AS TO THE ADMISSIBILITY OF
Application No. 35692/97
by Mohammed RIAZ
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM. E. BUSUTTIL, Acting President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 20 February 1997
by Mohammed RIAZ against the United Kingdom and registered on
22 April 1997 under file No. 35692/97;
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 1962 and currently
serving a sentence of life imprisonment in Long Lartin prison, Evesham.
Before the Commission, he is represented by Mr. R. Bhatt of Birnberg
& Co., solicitors practising in London.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In February 1985, the applicant pleaded guilty to the false
imprisonment of an Indian diplomat. The diplomat who had been kidnapped
and held hostage by the Jammu and Kashmir Liberation Front in order to
be exchanged for a Kashmiri freedom fighter held in India had been
killed. The applicant was tried on a murder charge and convicted by the
jury. The prosecution case had been that the applicant, a student aged
22 at the time, had been present at the time the murder was carried out
by one of the leaders of the conspiracy.
In sentencing, the judge acknowledged that the applicant's role
in the conspiracy was a lesser one. He sentenced the applicant to
twelve years' for false imprisonment. In respect of the mandatory
sentence of life imprisonment imposed for the murder charge, the judge
made no recommendation as to the minimum time that should be served.
In August 1988, the applicant was informed by the prison
authorities that his first Local Review Committee review would be in
2001, after he had served 17 years but he was told that this should not
be taken as implying that twenty years has been set as the tariff
period necessary to meet the requirements of retribution and deterrence
in this case.
In June 1993, the applicant applied for judicial review to
challenge the length of his tariff and establish his right to know the
advice the Secretary of State had received from the judiciary before
fixing the tariff as well as any other relevant factual matters.
Following the House of Lords' decision in the case of R. v. Secretary
of State ex parte Doody (1992 3 AER 92), the proceedings terminated on
28 July 1993, with the Secretary of State undertaking to disclose the
length of the existing tariff and the substance of any judicial advice
and recommendations, and to reconsider the tariff in light of any
representations made by the applicant.
On 27 August 1993, the Home Office informed the applicant that
his tariff had been originally fixed at 20 years and that the trial
judge had recommended 10 years and the Lord Chief Justice 16 years. The
applicant made representations, supported by various persons, to the
effect that a tariff of 10 years was more appropriate.
In a letter of 20 December 1993, the Home Office informed the
applicant that a tariff of 20 years had been fixed.
In March 1994, the applicant commenced judicial review
proceedings, claiming, inter alia, that the decision-making process in
fixing the tariff was unfair since there had not been full disclosure
of the materials before the Secretary of State. Leave was granted on
24 March 1994. The Secretary of State proceeded to disclose to the
applicant's solicitor various documents, including the full text of the
judicial comments and a report from the police.
In its judgment of 16 December 1994, the Court of Appeal quashed
the Secretary of State's decision to set the tariff at 20 years. The
applicant made further representations to the Secretary of State in
respect of his tariff. By letter dated 15 October 1996, the applicant
was informed that the tariff was set at 20 years.
COMPLAINTS
The applicant submits that the process whereby the tariff of a
mandatory life sentence prisoner is fixed by the Secretary of State is
so closely akin to a sentencing exercise as to attract the application
of Article 6 para. 1. The requirements of Article 6 para. 1 are not
complied with by the administrative procedure, in particular, because
the tariff is set by the Secretary of State, not by a court or tribunal
independent of the executive and it is fixed without the benefit of a
fair, open and public hearing.
THE LAW
The applicant complains that he did not receive a fair hearing
complying with the requirements of Article 6 para. 1 (Art. 6-1) in
respect of the procedure by which the Secretary of State fixed the
tariff.
Article 6 para. 1 (Art. 6-1) of the Convention provides in its
first sentence:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law."
The Commission notes that the applicant submits that the tariff-
fixing procedure applied in respect of his sentence for murder is akin
to a sentencing exercise. It recalls that the tariff is set as
representing the minimum period to be served by the prisoner, inter
alia, to satisfy the requirements of retribution and deterrence.
While Article 6 para. 1 (Art. 6-1) clearly applies to the
sentencing part of the determination of a criminal charge, the
Commission considers that, where life imprisonment is imposed in
respect of murder, the sentencing is carried out by the trial judge
after the accused has been convicted. Life imprisonment for murder is
a mandatory sentence automatically imposed by law with regard to the
severity of the offence irrespective of considerations of the
dangerousness of the offender (Eur. Court HR, Wynne v. the United
Kingdom judgment of 18 July 1994, Series A no. 294-A, p. 14, para. 35).
It is in a distinct category from discretionary life sentences and
sentences of detention during Her Majesty's pleasure which are
indeterminate and whose character and purpose are identifiably
different being justified primarily by considerations of the offenders'
character, mental state or age and their resulting dangerousness, which
factors may change over time (eg. Eur. Court HR, Thynne, Wilson and
Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no.
190-A, p. 30, para. 76 and Hussain v. the United Kingdom judgment of
21 February 1996, Reports 1996-I, p. 252 at p. 269, paras. 53-4). The
tariff-fixing procedure in respect of mandatory life prisoners
therefore must be regarded as an administrative procedure governing the
implementation of the sentence and not as part of the determination of
the sentence itself.
Consequently, the Commission finds that Article 6 para. 1
(Art. 6-1) does not apply to the fixing of the tariff of the mandatory
life sentence of the applicant. It follows that this complaint is
incompatible ratione materiae with the provisions of the Convention
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 E. BUSUTTIL
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy