CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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. 21681/93                     by Robert Patrick WALSH, Paul HOLMES,                     William ARMSTRONG, Mary WALSH,                     Patrick WALSH and Roisin WALSH                     against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 March 1993 by Robert Patrick Walsh, Paul Holmes, William Armstrong, Mary Walsh, Patrick Walsh and Roisin Walsh against the United Kingdom and registered on 19 April 1993 under file No. 21691/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first three applicants are Irish citizens born in [no date supplied for the first applicant], 1947 and 1943 respectively and are currently serving prison sentences in HM Prison Maghaberry in Lisburn, Northern Ireland.        The fourth applicant, the wife of the first applicant, and the fifth and sixth applicants, their children are also Irish citizens born in 1948, 1971 and 1973 respectively and resident in Belfast.        The applicants are represented before the Commission by Messrs. B.M. Birnberg & Co., solicitors practising in London.        The facts as submitted by the applicants and as may be deduced from the documents may be summarised as follows.        The first three applicants were arrested on 8 March 1973 in England.   On 14 November 1973 these applicants and five others were convicted at Winchester Crown Court of causing two explosions of a nature likely to endanger life or cause serious injury to property and of conspiring to cause such explosions. On 15 November 1973 each of them was sentenced to a term of discretionary life imprisonment for causing explosions and to 20 years' imprisonment for conspiring to cause explosions.   A ninth defendant was found not guilty on all three counts.   A tenth defendant, Liam McLarnon, pleaded guilty to all three counts and was sentenced to concurrent terms of 15 years' imprisonment in respect of them.        These applicants are now the only defendants from that trial remaining in custody.   Liam McLarnon was released after serving 10 years in prison when he was granted one third remission. Marion and Dolores Price were transferred to Northern Ireland in 1975 following a hunger strike. They were released from prison in Northern Ireland in 1980 and 1981 after serving 7 1/2 and 8 years respectively, on grounds of their medical condition.   Gerard Kelly, Hugh Feeney and Martin Brady were released from prisons in Northern Ireland in 1989, 1990 and 1991 respectively.        From March 1973 until November 1992, the first, second and third applicants remained in prison in England classified as Category A.   Each had frequently requested that he serve his sentence of imprisonment in a prison in Northern Ireland in order to be near to his family and friends who all reside in Northern Ireland.   They all have children. These requests for transfer had been refused by the Home Office. In a memorandum dated 27 October 1988, the first applicant's request was refused on the basis that the Secretary of State was not satisfied that he would not disrupt or attempt to disrupt the operation of any prison establishment or otherwise pose an unacceptable risk to security.        In November 1987 the first applicant was informed, in response to a petition concerning his tariff, that his case had been dealt with in the same way as that of any life sentence prisoner.   The judiciary (which meant the Lord Chief Justice as by this date the trial judge had died without expressing any views on the case to the Home Office) had been consulted as to the minimum period of detention necessary to meet the requirements of retribution and deterrence and having taken their views into account the Home Secretary had decided that his case should be referred to the Local Review Committee in March 1990. It was made clear that such review did not imply that twenty years had been set as the tariff in the first applicant's case. It was also stated that his case had been reconsidered following the Home Secretary's statement to Parliament in July 1987 but it had been decided that no adjustment was necessary in the date of the first review of the first applicant's case by the Local Review Committee.        On 16 February 1990 the first applicant's solicitors complained to the Home Secretary that a tariff of at least 20 years was far too long, because it would correspond to a determinate sentence of 30 years before remission and was out of line with the period actually served by all the other co- defendants who had been released.        In July 1990, the first applicant commenced judicial review proceedings against the Home Secretary.   The relief sought was certiorari to quash the decision of the Home Secretary that the first applicant should serve at least 20 years to satisfy the requirements of retribution and deterrence, and declarations that he should not be required to serve any longer than the period (then 18 years) that he had already served for that purpose, that there was no other justification for continuing to detain him and that he was at least entitled to know the length of the period which the Home Secretary had fixed as necessary for the requirements of retribution and deterrence.        In the meantime, in late 1990, the Parole Board decided not to recommend release on licence but to review the first applicant's case again in 1995.        On 16 December 1991 the High Court held (R v Secretary of State for the Home Department, ex parte Walsh) that the Home Secretary is under a duty to deal fairly and equally with all those serving life sentences and that accordingly the Home Secretary was under an obligation to disclose the length of his tariff period to the first applicant.   On 6 May 1992 the Court of Appeal dismissed the Home Secretary's appeal.        By letter dated 1 June 1992 the first, second and third applicants were informed by the Home Secretary that the precise length of the tariff originally fixed in their cases had been 25 years but the outcome of the review of that tariff was its reduction to 20 years.   They were also informed that the Secretary of State was prepared to reconsider the question of their transfer to a prison in Northern Ireland.   They renewed their requests for transfer to Northern Ireland.        The Home Office acknowledged that there was now no other obstacle to transfer and in October 1992 the Home Secretary informed the first, second and third applicants of his agreement in principle to their requests to transfer permanently to Northern Ireland.   In November 1992 the applicants were transferred to Maghaberry prison in Northern Ireland.        On transfer, the further review of their life sentences became the responsibility of the Northern Ireland Life Sentence Review Board.   In December 1992 the applicants were informed that their first review would be expected to take place in April 1993. In March 1993 their tariff expired.   RELEVANT DOMESTIC LAW AND PRACTICE        Life sentences        Discretionary life sentences may be passed in respect of a number of offences e.g. the offence of causing an explosion likely to endanger life or cause serious injury to property.        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.        Release of discretionary lifers        Under section 61 of 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 of England and the trial judge if available.        The procedure for review of discretionary life sentences        In the statutory framework provided by the 1967 Act, the policy for the review and release of discretionary life sentence prisoners was the responsibility of the Home Secretary who is answerable to Parliament.        In November 1983 the Home Secretary in a written answer to the House of Commons stated that a life sentence contained two periods: first, the "tariff" period necessary to serve the requirements of retribution and deterrence, as to which the Home Secretary looked to the judiciary for advice; and, second, a further period if release would pose an unacceptable risk to the public, as to which the Home Secretary looked to the Parole Board for advice.        On 23 July 1987 the Home Secretary in a written answer to the House of Commons responded to the judgment of the Divisional Court in the Handscomb case on 2 March 1987 (R v Secretary of State for the Home Department, Ex parte Handscomb (1988) 86 Cr App R 59).   He accepted the court's conclusion that the consultation exercise with the judiciary on the question of the period necessary to meet the requirements of retribution and deterrence should be carried out as soon as practicable following the imposition of a discretionary life sentence.   It had been agreed with the Lord Chief Justice that as from 1 October 1987 the judicial view would be obtained by asking the trial judge to write to the Home Secretary, through the Lord Chief Justice, in every case where a discretionary life sentence is passed, giving the judge's view on the period necessary to meet the requirements of retribution and deterrence.   This view would be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and would also take account of the notional period of the sentence which a prisoner might have expected to have been remitted for good behaviour had a determinate sentence been passed.   The date of the first formal review by the Parole Board machinery would then be fixed in accordance with the judicial view on the requirements of retribution and deterrence and the review would, as before, normally take place three years before the expiry of that period.        The Home Secretary also undertook to arrange for a review of all discretionary life sentence cases with a first formal review date of January 1988 or later.   Where account had been taken of factors other than the judicial view on the requirements of retribution and deterrence in fixing the date, the date would be adjusted to bring it into line with the judicial view.        Recent legislation        Under section 34 of the Criminal Justice Act 1991, which came 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 a prisoner's release and the Secretary of State is then under a duty to release the prisoner on licence. These provisions do not apply in Northern Ireland.        The procedure for review of discretionary life sentences      in Northern Ireland        In Northern Ireland, life sentence cases fall under the responsibility of the Life Sentence Unit of the Northern Ireland Office (NIO).        The Life Sentence Review Board was established in 1983. Its function is to advise the Secretary of State for Northern Ireland on the release of life prisoners and those detained at the Secretary of State's pleasure.        The board is chaired by the Permanent Under Secretary of State at the NIO and includes amongst its members other NIO officials, a Principal Medical Officer, a consultant psychiatrist and the chief Probation Officer.        In deciding whether a prisoner should be released, the Board is directed to have regard to two factors:             1. whether the sentence served has been sufficient to           satisfy the requirements of deterrence and retribution;             2. whether there is a risk that if released the           prisoner will commit another offence of violence.        Prisoners do not see the statements or reports about them which are before the Board and do not receive any written explanation for decisions reached.   COMPLAINTS   Complaints concerning the fixing of the tariff        The first three applicants complain that their sentences have been fixed by executive decision of the Secretary of State and not by a properly constituted judicial hearing in breach of Article 5 para. 4 of the Convention.        These applicants also complain that they have not received a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law contrary to Article 6 para. 1 of the Convention. They submit that they should have been given an opportunity to make informed representations on the term to be fixed but were given neither that opportunity or informed of the factual basis on which the specified period is to be fixed, the advice of the judiciary or any further materials considered by the Secretary of State.        The applicants complain that they have been retrospectively sentenced in that a heavier sentence has been imposed on them than the one applicable at the time the criminal offence was committed, contrary to Article 7 of the Convention. At the time, it would have been expected the average life sentence would have lasted 13-15 years. They submit that the tariff of 20 years has been fixed in reference to current sentencing practice applied to explosives cases of 1992 so that in effect they have been re- sentenced.        The applicants complain that there is no viable domestic remedy available in respect of these violations of the Convention, contrary to Article 13 of the Convention. They submit that judicial review is limited in scope and cannot be used by the courts to enter into the exercise of fixing the period that should be served.   Complaints concerning refusal of transfer to Northern Ireland        The applicants complain of the denial of their family life in that the length of their sentence was incorrectly used as a reason for refusing to transfer them to prisons in Northern Ireland to be near to their families, in breach of Article 8 of the Convention.   The fourth, fifth and sixth applicants complain of the difficulties in maintaining their relationship with the first applicant and the distress caused, for no correspondingly good reason, by the location of the first applicant in mainland United Kingdom. The fifth and sixth applicants have been seen by a child psychologist and a psychiatrist.        The applicants also complain that they have been discriminated against on grounds of national origin, political opinion and association with a national minority, contrary to Article 14 of the Convention, in that the refusal of their requests for transfer to a Northern Ireland prison was based on the identification of their offence with the Irish Republican movement.        They complain of having no effective remedy available to them in respect of these breaches.   Complaints concerning lack of proper review of their continued detention in Northern Ireland        The applicants further complain of continuing violations of Article 5 para. 4 and Article 6 para. 1 of the Convention in that the review of their sentence by the Northern Ireland Life Sentence Committee allows for no disclosure of materials on which decisions have been based, no representation and is subject to executive rather than judicial decision.   THE LAW   1.    The first, second and third applicants complain of the procedure by which their tariff was fixed by executive rather than judicial authority. They invoke in the context Articles 5 para. 4, 6 para. 1 and 7 (Art. 5-4, 6-1, 7) of the Convention.        However the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of these provisions, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter...within a period of six months from the date on which the final decision was taken". In the absence of any relevant decision, the period runs from the date of the event or act complained of.        In the present case, the first applicant had instituted judicial review proceedings in respect, inter alia, of the review date set and the failure to inform him of his tariff. Following the conclusion of those proceedings on 6 May 1992, the applicants were informed by letter dated 1 June 1992 that their original tariff had been reduced from 25 to 20 years. Assuming no further challenge was possible to this decision, the date for the purposes of calculating the six month time limit must be the date of that notification. The applicants' complaints concerning the tariff were however   introduced on 10 March 1993, more than six months after this notification.        An examination of the case does not reveal the existence of any special circumstances which might have interrupted or suspended the running of the six month period.        It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicants complain of the refusal to transfer the first, second and third applicant to serve their sentences in Northern Ireland where they would be in closer proximity to their families. They submit that this was in violation of their right to respect for their family life contrary to Article 8 (Art. 8) of the Convention, disclosed discrimination contrary to Article 14 (Art. 14) and that they had no effective remedy in respect of their complaints contrary to Article 13 (Art. 13) of the Convention.        The Commission notes however that the first, second and third applicants were transferred to a prison in Northern Ireland in November 1992.        In these circumstances, the Commission finds that the applicants may no longer claim to be victims of any breach of the provisions of the Convention in this regard.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The first, second and third applicants further complain of the absence of a procedure in Northern Ireland whereby they can obtain a review by a judicial body of the continued lawfulness of their detention as discretionary life prisoners. They invoke Articles 5 para. 4 and 6 para. 1 (Art. 5-4, 6-1) of the Convention in this regard.        The Commission finds that these complaints raise issues of fact and law under the Convention. It considers however that it cannot, on the basis of the file, determine the admissibility of these complaints and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of them to the respondent Government.        For these reasons, the Commission unanimously        DECIDES TO ADJOURN   the examination of the applicants'      complaints concerning the lack of a review procedure of the      lawfulness of their continued detention;        DECLARES INADMISSIBLE   the remainder of the application.   Secretary to the First Chamber      President of the First Chamber        (M. F. BUQUICCHIO)                  (A. WEITZEL)