EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 20448/92
A. T.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 29 November 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-24) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-23). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 24). . . . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 25-50) . . . . . . . . . . . . . . . . . . . . .6
A. Complaints declared admissible
(para. 25). . . . . . . . . . . . . . . . . . . . .6
B. Points at issue
(para. 26). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 5 para. 4 of the Convention
and the initial hearing
(paras. 27-37). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 38). . . . . . . . . . . . . . . . . . . . .8
D. As regards Article 5 para. 4 of the Convention
and the second hearing
(paras. 39-47). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 48). . . . . . . . . . . . . . . . . . . . .9
E. Recapitulation
(paras. 49-50). . . . . . . . . . . . . . . . . . .9
APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 10
APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 13
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 a British citizen, born in 1949. He was
represented before the Commission by Mr. S. Creighton, solicitor, of
Prisoner's Advice Service, and Mr. B. Emmerson, counsel.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Ms. Susan
Dickson of the Foreign and Commonwealth Office, London.
4. The case concerns the length of proceedings to determine the
lawfulness of the applicant's detention. The applicant invokes
Article 5 para. 4 of the Convention.
B. The proceedings
5. The application was introduced on 10 October 1991 and registered
on 6 August 1993.
6. On 7 September 1993 the Commission (First Chamber) 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 Article 5 para. 4 of the
Convention. It declared the remainder of the application inadmissible.
7. The Government's observations were submitted on 17 November 1993.
The applicant replied on 30 December 1993. On 7 December 1994, the
Commission granted the applicant legal aid for the representation of
his case.
8. On 31 August 1994 the Commission decided to hold a hearing of the
parties. The hearing was held on 2 December 1994. The Government were
represented by Ms. S.J. Dickson, Agent, Messrs. N. Garnham, Counsel,
H. Carter and J. Page, Advisers. The applicant was represented by
Messrs B. Emmerson, Counsel and S. Creighton, Solicitor.
9. At the Commission's request, the Government submitted further
observations on 30 January 1995, to which the applicant replied on
31 March 1995.
10. On 28 June 1995 the Commission declared admissible the
applicant's complaints under Article 5 para. 4 of the Convention. The
text of the Commission's decision on admissibility was sent to the
parties on 19 July 1995 and they were invited to submit such further
information or observations on the merits as they wished. Factual
information as to the intended hearing in September 1995 was submitted
by the applicant on 25 October 1995 and the Government made comments
on it on 24 November 1995.
11. 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
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:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
13. The text of this Report was adopted on 29 November 1995 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.
14. 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.
15. The Commission's decisions on the admissibility of the
application are annexed as Appendices I and II.
16. 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
17. 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."
18. 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.
19. 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.
20. 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."
21. 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.
22. 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. He was
transferred to an open prison on 26 April 1994.
23. On 3 March 1995 the applicant was informed by letter that his
case had been referred back to the DLP. His next review was due to
take place in September 1995, but it did not take place.
B. Relevant domestic law
24. 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.
Its 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."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
25. The Commission has declared admissible the applicant's complaints
that neither the first nor the second review of the lawfulness of his
detention after the expiry of his "tariff" was taken "speedily".
B. Points at issue
26. The issues to be determined are whether there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention by
virtue of:
- the period which elapsed before he was given an initial hearing
before the DLP in January 1994, and
- the period which elapsed before a subsequent hearing.
C. As regards Article 5 para. 4 (Art. 5-4) of the Convention and the
initial hearing
27. Article 5 para. 4 (Art. 5-4) of the Convention provides as
follows.
"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."
28. The applicant puts the beginning of the period to be considered
in determining whether the lawfulness of his detention was decided
"speedily" by the DLP at 8 December 1992, when his tariff expired, at
the latest. He accepts that the priorities which were applied in
dealing with existing life prisoners were reasonable in themselves, but
does not agree that any particular delay was necessarily involved in
introducing the DLP system. 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.
29. 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.
30. 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 is so in the case of the continuing
detention of a person sentenced to an discretionary life sentence in
the United Kingdom (see Eur. Court H.R., Iribarne Pérez judgment of
24 October 1995, to be published in Series A no. 325-C, para. 30, with
reference back to inter alia the Thynne, Wilson and Gunnell judgment
of 25 October 1990, Series A no. 190-A).
31. The "tariff" in the applicant's case, that is, the period of
confinement necessary to satisfy the requirements of retribution and
deterrence, expired on 8 December 1992. From that date the applicant
was entitled to take proceedings by which the lawfulness of his
detention would be determined speedily be a court (see, in this
connection, 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 expired).
32. The regime created by Section 34 of the Criminal Justice Act 1991
in reply 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 Discretionary Lifer
Panel 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 on or soon
after the expiry of the "tariff". To that extent it is de facto an
automatic periodic review of a judicial character (see Eur. Court H.R.,
Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 24,
para. 75 with further references).
33. The first review of the lawfulness of the applicant's detention
by a court with power to release was held on 12 January 1994. 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.
34. The initial review of 12 January 1994 was the first review after
the expiry of the applicant's "tariff". It was therefore the first
time that the question of risk, or danger, was before the DLP. Such
a first review must, in the Commission's opinion, be dealt with
particularly expeditiously.
35. The Commission recalls that the European Court of Human Rights
has considered the "speediness" of review under Article 5 para. 4
(Art. 5-4) on several occasions. For example, in its E. v. Norway
judgment the Court recalled - in the context of a first challenge to
a newly decided ground for detention - that the notion "promptly" in
Article 5 para. 3 (Art. 5-3) of the Convention indicated greater
urgency that the notion "speedily" in Article 5 para. 4 (Art. 5-4)
(Eur. Court H.R., E. v. Norway judgment of 29 August 1990, Series A no.
181-A, p. 13, para. 30 and p. 27 para. 64). Having examined the
circumstances of the case, it nevertheless found that a period of eight
weeks could not be reconciled with the notion of "speedily" (p. 28,
paras. 65 - 67).
36. In the present case, the entire system of court review of the
lawfulness of discretionary life prisoners' detention was new. The
system was brought into being by the Criminal Justice Act 1991, which
was enacted on 25 July 1992 and the relevant parts of which entered
into force on 1 October 1992. The Commission does not underestimate
the size of this operation, and appreciates the need for criteria to
determine the order in which to deal with the "old" cases - that is,
the cases of those whose tariff expired before or (like the
applicant's) soon after 1 October 1992. The Commission has already
commented, in its final decision on admissibility in the present case,
that there is no indication that the priorities were unreasonable.
37. However, the Commission notes that a two-year period elapsed
between judgment in the case of Thynne, Wilson and Gunnell and the
entry into force of the relevant parts of the Criminal Justice Act
1991. It considers that there was time for contingency planning of the
logistical measures to be taken if the law was passed. Further, it
recalls the importance of the right to liberty in a democratic society
(cf. in connection with Article 5 para. 1 (Art. 5-1) of the Convention,
Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A
no. 33, p. 16, para. 37 with further references): in the context of a
first decision on the risk posed by a person whose "tariff" has
expired, even the above considerations cannot justify a period of over
12 months before a such a first review.
CONCLUSION
38. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the period which elapsed before the applicant was given an initial
hearing before the DLP in January 1994.
D. As regards Article 5 para. 4 (Art. 5-4) of the Convention and the
second hearing
39. The Commission must also determine whether the subsequent review
was given "speedily".
40. At the admissibility stage of the proceedings, the applicant
pointed out that he would not receive his second review before the DLP
before September 1995, and that there would therefore have been a
period of 19 months between his first and his second reviews. He
perceived the problem of delay in this respect as flowing from the
statutory period of 24 months between reviews. He has since submitted
material from which it appears that the review in September did not
take place.
41. The Government point out that risk assessment is a matter
requiring prolonged assessment by professional and non-professional
staff in a variety of circumstances. 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.
42. As indicated above, the Commission considers that a first review
must be dealt with particularly expeditiously. It is already
established in the case-law of the Convention organs that where a
system of automatic review of the lawfulness of detention has been
instituted, the decisions of the courts must follow at reasonable
intervals (see the above-mentioned Herczegfalvy judgment, p. 24,
para. 75). In considering such a system, where the domestic
legislation provided for annual reviews, the European Court of Human
Rights has considered intervals of 15 months and two years not to fall
within the notion of "speedily". It was silent as to whether an
interval of nine months was compatible with Article 5 para. 4
(Art. 5-4) of the Convention (above-mentioned Herczegfalvy judgment,
pp. 24, 25, paras. 77, 78).
43. The system for review of the lawfulness of the continued
detention of discretionary life prisoners is, notwithstanding
Section 34 (5) of the Criminal Justice Act 1991 which provides for a
prisoner to "require" reference to the DLP, in effect a system of
automatic review, in which the automatic review by the DLP takes place
every two years. The Commission is not, however, required to consider
whether this interval is reasonable as such, because in the present
case the DLP indicated that the case should be reviewed within a
shorter period.
44. When the DLP heard the applicant in January 1994, it recommended
that he should be transferred to a Category D prison, and that his case
should be reviewed in not more than 12 months. The Prison Service
interpreted this statement to mean that his case should be reviewed
internally by the Prison Service within 12 months of his transfer to
a Category D prison.
45. Whatever the DLP in fact meant when it recommended that the
applicant's case should be reviewed in not more than 12 months, the
last DLP review of the lawfulness of the applicant's continued
detention took place in January 1994. A review was planned before the
DLP for 19 September 1995, but had to be deferred.
46. The position in the present case is therefore that the DLP
recommended in January 1994 that the applicant's case should be
reviewed in under 12 months (although it did not expressly say by
whom), and that almost two years later, his case has still not been
examined for a second time by the DLP.
47. The Commission finds that the circumstances of the case do not
justify the period of almost two years before this second review.
CONCLUSION
48. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the period which has elapsed before a subsequent hearing.
E. Recapitulation
49. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the period which elapsed before the applicant was given an initial
hearing before the DLP in January 1994 (para. 38).
50. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the period which has elapsed before a subsequent hearing (para. 48).
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy