The European Commission of Human Rights sitting in private on 3 March
1986 the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 3 May 1985 by
P.H. against the United Kingdom and registered on 23 July 1985 under
file N° 11653/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mr. P.H., is a citizen of the United Kingdom,
born in 1954, and at present detained in HM Prison, Featherstone,
United Kingdom. He is represented in the proceedings before the
Commission by Messrs. Birnberg & Company, Solicitors, and
Mr. Edward Fitzgerald, Barrister-at-law, of counsel.
In 1969 the applicant was sentenced to life imprisonment for the
murder of a jeweller in the course of an armed robbery.
The sentence of life imprisonment is a mandatory sentence for murder
in the United Kingdom. Under Section 1(2) of the Murder (Abolition of
Death Penalty) Act 1965 a judge, when sentencing an offender convicted
of murder to life imprisonment, can make a recommendation as to the
minimum period that prisoner should serve in custody. The
recommendation is directed to the Home Secretary who has the final
decision as to whether or not to release a prisoner sentenced to life
imprisonment. No such minimum recommendation was made under this
provision in the applicant's case.
In December 1982 the applicant was transferred from a closed prison to
Sudbury Open Prison. A life sentence prisoner is not moved to an open
prison until he is no longer considered to be dangerous. No such
decision to transfer to open conditions is taken without the positive
approval of the Home Secretary, the Parole Board, and without
consulting the trial judge, if available, and the Lord Chief Justice.
Such a transfer is understood to be on the basis that the prisoner
would be released provided he had a satisfactory release plan and
that within a period of up to two years he had exhibited no untoward
behaviour.
After one year in open prison he was told by the Governor that he
would be strongly recommended for parole. He believed that he would
be shortly transferred to a hostel and eventually released on licence
by early 1985. On 11 October 1983 the applicant was suddenly
transferred back to a closed prison (Winson Green Prison, Birmingham).
He was told that there was no question of any allegation of
misbehaviour on his part playing a part in this decision.
On the same day the Secretary of State for the Home Department
announced a new parole policy in a speech to the Conservative Party
Conference. This policy was further elaborated in a statement to the
House of Commons on 13 November 1983. He stated that he was attentive
to
"growing public criticism of the gap between the length of sentence
passed and length of the sentence actually served ... That gap can
endanger public confidence in our criminal justice system. People
want to know with some certainty what a sentence that has been passed
actually means in practice."
He indicated that he intended to exercise his discretion so that
murderers of police or prison officers, terrorist murders, sexual or
sadistic murderers of children and murders by firearms in the course
of robbery can normally expect to serve at least 20 years in custody.
The policy is intended to exclude release on parole for those who have
committed any of the aforementioned types of murder unless there are
"wholly exceptional circumstances".
The Secretary of State explained that, immediately prior to the
introduction of the policy, a few life sentence prisoners had been
returned from open to closed prisons. Their release in the near
future would not have accorded with his view of the gravity of their
offences.
The applicant, together with other prisoners, introduced proceedings
for judicial review of the Home Secretary's decision. He claimed that
the policy was contrary to the object and purpose of the parole system
under the Criminal Justice Act 1967 since it fettered the discretion
conferred on the Parole Board and the Home Secretary, thereby
preventing a proper consideration of individual cases on their merits.
He also alleged a breach of Art. 7 of the European Convention on Human
Rights (art. 7), claiming that the effect of the policy was to
introduce a retrospective punishment by providing that a minimum
period of custody would be served when no such minimum period had been
recommended by the trial judge under the 1965 Act.
His application was rejected by the High Court on 13 April 1984. An
appeal to the Court of Appeal was also dismissed on 6 July 1983 as was
a further appeal to the House of Lords on 15 November 1984.
Lord Scarman, delivering the judgment of the House of Lords, upheld
the lawfulness of the new policy as follows:
"The question, therefore, is simply did the new policy constite a
refusal to consider the cases of prisoners within the specified
classes? The answer is clearly "no". Consideration of a case is not
excluded by a policy which provides that exceptional circumstances or
compelling reasons must be shown because of the weight to be attached
to the nature of the offence, the length of the sentence and the
factors of deterrence, retribution, public confidence, all of which it
was the duty of the Secretary of State to consider. And the Secretary
of State accepted the invitation of the board to continue to refer to
the board all cases of eligible prisoners notwithstanding the adoption
of the new policy."
As regards the submission that the new policy operated as a punishment
or penalty, Lord Scarman stated:
"... The sentence of the court is in law the punishment. The
disappointment of the expectation which prisoners may have that under
the parole system they will not have to serve the whole of a sentence
in prison may be distressing but is not a punishment or penalty which
goes beyond the sentence of the court. Thus one is thrown back to the
question of the lawfulness of the policy to be followed in the
consideration of their cases. If the policy be lawful, the
disappointment of the expectation can be no ground for judicial
review: if it be unlawful, the prisoner's case for relief does not
depend upon a description of his disappointment as a punishment."
The applicant's case has subsequently been reviewed by the Parole
Board in accordance with the new policy. He has received a covering
letter informing him that he would have to serve at least 15 years'
imprisonment. He has also written to the Home Secretary submitting
that his case be treated as "exceptional" because of his defeated
expectations. This petition has met with no success.
The procedure which will now apply to the review of the applicant's
case for release on parole is as follows:-
- His case will next be referred to the Parole Board at a date
which the Home Secretary considers appropriate from the point of view
of retribution and deterrence. In determining this date the Home
Secretary will principally have regard to his 20 year minimum rule,
although he will also consult the judiciary;
- The Home Secretary's agreement to continue to refer to the
Parole Board all cases that were previously referred to it is on
condition that the Parole Board take account of the new parole policy.
COMPLAINTS AND SUBMISSIONS
Article 7 (art. 7)
The applicant complains that the effect of the Home Secretary's policy
constitutes a breach of Art. 7 of the Convention (art. 7) since it
serves to impose on him a penalty that is harsher than that originally
imposed on him at the time of sentence, and applicable at the time of
his crime.
He makes the following submissions:
- That the drastic restriction of the eligibility of prisoners
for release in a way not contemplated by the legislation renders the
penalty more severe than at the time of its imposition.
- His sentence must be seen as premissed upon the parole
machinery set up under the Criminal Justice Act 1967. Under this
system his sentence provided for earlier release at such time as
accorded with the views of both Parole Boad and the Home Secretary.
Moreover, at the time of his life sentence it was contemplated that
his case would be reviewed in the light of various mitigating factors
such as age, the lack of premeditation, capacity for reform and other
factors concerning the offence. The effect of the policy of a minimum
20-year sentence is to render the sentence more harsh than that
originally imposed.
- The trial judge could have made a minimum recommendation under
Section 1(2) of the Murder (Abolition of death penlty) Act 1965.
Where there was no such recommendation, a prisoner was entitled to
assume that his case would not be decided by reference to a fixed term
of years. The effect of the Home Secretary's 20-year minimum rule is
the same as if the trial judge had recommended a minimum sentence.
Finally, he refers to the decision of the U.S. Supreme Court in
Marrero v. Warden of Louisberg Penitentiary (1974) 417 U.S. 653 where
it was decided that the introduction of new legislation withdrawing
parole eligibity constituted the imposition of an additional penal
sanction.
Article 5, para. 4 (art. 5-4)
It is submitted that the continued detention of a prisoner without the
possibility or availabality of parole may, after the lapse of a
considerable length of time, give rise to an issue as to whether the
continued detention of the prisoners is justified under Art. 5,
para. 1, sub-para. a of the Convention (art. 5-1-a). Accordingly
there must be provision for review of the continued lawfulness
of the applicant's detention by a court.
Since the Parole Board does not conform to the necessary requirements
of a "court" for the purposes of Art. 5, para. 4 (art. 5-4),
the applicant has been denied the right to have the lawfulness of his
continued detention reviewed as provided for in Art. 5, para. 4
(art. 5-4).
Article 3 (art. 3)
The applicant submits that on the particular facts of his case the
unexpected reversal of his legitimate expectations of release
constitutes a breach of Art. 3 (art. 3) since it amounts to inhuman
and degrading treatment or punishment.
THE LAW
1. The applicant complains that a sudden change in parole policy
in the United Kingdom effectively increased his sentence from that
applicable at the time his offence was committed and from that imposed
at his trial. He submits that the change in policy whereby he will
only become eligible for release on parole after having served
20 years of his sentence of imprisonment raises issues under Arts. 7,
5, para. 4, and 3 of the Convention (art. 7, art. 5-4, art. 3).
As regards Article 7 (art. 7)
2. Art. 7 (art. 7) provides as follows:
1. No one shall be held guilty of any criminal offence
on account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
2. This Article (art. 7) shall not prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognised by civilised
nations.
3. The Commission recalls that the applicant was sentenced to
life imprisonment in 1973 for committing a murder in the course of a
robbery. It is clear that the penalty for this offence at the time it
was committed was life imprisonment and thus no issue under Art. 7
(art. 7) arises in this respect.
4. Furthermore, in the opinion of the Commission, the "penalty"
for purposes of Art. 7, para. 1 (art. 7-1), must be considered to be
that of life imprisonment. Nevertheless it is true that as a result
of the change in parole policy the applicant will not become eligible
for release on parole until he has served 20 years' imprisonment.
Although this may give rise to the result that his imprisonment is
effectively harsher than if he had been eligible for release on parole
at an earlier stage, such matters relate to the execution of the
sentence as opposed to the "penalty" which remains that of life
imprisonment. Accordingly, it cannot be said that the "penalty"
imposed is a heavier one than that imposed by the trial judge.
As regards Art. 5, para. 4 (art. 5-4),
5. The applicant complains that he is unable to have the
lawfulness of his continued detention reviewed by a court as required
by Art. 5, para. 4 (art. 5-4).
6. This provision 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."
7. However, the Commission recalls that where a person is
detained following conviction by a competent court the supervision of
the lawfulness of his detention under Art. 5, para. 4 (art. 5-4)
is incorporated at the outset in his criminal trial and the appeal
from it. The Commission does not consider, therefore, that the
applicant can derive from Art. 5, para. 4 of the Convention (art. 5-4)
a right to judicial review of his sentence in the light of a change in
parole policy which does not alter the legal basis of his detention
(see Eur. Court H.R., Vagrancy Case, judgment of 18.6.71, para. 76;
also Dec. No. 9089/80, D.R. 24 pp. 227-231).
As regards Article 3 (art. 3)
8. Finally, the applicant complains that the unexpected reversal
of his expectations of release constitutes inhuman and degrading
treatment or punishment in breach of Art. 3 (art. 3).
9. Art. 3 (art. 3) states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
10. The Commission has held that the notion of inhuman treatment
includes at least such treatment as deliberately causes severe
suffering, whether mental or physical, and that an individual's
treatment may be said to be degrading if it grossly humiliates him
before others or drives him to act against his own will or conscience
(See Ireland v. the United Kingdom, Comm. Rep. 25.1.76, Yearbook 19
pp. 745 and 752).
11. However, the European Court of Human Rights has stressed that
"ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Art. 3 (art. 3). The assessment of this
minimum is, in the nature of things, relative. It depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim". (Eur. Court H.R., Ireland v. the United
Kingdom, 18.1.78, para. 162).
12. The Commission recalls that the applicant was detained in an
open prison at the time of the change in parole policy and enjoyed a
reasonable prospect of release on parole within a period of two years.
It has no doubt that his recall to a closed prison and the sudden
change of parole policy and consequent frustration of his expectations
of release must have caused him real distress.
13. However, in the opinion of the Commission, the weight to be
attached in penal policy to such factors as retribution and deterrence
and the determination of the public interest are matters which fall
within the wide discretion of the competent authorities. In addition,
the Commission has previously found that Art. 3 (art. 3) 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 (Dec. No. 7994/77, 6.5.78, D.R. 14 p. 240). Finally, in
the circumstances of the present case, the Commission notes that the
applicant's case will in any event continue to be referred for
consideration to the Parole Board, albeit within the context of the
new parole policy.
14. Against this background, the Commission does not consider
that the change in parole policy falls into a category of treatment
which could constitute a breach of Art. 3 (art. 3) as that provision
has been understood by the Commission and Court.
15. Accordingly, the Commission considers that the application
must, as a whole, be rejected as manifestly ill-founded within the
meaning of Art. 27, para. 2, of the Convention (art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)