CEDH · CASELAW;REPORTS;ENG — 22 janvier 1998

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He was represented before the Commission by B.M. Birnberg, Solicitors practising in London.     3.   The application is directed against the United Kingdom. The respondent Government were represented by Ms. Susan Dickson, Agent, Foreign and Commonwealth Office.   4.   The case mainly concerns the speed with which the applicant's detention (after the expiry of the tariff period) was reviewed by a body complying with the requirements of Article 5 para. 4 of the Convention and the applicant invokes Articles 5 and 6 of the Convention.   B.   The proceedings   5.   The application was introduced on 14 April 1992 and was registered on 16 February 1993.   6.   On 30 August 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 5 and 6 of the Convention. The remainder of the application was declared inadmissible.   7.   The Government's observations were submitted on 13 March 1995 after two extensions of the time-limit fixed for this purpose. On 13 April 1995 the Commission granted the applicant legal aid for the representation of his case. The applicant's observations were submitted on 19 January 1996 after two extensions of the time-limit.   8.   On 21 October 1996 the Commission declared admissible the applicant's complaints concerning the lawfulness of his detention, the speed of the reviews of his detention after the expiry of the tariff period by a court-like body, the length of his tariff and the manner of its fixing. It declared inadmissible the applicant's request to re-open the first decision on admissibility and also decided to take no action as regards his complaints (considered under Article 25 of the Convention) about conducting the application from prison.   9.   The text of the Commission's final decision on admissibility was sent to the parties on 30 October 1996 and they were invited to submit such further information or observations on the merits as they wished. No such further information or observations were received from the Government although the applicant submitted further evidence and observations on the facts by letter dated 12 February 1997.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM   S. TRECHSEL, President       J.-C. GEUS           E. BUSUTTIL       G. JÖRUNDSSON       A.S. GÖZÜBÜYÜK       A. WEITZEL       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE           MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       M.A. NOWICKI       I. CABRAL BARRETO       B. CONFORTI       N. BRATZA       I. BÉKÉS       J. MUCHA       D. ŠVÁBY       G. RESS       A. PERENIČ       C. BÎRSAN       P. LORENZEN       K. HERNDL       E. BIELIŪNAS           E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   12.   The text of this Report was adopted on 22 January 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decisions on the admissibility of the application are annexed hereto.   15.   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.   The particular circumstances of the case   16.   On 17 April 1975 the applicant was convicted of four offences of buggery of boys between the ages of 12 and 15 and of five offences of indecent assault. He was sentenced to concurrent terms of discretionary life imprisonment for the buggery offences and seven years imprisonment for the indecent assault offences. He appealed unsuccessfully against the imposition of the life sentences to the Court of Appeal. The Court of Appeal commented that if it were to substitute a determinate sentence for the life sentences imposed, it would impose a sentence of such length as would ensure the protection of the public for a very long period. That would mean that the applicant risked spending longer in prison than with the discretionary life sentence actually imposed.   17.   In March 1978 the Joint Committee considered the applicant's case for the first time and decided to review the matter again in March 1984. The Home Office referred the matter to the Joint Committee in August 1983 when the Joint Committee recommended that the case be referred to the Local Review Committee in August 1985. That latter committee found that the applicant was not fit to be given a provisional release date.   18.   In March 1986 the Minister of State consulted the trial judge and the Lord Chief Justice. The trial judge urged that the applicant not be released "unless there are the strongest grounds for believing he is no longer a menace to boys". The Lord Chief Justice considered that there was no doubt that the applicant would remain a menace to any available boy for some time to come but that it did not seem right to keep him in prison until he lost his libido. He concluded that "At a guess I would suggest 15 years as a minimum. He is intelligent enough to know what will happen if he is caught again". Having considered the papers, the Minister of State set the applicant's tariff at 15 years. The applicant was not informed of these developments. The Parole Board examined the applicant's case in June 1986. They concluded that he still represented a very clear risk of re-offending and they recommended that he should be transferred to Category C conditions with a review two years after the transfer.   19.   On 1 October 1992 section 34 of the Criminal Justice Act 1991 came into force. As part of the certification process envisaged by paragraph 9 of Schedule 12 of that Act and in anticipation of the entry into force of section 34, the applicant was informed by certificate dated 29 July 1992 that section 34 applied to his case, that his tariff was 15 years and that it had accordingly expired in September 1989. The applicant submits that he had known informally of the tariff for a number of months previously. On 28 August 1992 the applicant was informed that his case had been referred to the Parole Board and that it would be considered by a Discretionary Lifer Panel of the Parole Board in January 1993. Following a hearing on 19 January 1993 by that panel (which by then had the power to direct the applicant's release pursuant to the 1991 Act), a direction was given for his release.   20.   Accordingly, the applicant was released on licence on 1 February 1993. However, he was subsequently recalled to prison and he has introduced another application to the Commission in relation to his recall and subsequent detention.   B.   Relevant domestic law and practice     Discretionary life sentences   21.   A sentence of life imprisonment may be passed, in the exercise of the court's discretion, on persons convicted of any of the offences for which life imprisonment is provided by the relevant legislation as the maximum penalty for the offence concerned - a discretionary life sentence.   Use of the discretionary life sentence is reserved, broadly speaking, for cases where the offence is a very grave one in itself and it appears that the accused is a person of unstable character likely to commit such offences in the future thus making the accused a danger to the public in respect of his probable future behaviour unless there is a change in his condition (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, para. 50). Accordingly, the discretionary life sentence is considered to be made up of two elements - the "tariff" which represents that part of the sentence attributable to deterrence and punishment together with a right to detain for a further period as long as that person constitutes a risk to society.   22.   By virtue of section 12(1) and Schedule 2 of the Sexual Offences Act 1956, the maximum penalty for buggery of a boy under the age of 16 years old is life imprisonment.     Prior to 1 October 1992   23.   Pursuant to section 61 of the Criminal Justice Act 1967 the power to release on licence a person sentenced to life imprisonment lay with the Secretary of State. He could release a prisoner on licence if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge if available. The consultation with the judiciary related to the requirements of retribution and deterrence (the tariff) and to risk assessment.   24.   The Joint Committee, made up of representatives of the Parole Board and the Home Office, was set up in 1973 and its purpose was to recommend to the Home Secretary in each life sentence case a date for the first formal review by the Local Review Committee (see the following paragraph) and thereafter by the Parole Board. The Joint Committee's consideration of the timing of the first review normally took place when the prisoner had been detained for about three years. When release seemed a realistic possibility (for example, when the Joint Committee had recommended that it was an appropriate time for the case to be referred to the Parole Board), the Secretary of State would seek the views of the judiciary.     25.   Pursuant to section 59 of the 1967 Act, the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice for this assessment to take place before referring the matter to the Parole Board. Before the Local Review Committee reviewed a case, a member of that committee was to interview the prisoner if he was willing. (Local Review Committees were abolished by the Parole Board Rules 1992.)   26.   In 1983 the then Home Secretary announced a change in the tariff setting procedures whereby the Home Secretary would seek the judiciary's views on tariff usually after the prisoner had been detained for three years and the first review by the Local Review Committee normally took place three years before the expiry of the tariff at which stage the judiciary would again be consulted.   27.   In March 1987 the Court of Appeal gave judgment in the Hanscomb case (R v. Secretary of State for the Home Department ex parte Hanscomb and Others [1988] 86 Cr. Rpts 59). It was decided that the Home Secretary's consultation with the judiciary should take place as soon as possible after sentencing. In addition, the court recognised that a discretionary life sentence prisoner should be required to serve no longer as punishment for his sentence than the "tariff" which expression denotes the period of detention considered necessary to meet the requirements of retribution and deterrence.   28.   Following this judgment, the Home Secretary issued a policy statement in 1987 stating that the date of the first formal review would be fixed in accordance with the judicial view of the requirements of retribution and deterrence. The judgment in the case of McCartney (judgment of the Court of Appeal of 19 May 1994) which followed noted that it would be "surprising" if Parliament intended the Secretary of State to have a wholly unfettered discretion to set whatever tariff he thought fit in the light of his own view on deterrence and retribution because that would be contrary to the declared policy in 1987 that the Secretary of State would accept the views of the judiciary.     After 1 October 1992   29.   Following the judgment of the Court in Thynne, Wilson and Gunnell (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment, loc. cit.), the Criminal Justice Act 1991 ("the 1991 Act") came into force on 1 October 1992.   30.   The 1991 Act instituted changes to the regime applicable to discretionary life prisoners. Pursuant to section 34 of the 1991 Act, the tariff is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board (known in this context as the Discretionary Life Panel "DLP") which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that he be detained.   31.   Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner before the DLP is entitled to, inter alia, an oral hearing before the DLP, to have relevant papers (including prison reports) in advance of the hearing, to comment on the evidence in advance of the hearing, to attend the hearing, to be legally represented and to be legally aided if he qualifies under the normal rules. A prisoner can also apply to call witnesses on his behalf and to cross-examine other witnesses who have written reports about him. A reasoned decision by the DLP is delivered within seven days of the hearing.   32.   The operation of the procedure has been described by the Prison Service as follows (A.T. v. the United Kingdom, Comm. Rep. 29.11.95 para. 24).     "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 <tariff> 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."   III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   33.   The Commission has declared admissible the applicant's complaints about:   -   the speed with which his detention was reviewed after the expiry of the tariff period by a body complying with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention;   -   an enforceable right to compensation as regards the speediness of the above review; and   -   the manner in which his tariff was fixed and the length of that tariff together with the alleged consequent unlawfulness of his detention.     B.   Points at issue   34.   Accordingly, the issues to be determined by the Commission are:   -   whether there has been a violation of Article 5 para. 4   (Art. 5-4) in relation to the delay between the expiry of the   tariff and the first review of his detention thereafter by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention;   -   whether there has been a violation of Article 5 para. 5   (Art. 5-5) in relation to any such delay; and   -   whether there has been a violation of Article 6 para. 1   (Art. 6-1) (or, alternatively, of Article 5 paras. 4 and 5)   (Art. 5-4, 5-5) of the Convention in relation to the manner of   fixing and the length of the applicant's tariff together with whether there has been a violation of Article 5 para. 1   (Art. 5-1) as regards the alleged consequent unlawfulness of his   detention.   C.   As regards Article 5 para. 4 (Art. 5-4) and the delay in reviewing the applicant's detention after the expiry of the tariff   35.   The applicant complains that, following the expiry of his tariff in 1989, he did not have available a speedy review of the lawfulness of his continued detention by a court-like body as required by Article 5 para. 4 (Art. 5-4) of the Convention which reads 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."   36.   As far as the "speediness" of the review is concerned the Government consider that only the period after the Court's judgment in the case of Thynne, Wilson and Gunnell (Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment, loc. cit.) can be considered as the relevant period since after that judgment the applicant could have taken his own application before the Commission in order to establish his rights under Article 5 para. 4 (Art. 5-4) of the Convention. In addition, the Government refer to the complexity and breadth of the changes necessary following the above-mentioned judgment in the Thynne, Wilson and Gunnell application involving introducing primary legislation, dealing with a backlog consisting of an exceptionally large number of cases to whom the new arrangements applied and to large administrative changes required. The effect was that it took over three months after the coming into force of the 1991 Act for the applicant's review to take place which, in the opinion of the Government, was sufficiently swift for the purposes of Article 5 para. 4 (Art. 5-4) of the Convention.   37.   As to the character of the reviewing body, the Government refer to section 34 of the 1991 Act and the procedural rules made under that Act which answer the problems noted by the Court in the Weeks judgment as regards the Parole Board and the DLP (Eur. Court HR, Weeks v. the United Kingdom judgment of 2 March 1987 Series A No. 114). Accordingly, the applicant's review on 19 January 1993 under the system set up by the 1991 Act constituted a review by a court-like body within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention.      38.   The Government therefore submit that these complaints disclose no violation of Article 5 para. 4 (Art. 5-4) or, consequently, of Article 5 para. 5 (Art. 5-5) of the Convention.   39.   The applicant maintains that he was deprived of a speedy determination of the lawfulness of his detention (pointing to a delay between September 1989 and 19 January 1993) by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. As to the speediness of the review and the character of the reviewing body the applicant refers to the E v. Norway case (Eur. Court HR, E. v. Norway judgment of 29 August 1990, Series A no. 181-A) and to the above-mentioned cases of Weeks and Thynne, Wilson and Gunnell.   40.   The Commission recalls that the review required by Article 5 para. 4 (Art. 5-4) of the Convention is generally incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceedings, but that the provision may require the possibility of subsequent review of the lawfulness of detention by a court. This subsequent review is required in the case of the continuing detention of a person sentenced to a discretionary life sentence in the United Kingdom where the tariff has expired (Eur. Court HR, Iribarne Pérez v. France judgment of 24 October 1995, Series A no. 325-C, p. 63, para. 30, with reference back to, inter alia, the Thynne, Wilson and Gunnell judgment, loc. cit.).     41.   The tariff in the applicant's case expired in September 1989. The applicant was then entitled to take proceedings by which the lawfulness of his detention would be determined speedily by a court (see, No. 18757/91, Dec. 14.10.92, unpublished, where the Commission found that the complaint by a discretionary life prisoner that he could not challenge the lawfulness of his detention was premature because his tariff had not yet expired). The Commission would note, in this context, that the requirements of Article 5 para. 4 (Art. 5-4) of the Convention are not satisfied (contrary to the Government's submission) by the possibility of an application under the Convention, the provisions of Article 5 para. 4 (Art. 5-4) relating to domestic proceedings.   42.   The regime created by Section 34 of the 1991 Act, in response to the findings of the Court in the above-mentioned Thynne, Wilson and Gunnell case, provided that those affected by the provisions could require a review of their detention by the DLP of the Parole Board (which had power to release if it considered that the detention was no longer justified). In practice, however, the regime operates on the basis of reference by the Secretary of State on or soon after the expiry of the "tariff". To that extent it is de facto an automatic periodic review of a judicial character (Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 24, para. 75 with further references).     43.   The first review of the lawfulness of the applicant's detention by the DLP was held on 19 January 1993, approximately three years and four months after the expiry of the his tariff. The Commission must therefore decide whether that decision was taken "speedily" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention. Since that review was the first time that the question of risk was before the Parole Board, such a review must, in the Commission's opinion, be dealt with particularly expeditiously (No. 20488/92, A.T. v. the United Kingdom, Comm. Rep. 29.11.95, para. 34, unpublished and No. 21848/93, T.M. v. the United Kingdom, Comm. Rep. 4.9.96, para. 35, unpublished).   44.   The Commission recalls that the Court has considered the "speediness" of review under Article 5 para. 4 (Art. 5-4) on several occasions.   For example, in the above-cited E v. Norway judgment the Court recalled - in the context of a first challenge to a newly decided ground for detention   - that the notion of "promptly" in Article 5 para. 3 (Art. 5-3) of the Convention indicated greater urgency that the notion of "speedily" in Article 5 para. 4 (Art. 5-4) (Eur. Court H.R., E v. Norway judgment, loc. cit., p. 27, para. 64). The Court, nevertheless, found that a period of eight weeks could not be reconciled with the notion of "speedily" (p. 28, paras. 65 - 67). The Commission also recalls the finding of a violation of Article 5 para. 4 (Art. 5-4) of the Convention in the above-mentioned T.M. case, it being considered that a period of eight months and 24 days after the expiry of the applicant's tariff could not be reconciled with the notion of "speedily" in Article 5 para. 4 (Art. 5-4) of the Convention.   45.   In the present case, the delay between the end of the tariff period and the applicant's first review by the DLP was about three years and four months. In addition, the present applicant's tariff had expired over three years before the coming into force of the 1991 Act. The Government explain this delay referring, inter alia, to the time taken to implement the necessary changes to the domestic system of review of post-tariff detention in response to the Thynne, Wilson and Gunnell judgment. However, the Commission found, in the above-cited T.M. case, that similar submissions of the Government were not sufficient to justify a delay which was significantly shorter than that at issue in the present case. Consequently, the Commission finds that, even assuming that the DLP and the procedures before it comply with the requirements of Article 5 para. 4 (Art. 5-4), the delay in holding the first review of the applicant's post-tariff detention by the DLP is inconsistent with the "speedily" requirement of Article 5 para. 4 (Art. 5-4) of the Convention.     CONCLUSION   46.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards the delay in reviewing the applicant's detention after the expiry of his tariff.   D.   As regards Article 5 para. 5 (Art. 5-5) and the delay in reviewing the applicant's detention after the expiry of his tariff   47.   The applicant further complains of a violation of Article 5 para. 5 (Art. 5-5) of the Convention submitting that he does not have an enforceable right to compensation in respect of the violation of Article 5 para. 4 (Art. 5-4) relating to the review of the post-tariff period of detention. Article 5 para. 5 (Art. 5-5) reads as follows:     "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."   48.   In the present case, the Commission has found a violation of Article 5 para. 4 (Art. 5-4) of the Convention. It is not contested by the Government that this violation could not give rise to an enforceable claim for compensation before the domestic courts. The Commission also notes the finding of a violation of Article 5 para. 5 (Art. 5-5) in the above-cited Report of the Commission in the T.M. application (loc. cit., paras. 40-42).     CONCLUSION   49.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention as regards the delay in reviewing the applicant's detention after the expiry of his tariff.   E.   As regards Article 6 para. 1 (Art. 6-1) and, in the alternative, Article 5 paras. 4 and 5 (Art. 5-4, 5-5) in relation to the fixing and length of the tariff and as regards Article 5 para. 1 (Art. 5-1) as regards the alleged consequent unlawfulness of his detention   50.   The applicant takes issue with the manner in which his tariff was fixed and the length of that tariff together with the alleged consequent unlawfulness of his detention.     51.   The Government submit, inter alia, that part of the determination of the criminal charges against the applicant within the meaning of Article 6 para. 1 (Art. 6-1) was the determination of the life sentence, that determination took place during the applicant's trial and thereafter it constituted the lawful basis for his detention. In any event, the safeguards inherent in the tariff fixing system were sufficient to satisfy the fairness requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   52.   The applicant maintains that the fixing by the Home Secretary of the tariff period amounted to a determination of the length of the punitive element of his sentence and, as such, of a criminal charge against him within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. He considers that the procedure whereby his tariff was fixed secretly by the executive approximately eleven years after the trial clearly does not, for a number of reasons, satisfy Article 6 para. 1 (Art. 6-1) of the Convention. He also refers to expert evidence arguing that a tariff of 15 years (equivalent to a 22 and a half year sentence) was excessive.   53.   The applicant also invokes, in the alternative to Article 6 para. 1, Article 5 paras. 4 and 5 (Art. 6-1, 5-4, 5-5)) of the Convention in relation to the fixing and length of the tariff. He further considers that the above matters relating to the fixing and length of his tariff rendered his detention since conviction unlawful within the meaning of Article 5 para. 1 (Art. 5-1) the Convention.   54.   However, in view of its conclusions above, the Commission is of the view that it is not necessary to consider these complaints of the applicant.     CONCLUSION   55.   The Commission concludes, unanimously, that it is not necessary to consider the complaints raised under Article 6 para. 1 (Art. 6-1) and, alternatively, under Article 5 paras. 4 and 5 56.(Art. 5-4, 5-5) relating to the fixing and length of the tariff and under Article 5 para. 1 (Art. 5-1) as regards the alleged consequent unlawfulness of his detention.   F.   Recapitulation   57.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards the delay in reviewing the applicant's detention after the expiry of his tariff (para. 46).   58.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention as regards the delay in reviewing the applicant's detention after the expiry of his tariff (para. 49).   59.   The Commission concludes, unanimously, that it is not necessary to consider the complaints raised under Article 6 para. 1 (Art. 6-1) and, alternatively, under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) relating to the fixing and length of the tariff and under Article 5 para. 1 (Art. 5-1) as regards the alleged consequent unlawfulness of his detention (para. 55).           M. de SALVIA                                 S. TRECHSEL          Secretary                                      President       to the Commission                            of the Commission