AS TO THE ADMISSIBILITY OF
Application No. 21309/93
by Desmond FINNEGAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
28 November 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 November 1992
by Desmond FINNEGAN against the United Kingdom and registered on
2 February 1993 under file No. 21309/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the applicant may be summarised as
follows.
The applicant is an Irish citizen born in 1945 and is currently
serving a sentence of life imprisonment in HM Prison Gartree.
A. Particular circumstances of the case
The applicant was convicted of murdering his girlfriend in July
1974 and was sentenced to life imprisonment.
In June 1987 the applicant was released on licence. In December
1987 the applicant was returned to prison following a charge of
wounding the woman with whom he had been living. In or around June or
July 1988 he was convicted on this charge and he received a sentence
of four years' imprisonment. His licence was then revoked.
The applicant's case was reviewed by the Parole Board in May 1990
but he was not recommended for release. His case was again reviewed by
the Parole Board in November 1992 and he was informed, in June 1993,
that the Parole Board had declined to recommend his release. The
applicant's next review date has been set for May 1995.
B. Relevant domestic law and practice
In addition to the facts as submitted by the applicant the
Commission has had regard to the outline of relevant domestic law and
practice in the judgment of the European Court of Human Rights in the
Wynne case (judgment of 18 July 1994, Series A no. 294-A,
paras. 12-23). In particular the Commission has noted the following:
1. Life sentences
Murder carries a mandatory sentence of life imprisonment under
the Murder (Abolition of Death Penalty) Act 1965.
A life sentence may also be passed, in the exercise of the
court's discretion, on a person 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. Broadly speaking, the use of such a discretionary life
sentence is reserved for cases where the offence is grave and it
appears that the accused is a person of unstable character likely to
commit such offences in the future, thus making him dangerous to the
public in respect of his probable future behaviour unless there is a
change in his condition.
The Criminal Justice Act 1991 ("the 1991 Act") introduced changes
to the procedures for the release of discretionary life prisoners to
reflect the fact that reviews, complying with Article 5 para. 4 of the
Convention, are required in respect of the non-punitive period of
discretionary life sentences. These changes were not extended to
mandatory life prisoners.
In the course of the debate in the House of Commons in respect
of what was to become the 1991 Act, the Minister of State for Home
Affairs explained, inter alia, the difference between mandatory and
discretionary life sentences, and described mandatory life sentences
as follows:
"The nature of the mandatory sentence is different. The element
of risk is not the decisive factor in handing down a life
sentence. According to the judicial process, the offender has
committed a crime of such gravity that he forfeits his liberty
to the State for the rest of his days. If necessary he can be
detained for life without the necessity for a subsequent judicial
intervention."
However the English courts have recognised, in determining the
principles of fairness that apply to the procedures governing the
review of mandatory life sentences, that the mandatory sentence is,
like the discretionary sentence, composed of both a punitive period
("the tariff") and a security period, the latter period being linked
to the assessment of the prisoner's risk to the public following the
expiry of the tariff.
The English courts have also recognised that there continues to
be a gap between the theory and practice in respect of mandatory life
sentences (R. v. Secretary of State for the Home Department, ex parte
Doody [1993] 3 All England Reports 92). In that case Lord Mustill, with
whom the other Law Lords agreed, went on to state that, while the
mandatory life sentence may be converging with the discretionary life
sentence, nevertheless there remained a substantial gap between the two
types of sentences and it would be a task for Parliament to further
assimilate the effect of the two types of life sentences.
2. Release of life prisoners on licence and revocation of a
licence
The Criminal Justice Act 1967 ("the 1967 Act") contained the
relevant statutory provisions in respect of Parole Board reviews and
the powers of the Secretary of State in this regard. These provisions
have been incorporated into the 1991 Act since October 1992 and
continue to apply to mandatory life prisoners.
Pursuant to the above legislation the Secretary of State may,
after certain consultations, release on licence a person if recommended
to do so by the Parole Board. The Secretary of State may revoke the
licence of a person either on his own initiative or on the
recommendation of the Parole Board. If a person subject to a licence
is convicted on indictment of an offence, the trial court may, whether
or not it passes any other sentence on him, revoke the licence. The
effect of a revoking a licence is that the person is liable to be re-
detained in pursuance of his original sentence (formerly section 62(9)
of the 1967 Act).
COMPLAINTS
The applicant complains under Article 3 of the Convention, in
relation to the length of his detention and alleged maltreatment by
prison officers. He also complains under Article 5 paras. 4 and 5 of
the Convention in relation to the reviews conducted by the Parole Board
in respect of his detention. Finally, the applicant invokes Article 6
paras. 2 and 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 November 1992 and was
registered on 2 February 1993.
On 3 May 1993 the Commission decided to communicate the
applicant's complaints under Article 5 para. 4 of the Convention to the
respondent Government without requesting observations.
By letter dated 4 August 1994 the Secretariat of the Commission
provided the applicant with a copy of the judgment of the Court in the
Wynne case (Eur. Court H.R., Wynne judgment of 18 July 1994, Series A
294-A), requesting the applicant to inform the Commission whether, in
light of that judgment, the applicant wished to maintain his case.
By letter dated 18 August 1994 the applicant confirmed that he
wished to continue with his application.
On 3 September 1994 the Commission decided to continue its
examination of the admissibility of the application without seeking the
observations of the Government.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention, in relation to the length of his ongoing detention and
alleged maltreatment by prison officers.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
In relation to the applicant's complaint about the length of his
life sentence, the Commission recalls that Article 3 (Art. 3) of the
Convention cannot be read as requiring that an individual serving a
sentence of life imprisonment must have that sentence reconsidered by
a national authority (judicial or administrative) with a view to its
remission or termination (No. 11635/85, Dec. 3.3.86, D.R. 46 p. 237).
In the present case the Commission notes that the applicant is serving
a sentence of life imprisonment.
As to whether there are particular factors in the present case
which would bring the applicant's detention within the scope of Article
3 (Art. 2) of the Convention, the Commission recalls that, according
to the constant case-law of the Convention organs, the treatment in
respect of which an applicant complains must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3) of the
Convention. The assessment of the minimum is relative and depends,
therefore, on all the circumstances of the case (see, for example, No.
8463/78, Dec. 9.7.81, D.R. 26 p. 49 and Eur. Court H.R., Ireland v.
United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,
para. 162).
The Commission has examined all of the submissions of the
applicant but does not consider that, in the circumstances of this
case, the treatment of which the applicant complains reaches the
threshold of severe ill-treatment prohibited by Article 3 (Art. 3) of
the Convention. The Commission therefore finds this aspect of the
application manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
In relation to the applicant's complaint under Article 3
(Art. 3) of the Convention about alleged maltreatment by prison
officers, the Commission finds that the applicant has not shown that
he has complied with Article 26 (Art. 26) of the Convention as regards
exhaustion of domestic remedies. It does not appear from the case-file
that the applicant has pursued any civil action for assault or other
tort against a prison officer. Accordingly the Commission finds this
complaint inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of
the Convention.
2. The applicant complains under Article 5 para. 4 (Art. 5-4) of the
Convention in relation to the Parole Board reviews which have been
conducted in respect of his detention. He also complains under Article
5 para. 5 (Art. 5-5) of the Convention that he has no enforceable right
to compensation in this regard.
Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention read
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 his detention is not lawful.
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."
The Commission recalls the judgment of the European Court of
Human Rights in the case of Wynne v. the United Kingdom (Eur. Court
H.R., judgment of 18 July 1994, to be published in Series A no. 294-A).
In that case the applicant received a mandatory life sentence and was
released on licence, which licence was subsequently revoked. It was
found by the Court that the legal basis for his continuing detention
was a mandatory life sentence (although "supplemented" by a subsequent
discretionary life sentence). The applicant in the Wynne case submitted
that the distinction between mandatory and discretionary life
sentences, set out in the Thynne, Wilson and Gunnell case (Eur. Court
H.R., Thynne, Wilson and Gunnell judgment of the 25 October 1990,
Series A no. 190), was no longer valid referring in support of his
arguments to recent domestic practices, case-law and official
pronouncements. Therefore, the applicant in the Wynne case argued that
he was entitled to a review complying with Article 5 para. 4
(Art. 5-4) of the Convention. The Court in the Wynne case (loc. cit.,
paras. 35-36), however, found as follows:
"..... the fact remains that the mandatory life sentence belongs
to a different category from the discretionary sentence in the
sense that it is imposed automatically as the punishment for the
offence of murder irrespective of considerations pertaining to
the dangerousness of the offender ..... That mandatory life
prisoners do not actually spend the rest of their lives in prison
and that a notional tariff period is also established in such
cases - facts of which the Court was fully aware in Thynne,
Wilson and Gunnell ..... - does not alter this essential
distinction between the two types of life sentence .....
..... Against the above background, the Court sees no cogent
reasons to depart from the finding in the Thynne, Wilson and
Gunnell case that, as regards mandatory life sentences, the
guarantee of Article 5 para. 4 (Art. 5-4) was satisfied by the
original trial and appeal proceedings and confers no additional
right to challenge the lawfulness of continuing detention or re-
detention following revocation of the life sentence .....
Accordingly, in the circumstances of the present case, there are
no new issues of lawfulness which entitle the applicant to a
review of his continued detention under the original mandatory
life sentence."
In the present case the Commission notes that the applicant was
sentenced to a mandatory life sentence and was released on licence,
which licence was revoked following his conviction for another offence.
It is also noted that the applicant was then re-detained in pursuance
of the original mandatory life sentence (section 62 (9) of the 1967
Act).
The Commission further notes that the applicant has submitted no
evidence to demonstrate that the character of the mandatory life
sentence has changed in domestic law. It remains a sentence imposed
automatically as punishment for the offence of murder irrespective of
considerations pertaining to the dangerousness of the offender. The
Commission therefore finds, as did the Court in the above-mentioned
Wynne case, that the applicant has advanced no cogent reason to depart
from the finding in the Thynne, Wilson and Gunnell case (loc. cit.).
Accordingly, the Commission concludes that the guarantees
provided by Article 5 para. 4 (Art. 5-4) of the Convention were
satisfied by the original trial and appeal proceedings (if any) of the
applicant. It finds that no new issues of lawfulness arose in relation
to the applicant's detention which entitled the applicant to a review
under Article 5 para. 4 (Art. 5-4) of the Convention.
As no appearance of a violation of either paragraph 4 or
paragraphs 1 to 3 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the
Convention has been established in the present case, the applicant is
not entitled to an enforceable right to compensation under Article 5
para. 5 (Art. 5-5) of the Convention.
It follows that the Commission must reject the complaints of the
applicant under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the
Convention as manifestly ill-founded pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
3. Finally, the applicant complains under Article 6 paras. 2 and 3
(Art. 6-2, 6-3) of the Convention, but does not specify the nature of
the alleged violation of these provisions.
The Commission has examined the matters raised by the applicant,
but finds no evidence in the case-file which might disclose any
appearance of a violation of Article 6 paras. 2 or 3 (Art. 6-2-, 6-3)
of the Convention. The Commission therefore finds the applicant's
complaints in this regard manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy