AS TO THE ADMISSIBILITY OF
Application No. 18757/91
by D.M.
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 October 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber
assisted by K. Reid.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 December 1990
by D.M. against the United Kingdom and registered on 2 September 1991
under file No. 18757/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom, born in 1953
and detained in H.M. Prison Albany, Newport, Isle of Wight.
The facts of the present case, as submitted by the parties, may
be summarised as follows.
In 1988 the applicant was found guilty, at Sheffield Crown Court,
of two counts of aggravated burglary, one of attempted rape and one of
indecent assault. On 16 May 1988, he received three discretionary life
sentences and also a 6 year sentence to run concurrently. The judge
commented in sentencing that the applicant, who had a history of
offences of violence against women, would probably be a danger to the
opposite sex for a long time to come.
The applicant's application for an extension of time in which to
appeal against conviction and sentence was dismissed on 17 February
1989 by the Court of Appeal, which commented that in any case the
applicant had no ground for complaint.
The tariff period of the applicant's sentence was fixed after
consultation with the judiciary at eight years.
RELEVANT DOMESTIC LAW AND PRACTICE
By virtue of section 37 of, and Schedule 2 to, the Sexual
Offences Act 1956, the maximum punishment for rape is life
imprisonment. Pursuant to section 10 of the Theft Act 1960, the maximum
penalty for aggravated burglary is life imprisonment.
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
The policy for the review and release of life sentence prisoners
is the responsibility of the Home Secretary who is answerable to
Parliament.
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
the 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".
Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary
of State may 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 is
available.
Recent legislation
Under Section 34 of the Criminal Justice Act 1991, which will
come into force in 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 will have the
power to direct the prisoner's release and the Secretary of State will
then be under a duty to release the prisoner on licence.
COMPLAINTS
The applicant complains in effect that he has no possibility of
a review of the lawfulness of his continued detention as required by
Article 5 para. 4 of the Convention.
The applicant also complains of his conviction and sentence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 December 1990 and registered
on 2 September 1991.
On 2 April 1992, the Commission (First Chamber) requested the
respondent Government to provide information concerning the
application.
The Government submitted the information on 5 June 1992 and the
applicant submitted a letter in reply on 29 June 1992.
THE LAW
1. The applicant complains that he has no possibility of a review
of the lawfulness of his continued detention contrary to the
requirements of Article 5 para. 4 (Art. 5-4) of the Convention which
provides :
"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 recalls that the case-law of the Commission and
Court establishes that prisoners serving a discretionary life sentence
are entitled under the above provision to take proceedings 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 Thynne, Wilson and
Gunnell judgment of 25 October 1990, Series A no. 190).
The Commission recalls that in the present case the applicant is
still serving the tariff part of his sentence which does not expire
until 1996. The Commission also notes that when the applicant becomes
eligible for the review of his continued detention a different system,
with new procedures, will be in force. In these circumstances, the
Commission finds that the applicant cannot claim at the present time
to be a victim of a violation of Article 5 para. 4 (Art. 5-4) of the
Convention.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains of his conviction and sentence.
The Commission however is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the Convention, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Court of Appeal which was
the final decision regarding the subject of this particular complaint,
was given on 17 February 1989, whereas the application was submitted
to the Commission on 4 December 1990, that is, more than six months
after the date of this decision. Furthermore, an examination of the
case does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. de Salvia) (J.A. FROWEIN)
Full & Egal Universal Law Academy