AS TO THE ADMISSIBILITY OF
Application No. 28376/95
by K.M.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 June 1995 by
K.M. against the United Kingdom and registered on 30 August 1995 under
file No. 28376/95;
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 British citizen, born in 1961. He is
currently in prison in Doncaster and is represented before the
Commission by Mr R Hatch, a solicitor practising in Doncaster. The
facts of the application, as they have been submitted by the
applicant's representative, may be summarised as follows.
A. The particular circumstances of the case
The applicant was born on the 16 May 1961. He was convicted on
4 November 1983 for the rape of a 60 year old woman, committed on
6 February 1983, and for two offenses of burglary. He was sentenced
to life imprisonment for the rape and received 5 years and 2 years
imprisonment for the two offenses of burglary, the sentences to run
consecutive to each other but concurrent to the life sentence. The
applicant pleaded not guilty to the offence of rape and has continued
to protest his innocence. The applicant has a prior conviction for
rape (1980 - 4 years), for which he acknowledges guilt.
As a discretionary life prisoner the applicant has been in
custody in HMP Wakefield (initial allocation), HMP Stockon (category
C) and from 20 June 1991, HMP Lindholme (category C). The transfers
to Stockon and Lindholme were career moves and in each case followed
Parole Board reviews.
The tariff (period of detention relating to punishment and
deterrence) for the applicant expired on 11 February 1991.
On 28 April 1993 the Secretary of State referred the applicant's
case to the Parole Board Discretionary Lifer Panel ("DLP"). The
reference concluded with this passage:
"3. If the Board does not consider it appropriate to direct
release, it is invited to advise the Secretary of State
regarding:
i) whether the prisoner should be transferred to
less secure conditions including, where
appropriate, open conditions. If the Board
makes such a recommendation, it is invited to
comment on the degree of risk involved.."
On 13 July 1993, the DLP announced their decision. Their
conclusion was as follows:
"4. ...the panel concluded that you [the applicant] will remain
a risk until your progress can be further tested and consolidated
in less secure conditions.
5. The panel therefore recommended to the Secretary of State
that you should be transferred to a category D prison, which can
provide you with the necessary training for future employment,
as well as developing your social skills, particularly with
regards to your relationships with women, before the next review
[July 1995]."
This recommendation was not accepted by the Secretary of State
who responded by a letter of 16 August 1993:
"The Secretary of State cannot accept the Panel's recommendation
for transfer to a category D establishment, as you [the
applicant] have not fully confronted or tackled your sexual
offending behaviour."
The applicant appealed against the decision of the Secretary of
State. On 27 July 1994 the High Court of Justice, Queen's Bench
Division, refused an application for leave for judicial review, after
consideration of the documents only. On 27 July 1994 the High Court
of Justice, Queen's Bench Division, refused an application for leave
for judicial review after hearing oral submissions from counsel on
behalf of the applicant. On 22 February 1995 the Court of Appeal Civil
Division refused the applicant's renewed application for judicial
review of the decision of 16 August 1993.
On 16 August 1995 the applicant had a further DLP hearing at HMP
Lindholme. The Parole Board DLP recommended that the applicant should
remain a category C Prisoner and undertake the sex offender treatment
programme. The next Discretionary Lifer Parole Board hearing will be
in August 1997.
B. Relevant domestic law
With regard to decisions connected with the early release of
prisoners Section 32 (2) of the Criminal Justice Act 1991 states:
"It shall be the duty of the Board to advise the Secretary of
State with respect to any matter referred to it by him which is
connected with the early release or recall of prisoners."
Under Section 34 of the Criminal Justice Act 1991 the
Discretionary Lifer Panel of the Parole Board may direct the release
of a discretionary life prisoner in certain circumstances, and when it
so directs, the Secretary of State is under a duty to release the
prisoner. The Board is not permitted to give a direction unless it "is
satisfied that it is no longer necessary for the protection of the
public that the prisoner should be confined" (Section 34 (4) (b).
COMPLAINTS
The applicant complains that the refusal of the Secretary of
State to accept the Parole Board DLP's recommendation to move the
applicant to an open prison in 1993, rendered an effective assessment
of the applicant's danger to the public impossible. The applicant
considers such lack of an effective review of his dangerousness and
thus the lawfulness of his detention, was in violation of Article 5
para. 4 of the Convention. He further complains that the retention of
discretion by the Secretary of State under the Criminal Justice Act
1991, as to whether to follow recommendations of the Parole Board DLP
with regard to the removal of a prisoner to a lower security prison,
is a violation of Article 5 para. 4 of the Convention.
The applicant complains in the alternative that the Secretary of
State's decision not to accept the decision of the Parole Board DLP was
so unreasonable as to render it unlawful, and as such the applicant's
continued detention in a category C prison was likewise unlawful.
THE LAW
The applicant complains that the refusal of the Secretary of
State to accept the Parole Board DLP's recommendation to move him to
a less secure prison amounted to a breach of Article 5 para. 4
(Art. 5-4) of the Convention.
Article 5 para. 4 (Art. 5-4) of the Convention provides 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 the detention is not
lawful."
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., Thynne, Wilson and Gunnell v. the United Kingdom
judgment of 25 October 1990, Series A no. 190-A).
The "tariff" in the applicant's case, that is, the period of
confinement necessary to satisfy the requirements of retribution and
deterrence, expired on 11 February 1991. From that date the applicant
was entitled to take proceedings by which the lawfulness of his
detention would be determined speedily by a court (see No. 20448/92,
A.T. v. the United Kingdom, Comm. Rep. 29.11.95).
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" (see the above-mentioned Report of
29 November 1995, Application No. 20448/92). To that extent there is
de facto an automatic periodic review of a judicial character (see Eur.
Court H.R., Herczegfalvy v. Austria judgment of 24 September 1992,
Series A no. 244, p. 24, para. 75 with further references).
The DLP, in its decision of 13 July 1993, found that the
applicant was still a risk. It was not satisfied that it was not
necessary for the protection of the public that the applicant should
be confined, and in the exercise of its statutory powers, did not
direct his release.
In order to ascertain whether the provisions of Article 5 para. 4
(Art. 5-4) of the Convention were complied with in the present case,
the Commission is not required to look beyond the wording of that
provision. Article 5 para. 4 (Art. 5-4) requires a review by which the
"lawfulness" of detention will be determined, and on 13 July 1993 the
DLP determined that issue. It had power to release, or at least to
direct release, if it considered that the applicant's detention was no
longer necessary for the protection of the public, and therefore
complied with the structural requirements of Article 5 para. 4
(Art. 5-4) of the Convention. No complaint has been made about any
procedural aspects of the DLP's decision.
The applicant complains that the Secretary of State's refusal to
follow the DLP's recommendation to transfer the applicant to a category
D prison was unreasonable and, indeed, it was in respect of this
refusal that the applicant attempted judicial review proceedings.
However, the Secretary of State, when refusing to follow that
recommendation, was not determining the lawfulness of detention within
the meaning of Article 5 para. 4 (Art. 5-4) of the Convention, and so
the guarantees of that provision cannot apply to the refusal.
Finally, the Commission notes that the applicant, in his
complaints, makes reference to alleged unlawfulness of his detention.
The applicant was convicted in November 1983, and there is nothing in
the application to suggest that his detention was not compatible with
the provisions of Article 5 para. 1 (Art. 5-1) of the Convention
throughout: Article 5 para. 1 (a) (Art. 5-1-a) until the expiry of the
tariff in 1991, and Article 5 para. 1 (a) and/or (e)(Art. 5-1-a, 5-1-e)
thereafter.
It follows the application is manifestly ill-founded as a whole
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy