EUROPEAN COMMISSION OF HUMAN RIGHTS
F I R S T C H A M B E R
Application No. 13195/87
P., K. and G.
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 8 January 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . .1-2
(paras. 1-16)
A. The application (paras. 2-4) . . . . . . . . . . . .1
B. The proceedings (paras. 5-12). . . . . . . . . . . .1
C. The present Report (paras. 13-16). . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS . . . . . . . . . . . . . .3-6
(paras. 17-31)
A. Particular circumstances of the case . . . . . . .3-5
(paras. 17-25)
B. Relevant domestic law and practice . . . . . . . .5-6
(paras. 26-31)
III. OPINION OF THE COMMISSION. . . . . . . . . . . . . . .7-8
(paras. 32-41)
A. Complaints declared admissible . . . . . . . . . . .7
(para. 32)
B. Point at issue (para. 33). . . . . . . . . . . . . .7
C. Article 5 para. 4 of the Convention. . . . . . . .7-8
(paras. 34-40)
D. Conclusion (para. 41). . . . . . . . . . . . . . . .8
APPENDIX I History of the proceedings . . . . . . . . . .9
APPENDIX II Decision on the. . . . . . . . . . . . . .10-15
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 first applicant is a British citizen born in 1960 and
resident in Hartwell. The second applicant, a British citizen born in
1945, is currently serving a sentence of life imprisonment in HM Prison
Dartmoor. The third applicant, a British citizen born in 1955, is
serving a sentence of life imprisonment in HM Prison Blundeston. The
applicants were represented in the proceedings before the Commission
by Mr. Peter Ashman, a barrister.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mrs. Audrey Glover of the Foreign and Commonwealth Office.
4. The case concerns the applicants' complaints under
Article 5 para. 4 of the Convention that they were unable to have the
continued lawfulness of their detention reviewed by an independent
tribunal.
B. The proceedings
5. The application was introduced on 23 July 1987 and registered on
3 September 1987.
6. 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, Wilson and
Gunnell case before the Court (Eur. Court H.R., Thynne, Wilson and
Gunnell judgment of 25 October 1990, Series A no. 190-A).
7. On 2 March 1991, the Commission decided to invite the Government
to submit written observations on the admissibility and merits.
8. The Government submitted their written observations on
15 May 1991. The applicants submitted their observations on
20 June 1991.
9. On 1 July 1991, the Commission decided to refer the case to the
First Chamber.
10. On 14 October 1991, the Commission (First Chamber) declared the
application admissible.
11. The parties were then invited to submit any additional
observations on the merits of the application.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Consultations with the parties took place
between 22 October 1991 and 1 September 1992. 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
13. 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
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
G.B. REFFI
The text of the Report was adopted by the Commission on
8 January 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
14. 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.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
16. 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
The first applicant
17. 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.
18. 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 ..."
19. On 29 June 1990, the Secretary of State authorised the first
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
20. 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.
21. 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."
22. The second applicant has been reviewed for parole four times
unsuccessfully. The Parole Board did not give any reasons for its
refusals.
The third applicant
23. 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."
24. 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.
25. 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.
B. Relevant domestic law and practice
Life sentences
26. 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
27. The policy for the review and release of life sentence prisoners
is the responsibility of the Home Secretary who is answerable to
Parliament.
28. 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
29. 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.
30. 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
31. Under Section 34 of the Criminal Justice Act 1991, which has come
into force on 1 October 1992, a discretionary life prisoner may 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
32. The Commission has declared admissible the applicants' complaints
that they were unable to have the continued lawfulness of their
detention reviewed by a court.
B. Point at issue
33. Accordingly, the issue to be determined is whether there has been
a violation of Article 5 para. 4 (Art. 5-4) of the Convention.
C. Article 5 para. 4 (Art. 5-4) of the Convention
34. 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."
35. The case-law of the Commission and Court establishes that
prisoners serving a sentence of discretionary life imprisonment are
entitled under the above provision to take proceedings at reasonable
intervals 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).
36. 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..."
37. 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.
38. The present applicants have also been sentenced to terms of
discretionary life imprisonment. The second and third applicants are
still in prison. The punitive or "tariff" part of their sentences has
expired and since then the question of their continued detention has
been considered by the Parole Board. While the first applicant has been
released on life licence subject to recall, his continued detention
prior to this was subject to the same regime. The powers and procedures
of the Parole Board have changed with the implementation of new
legislation. These changes are however not in issue in the present
case.
39. In light of the above case-law, the Commission finds that, under
the then prevailing legislation, the applicants were not able to have
the lawfulness of their continued detention reviewed at reasonable
intervals by a body satisfying the requirements of Article 5 para. 4
(Art. 5-4) of the Convention.
40. The applicants have also submitted that there is a violation of
Article 5 para. 4 (Art. 5-4) in that even after completion of the
tariff a prisoner is not entitled to be released unless he is judged
to present no more than a minimal risk in the subjective appreciation
of the Parole Board. In view of its finding above however the
Commission finds it unnecessary to reach a separate conclusion on this
allegation.
D. Conclusion
41. The Commission concludes, unanimously, that there has been
a violation of Article 5 para. 4 (Art. 5-4) of the Convention in the
case of all three applicants.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
23.07.87 Introduction of the application
03.09.87 Registration of the application
Examination of admissibility
13.10.89 Commission's decision to bring the application to the
notice of the respondent Government without inviting
observations
02.03.91 Commission's decision to invite the parties to submit
observations on the admissibility and merits
15.05.91 Government's observations
20.06.91 Applicant's observations
14.10.91 Commission's decision to declare the application
admissible
Examination of the merits
08.09.92 Commission's consideration of the state of proceedings
08.01.93 Commission's deliberations on the merits, final votes
and adoption of the Report
Full & Egal Universal Law Academy