THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53731/00
by Martin REILLY
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 26 June 2003 as a Chamber composed of
MrG. Ress, President,
SirNicolas Bratza,
MrL. Caflisch,
MrR. Türmen,
MrB. Zupančič,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr M. Villiger, Deputy Section Registrar,
Having regard to the above application lodged on 1 August 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Martin Reilly, is a United Kingdom national, born in 1958, and he is currently in prison in Kent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 February 1993 the applicant was convicted on two counts of robbery, one of attempted robbery, one of carrying an imitation firearm and one of using a firearm to resist arrest. He was sentenced to five concurrent sentences amounting to 8 years’ imprisonment.
On 4 March 1999 he was convicted of two charges of robbery and two of carrying imitation firearms. He received a life sentence pursuant to section 2 of the Crime Sentencing Act 1997 and his tariff was fixed at 6 years. In sentencing, the judge stated that 12 years would have been the appropriate determinate sentence in his case and referred to the terror experienced by the victims of the robberies and the long-term traumatic effects.
The applicant did not seek leave to appeal against sentence. His application for permission to appeal against conviction was refused by the Court of Appeal on 17 October 2000.
B. Relevant domestic law and practice
1. The Crime (Sentences) Act 1997 (“the 1997 Act”)
The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows:
“(1) This section applies where -
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence, that is to say -
(a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982,
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.”
Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape.
2. Regina v. Offen, Regina v. McGilliard, Regina v. McKeown, Regina v. Okwuegbunam, Regina v. Saunders judgment of the Court of Appeal of 9 November 2000
In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act.
The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence.
Noting that in the earlier case of Buckland [2000] 1 WLR 1262 an appeal had already been allowed where on the evidence it could not be concluded that the defendant did not present a serious and continuing danger to the public such as could justify the imposition of a life sentence, it considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention.
COMPLAINTS
The applicant complains under Articles 3, 5 and 7 of the Convention about the life sentence imposed pursuant to section 2 of the Crime (Sentences) Act 1997.
THE LAW
The applicant complains of the automatic imposition of a sentence of life imprisonment, invoking Article 3 (prohibition of inhuman and degrading treatment or punishment), Article 5 § 1 (right to liberty) and Article 7 (prohibition of the retrospective increase in penalties).
A. Article 35 § 1 of the Convention
The Government submit that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he had never sought to appeal to the Court of Appeal against his sentence. Even before the Court of Appeal judgment in R. v. Offen (cited above), earlier case-law and practice required the trial judge to have regard to factors specific to the individual offender and to the particular offence and the applicant could have complained to the Court of Appeal about any failure to do so. Furthermore, since R. v. Offen, the applicant in any case has not requested the Criminal Cases Review Commission (CCRC) to refer his case to the Court of Appeal for consideration in light of those principles. The CCRC has referred many cases on that aspect.
The applicant submits that his sentence was imposed in March 1999 before the Human Rights Act 1998 came into force and thus he could not have relied on the Convention to interpret legislation. The Offen decision only applied, in his view, to sentences imposed after 1 October 2002. Thus at the time that he was sentenced domestic law was in breach of the Convention and he had no recourse against this. He disputes that the CCRC can be regarded as an effective remedy as it is not part of the normal appeal process and anyway it was too late at this stage after the breach has occurred. His solicitors has also advised him that he had no reasonable prospect of the CCRC allowing a referral to the Court of Appeal regarding his life sentence as the power not to impose a life sentence was discretionary.
B. The Court’s assessment
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment, § 69, and the Aksoy judgment, §§ 53 and 54).
In the present case, the ordinary avenue of redress for alleged defects at trial concerning sentencing was to appeal to the Court of Appeal. While the applicant appealed against conviction, he did not bring any complaints about the alleged disproportionality or arbitrariness of his sentence before the Court of Appeal.
The applicant has pointed out that he was sentenced in March 1999 before the coming into force of the Human Rights Act in October 2000 and argues in effect that he would not have had the possibility of raising the arguments based on the Convention which were considered by the Court of Appeal in R. v. Offen. It may be noted however that the applicant’s appeal against conviction was in fact dismissed on 17 October 2000 less than a month before the Court of Appeal issued its clarification of the approach to be taken to section 2 of the 1997 Act. It is not correct that the Court of Appeal would have been unable to consider the same arguments on his appeal as in R. v. Offen - in both cases, the accused had been sentenced prior to the coming into force of the 1998 Act. It is anyway apparent that the Court of Appeal, even before Offen, was taking into account the policy behind section 2, namely, to protect the public from persons who were dangerous and finding, where the evidence showed, as in R. v. Buckland, that the individual accused did not present a serious and continuing danger to the public, that the imposition of the life sentence would not be justified.
Since the case of R. v. Offen, the applicant has also taken no steps to bring the matter of his sentencing before the Court of Appeal for its consideration. The Court recalls that a number of applicants raising similar complaints who appealed after this leading case or who used the procedure of applying to the CCRC, obtained a hearing before the Court of Appeal which examined their arguments and either replaced the life sentence by a determinate sentence or gave reasons for upholding the decision of the trial court judge on the basis of the applicant’s dangerousness (see, for example, Stark v. the United Kingdom, no. 55198/00, decision of 21 March 2002, and Kelly v. the United Kingdom, no 54942/00, decision of 24 October 2002, where the Court of Appeal, after referral by the CCRC, changed the applicants’ sentences to a fixed term).
It is correct that the Court does not generally regard an application to the CCRC as part of the normal process of exhaustion of domestic remedies as its procedure offers an exceptional and non-judicial review of purported miscarriages of justice albeit with the possibility of subsequent referral to the Court of Appeal. Nonetheless, the Court considers it relevant in this case, where the applicant did not take the step of appealing against his sentence after his trial, that he has not taken advantage either of the means available to him at a subsequent stage to bring his complaints before the court with the power to remedy his complaints, particularly where that court has shown itself apt to review any doubts or confusion arising out of the application of section 2 in similar cases.
In these circumstances, the Court finds that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 and that his application must accordingly be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Mark VilligerGeorg Ress
Deputy RegistrarPresident
Full & Egal Universal Law Academy