AS TO THE ADMISSIBILITY OF
Application No. 17143/90
by Eric OLDHAM
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1992, the following members being present:
MM. F. ERMACORA, Acting 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
Mr. M. de SALVIA, Secretary to the First 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 4 July 1990 by
Eric OLDHAM against the United Kingdom and registered on 9 September
1990 under file No. 17143/90;
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 1948 and is currently
serving a sentence of life imprisonment in H. M. Prison Nottingham.
The facts of this case as submitted by the parties may be
summarised as follows.
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.
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.
In 1983 the applicant's licence was revoked after he was
convicted of handling a stolen credit card. 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.
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.
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.
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.
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). The applicant was furthermore informed that he
was to receive a review in September 1991.
The applicant petitioned the Secretary of State for the purpose
of asking for his recall to be considered by a body other than the
Parole Board. This petition was refused. The applicant then
petitioned the Court of Appeal for the purpose of seeking leave to
appeal out of time. This petition was also refused.
COMPLAINTS
The applicant complains that his rights under Article 5 para. 4
of the Convention have been violated by virtue of the fact that he is
unable to have his continued detention reviewed by an independent body
capable of ordering his release. He further complains that his rights
under Article 5 para. 5 of the Convention have been violated on the
ground that he was not given an enforceable right to compensation under
United Kingdom law in respect of the violation of Article 5 para. 4 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 July 1990 and registered
on 9 September 1990.
On 2 September 1991, the Commission decided to communicate
the application to the respondent Government and to ask for written
observations on the admissibility and merits of the applicant's
complaint under Article 5 para. 4 of the Convention. The Commission
declared the remainder of the application inadmissible.
The Government's observations were submitted on 20 November 1991.
THE LAW
The applicant, who is serving a discretionary life sentence,
complains of the absence of any procedure under domestic law by which
he can have reviewed by a court the continued lawfulness of his
detention. He invokes Article 5 para. 4 and para. 5 (Art. 5-4, 5-5)
of the Convention, which provide :
"(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.
(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 Government have made no objection to admissibility.
The Commission recalls that in the Thynne, Wilson and Gunnell
cases (Eur. Court H.R., judgments of 25 October 1990, Series A no.
190A) the Court held that the applicants who were serving discretionary
life sentences were entitled under Article 5 para. 4 (Art. 5-4) of the
Convention to take proceedings to have the lawfulness of their
continued detention decided by a court at reasonable intervals and to
have the lawfulness of any re-detention determined by a court. The
Court found that neither judicial review nor the review by the Parole
Board satisfied these requirements. The Court also found, in the case
of Wilson, a violation of Article 5 para. 5 (Art. 5-5) in that there
was no enforceable right to compensation under the law of the United
Kingdom in these circumstances.
Consequently, the Commission considers that the application
raises complex issues of law and fact under the Convention, the
determination of which should depend on the merits. It must therefore
be declared admissible, no other ground for declaring it inadmissible
having been established.
For these reasons, the Commission unanimously
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
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