EUROPEAN COMMISSION OF HUMAN RIGHTS
F I R S T C H A M B E R
Application No. 17143/90
Eric OLDHAM
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 2 December 1992)
TABLE OF CONTENTS
page
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2
(paras. 1-14)
A. The application (paras. 2-4). . . . . . . . . . . . . . . 1
B. The proceedings (paras. 5-10) . . . . . . . . . . . . . . 1
C. The present Report (paras. 11-14) . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-5
(paras. 15-30)
A. Particular circumstances of the case. . . . . . . . . . 3-4
(paras. 15-23)
B. Relevant domestic law and practice. . . . . . . . . . . 4-5
(paras. 24-30)
III. OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 6-7
(paras. 31-44)
A. Complaints declared admissible. . . . . . . . . . . . . . 6
(para. 31)
B. Points at issue (para. 32). . . . . . . . . . . . . . . . 6
C. Article 5 para. 4 . . . . . . . . . . . . . . . . . . . 6-7
(paras. 33-38)
D. Article 5 para. 5 . . . . . . . . . . . . . . . . . . . . 7
(paras. 39-42)
E. Recapitulation (paras. 43-44) . . . . . . . . . . . . . . 7
APPENDIX I History of the proceedings . . . . . . . . . . . . 8
APPENDIX II Partial decision on the . . . . . . . . . . . .9-12
admissibility of the
application
APPENDIX III Final decision on the. . . . . . . . . . . . . 13-16
admissibility of the
application
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is Eric Oldham, a British citizen born in 1948 and
currently serving a life sentence of imprisonment in HM Prison
Nottingham.
3. The application is directed against the United Kingdom. The
Government are represented by their Agent, Mrs. Audrey Glover of the
Foreign and Commonwealth Office.
4. The case concerns the applicant's complaint under
Article 5 para. 4 of the Convention that he was unable to have the
continued lawfulness of his detention reviewed by an independent
tribunal and his complaint under Article 5 para. 5 that he has no
enforceable right to compensation in respect of the former.
B. The proceedings
5. The application was introduced on 4 July 1990 and registered on
9 September 1990.
6. On 2 September 1991, the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
their observations on the admissibility and merits of the application
insofar as it raised issues under Article 5 paras. 4 and 5 of the
Convention. The remainder of the application was declared inadmissible.
7. The Government submitted their written observations on
20 November 1991.
8. On 1 July 1992, the Commission (First Chamber) declared the
application admissible.
9. The parties were then invited to submit any additional
observations on the merits of the application. On 1 September 1992,
the applicant submitted additional observations.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions, the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
The text of the Report was adopted by the Commission on
2 December 1992 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decisions on the admissibility of the application as APPENDICES II
and III.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. In 1970 the applicant was sentenced to life imprisonment for
manslaughter. The Court accepted that the applicant had suffered brain
damage at birth. The applicant did not appeal against his conviction
or sentence.
16. In 1974 the applicant underwent brain surgery to remove the
damaged section of his brain. In 1981 he was released on life licence.
In 1982 the applicant married for a second time. The applicant and his
second wife are now divorced.
17. In 1983 the applicant's licence was revoked after he had been
convicted of handling a stolen credit card.
18. In 1984 the applicant was, once again, released on life licence.
In December 1985 the applicant had an argument with his wife. As a
result of the differences between himself and his wife, the applicant
went to live in a probation hostel. Five days after this and upon
recommendation of an officer of the probation service who considered
the applicant's wife to be "afraid of him", the Home Secretary revoked
the applicant's licence under Section 62 (2) of the Criminal Justice
Act 1967. The probation service recommended that the applicant be
recalled to prison and he was recalled on 16 December 1985, making
written representations to the Secretary of State about one week later.
The Parole Board confirmed the revocation of the applicant's licence
on 2 May 1986.
19. On 27 October 1989 the applicant was notified that the Home
Secretary had decided, upon the recommendation of the Parole Board and
in consultation with the Judiciary, that, subject to the applicant's
continued good conduct and to the satisfactory completion of a period
of six months in open conditions and nine months in a pre-release
employment scheme, the applicant should be released on life licence.
20. On 23 November 1989 the applicant was transferred to Leyhill Open
Prison. He began working at the local branch of NACRO (the National
Association for the Care and Resettlement of Offenders). On
6 December 1989 the applicant was notified that his provisional release
date was 22 February 1991.
21. On 23 March 1990 the applicant failed to return to Leyhill at the
correct time. A taxi driver had taken him to Bristol Prison instead
of to a bus stop from where the applicant and other prisoners were to
be picked up and taken to Leyhill. The applicant was received into
Bristol Prison and remained there for five weeks. At the end of this
period the applicant was informed that the Home Secretary had decided
that he should spend an additional nine months at Leyhill and
consequently that his provisional release date had been put back to
25 October 1991. On 8 May 1990 the applicant resumed his work at
NACRO. On 9 May 1990 the applicant failed to return to Leyhill. On
10 May 1990 the applicant was received into Bristol Prison.
22. On 25 June 1990 the applicant was notified that the Home
Secretary had decided to cancel the applicant's provisional release
date. In addition, the applicant was informed that he was to be
transferred to a Category C establishment (he had previously been a
Category D prisoner).
23. The applicant's case was reviewed by the Parole Board in
June 1992. He was informed on 1 September 1992 that his release had not
been recommended. The Parole Board recommended that his case be
reviewed again in twelve months.
B. Relevant domestic law and practice
Life sentences
24. By virtue of section 5 of the Offences against the Person Act
1861, the maximum punishment for manslaughter is life imprisonment.
25. 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
26. The policy for the review and release of life sentence prisoners
is the responsibility of the Home Secretary who is answerable to
Parliament.
27. 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
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".
Release on licence
28. Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary
of State could 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 was
available.
29. Section 59 of the 1967 Act set out the role of the Parole Board:
"59. (1) For the purposes of exercising the functions
conferred on it by this part of this Act as respects England and
Wales there shall be a body known as the Parole Board ...
consisting of a chairman and not less than four other members
appointed by the Secretary of State.
...
(3) It shall be the duty of the Board to advise the
Secretary of State with respect to:
(a) the release on licence under section 60 (1) or 61, and
the recall under section 62, of this Act of persons whose cases
have been referred to the Board by the Secretary of State ..."
Recent legislation
30. Under Section 34 of the Criminal Justice Act 1991, which has come
into force on 1 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 has the power
to direct the prisoner's release and the Secretary of State is then
under a duty to release the prisoner on licence.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
31. The Commission has declared admissible the applicant's complaints
that he was unable to have the continued lawfulness of his detention
reviewed by a court and that he had no enforceable right to
compensation in respect of that.
B. Points at issue
32. Accordingly, the issues to be determined are :
- whether there has been a violation of Article 5 para. 4
(Art. 5-4) of the Convention and
- whether there has been a violation of Article 5 para. 5
(Art. 5-5) of the Convention.
C. Article 5 para. 4 (Art. 5-4)
33. Article 5 para.4 (Art. 5-4) provides that:
"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."
34. The case-law of the Commission and Court establishes that
prisoners serving a sentence of 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 the Thynne, Wilson
and Gunnell judgment of 25 October 1990, Series A no. 190-A).
35. In the Thynne, Wilson and Gunnell case (loc. cit. p. 30 para.79),
the Court stated:
"Article 5 para. 4 (Art. 5-4) does not guarantee a right to
judicial control of such scope as to empower the 'court' on all
aspects of the case, including questions of expediency, to
substitute its own discretion for that of the decision-making
authority; the review should, nevertheless, be wide enough to
bear on those conditions which, according to the Convention, are
essential for the lawful detention of a person subject to the
special type of deprivation of liberty ordered against these
three applicants..."
36. In light of the above, the Court held that neither the Parole
Board nor judicial review satisfied the requirements of Article 5
para. 4 (Art. 5-4). It based itself on its findings in the Weeks case
(loc. cit. pp. 30-33, paras. 62-69) in which it found, inter alia ,
that the Parole Board lacked the power of decision and procedural
guarantees required by that provision and that the scope of control
afforded by judicial review was not wide enough to include an
examination of whether the detention was consistent with and therefore
justified by the objectives of the indeterminate sentence imposed.
37. The present applicant is serving a discretionary life sentence.
The punitive or "tariff" part of his sentence expired and the applicant
was released on life licence on two occasions in 1981 and in 1984.
Following his recall to prison on revocation of his licence in 1983,
the question of the applicant's continued detention has been considered
by the Parole Board. The powers and procedures of this body have
changed with the implementation of new legislation. These changes are
however not in issue in the present case. In light of the above case-
law, the Commission finds that, under the then prevailing domestic law,
the applicant was not able to have the lawfulness of his continued
detention reviewed by a body satisfying the requirements of Article 5
para. 4 (Art. 5-4) of the Convention.
Conclusion
38. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention.
D. Article 5 para. 5 (Art. 5-5) of the Convention
39. The applicant further complains of a violation of Article 5
para. 5 (Art. 5-5) of the Convention in that he does not have an
enforceable right to compensation in respect of the violation of
Article 5 para. 4 (Art. 5-4) in his case.
40. Article 5 para. 5 (Art. 5-5) of the Convention provides as
follows:
"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."
41. In the present case, the Commission has found a violation of
Article 5 para. 4 (Art. 5-4) of the Convention. It is not contested by
the Government that this violation could not give rise to an
enforceable claim for compensation before the domestic courts.
Conclusion
42. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 5 (Art. 5-5) of the Convention.
E. Recapitulation
43. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention (para 38).
44. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 5 (Art. 5-5) of the Convention (para 42).
Secretary to the First Chamber a.i. President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
04.07.90 Introduction of the application
09.09.90 Registration of the application
Examination of admissibility
02.09.91 Commission's decision to invite the parties to
submit observations on the admissibility and merits
as regards the complaint under Article 5 para. 4 of
the Convention. The remainder of the application was
declared inadmissible.
20.11.91 Government's observations
01.07.92 Commission's decision to declare the application
admissible
Examination of the merits
01.07.92 Commission's deliberations on the merits
01.09.92 Applicant's observations on the merits
02.12.92 Commission's deliberations on the merits and final
votes and adoption of the Report
Full & Egal Universal Law Academy