5          (paras. 17-25)        B.   Relevant domestic law and practice . . . . . . . .5-6          (paras. 26-31)   III. OPINION OF THE COMMISSION. . . . . . . . . . . . . . .7-8      (paras. 32-41)        A.   Complaints declared admissible . . . . . . . . . . .7          (para. 32)        B.   Point at issue (para. 33). . . . . . . . . . . . . .7        C.   Article 5 para. 4 of the Convention. . . . . . . .7-8          (paras. 34-40)        D.   Conclusion (para. 41). . . . . . . . . . . . . . . .8   APPENDIX I      History of the proceedings . . . . . . . . . .9   APPENDIX II     Decision on the. . . . . . . . . . . . . .10-15                admissibility of the application   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 first applicant is a British citizen born in 1960 and resident in Hartwell. The second applicant, a British citizen born in 1945, is currently serving a sentence of life imprisonment in HM Prison Dartmoor. The third applicant, a British citizen born in 1955, is serving a sentence of life imprisonment in HM Prison Blundeston. The applicants were represented in the proceedings before the Commission by Mr. Peter Ashman, a barrister.   3.    The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.    The case concerns the applicants' complaints under Article 5 para. 4 of the Convention that they were unable to have the continued lawfulness of their detention reviewed by an independent tribunal.   B.    The proceedings   5.    The application was introduced on 23 July 1987 and registered on 3 September 1987.   6.    On 13 October 1989, the Commission decided to bring the application to the notice of the respondent Government but not to invite any observations pending the outcome of the Thynne, Wilson and Gunnell case before the Court (Eur. Court H.R., Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A).   7.    On 2 March 1991, the Commission decided to invite the Government to submit written observations on the admissibility and merits.   8.    The Government submitted their written observations on 15 May 1991. The applicants submitted their observations on 20 June 1991.   9.    On 1 July 1991, the Commission decided to refer the case 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.   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.   Consultations with the parties took place between 22 October 1991 and 1 September 1992.   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                G.B. REFFI        The text of the Report was adopted by the Commission on 8 January 1993 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   The first applicant   17.   On 30 June 1978 the first applicant pleaded guilty at the Northampton Crown Court to three offences of possession of a firearm with intent to endanger life, three offences of possession of a firearm with intent to resist arrest and one offence of burglary.   He was sentenced to life imprisonment for the first six offences and three years' imprisonment for the burglary.   18.   On 10 July 1979 the Court of Appeal (Criminal Division) dismissed the first applicant's appeal and upheld the sentence of the applicant's imprisonment.   Lord Justice Lane, giving the judgment of the Court, stated as follows:        "This man suffers from a psychopathic disorder.   He is highly      dangerous.   He has an explosive temper which is likely to flare      up at any minute, with consequences which can be disastrous.      There is no need to say more than that. The prognosis is      uncertain, ...        If, therefore, a determinate sentence is to be imposed what      length should it be?   No-one can answer that. If it is too long      it is not fair to the appellant.   If it is too short it may very      well mean that some innocent member of the public will lose his      life as a result.   On the one hand we have the appalling prospect      for a young man of 19, as he now is, of an indeterminate sentence      of imprisonment stretching into the future.   On the other hand      there is the difficulty, if not the impossibility, of forming a      prognosis in relation to his mental condition.   There is the fact      that this man is undoubtedly highly dangerous ..."   19.   On 29 June 1990, the Secretary of State authorised the first applicant's release on licence, subject, inter alia, to the conditions that he could only reside or work where approved by his probation officer.   The first applicant was released on 6 July 1990. The licence may be varied or revoked by the Secretary of State at any time.   The second applicant   20.   On 15 November 1976 the second applicant pleaded guilty at the Plymouth Crown Court to one offence of burglary and one offence of arson. The Court had wanted to find a place for him in a hospital but none was available, and on 3 December 1976 it passed sentences of three years' imprisonment for the burglary and life imprisonment for the arson.   The first applicant appealed, arguing that his sentence was based on his past crimes and his history of sub-normality in relation to sexual fantasies with eight-year-old girls.   21.   On 18 November 1977 the Court of Appeal (Criminal Division) dismissed the applicant's appeals against the sentences.   Lord Justice Bridge, giving the judgment of the Court, stated as follows:        "Passing sentence the [first instance] court said: 'It may be      right that it is correct for us to sympathise with you rather      than condemn you, but we have got a duty to protect the public      and it is quite clear that this is a case where the public have      to be protected from you at least for the time being.   We cannot      see into the future, and the only way we can deal with this      matter is by way of what is called an indeterminate      sentence,...'.        When one analyses it, [the argument of counsel for the applicant]      really comes to this,...   Before the court can impose a      protective sentence, in the sense of a sentence which is      appropriate to protect the public against this man, it must wait      until an offence of the worst kind, which the doctors apprehend      will be committed against a young girl, is committed.   In our      judgment the court would be totally abdicating its      responsibility, looking at this matter realistically, if it did      that.   It is clear to us that the indeterminate sentence the      court imposed was the only sentence which could properly be      imposed and the appeal against it is accordingly dismissed."   22.   The second applicant has been reviewed for parole four times unsuccessfully.   The Parole Board did not give any reasons for its refusals.   The third applicant   23.   On 14 June 1984 the third applicant pleaded guilty, at the Manchester Crown Court, to offences of rape, robbery and attempted rape.   In committing these offences, he was in breach of a suspended sentence for assault.   He was sentenced to life imprisonment for the offences of rape and attempted rape, five years' imprisonment for the robbery and twelve months' imprisonment for the breach of the suspended sentence.   Before sentencing the judge ordered medical reports on the third applicant which showed that the he had no mental disorder, so prison was the only alternative.   After sentencing, the following exchange between the applicant and the trial judge took place:        Mr. Justice Griffiths: "You are a serious danger to the public,      and that there is every likelihood that if you were free to do      so you would commit similar offences. You are clearly at present      a danger to the public."        The prisoner: "No, I am not."        Mr. Justice Griffiths: "Until such time as the passing of years      alters your character it is clear that you will continue to be      so. In these circumstances my duty is to protect the public from      you - and, in particular, women. I do this by passing upon you      in respect of the two counts of rape and the one count of      attempted rape a concurrent sentence of life imprisonment."        The prisoner: "That's fair enough with me."        Mr. Justice Griffiths: "This will permit those in authority to      review your condition and to consider whether at some time in the      future it will be safe to set you at large again."   24.   On 12 December 1974, the third applicant's appeal against his life sentence was dismissed. The Court of Appeal did, however, change the sentence of life imprisonment for the attempted rape to seven years, that being the maximum possible for attempted rape.   25.   The third applicant has not been released on life licence, but he is now a category B prisoner.   His case was reviewed in March and October 1987, August 1988 and December 1989 by the Local Review Committee.   B.    Relevant domestic law and practice        Life sentences   26.   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   27.   The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament.   28.   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   29.   Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary of State could 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 was available.   30.   Section 59 of the 1967 Act set 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   31.   Under Section 34 of the Criminal Justice Act 1991, which has come into force on 1 October 1992, a discretionary life prisoner may require that his case be referred to the Parole Board after he has served the "tariff" part of his sentence. The Board has the power to direct the prisoner's release and the Secretary of State is then under a duty to release the prisoner on licence.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   32.   The Commission has declared admissible the applicants' complaints that they were unable to have the continued lawfulness of their detention reviewed by a court.   B.    Point at issue   33.   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) of the Convention   34.   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."   35.   The case-law of the Commission and Court establishes that prisoners serving a sentence of discretionary life imprisonment are entitled under the above provision to take proceedings at reasonable intervals 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-A).   36.   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..."   37.   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.   38.   The present applicants have also been sentenced to terms of discretionary life imprisonment. The second and third applicants are still in prison. The punitive or "tariff" part of their sentences has expired and since then the question of their continued detention has been considered by the Parole Board. While the first applicant has been released on life licence subject to recall, his continued detention prior to this was subject to the same regime. The powers and procedures of the Parole Board have changed with the implementation of new legislation. These changes are however not in issue in the present case.   39.   In light of the above case-law, the Commission finds that, under the then prevailing legislation, the applicants were not able to have the lawfulness of their continued detention reviewed at reasonable intervals by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.   40.   The applicants have also submitted that there is a violation of Article 5 para. 4 (Art. 5-4) in that even after completion of the tariff a prisoner is not entitled to be released unless he is judged to present no more than a minimal risk in the subjective appreciation of the Parole Board. In view of its finding above however the Commission finds it unnecessary to reach a separate conclusion on this allegation.   D.    Conclusion   41.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in the case of all three applicants.   Secretary to the First Chamber      President of the First Chamber        (M.F. BUQUICCHIO)                    (J.A. FROWEIN)                             Appendix I                     HISTORY OF THE PROCEEDINGS   Date                           Item ________________________________________________________________ 23.07.87        Introduction of the application   03.09.87        Registration of the application   Examination of admissibility   13.10.89        Commission's decision to bring the application to the                notice of the respondent Government without inviting                observations   02.03.91        Commission's decision to invite the parties to submit                observations on the admissibility and merits   15.05.91        Government's observations   20.06.91        Applicant's observations   14.10.91        Commission's decision to declare the application                admissible   Examination of the merits   08.09.92        Commission's consideration of the state of proceedings   08.01.93        Commission's deliberations on the merits, final votes                and adoption of the Report