CEDH · CASELAW;REPORTS;ENG — 8 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      F I R S T    C H A M B E R                      Application No. 16791/90                                  B.                               against                         the UNITED KINGDOM                      REPORT OF THE COMMISSION                    (adopted on 8 December 1992)                          TABLE OF CONTENTS                                                             page   I.    INTRODUCTION . . . . . . . . . . . . . . . . . . . . .1-2      (paras. 1-15)        A.   The application (paras. 2-4) . . . . . . . . . . . .1        B.   The proceedings (paras. 5-11). . . . . . . . . . . .1        C.   The present Report (paras. 12-15). . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS . . . . . . . . . . . . . .3-5      (paras. 16-35)        A.   Particular circumstances of the case . . . . . . .3-4          (paras. 16-28)        B.   Relevant domestic law and practice . . . . . . . .4-5          (paras. 29-35)   III. OPINION OF THE COMMISSION. . . . . . . . . . . . . . .6-7      (paras. 36-45)        A.   Complaint declared admissible. . . . . . . . . . . .6          (para. 36)        B.   Point at issue (para. 37). . . . . . . . . . . . . .6        C.   Article 5 para. 4. . . . . . . . . . . . . . . . .6-7          (paras. 38-44)        D.   Conclusion (para. 45). . . . . . . . . . . . . . . .7   APPENDIX I      History of the proceedings . . . . . . . . . .8   APPENDIX II     Partial decision on the. . . . . . . . . . 9-12                admissibility of the                application   APPENDIX III    Final decision on the. . . . . . . . . . .13-16                admissibility of the                application   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is B., a British citizen born in 1938 and currently serving a life sentence of imprisonment in HM Prison Acklington.   3.    The application is directed against the United Kingdom.   The Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.    The case concerns the applicant's complaint under Article 5 para. 4 of the Convention that he was unable to have the continued lawfulness of his detention reviewed by an independent tribunal.   B.    The proceedings   5.    The application was introduced on 24 May 1989 and registered on 28 June 1990.   6.    On 2 September 1991, the Commission decided to give notice of the application to the respondent Government and to invite them to submit their observations on the admissibility and merits of the application insofar as it raised issues under Article 5 para. 4 of the Convention. The remainder of the application was declared inadmissible.   7.    The Government submitted their written observations on 20 November 1991. The applicant submitted his observations on 10 January and 27 March 1992 and the Government submitted further observations in reply on 2 June 1992.   8.    The Commission (First Chamber) granted the applicant legal aid on 19 February 1992.   9.    On 1 July 1992, the Commission (First Chamber) declared the application admissible.   10.   The parties were then invited to submit any additional observations on the merits of the application.   On 17 September 1992, the applicant submitted additional observations.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   J.A. FROWEIN, President of the First Chamber                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Sir   Basil HALL           Mr.   C.L. ROZAKIS           Mrs. J. LIDDY           MM.   M. PELLONPÄÄ                B. MARXER        The text of the Report was adopted by the Commission on 8 December 1992 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is        1)   to establish the facts, and        2)   to state an opinion as to whether the facts found disclose          a breach by the State concerned of its obligations under          the Convention.   14.   A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decisions on the admissibility of the application as APPENDICES II and III.   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.    Particular circumstances of the case   16.   Since the age of 18 the applicant, suffering from psychopathic disorders, has been compulsorily placed in mental hospitals on a number of occasions for considerable periods.   17.   In 1963, after conviction for setting fire to a church, the applicant was placed in Broadmoor under a hospital order. The order empowered the Home Secretary to release the applicant when he saw fit and thereafter recall him at any time to hospital. The applicant was conditionally released on two occasions from hospital but recalled under the hospital order after failing to keep to the terms of his conditional release.   18.   In 1980 the applicant was released for the third time. Whilst at liberty, he kept in touch with his probation officer and voluntarily sought help for his psychological problems. In December 1982 the applicant set fire to his own bed in rented accommodation. Damage of about £500 was caused to the property. Following the incident, the applicant voluntarily admitted himself to hospital. No steps were taken to prosecute the applicant. In early 1983 the applicant left hospital.   19.   In September 1983 the applicant was arrested on a charge of arson with intent to damage property, namely property in his rented accommodation. On 24 January 1984 the applicant pleaded guilty to the offence at Knightsbridge Crown Court.   20.   The medical reports on the applicant stated that his psychopathic condition was not likely to respond to treatment and such treatment was not guaranteed to be effective in preventing the applicant's dangerous behaviour. There was some risk of future fire-setting. Relying on the medical reports, the judge took the view that the applicant's condition could not be altered by treatment and that he was "liable perhaps" to perform acts dangerous to other people.   The judge held that given the applicant's medical condition, the best course was to sentence him to life imprisonment.   21.   The applicant appealed against sentence to the Court of Appeal. On 22 January 1985 the Court of Appeal dismissed the appeal.   22.   There is no record of the judgment of the Court of Appeal. On 30 January 1986 the applicant's petition to the Home Secretary, on the ground that there was no justification for his continued detention since he was no longer ill, was refused.   23.   On 4 March 1986, the applicant's petition to the Home Secretary to release him early on parole was refused.   24.   In April 1987, as a result of a decision of the Divisional Court in the case of R. v. Secretary of State for the Home Department ex parte Handscomb and others, the Secretary of State was put under a legal duty to review the applicant's case and determine the punitive period in his sentence, so that a date could be fixed for a review of the question of his release thereafter.   25.   In January 1988 the applicant's case was reviewed by the Parole Board. It informed the applicant that his case would not be reviewed again until June 1990.   26.   The applicant sought clarification of the decision from the Secretary of State who informed him on 20 April 1988 that he had completed the punitive element of his sentence and the decision not to recommend release was based on the concern over his continued dangerousness.   27.   In July 1988 the Secretary of State refused the applicant's petition that his case be reviewed before June 1990.   28.   In December 1988 the Secretary of State refused a request by the applicant that his case be reheard by the Court of Appeal following the judgment of the European Court of Human Rights in the Weeks case (Eur. Court H.R., judgment of 2 March 1987, Series A no. 114).   B.    Relevant domestic law and practice        Life sentences   29.   By virtue of sections 1 (3) and 4 of the Criminal Damage Act 1971, the maximum punishment for arson is life imprisonment.   30.   The principles underlying the passing of a discretionary sentence of life imprisonment are:        (i)   that the offence is grave and        (ii) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.        The procedure for review   31.   The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament.   32.   Since the introduction in 1983 of a new parole policy in respect of life sentences, the Home Secretary consults the Lord Chief Justice and the trial judge as to the period of detention necessary to satisfy the requirements of retribution and deterrence, i.e. the tariff period. As indicated in the Handscombe judgment (R. V. Secretary of State for Home Department, ex parte Handscombe and others (1988) 86 Cr. App. R. 59 at p. 74-75),        "the Lord Chief Justice and the trial judge are being asked to      provide ... a figure (the tariff) representing a term of years      during which a prisoner should be detained to serve only the twin      purposes of retribution and deterrence.   They are in other words      asked to say what would have been an appropriate tariff in the      circumstances of the case if a determinate and not a life      sentence could have been and had been passed when the prisoner      was sentenced, without considering risk.   The risk element is of      course present in the judicial mind when a discretionary life      sentence is passed.   The element of continuing risk, I should      add, is the concern of the prison authorities and doctors, the      local review committee, the Parole Board and finally the Home      Secretary.   Fourthly, the views of the judges as to tariff are      intended to have a decisive bearing in all cases upon the      decision as to when the first reference to the local review      committee will take place, i.e. three years before the end of the      tariff period.   Special circumstances may serve to bring forward      that time".        Release on licence   33.   Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary of State could only release on licence a person sentenced to life imprisonment if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice and the trial judge if he was available.   34.   Section 59 of the 1967 Act set out the role of the Parole Board:        "59. (1) For the purposes of exercising the functions      conferred on it by this part of this Act as respects England and      Wales there shall be a body known as the Parole Board ...      consisting of a chairman and not less than four other members      appointed by the Secretary of State.           ...           (3) It shall be the duty of the Board to advise the      Secretary of State with respect to:             (a) the release on licence under section 60 (1) or 61, and      the recall under section 62, of this Act of persons whose cases      have been referred to the Board by the Secretary of State ..."        Recent legislation   35.   Under Section 34 of the Criminal Justice Act 1991, which has come into force on 1 October 1992, a discretionary life prisoner will be able to require that his case be referred to the Parole Board after he has served the "tariff" part of his sentence. The Board has the power to direct the prisoner's release and the Secretary of State is then under a duty to release the prisoner on licence.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   36.   The Commission has declared admissible the applicant's complaint that he was unable to have the continued lawfulness of his detention reviewed by a court.   B.    Point at issue   37.   Accordingly, the issue to be determined is whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   C.    Article 5 para. 4 (Art. 5-4)   38.   Article 5 para. 4 (Art. 5-4) provides that:        "Everyone who is deprived of his liberty by arrest or detention      shall be entitled to take proceedings by which the lawfulness of      his detention shall be decided speedily by a court and his      release ordered if the detention is not lawful."   39.   The case-law of the Commission and Court establishes that prisoners serving a sentence of discretionary life sentence are entitled under the above provision to take proceedings at reasonable intervals to have the lawfulness of their detention decided by a court where the punitive or "tariff" period of their sentence has expired (see Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114 and the Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A).   40.   In the Thynne, Wilson and Gunnell case (loc. cit. p. 30 para.79), the Court stated:        "Article 5 para. 4 (Art. 5-4) does not guarantee a right to      judicial control of such scope as to empower the 'court' on all      aspects of the case, including questions of expediency, to      substitute its own discretion for that of the decision-making      authority; the review should, nevertheless, be wide enough to      bear on those conditions which, according to the Convention, are      essential for the lawful detention of a person subject to the      special type of deprivation of liberty ordered against these      three applicants..."   41.   In light of the above, the Court held that neither the Parole Board nor judicial review satisfied the requirements of Article 5 para. 4 (Art. 5-4). It based itself on its findings in the Weeks case (loc. cit. pp. 30-33, paras. 62-69) in which it found, inter alia , that the Parole Board lacked the power of decision and procedural guarantees required by that provision and that the scope of control afforded   by judicial review was not wide enough to include an examination of whether the detention was consistent with and therefore justified by the objectives of the indeterminate sentence imposed.   42.   The present applicant is serving a discretionary life sentence. The punitive or "tariff" part of his sentence expired in or about 1988 and since then the question of the applicant's continued detention has been considered by the Parole Board. The powers and procedures of this body have changed with the implementation of new legislation. These changes are however not in issue in the present case.   43.   In light of the above case-law, the Commission finds that, under the then prevailing domestic law, the applicant was not able to have the lawfulness of his continued detention reviewed at reasonable intervals by a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention after the expiry of his "tariff" in 1988.   44.   The applicant has also submitted that there is a violation of Article 5 para. 4 (Art. 5-4) in that even after completion of the tariff a prisoner is not entitled to be released unless he is judged to present no more than a minimal risk in the subjective appreciation of the Parole Board. In view of its finding above however the Commission finds it unnecessary to reach a separate conclusion on this allegation.   D.    Conclusion   45.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   Secretary to the First Chamber a.i.President of the First Chamber        (M. de SALVIA)                       (J.A. FROWEIN)                             Appendix I                     HISTORY OF THE PROCEEDINGS   Date                           Item ________________________________________________________________   24.05.89        Introduction of the application   28.06.90        Registration of the application   Examination of admissibility   02.09.91        Commission's decision to invite the parties to submit                observations on the admissibility and merits as                regards the complaint under Article 5 para. 4 of the                Convention. The remainder of the application was                declared inadmissible.   20.11.91        Government's observations   10.01.92        Applicant's observations   27.03.92        Applicant's further observations   02.06.92        Government's further observations   01.07.92        Commission's decision to declare the application                admissible   Examination of the merits   01.07.92        Commission's deliberations on the merits   19.09.92        Applicant's observations on the merits   02.12.92        Commission's deliberations on the merits and final                votes   08.12.92        Commission's adoption of the Report