AS TO THE ADMISSIBILITY OF
Application No. 13195/87
by M. P., V. K.
and C. G.
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 14 October 1991, the following members being
present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
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 23 July 1987
by M.P., V.K. and C.G. against the United Kingdom and registered on 3
September 1987 under file No. 13195/87;
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 first applicant is a citizen of the United Kingdom, born
in 1960. He is, at present, serving a life sentence of imprisonment
in H. M. Prison, L.
The second applicant is a citizen of the United Kingdom, born
in 1945. He is, at present, serving a life sentence in H. M. Prison,
D.
The third applicant is also a citizen of the United Kingdom,
born in 1955. He is, at present, detained at H.M. Prison, B.
The applicants are represented before the Commission by Mr. P.
Ashman, legal officer of Justice (British Section of the International
Commission of Jurists), London.
The facts, as agreed by the parties, may be summarised as follows:
The first applicant
On 30 June 1978 the first applicant pleaded guilty at the
Northampton Crown Court to three offences of possession of a firearm
with intent to endanger life, three offences of possession of a
firearm with intent to resist arrest and one offence of burglary. He
was sentenced to life imprisonment for the first six offences and
three years' imprisonment for the burglary.
On 10 July 1979 the Court of Appeal (Criminal Division)
dismissed the first applicant's appeal and upheld the sentence of the
applicant's imprisonment. Lord Justice Lane, giving the judgment of
the Court, stated as follows:
"This man suffers from a psychopathic disorder. He is
highly dangerous. He has an explosive temper which is
likely to flare up at any minute, with consequences which
can be disastrous. There is no need to say more than that.
The prognosis is uncertain, ...
If, therefore, a determinate sentence is to be imposed what
length should it be? No-one can answer that. If it is too
long it is not fair to the appellant. If it is too short it
may very well mean that some innocent member of the public
will lose his life as a result. On the one hand we have the
appalling prospect for a young man of 19, as he now is, of
an indeterminate sentence of imprisonment stretching into
the future. On the other hand there is the difficulty, if
not the impossibility, of forming a prognosis in relation to
his mental condition. There is the fact that this man is
undoubtedly highly dangerous ..."
On 29 June 1990 the Secretary of State authorised the
applicant's release on licence, subject, inter alia, to the
conditions that he could only reside or work where approved by his
probation officer. The first applicant was released on 6 July 1990.
The licence may be varied or revoked by the Secretary of State at any
time.
The second applicant
On 15 November 1976 the second applicant pleaded guilty at the
Plymouth Crown Court to one offence of burglary and one offence of arson.
The Court had wanted to find a place for him in a hospital but none
was available, and on 3 December 1976 it passed sentences of three
years' imprisonment for the burglary and life imprisonment for the
arson. The first applicant appealed, arguing that his sentence was
based on his past crimes and his history of sub-normality in relation
to sexual fantasies with eight-year-old girls.
On 18 November 1977 the Court of Appeal (Criminal Division)
dismissed the applicant's appeals against the sentences. Lord Justice
Bridge, giving the judgment of the Court, stated as follows:
"Passing sentence the [first instance] court said: 'It may
be right that it is correct for us to sympathise with you
rather than condemn you, but we have got a duty to protect
the public and it is quite clear that this is a case where
the public have to be protected from you at least for the
time being. We cannot see into the future, and the only way
we can deal with this matter is by way of what is called an
indeterminate sentence,...'.
When one analyses it, [the argument of counsel for
the applicant] really comes to this,... Before the court
can impose a protective sentence, in the sense of a sentence
which is appropriate to protect the public against this man,
it must wait until an offence of the worst kind, which the
doctors apprehend will be committed against a young girl, is
committed. In our judgment the court would be totally
abdicating its responsibility, looking at this matter
realistically, if it did that. It is clear to us that the
indeterminate sentence the court imposed was the only
sentence which could properly be imposed and the appeal
against it is accordingly dismissed."
The second applicant has been reviewed for parole three times
unsuccessfully. The Parole board did not give any reasons for its
refusals. The case was to be reviewed again in July 1991.
The third applicant
On 14 June 1984 the third applicant pleaded guilty, at the
Manchester Crown Court, to offences of rape, robbery and attempted
rape. In committing these offences, he was in breach of a suspended
sentence for assault. He was sentenced to life imprisonment for the
offences of rape and attempted rape, five years' imprisonment for the
robbery and twelve months' imprisonment for the breach of the
suspended sentence. Before sentencing the judge ordered medical
reports on the third applicant which showed that the he had no mental
disorder, so prison was the only alternative. After sentencing, the
following exchange between the applicant and the trial judge took
place:
Mr. Justice Griffiths: "You are a serious danger to the
public, and that there is every likelihood that if you were
free to do so you would commit similar offences. You are
clearly at present a danger to the public."
The prisoner: "No, I am not."
Mr. Justice Griffiths: "Until such time as the passing of
years alters your character it is clear that you will
continue to be so. In these circumstances my duty is to protect
the public from you - and, in particular, women. I do this by
passing upon you in respect of the two counts of rape and the one
count of attempted rape a concurrent sentence of life
imprisonment."
The prisoner: "That's fair enough with me."
Mr. Justice Griffiths: "This will permit those in authority
to review your condition and to consider whether at some
time in the future it will be safe to set you at large
again."
On 12 December 1974, the third applicant's appeal against his
life sentence was dismissed. The Court of Appeal did, however, change
the sentence of life imprisonment for the attempted rape to seven
years, that being the maximum possible for attempted rape.
The third applicant has not been released on life licence, but
he is now a category B prisoner. His case was reviewed in March and
October 1987, August 1988 and December 1989 by the Local Review
Committee.
COMPLAINTS AND SUBMISSIONS
The applicants allege that it is apparent from the judgment in
each case that punishment was not the reason for the life sentence
imposed. The major consideration was the personality disorder from
which the respective applicants suffered. Hospital places were not
available, or not appropriate, and indeterminate sentences enabled the
authorities to keep the cases under review so that the applicants
could be released when it was safe to do so. The applicants submit
that their cases fall within the principles laid down by the European
Court of Human Rights in the Weeks case (Eur. Court H.R., Weeks
judgment of 2 March 1987, Series A no. 114), in that they, too, fall
within the same "special category" of detention as Weeks. They allege
violations of Article 5 para. 4 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 July 1987 and registered
on 3 September 1987.
On 13 October 1989, the Commission decided to bring the
application to the notice of the respondent Government but not to
invite any observations pending the outcome of the Thynne,
Gunnell and Wilson cases before the Court (Eur. Court H.R.
Thynne, Gunnell and Wilson judgment of 25 October 1990 Series A
no. 190).
On 2 March 1991, the Commission decided to invite the
respondent Government to submit observations on the admissibility
and merits.
The Government's response was submitted on 15 May 1991 and
observations from the applicants were submitted on 20 June 1991.
On 1 July 1991, the Commission referred the application
to the First Chamber.
THE LAW
The applicants, who are serving discretionary life sentences,
complain of the absence of any procedure under domestic law by which
they can have reviewed by a court the continued lawfulness of their
detention. They invoke Article 5 para. 4 (Art. 5-4) of the
Convention, which provides :
"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 Government have made no objection to admissibility.
The Commission recalls that in the Thynne, Gunnell and Wilson
cases (Eur. Court H.R., Thynne, Gunnell and Wilson judgment of
25 October 1990, Series A no. 190) the Court held that the applicants
who were serving discretionary life sentences were entitled under
Article 5 para. 4 (Art. 5-4) 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 Parole Board satisfied these requirements.
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 APPLICATION ADMISSIBLE,
without prejudging the merits.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy