CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 octobre 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. 20755/92                        by Walter HOWDEN                        against the United Kingdom         The European Commission of Human Rights sitting in private on 10 October 1994 , the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 3 August 1992 by Walter HOWDEN against the United Kingdom and registered on 2 October 1992 under file No. 20755/92;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       15 June 1993 and the observations in reply submitted by the       applicant on 14 September 1993; ;         Having deliberated;         Decides as follows:   THE FACTS         The facts as submitted by the parties may be summarised as follows.         The applicant is a United Kingdom citizen born in 1944 and is currently released on licence, subject to a sentence of life imprisonment, in the United Kingdom. He is represented by Stephen Morrison, a solicitor practising in Dunfermline.   A.     Particular circumstances of the case           In 1972 the applicant was convicted of the murder of a nineteen year old girl and received a mandatory sentence of life imprisonment. He had seven previous convictions for various offences including lewd and libidinous practices and assault causing severe injury.         Prior to his trial, the applicant had been examined by two psychiatrists who agreed that he was sane and fit to plead. However it was noted that the applicant frequently experienced feelings of intense rage which he had difficulty controlling.         In sentencing the applicant to life imprisonment, the judge did not make any statutory recommendation as to the minimum period which should elapse before the applicant could be released on licence.         The applicant was imprisoned in Scotland and several reviews of the applicant's suitability for release on licence were carried out between 1979 and 1986 by the Scottish Parole Board.         On 17 September 1986 the Parole Board recommended the applicant for release on life licence and a provisional release date was set for 7 October 1987 subject to his satisfactorily completing a pre-release programme.         On 12 June 1987, as part of that pre-release programme, the applicant was released on 48 hours parole.         On his return to prison on 14 June 1987, the applicant was charged with rape and/or incest ("the 1987 charges") of his 14 year old niece, which incidents had allegedly taken place that day. The applicant maintained that the allegations were false, made because the applicant had threatened his brother (the niece's father), who therefore wished to jeopardise the applicant's release. The applicant also contended that the niece had made similar allegations against other people in the past.         The 1987 charges were reported to the Parole Board and the Parole Board decided to postpone further consideration of the applicant's case pending the outcome of the trial of the applicant on these charges.         The applicant was tried in the High Court from 7 to 14 October 1987. The jury reached a unanimous verdict of not guilty and he was acquitted.         On 6 April 1988 the Parole Board decided to withdraw its recommendation that the applicant should be released. In a letter dated 7 June 1988 to the applicant's Member of Parliament, the Scottish Office stated that the Parole Board had not been satisfied that the applicant would present an acceptable risk if released.         By letter dated 9 May 1989 the applicant was informed by the Scottish Office that it was the responsibility of the Secretary of State and the Parole Board to satisfy themselves that an individual would not present a danger to the public on release.         In July 1989 the Parole Board reviewed his case again and refused to recommend release.         In August 1991 the applicant lodged a petition for judicial review of the decision of 6 April 1988, alleging that the withdrawal of the release recommendation was unfair, unreasonable and contrary to natural justice because, inter alia, the Parole Board had failed to properly take into account the applicant's acquittal on the 1987 charges.         On 30 September 1991, the morning of the first calling in court of the petition for judicial review, the applicant was informed that he had been given a new provisional release date of January 1993 by the Parole Board. This decision was the result of a Parole Board review that either commenced or took place in January 1990.         The application seeking judicial review went ahead and was heard on 3 October 1991 in the Court of Session. In the course of its submissions to the Court of Session, the Parole Board stated that although the applicant had been acquitted by the jury, there had been sufficient evidence to go to the jury in the first place.         In the judgment of the Court of Session, delivered on 8 April 1992 by Lord MacLean, it was conceded that the only relevant events which occurred between the recommendation for release and its withdrawal were the 1987 charges made against the applicant and his trial on those charges. However Lord MacLean stated that the Parole Board had an unfettered discretion in reaching any particular decision as to whether a prisoner could be released on licence without an unacceptable risk to the safety of the public. He noted that:         "the <Parole Board> must have considered all the       circumstances of the trial. They were not bound by the       outcome of the trial, but were free to form their own       judgment about the evidence led against the <applicant> at       the trial. It cannot be said in my opinion that the       decision in these circumstances was irrational in that it       was so outrageous in defiance of logic or of accepted moral       standards that no sensible person who had applied his mind       to the question could have arrived at it."         The applicant's petition for judicial review was dismissed.         In October 1992, the Parole Board recommended deferring the applicant's provisional release date to May 1993 in the light of uncertainty in the applicant's accommodation plans on release. The Secretary of State accepted the recommendation and informed the applicant by letter sent on 13 November 1992.         On 4 May 1993 the applicant was released on licence by the Secretary of State.   B.     Relevant domestic law and practice   1.     The mandatory life sentence         A person convicted of murder in Scotland must be sentenced to imprisonment for life. At the relevant time this was required pursuant to section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965, but that legislation has been repealed and re-enacted in section 205 of the Criminal Procedure (Scotland) Act 1975. Since the court is required, once the accused is found guilty, to impose this sentence it is termed a "mandatory" life sentence.   2.     Release on licence         Under section 26(1) of the Prisons (Scotland) Act 1989 ("the 1989 Act"), the Secretary of State may, on the recommendation of the Parole Board, release on licence a person serving a sentence of imprisonment for life. He must consult beforehand the Lord Justice General together with the trial judge if available.   3.     Procedure for review         (a) Local review committee         The Local Review Committee ("the LRC") consists of the relevant prison governor, an officer of the local authority social work department and at least one independent member.         The procedure under the 1989 Act is that the LRC reviews the case on the date set for the first review. It reports in writing to the Secretary of State. If it recommends that a prisoner is or may be suitable for release on licence, it may recommend that he should be granted a provisional date for release subject to satisfactory completion of a pre-release programme. If the Secretary of State accepts the recommendation, he consults the judiciary and the Parole Board.         (b) Parole Board         The Parole Board is now established under section 18 of the 1989 Act. It consists of a Chairman and at least four other members, all appointed by the Secretary of State. It has purely advisory functions. When the Secretary of State consults the Board, he provides a dossier containing, inter alia, any recommendations (as to time to be served) by the trial judge, the comments of the Lord Justice General and the trial judge when consulted on the proposed release, psychiatric reports, reports by the prison authorities and any other relevant documents.         The prisoner is not provided with copies of the documents before the Parole Board. A life prisoner is interviewed by two members of the Parole Board, who report back to a full meeting. The factors which can be considered by the Parole Board, up until the date of release of the prisoner, were outlined by Lord Penrose in Rea v. Parole Board (an unreported decision dated 27 February 1991 p. 14) as follows:         "The range of factors considered by the Board in advising the       Secretary of State is potentially wide and, until the date of       release on licence, must involve a continuing process in which       new facts are additive, extending the total number of relevant       considerations, and not necessarily to be dealt with in       substitution for material previously available. The weight given       to any particular factor must depend on the context provided by       the whole information and the body of policy known to and applied       by the Board."         While the Parole Board has a duty to act fairly, the statutory scheme is accepted by the domestic courts as being comprehensive and thus those courts have not elaborated additional procedural requirements (see eg. the above-mentioned case of Rea v. Parole Board).         If the Parole Board decides not to recommend release, the Secretary of State has no power to do so. While the prisoner is informed of the decision, he is not informed of the reasons. The refusal to give reasons has been upheld by the domestic courts in recent judgments (see eg. Payne v. Lord Harris of Greenwich, [1981] 1 WLR 754).         If the Parole Board recommends release, it will recommend that the prisoner should be given a provisional date for his release on licence subject to satisfactory completion of a pre-release programme.         (c) The Secretary of State         There are no legislative criteria governing the decision-making process followed by the Secretary of State in reviewing life sentences.         The practice is that the Secretary of State has regard to two main criteria in deciding whether to release a prisoner serving, inter alia, a mandatory sentence and they are:         - the punitive or criminal justice factors ie. the period of       imprisonment satisfying the requirements of retribution and       deterrence; and         - the risk factor ie. whether and to what extent he would pose       an unacceptable risk to the public if released.         The Government submit that both criteria are taken into account by all persons or bodies involved at each stage of the review procedure and, in particular, that there is no equivalent in Scotland of the approach adopted in England which recognises an initial "tariff" period (corresponding to the period to be served as punishment for the crime committed) followed by a "risk" period (the period during which the applicant is accepted as having exhausted the punitive element of his sentence and remains imprisoned because of the risk he may present to the community on release).         The applicant submits that, in practice in Scotland, a prisoner will not be seriously considered by any person or body for release on life licence until, at the very least, the punitive period is completed and thereafter the only consideration is the existence of risk to the public.   4.     Pre-release programme and withdrawal of a release recommendation         When a life prisoner is given a provisional release date he is sent on a pre-release programme which may last 12 to 18 months and involve semi-open conditions, open conditions or outside employment. If during the pre-release programme there are adverse developments, the case is referred back to the Parole Board which may withdraw its recommendation for release and recommend another review date. No reasons are required to be given for the withdrawal of the release recommendation.   COMPLAINTS   1.     The applicant complains that he was entitled to a review of the lawfulness of his continued detention by a body satisfying the requirements of Article 5 para. 4 of the Convention and that the reviews by the Parole Board of his suitability for release did not satisfy those requirements.         The applicant also complains under Article 5 para. 5 of the Convention that he has no enforceable right to compensation in respect of the above shortcoming.   2.      The applicant further complains that, in withdrawing its release recommendation following his being acquitted of the 1987 charges, the Parole Board failed to pay due regard to the presumption of innocence contained in Article 6 para. 2 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 August 1992 and registered on 2 October 1992.         On 6 January 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the case.         The Government's observations were submitted on 15 June 1993 after two extensions in the time-limit and the applicant's observations in reply were submitted on 14 September 1993 after one extension in the time-limit.         On 7 July 1993, the Commission decided to grant legal aid to the applicant.         On 30 November 1993 the Commission decided to adjourn further consideration of the application pending the judgment of the the European Court of Human Rights in the case of Wynne v. the United Kingdom (No. 15484/89, Comm. Report 4.5.93).         Supplementary observations of the applicant were received on 11 April 1994.         On 18 July 1994 the Court delivered its judgment in the case of Wynne v. the United Kingdom (Eur. Court H.R., judgment of 18 July 1994, Series A no. 294-A).   THE LAW   1.     The applicant complains that he was entitled to reviews of his detention in accordance with the provisions of Article 5 para. 4 (Art. 5-4) of the Convention and that the reviews he received from the Parole Board were insufficient in this regard. He also complains under Article 5 para. 5 (Art. 5-5) of the Convention that he has no enforceable right to compensation in respect of this shortcoming.         Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention provide as follows:         "4. 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.         5. Everyone who has been the victim of arrest or detention in       contravention of the provisions of this Article shall have an       enforceable right to compensation."         The applicant argues that, in practice in Scotland, a life sentence will not be reviewed until it is considered that the punitive period has been exhausted and that thereafter the risk factor is the sole consideration in reviewing a life prisoner's continued detention. The applicant therefore submits that, at the latest, the Parole Board viewed the punitive period of his sentence as having been exhausted once it recommended his release on licence on 17 September 1986. Any subsequent reviews of his detention, including that resulting in the withdrawal of the release recommendation, were based on the issue of risk to the public only. That risk factor is an issue which changes with the passage of time and therefore he was entitled to the protection of Article 5 para. 4 (Art. 5-4) of the Convention in respect of subsequent reviews.         The Government argue that the punitive and risk factors are taken into account by any body or person when reviewing a person's life sentence at every stage of the sentence. In this regard there is no clear "tariff" period (as is the case in England). The Government also argue that in any event the applicant received a mandatory life sentence and thus, according to the decisions of the Court in the Vagrancy cases (Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12 p. 40), the Weeks case (Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114) and that of Thynne, Wilson and Gunnell (Eur. Court H.R., Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190), the requirements of Article 5 para. 4 (Art. 5-4) of the Convention were satisfied by the original trial.         The Commission recalls the case-law noted in the above paragraph and further the decision of the Court in the Wynne case (Eur. Court H.R., Wynne judgment 18 July 1994, Series A no. 294-A). In the Wynne case the applicant was making essentially the same argument as the applicant in the present case in support of the applicability of the protection contained in Article 5 para. 4 (Art. 5-4) of the Convention to reviews conducted in relation to the release on licence of a prisoner who had received a mandatory life sentence.         In response to such an argument, the Court in its Wynne judgment recalled its findings in the Thynne, Wilson and Gunnell case (loc. cit.) and noted the following:         "However, the fact remains that the mandatory sentence belongs       to a different category from the discretionary sentence in the       sense that it is imposed automatically as the punishment for the       offence of murder irrespective of conditions pertaining to the       dangerousness of the offender..... That mandatory life prisoners       do not actually spend the rest of their lives in prison and that       a notional tariff is also established in such cases - facts of       which the Court was fully aware in Thynne, Wilson and Gunnell ...       - does not alter this essential distinction between the two types       of life sentence" (loc. cit. para. 35).         Therefore the Court concluded in the Wynne case, in view of the punitive objective of the mandatory life sentence, that the requirements of Article 5 para. 4 (Art. 5-4) of the Convention were satisfied by the original trial.         The Commission notes that in the present case the applicant received a mandatory life sentence in 1972, was recommended for release in 1987 but, in light of subsequent charges of rape and/or incest laid against him, that recommendation was withdrawn by the Parole Board.         The Commission considers that the applicant has not submitted any evidence to demonstrate that the character of the mandatory life sentence in Scotland is anything other than a sentence imposed automatically as punishment for the offence of murder, irrespective of considerations pertaining to the dangerousness of the offender. Therefore the Commission finds that the applicant has shown no reason to depart from the reasoning of the Court in the Wynne case.         Furthermore, the question of whether or not an effective tariff period is applied to life sentences in Scotland, after which the risk factor is the sole reason for continued detention, does not affect the above finding. The Commission recalls that the Court in the Wynne case accepted that in practice a notional tariff is applied to mandatory life sentences in England after which the sole consideration is one of risk to the public. Despite this, in light of the punitive objective of the mandatory life sentence, the Court found that the requirements of Article 5 para. 4 (Art. 5-4) of the Convention were satisfied by the original trial (loc. cit. paras. 35-36).         The Commission therefore finds that, even assuming the sole issue under consideration by the Parole Board after its release recommendation in 1986 was risk to the public, the nature of the applicant's mandatory life sentence is such that the requirements of Article 5 para. 4 (Art. 5-4) of the Convention have been satisfied by his original trial.         Accordingly the Commission concludes that, in the circumstances of the present case, no new issues of lawfulness arose which entitled the applicant to a review of his life sentence in accordance with the provisions of Article 5 para. 4 (Art. 5-4) of the Convention.         In view of the finding above that the applicant was not entitled to a review of his continued detention in accordance with the provisions of Article 5 para. 4 (Art. 5-4) of the Convention, no issue arises in respect of the applicant's complaint that the reviews, conducted by the Parole Board in relation to his sentence, fell short of the standards required by this Convention provision.         As the Commission concludes that no contravention of Article 5 para. 4 (Art. 5-4) of the Convention has occurred in the present case, the applicant is not entitled to an enforceable right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.         It follows that the Commission must reject this part of the application as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains that the Parole Board, in withdrawing its release recommendation, failed to take account of his acquittal on the 1987 charges, in violation of Article 6 para. 2 (Art. 6-2) of the Convention.         Article 6 para. 2 (Art. 6-2) of the Convention provides as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The applicant argues that the only intervening factors, between the Parole Board's release recommendation and the subsequent withdrawal of that recommendation, were the 1987 charges, the applicant's subsequent trial and his acquittal. In such circumstances, by withdrawing the release recommendation, the Parole Board was ignoring the established innocence of the applicant and thus violating the applicant's rights under Article 6 para. 2 (Art. 6-2) of the Convention. In particular the applicant refers to the fact that the Parole Board submitted, in the judicial review proceedings, that although the applicant had been acquitted by the jury there was sufficient evidence against him to put the matter to the jury in the first place.         The Government submit, as regards Parole Board reviews, that the applicant was not "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention and that the decision of the Parole Board to withdraw the recommendation to release the applicant was not, in any event, a "judicial decision" as that term was used by the Court in the Minelli case (Eur. Court H.R., Minelli judgement of 25 March 1993, Series A no. 62, p. 18, para. 37). The Government further submit that the decision to withdraw the release recommendation was not only directed to the guilt or innocence of the applicant but to all the circumstances of the case.         The Commission notes that the Government are contesting the applicability of Article 6 para. 2 (Art. 6-2) of the Convention to the decision of the Parole Board to withdraw the release recommendation. However the Commission recalls its decision in the case of Krause v. Switzerland (No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73). In that case the applicant complained that public officials had made statements publicly to the effect that she had committed criminal acts of which she had not been convicted. The Commission noted the following:         "Article 6 (2) (Art. 6-2) of the Convention, laying down the       presumption of innocence, is certainly first of all a procedural       guarantee applying in any kind of criminal procedure ....       However, the Commission is of the opinion that its application       is wider than this. It is a fundamental principle embodied in       this Article which protects everybody against being treated by       public officials as being guilty of an offence before this is       established according to the law by a competent court."         The above-mentioned Krause case was cited with approval by the Commission in the case of X v. Austria (No. 9295/81, Dec. 6.10.82, D.R. 30 p. 227). In the latter case the applicant was acquitted on criminal charges but subsequently unsuccessfully challenged his dismissal from his employment before the civil courts. The decision in the civil dismissal proceedings was based on the same facts in respect of which he had been already acquitted on the criminal charges. The Commission found as follows:         "The Commission accepts that the presumption of innocence ....       is binding not only on the criminal court before which the person       concerned is charged with a criminal offence, but also on other       state organs ..... No authority may treat a person as guilty of       a criminal offence unless he has been convicted by a competent       court and in the case of an acquittal the authorities may not       continue to rely on the 1987 charges which have been raised       before that court but which have proved to be unfounded. This       rule also applies to courts which have to deal with non-criminal       consequences of behaviour which has been subject to criminal       proceedings. They must be bound by the criminal court's finding       according to which there is no criminal responsibility for the       acts in question although this naturally does not prevent them       to establish e.g. a civil responsibility arising out of the same       facts."         As to the Government's reliance on the above-mentioned Minelli judgment, the Commission notes that the Court's reference to a "judicial decision" stemmed from the fact that the case concerned a decision of a domestic court. The Commission does not interpret the Court's judgment as confining the application of Article 6 para. 2 (Art. 6-2) of the Convention to cases where a person is treated as guilty of a criminal offence by the judicial authorities.         In the light of these considerations, the Commission considers that the Parole Board, being a public authority, was bound by Article 6 para. 2 (Art. 6-2) of the Convention in the present case not to treat the applicant as guilty of the 1987 charges after his acquittal by the criminal court. This would not prevent them, however, from examining the circumstances leading up to the prosecution and including them in its overall assessment of the applicant's suitability after the trial for a release recommendation.         It is clear from the facts of the present case that the prosecution of the applicant altered the Parole Board's earlier view that the applicant was a suitable case for release on licence at that stage. It waited three years before recommending his release again. However, the Commission considers that there is no evidence in the present case that the Parole Board was usurping the role of the criminal courts or contravening the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention. In assessing the applicant's suitability for a release recommendation, the Parole Board's function was wider than that of the trial court and it was entitled to add the trial material to the previous data it held on the applicant. The Commission notes, for example, that the applicant submitted that the allegations of rape and incest came about as a result of the applicant threatening his brother. While the Commission is not aware of the precise nature of those threats, such material would be relevant to the Board's continuous assessment of the risk the applicant would pose to the public if released.         The Commission concludes in the circumstances that the present case does not disclose an appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention. It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (C.A. NØRGAARD)