FOURTH SECTION
Application no. 76874/11
Christopher DOHERTY
against the United Kingdom
lodged on 14 December 2011
STATEMENT OF FACTS
The applicant, Mr Christopher Doherty, is an Irish national who was born in 1960 and lives in Belfast. He is represented before the Court by Mr Fearghal Shiels of Madden & Finucane, a firm of solicitors practising in Belfast.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The factual background
On 16 September 1982 the applicant was sentenced to life imprisonment for murder. The life sentence was mandatory.
On 26 April 1996 the applicant was released on licence by virtue of section 23 of the Prison Act (Northern Ireland) 1953.
On 7 March 1997 the applicant’s licence was revoked by order of the Secretary of State following his arrest for alleged sexual offences. The alleged offences, which the applicant denied, included acts of indecent assault and gross indecency with two of his nieces.
The applicant was subsequently charged with the offences but the charges were withdrawn by the Director of Public Prosecutions on 13 January 1998.
2. Review by the Life Sentence Review Board
After considering representations made on behalf of the applicant, the Secretary of State decided that his life licence should not be reinstated and that his case should be considered by the Life Sentence Review Board. The applicant’s case was reviewed by the Board on 12 November 1998, 3 November 1999, 7 December 1999, 26 April 2000 and 30 October 2000. On each occasion the Board declined to direct his release as it believed that he had committed the alleged offences and that there was a risk that he would commit further offences of a similar nature if released.
The applicant was granted permission to apply for judicial review of the Board’s decisions of 7 December 1999 and 30 October 2000. That application was dismissed on 29 June 2001. Insofar as the applicant sought to rely on Article 5 § 4 of the Convention, the court found that at the relevant time it did not apply to a mandatory life sentence in Northern Ireland.
3. Review by Life Sentence Review Commissioners
On 8 October 2001 the Life Sentences (Northern Ireland) Order 2001 and the Life Sentence Review Commissioners Rules (Northern Ireland) 2001 came into effect. The Life Sentence Review Commissioners (“LSRC”) were subsequently appointed. These changes were implemented to ensure the system was Convention compliant following the coming into force of the Human Rights Act 1998 on 2 October 2000.
On 29 November 2001 the applicant’s case was referred to the LSRC. The initial hearing took place on 17 June 2002. The LSRC panel (“the panel”) decided at the outset of the hearing, following a paper review, that on the balance of probabilities the applicant had committed the alleged assaults against children. Consequently the panel set that issue aside and the remainder of the hearing only addressed the question of risk.
The hearing was adjourned after the applicant dismissed his solicitor. He instructed new solicitors in late September 2002 and a legal aid certificate was granted on 11 April 2003. The panel requested submission of evidence and representations by 31 July 2003. However, an extension was granted at the applicant’s request and the documents were filed on 17 September 2003.
A hearing was fixed for 9 January 2004. During the hearing the Chairman indicated that he would allow the applicant to reopen the issue of whether or not he had committed the alleged assaults. As a consequence, the panel members recused themselves on 12 January 2004 and a new panel was appointed.
A preliminary hearing date was fixed for 16 March 2004. At the hearing the Secretary of State indicated that he would not be calling the two complainants as witnesses. The applicant’s representatives asked the Chairman to direct the Secretary of State to call them as witnesses. The Chairman refused this application but made it clear that the applicant could summons the complainants and cross-examine them as though they were witnesses for the Secretary of State. He assured the applicant that no adverse inferences would follow if he did not summons the witnesses.
The substantive hearing was fixed for 18 and 19 May 2004. On 12 May 2004 the Secretary of State submitted twenty-one witness statements taken by police during the course of the original investigation and sought leave to call one of the complainants as a witness. On 14 May 2004 the panel issued a direction permitting the supplementary material to be appended to the hearing materials and granting the Secretary of State permission to call the complainant.
On 17 May 2004 the applicant’s solicitors wrote to the panel to complain about the late submission of the witness statements and the decision to permit the complainant to be called as a witness. As the witness statements indicated that there might be further material in existence which could affect the credibility of the complainants, the applicant’s solicitors asked for the hearing dates to be vacated and for the panel to direct the Prison Service to supply any further relevant evidence.
On the morning of 18 May 2004 the applicant was told that the complainant would not be attending. At a further preliminary hearing it was decided that the Secretary of State should seek to encourage her to attend voluntarily. In the meantime the hearing was adjourned.
On 23 August 2004 the applicant wrote directly to the panel to complain about the delays in his case.
On 21 September 2004 the panel replied to the applicant’s letter, indicating that the Secretary of State was still trying to secure the complainant’s attendance.
On 8 October 2004 the Secretary of State was “forced to conclude that despite our best efforts [the complainant] is reluctant to give evidence voluntarily to the [panel]”.
On 4 November 2004 the panel indicated that it would not direct the Secretary of State to issue a witness summons to secure the complainant’s attendance.
The hearing began on 21 March 2005. Evidence was heard over 21 and 22 March, 23, 24 and 31 May and 1 June 2005 and both parties submitted written representations. In his representations the applicant argued that the evidence of sexual abuse should not have been admitted as he had been unable to cross-examine the complainants.
The panel gave its decision on 3 August 2005. At paragraph 3 the panel set out what it considered to be its role:
“In our opinion... the Secretary of State must first prove on the balance of probabilities facts which, on the assumption that [the applicant] was released on the basis that there was no more than minimal risk of him committing a serious harm, indicate that at the date of recall there was a significant risk of him committing serious harm. If, but only if, such facts are proved we must then go on to consider whether the risk posed at this point in time by [the applicant] is capable of being managed safely in the community, and if not, whether there are steps that might be taken with a view to reducing the current risk to a level that could, in the future, be safely managed in the community.”
With regard to the standard of proof, it noted that:
“... the point made in Re H and Others [1996] AC 562 at 586 [was] to the effect that the more serious the allegation the less likely it is that it occurred. But this has no bearing on the instant case. Here it is clear beyond peradventure that both girls were victims of buggery. There is nothing inherently unlikely in a member of their family having been the perpetrator....”
The panel dealt with the applicant’s submissions on the unfairness of the proceedings by noting that:
“... [counsel for the applicant’s] approach to the issue of [the complainant] being subpoenaed was a perfectly legitimate tactical manoeuvre by which he sought, on the one hand, to characterise the failure to subpoena [the complainant] as unfair, while on the other hand, he sought to avoid being instrumental in securing her attendance at the hearing and giving evidence with the consequent danger of the case against [the applicant] being strengthened. The panel remains of the opinion... that it would have been unreasonable to have directed [the complainant] to be subpoenaed.”
The panel concluded that the Secretary of State had proved on the balance of probabilities that the applicant had committed the alleged sexual assaults against children and that it was not safe to release him on licence at that point.
4. Judicial review proceedings
On 3 November 2005 the applicant applied for permission to seek judicial review on the ground that the panel could not, on the basis of the evidence before it, have come to the conclusion that the applicant had committed the alleged sexual assaults in 1997. In particular, the applicant claimed that the panel had misdirected itself on the applicable standard of proof; that the procedure adopted by the panel had been unfair and in violation of both Articles 5 § 4 and 6 § 1 of the Convention; and that the determination of the lawfulness of his detention was not speedy within the meaning of Article 5 § 4.
Permission for judicial review was granted on 9 November 2005. On 23 May 2006 the High Court dismissed the application. It found that there had been no misdirection or error of law in the panel’s approach; no unfairness was caused to the applicant as he had had the option of summonsing the complainant himself; the panel was “clear” that the applicant had committed the grave sexual assaults and had therefore satisfied the “cogency” test set out in Re H and Others (cited above); the panel had not been in breach of its Article 5 § 4 obligations as the applicant had been “very largely responsible” for the long delays; and, finally, as the applicant’s detention had not been unlawful there had been no damage.
5. Court of Appeal proceedings
On 4 July 2006 the applicant filed a notice of appeal against the judgment of the High Court. The appeal was heard on 23 April 2007.
On 6 September 2007 the Court of Appeal delivered its judgment. The court dealt summarily with the issue of delay, noting that there had been no delay on the part of the panel, which had acted “with appropriate dispatch.”
On the question of fairness the court observed that the applicant had had the opportunity to summons the complainant as a witness and cross‑examine her as though she were the Secretary of State’s witness. In addition, the applicant’s counsel had had the opportunity to reduce the weight of the hearsay evidence by making submissions as to why the witness would not attend voluntarily. In any case, the court found it inconceivable that evidence of this nature should have been ignored when the safety of the public was at stake. It therefore concluded that there was no unfairness caused to the applicant.
However, insofar as the panel had found that it did not have to rely on “a more compelling quality of evidence”, the Court held that it had misdirected itself as such a finding was inconsistent with Re H and Others (cited above). The court accordingly quashed the panel’s decision of 3 August 2005 and directed that a fresh decision be taken by a differently constituted panel.
The applicant’s counsel subsequently filed a further written submission with the Court of Appeal, in which he sought a declaration that the applicant’s detention since 2 October 2000 had been in breach of Article 5 § 1 of the Convention. He also sought damages in respect of that violation and an order for bail.
On 5 December 2007, after hearing oral submissions, the court decided not to consider the applicant’s submissions on Article 5 § 1. It noted that this issue had not been raised in the course of the appeal proceedings and, although it had been included in the initial Order 53 statement, it had not been directly in issue before the High Court and the judge had therefore made no findings on it. In reaching this conclusion the court expressly rejected the applicant’s argument that he could only properly advance an Article 5 § 1 claim after the court had found the review process to be unlawful in some sense.
The LSRC was granted permission to appeal to the House of Lords and the applicant was granted permission to cross-appeal.
6. Events prior to the House of Lords’ decision
The applicant had been scheduled to have a review of the lawfulness of his detention before a fresh panel in or around August 2007. However, on 19 September 2007 he received a letter from the LSRC which indicated that following the decision of the Court of Appeal this review could no longer take place. Instead, the initial referral to the LSRC, which took place on 29 November 2001, was revived.
The new panel first convened for a hearing on 4 January 2008. At the time of the hearing on 4 January 2008 the applicant was on the Pre-Release Scheme with the Prisoner Assessment Unit (“PAU”). He had moved to the PAU in November 2007 and by January 2008 had progressed on to the second phase of the process.
Due to inclement weather conditions, the LSRC staff that operated the audio recording facility was not present at the hearing on 4 January 2008. Instead, the Chairman of the panel took a note of the evidence given. The notes were provided to the parties at the end of the hearing. After having read the Chairman’s note, the applicant’s solicitors wrote to the panel on 18 January 2008 to complain that the note was incomplete and did not refer to all the evidence. The parties were subsequently invited to pool notes and consider whether “substantial differences” arose which should be brought to the panel’s attention.
A further hearing date was fixed for 12 March 2008.
On 11 March 2008 the parties exchanged their notes of evidence taken at the hearing on 4 January 2008.
At the hearing on 12 March 2008 several witnesses indicated that they no longer believed that the applicant would pose a significant risk to the public. Counsel for the applicant therefore contended that a licence should be issued immediately without waiting for a determination of the outstanding factual issue, namely whether or not the applicant had committed the alleged sexual assaults against children. The Chairman concluded the hearing by stating that the panel would first consider whether it was appropriate to come to a decision on the grant of a licence at that stage. If this issue was decided in the affirmative, the panel would then consider whether a licence should be granted.
On 1 April 2008 the panel notified the parties that it was not possible at that stage for it to reach a decision on the issuing of a licence as it had not heard all the available evidence.
On 9 April 2008 the applicant’s solicitors advised the panel that they considered the panel’s refusal to come to a decision on the licence as unlawful and in violation of the applicant’s rights under Article 5 § 1 of the Convention. The letter indicated that the applicant intended to apply to the High Court for mandatory relief.
On 1 May 2008 the applicant issued a claim for judicial review challenging the decision of the LSRC not to issue a licence. The applicant relied, inter alia, on Article 5 §§ 1 and 4 of the Convention.
An oral hearing to consider permission was listed for 9 May 2008. At the oral hearing on 9 May 2008 the judge refused permission to apply for judicial review.
The applicant filed a notice of appeal against this decision.
In the interim the panel hearing had continued with hearings taking place on 21 and 27 May 2008.
7. The House of Lords’ decision
On 11 June 2008 the House of Lords allowed the LSRC’s appeal, overturning the Court of Appeal’s decision and restoring the panel’s decision of 3 August 2005. At the same time the House of Lords dismissed the applicant’s cross-appeal.
In the leading judgment their Lordships considered that the procedure adopted in respect of the summonsing of the complainant was not unfair for the reasons given by the High Court.
In respect of the Article 5 § 4 issue their Lordships considered that from November 2001 – when the matter was first referred to the LSRC – until 15 August 2005 – the date of the panel decision – the LSRC had taken reasonable steps to proceed to a hearing and that any delays were mostly out of its control. In fact, some of the delays had occurred due to the applicant’s change of legal representation and to his solicitor’s requests for extensions of time at various stages in the proceedings. In particular, they held that
“[31] One cannot avoid a feeling of some disquiet when one looks at the extraordinarily long period which elapsed between recall and final decision. One may find, as I shall show, that there is no single gap in the chronology which points to avoidable delay on the part of the Commissioners. Nevertheless, where there are unavoidable delays which add up to a substantial lapse of time, it is incumbent on any court or tribunal to take proactive steps to press on with the matter before it and attempt to overcome any difficulties which may have been holding back its resolution.
[32] It is necessary to bear in mind, first, that the remedy is being sought by the Respondent against the Commissioners, not against the Secretary of State, and that what has to be considered is whether the Commissioners failed to act with proper expedition, not whether the system required overhaul so as to speed up the process in some way. For this reason one must leave out of consideration the period up to November 2001 – over half of the overall lapse of time – when the matter was referred to the Commissioners for consideration. One may observe, however, that a good deal of activity took place between March 1997 and November 2001, involving two determinations by the Life Sentences Review Board and an application for judicial review.”
8. Subsequent events
The LSRC subsequently took the view that there was no need to re‑determine the lawfulness of the applicant’s recall in 1997. The existing panel was disbanded and a further review by a new panel was scheduled to determine only the issue of whether the applicant was safe to release in 2008.
The new panel hearing was listed for 7 October 2008.
The application for permission to appeal against the refusal to grant permission to apply for judicial review was heard by the Court of Appeal on 22 September 2008. On that date the court found that there were arguable grounds for judicial review and granted permission.
At the panel hearing on 7 October 2008 the applicant was released on licence.
Following his release, the Court of Appeal reconvened and remitted the judicial review to be heard in the High Court.
On 23 January 2009 the High Court refused the applicant’s application for judicial review. On 14 June 2011 the Court of Appeal dismissed his appeal. On the Article 5 issues the court noted that the evidence of the witnesses with regard to the risk the applicant posed to the public had not been uniform and the panel had therefore been entitled to reach the decision that it did. Consequently the applicant’s continued detention between March and October 2008 was not arbitrary and was rationally connected to the reason for his recall and sentence.
On the advice of counsel given on 20 June 2011 the applicant did not pursue an appeal to the Supreme Court.
B. Relevant domestic law and practice
1. The Prison Act (Northern Ireland) 1953
Section 23(1) of the Prison Act (Northern Ireland) 1953 (“the 1953 Act”) gives a power to the Secretary of State for Northern Ireland to release prisoners with life sentences on licence.
Under subsection (2) of that section the Secretary of State also has the power to revoke any licence he has previously granted.
2. Life Sentences (Northern Ireland) Order 2001
Part II of the Life Sentences (Northern Ireland) Order 2001 (“the 2001 Order”) provides for the appointment of the Life Sentence Review Commissioners (“LSRC”) to advise the Secretary of State on any matter referred to them which is connected with the release or recall of life prisoners.
Under Article 5 of the 2001 Order the “tariff”, which is that part of the life sentence considered appropriate to satisfy the requirements of retribution and deterrence, is fixed by the sentencing court. Under Article 6 of the Order, as soon as a life prisoner has completed the tariff the Secretary of State is required to refer his case to the LSRC, who should consider whether or not it is necessary for the prisoner to remain confined in order to protect the public from serious harm. If they are satisfied that it is not necessary they are required to direct his release. The Order imposes a duty on the Secretary of State to release a prisoner on licence if so directed by the LSRC.
3. Requirements for fairness in parole-type proceedings
The leading domestic decision on the requirements of the Convention in the context of parole-type proceedings is the House of Lords decision in the case of Roberts v. Parole Board [2005] UKHL 45. In that case Lord Bingham summarised the applicable principles as follows:
“In non-criminal article 5(4) cases the approach of the [European] Court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example, Sanchez-Reisse v Switzerland (1986) 9 EHRR 71, para 51; Bouamar v Belgium (1987) 11 EHRR 1, para 60; Weeks v United Kingdom (1987) 10 EHRR 293, para 66; Megyeri v Germany (1992) 15 EHRR 584, para 23; Hussain v United Kingdom (1996) 22 EHRR 1, paras 58-60; Al-Nashif v Bulgaria (2002) 36 EHRR 655, paras 90-98. It is quite true, as the Board insisted in argument, that the Court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly and McElduff, above, para 72, the Court pointed out that any limitations must not ‘restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired’.”
4. The standard of proof
In the leading domestic decision, Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the House of Lords considered that:
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. ....
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established....”
COMPLAINTS
The applicant complains under Article 5 § 4 of the Convention that from the time of his recall on 7 March 1997 until his release on licence on 7 October 2008 he did not have the lawfulness of his detention reviewed “speedily” by a tribunal according to a process that complied with all the requirements of that provision. The applicant contends that for the first four years of his detention no Article 5 § 4-compliant body existed in Northern Ireland. Additionally, during the period in which the LSRC existed, the applicant submits that the reviews of his detention were punctuated by long delays and were not conducted fairly.
The applicant further complains under Article 5 § 1 that his detention on recall by the Secretary of State between 7 March 1997 and 3 August 2005 was not based upon any judicial decision and was therefore not “lawful” for the purposes of that provision (see Baranowski v. Poland, no. 28358/95, §§ 56-58, ECHR 2000‑III and Erkalo v. the Netherlands, 2 September 1998, §§ 57-60, Reports of Judgments and Decisions 1998‑VI). Similarly, the applicant complains that his detention between 12 March and 7 October 2008 violated Article 5 § 1 in that the detention was authorised on the grounds of “risk” even though no relevant risk could be shown to exist (see Stafford v. the United Kingdom [GC], no. 46295/99, §§ 80, 82 and 87, ECHR 2002‑IV).
QUESTION TO THE PARTIES
Were the reviews of the applicant’s detention following his recall to prison on 7 March 1997 conducted “speedily” within the meaning of Article 5 § 4 of the Convention?
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