CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 juin 1995

.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. 20448/92                       by A. T.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 28 June 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS              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 October 1991 by A. T. against the United Kingdom and registered on 6 August 1993 under file No. 20448/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to:   -     the Commission's decision of 7 September 1993 to declare the      application partly inadmissible and to communicate the remainder      to the respondent Government for observations on its      admissibility and merits;   -     the Government's observations of 17 November 1993 and the      applicant's observations in reply of 30 December 1993;   -     the hearing on the admissibility and merits of the application      held on 2 December 1994;   -     the Government's further observations of 30 January 1995 and the      applicant's comments in reply of 30 March 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a United Kingdom citizen born in 1949.   He is represented before the Commission by Mr. S. Creighton, solicitor, of Prisoners' Advice Service, and Mr. B. Emmerson, counsel.   The facts of the case, as submitted by the parties, may be summarised as follows.   The particular facts of the case        On 3 June 1988 the applicant pleaded guilty to the manslaughter of his mother on the grounds of diminished responsibility.   The plea was accepted.   On 1 July 1988 he was sentenced at the Central Criminal Court, London, to an indeterminate period of life imprisonment.   The Common Serjeant, sentencing, made the following remarks.        "... All the medical evidence before the Court confirms that you      were suffering from a mental illness called schizophrenia, but      as no bed was available in any suitable hospital, and I did not      have the necessary information to make a hospital order, which      was my declared intention, I accordingly postponed sentence for      twenty-eight days to see whether or not a bed could be made      available.        I am still of the opinion that the proper disposal in your case      would be by means of a hospital order, but because of the lack      of facilities - the lack of a bed - I am unable to make that      order.   The only possible alternative order I can make is to      sentence you to an indeterminate period of life imprisonment.      Now that, in your case, I am confident, does not mean life, it      will mean somewhat less.   How long you stay in prison depends      upon your improvement and how you behave there, but in order that      your medical condition shall be fully appreciated by staff at      hospital ... I shall invite the prison authorities to consider      whether, in the light of [... medical opinions ...] it would be      possible to transfer you to a hospital where you could receive      proper treatment for your illness."        In 1991 the applicant applied for an extension of time in which to apply for leave to appeal against sentence.   The single judge refused and, on 29 July 1991, the full Court of Appeal also refused, finding the approach of the trial judge to be entirely correct.        By letter of 8 June 1992 the applicant was informed that Section 34 of the Criminal Justice Act 1991 applied to his case, and that the "tariff" in his case, that is, his period of confinement necessary to satisfy the requirements of retribution and deterrence, was to expire on 8 December 1992.   Section 34, which entered into force on 1 October 1992, provides that it shall be the duty of the Secretary of State to release prisoners to whom the Section applies in cases where, broadly, the "tariff" has expired and the Board is satisfied that continued confinement of the prisoner is no longer necessary.   The applicant was also told that he would be informed of the date on which his case would be referred to the Parole Board under the new arrangements.        The applicant was informed on 5 August 1993 that his case had been referred to the Parole Board and would be considered by a Discretionary Lifer Panel (DLP) on 11 or 12 January 1994.   The referral had in fact taken place on 11 January 1993.   The DLP considered the case on 12 January 1994.   The applicant was informed by letter of 17 January 1994 that the DLP was not satisfied that it was no longer necessary for the protection of the public that he be confined.   The DLP did not, therefore, direct his release.   The DLP noted that the applicant "remain[ed] vulnerable to the pressures of independent living and [had] not developed sufficient appreciation of [the] need for assistance from professional agencies including forensic psychological and psychiatric services.   They could not be satisfied that without some experience of living in open conditions [his] release would not present a risk to the public."        The DLP recommended that the applicant should be transferred immediately to a Category D prison and that his case should be further reviewed in not more than 12 months.        On 28 February 1994 applicant was told that he would be transferred to a Category D prison when a suitable vacancy arose, and that his case would be reviewed internally within the Prison Service nine to twelve months after transfer, in order to determine the date of his next DLP hearing.   The letter continued that the date of his next review would be decided on the basis of his performance in open conditions and would be held no later than January 1996.        On 3 March 1995 the applicant was informed by letter that his case had been referred back to the DLP.   His next review will take place in September 1995.   Relevant domestic law        Section 34 of the Criminal Justice Act 1991 makes provision for the Parole Board (known, in this context, as the Discretionary Lifer Panel) to have power to direct the Secretary of State to release discretionary life prisoners where certain conditions are fulfilled. The operation was discussed in a letter of 14 November 1994 from the Prison Service to the applicant's representative:        "... Referral of cases to the Board        Section 34 (5) of the 1991 Act enables a discretionary life      prisoner to require the Secretary of State to refer his case to      the Board after he has served the relevant part of his sentence      and every two years thereafter beginning with the disposal of      that reference.        In practice, it is never necessary for a prisoner to invoke this      provision because, as a matter of policy, the Secretary of State      refers a case to the Board on, or shortly after, expiry of the      relevant part.   The DLP hearing then follows some 23 weeks (see      the next paragraph) later.   (In certain very exceptional cases      where the prisoner has made rapid and impressive progress and has      already been adequately and successfully tested in open      conditions before expiry of the relevant part, the Secretary of      State may exercise his discretion to refer such cases to the      Board before expiry so that the hearing may be held on or shortly      after the relevant part expires.)        The significance of the 23 week period is that this is the time      generally required for the timetable of events leading up to a      DLP hearing. ...        For any second and subsequent reviews, the case is referred to      the Board some 81 weeks following the previous hearing (ie 104      weeks minus 23 weeks), thus enabling that hearing to take place      on the second anniversary of the disposal of the previous      reference.        Timing of subsequent reviews        In some cases, the DLP may recommend to the Secretary of State      that the next review should be held before the period of two      years has elapsed.   The Panel might specify that this should be      an internal review by the Prison Service; a DLP review under      Section 34 of the Act; or simply an early review, leaving the      precise form of the review open.   It is for the Secretary of      State to decide whether or not to accept such a recommendation      and the type of review which should take place."   COMPLAINTS        The applicant initially alleged a violation of Articles 3 and 8 of the Convention which the Commission declared inadmissible on 7 September 1993.        The applicant also alleges that, after conviction, he was wrongly diagnosed schizophrenic and that a life sentence should therefore not have been imposed.   He alleges a violation of Article 5 para. 4 of the Convention in that there exists no court which will consider the merits of his appeal against what he calls the baseless medical evidence presented at trial.        In the application as pursued by his representatives, the applicant alleges a violation of Article 5 para. 4 of the Convention in two further respects.   First, he alleges that the period of thirteen months from expiry of his "tariff" to his initial hearing before the DLP in January 1994 did not comply with the requirement of that provision that a decision on lawfulness should be taken "speedily". Secondly, he alleges that the same provision was violated because his second review will only take place in September 1995.   In this connection, he considers that the period of 24 months between reviews envisaged by Section 34 of the Criminal Justice Act is itself excessive.   He alleges that the fact that Secretary of State did not follow the DLP's recommendation for a further review in 12 months is clear indication of the excessive delay in this review.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 October 1991 and registered on 6 August 1993.        On 7 September 1993 the Commission declared the application partly inadmissible and communicated the remainder to the respondent Government for observations on its admissibility and merits.        The Government's written observations were submitted on 17 November 1993 and the applicant's observations in reply on 30 December 1993.        On 31 August 1994, the Commission decided to hold a oral hearing.        At the oral hearing, which was held on 2 December 1994, the parties were represented as follows:   For the Government:   Ms. S. J. Dickson, Agent of the Government Mr. N. Garnham, Counsel Mr. H. Carter, Adviser Mr. J. Page, Adviser   For the applicant:   Mr. B. Emmerson, Counsel Mr. S. Creighton, Solicitor        After the hearing, the Commission decided to request the Government to submit further written observations.        On 7 December 1994 the Commission granted the applicant legal aid.        The Government's further observations were submitted on 30 January 1995 after an extension of the time-limit fixed for that purpose. The applicant replied on 31 March 1995, also after an extension of the time-limit.   THE LAW        The applicant alleges a violation of Article 5 para. 4 (Art. 5-4) of the Convention which provides 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."        The Commission notes, first, that the applicant's initial complaint was that he was not able to have a review of the decision of the court which convicted him concerning his mental condition, a decision which, he alleges, was wrong.   However, in the context of Article 5 para. 4 (Art. 5-4) of the Convention, the proceedings at issue are those which decide on the lawfulness of the applicant's continuing detention.   The decisions of the trial court may fall to be considered in the context of Article 6 (Art. 6) of the Convention, or in the context of Article 5 in connection with the applicant's detention under Article 5 para. 1 (Art. 5+5-1) of the Convention.   The applicant would, however, be prevented from raising questions concerning the sentence imposed by virtue of the six months' rule in Article 26 (Art. 26) of the Convention, and the lawfulness of his detention under Article 5 para. 1 (Art. 5-1) has not been put in issue in the present case.   The Commission therefore interprets the application as being limited to questions arising in connection with the Discretionary Lifer Panel.        The applicant alleges a violation of Article 5 para. 4 (Art. 5-4) of the Convention in connection with the proceedings before the DLP in two respects.   First, he considers that his initial hearing was not provided "speedily", and secondly he considers that the second hearing, which will take place in September 1995, will not have been provided "speedily".        The Government consider that the applicant has not exhausted domestic remedies in several respects.   In connection with the period up to his first DLP hearing on 12 January 1994, they note that he did not "require" the Secretary of State to refer the case to the DLP after the tariff expired and before the case was referred, and consider that he could have applied for judicial review of delay in respect of the listing of the case, or in respect of delay in the hearing of the case once it had been listed.   In connection with the period which will culminate with his second hearing, in September 1995, they consider that he could challenge any failure on the part of the Secretary of State to follow the recommendation of the DLP that the applicant's case should be reviewed in one year, again by way of judicial review.   The Government refer to the general principles of judicial review (as summarised, for example, in Eur. Court H.R., Vilvarajah and others judgment of 30 October 1991, Series A no. 215, pp. 30,31, paras. 90,91), and in particular to the case of Phansopkar (R. v. Secretary of State for the Home Department ex parte Phansopkar, [1976] 1 Q.B. 606), where the Court of Appeal granted judicial review of a decision by the Home Secretary not to certify a patrial as such "out of turn".        The Commission notes that the applicant did not, himself, "require" a review on the expiry of his tariff in December 1992.   He had, however, been informed that his case would be referred to the DLP under the new arrangements, and so in the context of what is effectively a system of automatic review, it is not surprising that he did not take any steps to require a review.   In any event, the applicant's failure to apply for a review can only be relevant in the period of one month from 8 December 1992 to 11 January 1993, which is the date when the applicant's case was referred to the DLP, even though the applicant was only informed of this fact later.        In connection with the remaining arguments as to exhaustion of domestic remedies, the only case submitted in which judicial review has been used to challenge delay by the executive is the case of Phansopkar, and that case concerned the question whether it was proper to treat persons with a right of abode in the United Kingdom (but who needed a certificate to exercise the right) in the same way as persons who had no right of abode and were applying for the same certificate. The Home Secretary considered that the two classes should be dealt with together; the Court of Appeal considered that giving persons in the former class a certificate would not amount to "queue-jumping" as the position of the two classes was different.        In the present case, an application for judicial review would have been alleging that the priorities set by the Home Secretary for putting the cases of discretionary life prisoners   were irrational or otherwise "Wednesbury unreasonable" or (in the case of the failure to grant a review within 12 months, as recommended by the DLP in January 1994) that the statutory period of two years between reviews was itself excessively long or that the Secretary of State had acted unreasonably in not following the recommendation.   The Commission considers that insuperable barriers were in the way of any such application: there is no indication that the priorities set up by the Home Secretary were in any way unreasonable; it is not possible to challenge the provisions of a statute by way of judicial review; and as the recommendation by the DLP was not a clear recommendation for review by it, but could also have been a reference to an internal review by the Prison Service - as indicated by the letter of 14 November 1994 to the applicant - judicial review could not have provided the applicant with an effective remedy within the meaning of Article 26 (Art. 26) of the Convention.   Even if the DLP intended to recommend that it should carry out the review, there is to suggest that, in a context in which reviews are only statutorily required every two years, the refusal of the Secretary of State to follow the recommendation could have been successfully challenged as irrational. The Commission notes in this respect that the Government have not cited any case comparable to the present case where such a challenge has succeeded.   The case of Phansopkar, which dealt with the question of two different classes of applicant is not relevant in the present case, as here, there was only one category of discretionary life prisoner and the question was how to establish priorities as between them. The applicant would indeed have been attempting to "queue-jump" if he had brought an application.        The Commission therefore finds that the applicant has not failed to exhaust domestic remedies.        In connection with the merits of the case, the applicant considers that both the delay in having his first hearing before the DLP on the introduction of the new system, and the subsequent delay between his first and his second DLP hearings, are excessive.        As to the first period, the applicant considers it possible that the period began with his sentence in July 1988, but he puts the beginning at 8 December 1992, when his tariff expired, at the latest. He does not agree that the introduction of the DLP system necessarily involved delay, although he accepts that the priorities which were applied in dealing with existing life prisoners were reasonable in themselves.   Mere lack of resources does not, in his view, justify a 13 month delay in bringing before a court - for the first time - the case of a person whose detention may no longer be justified.        As to the second period, the applicant points out that it is now clear that he will not receive his second review before the DLP before September 1995, and that there will therefore have been a period of 19 months between his first and his second reviews.   He perceives the problem of delay in this respect as flowing from the statutory period of 24 months between reviews: recalling that when sentencing the applicant the Common Serjeant of London would have made a hospital order for the applicant had a bed been available, he compares the position with that of a person who is subject to a hospital order with a restriction order, who would be entitled to review by the Mental Health Review Tribunal every 12 months.        As to the first period, the Government point to the large amount of work which had to be done before the DLPs could operate, from providing the statutory framework to creating procedures and staff for a body which would, in an initial phase, have to consider the cases of all 600 discretionary life prisoners.   They consider that the backlog was precisely of the temporary nature referred to by the European Court of Human Rights in the case of Zimmermann and Steiner (Eur. Court H.R., judgment of 13 July 1983, Series A no. 66), in the context of civil cases.   They consider that in ensuring that the first DLP hearings could be held in early October 1992, and the applicant's case in January 1994, they acted diligently and speedily.        As to the second period, the Government point out that the question of risk assessment is a different matter from the assessment of mental health undertaken by the Mental Health Review Tribunal, in that risk assessment is a matter requiring prolonged assessment by professional and non-professional staff in a variety of circumstances. In any event, they state that the applicant has consistently denied suffering from mental illness, and there appears now to be general agreement that he is not now (if he ever was) suffering from schizophrenia.   Accordingly, they see no reason to treat him in the same way as a person subject to a hospital order with a restriction order.   They consider that the two year interval between reviews is reasonable as such.   They also underline that the Secretary of State in the majority of cases (78% in 1994) follows recommendations of the DLP that a subsequent review should take place in less than two years.        The Commission finds that the present complaints involve complex issues of law under the Convention, the determination of which must be reserved to an examination of the merits.        The remainder of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)