AS TO THE ADMISSIBILITY OF
Application No. 11787/85 Application No. 11978/86
by Michael K. THYNNE by Benjamin WILSON
Application No. 12000/86 Application No. 12009/86
by Robert Malcolm WEEKS by Edward James GUNNELL
against the United Kingdom
The European Commission of Human Rights sitting in private
on 6 September 1988, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
G. BATLINER
J. CAMPINOS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission,
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to:
(1) the application introduced on 3 June 1985 by
Michael K. Thynne against the United Kingdom and registered on
10 September 1985 under file No. 11787/85;
(2) the application introduced on 1 September 1985 by
Benjamin Wilson against the United Kingdom and registered on
1 February 1986 under file No. 11978/86;
(3) the application introduced on 3 October 1985 by
Robert Malcolm Weeks against the United Kingdom and registered on
15 February 1986 under file No. 12000/86;
(4) the application introduced on 24 April 1985 by
Edward James Gunnell against the United Kingdom and registered on
12 February 1986 under file No. 12009/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the Commission's decision of 6 September 1988
to join the applications pursuant to Rule 29 of the Rules of
Procedure;
Having regard to the parties' written and oral submissions,
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Mr. Michael Keith Thynne, is a citizen of
the United Kingdom born in 1951. He is, at present, serving a life
sentence of imprisonment in HM Prison, Lewes, Sussex.
The second applicant, Mr. Benjamin Wilson, is a British
citizen born in 1916 and currently serving a life sentence in HM
Prison Wormwood Scrubs, London.
The third applicant, Mr. Robert Malcolm Weeks, is a citizen of
the United Kingdom, born in 1949. He is, at present, unemployed and
living in a mobile home in southern France. He brought a previous
application to the Commission (No. 9787/82) which eventually led to a
judgment of the European Court of Human Rights (Eur. Court H.R., Weeks
judgment of 2 March 1987, Series A no. 114).
The fourth applicant, Mr. Edward James Gunnell, is also a
citizen of the United Kingdom, born in 1930. At the time of the
introduction of his application he was detained in prison. He was
released on parole on 6 September 1988.
The first and third applicants (Thynne and Weeks) are
represented before the Commission by Mr. Peter Ashman, Legal Officer
of JUSTICE (British Section of the International Commission of
Jurists), London. The second and fourth applicants (Wilson and
Gunnell) are represented before the Commission by Mr. Paul Hunt, Legal
Officer, National Council for Civil Liberties and Mr. Edward
Fitzgerald, of counsel.
The facts, which are not disputed by the parties, can be
summarised as follows:
THYNNE
On 27 October 1975 the first applicant, then aged 24, pleaded
guilty, at the Central Criminal Court to rape and buggery. He was
sentenced by the Recorder to life imprisonment on each count on 24
November 1975.
On 7 August 1975 the applicant, who had just been released from
prison, had gained entrance to a flat under the pretence that he was a
member of the police force investigating a burglary. The flat was
occupied at the time by a 45 year old married woman. The applicant
told the woman that he had a knife and would kill her if she made a
noise. He then told her to take her clothes off. He took a pair of
scissors which were in the flat and raped and buggered her. In the
course of this assault he inflicted some minor puncture wounds with
the scissors. The applicant had been released from prison the previous
day and had been staying with friends in the same block of flats where
the offences took place. It was established in the course of the trial
that the offence was committed within 36 hours of the applicant's
coming out of prison at a time when he had had little sleep, had
consumed a certain amount of alcohol and taken drugs. He also had a
long criminal record, having served various sentences of imprisonment
for theft and burglary.
Medical evidence which was presented to the Recorder made it
clear that a hospital order was not appropriate in the circumstances
of his case. The Recorder considered, however, that an indeterminate
life sentence would be the most humane sentence as it would enable the
Home Secretary to release him as soon as it was observed that his
personality disorder - described by a psychiatrist as a severe
psychopathic character disorder - had so improved that it would be
reasonably safe to release him. The Recorder stated as follows:
"But for the psychiatric reports that I have seen I would
impose on you a very long prison sentence. As it is, I am
going to sentence you to life on each count in order that
those in a position to observe any improvement in your
personality disorder, those capable of carrying out any
operative treatment which may [be] seen to be necessary,
with your consent, on your frontal lobe, may judge the time
when it is reasonably safe that you should be free."
The applicant appealed against the life sentences on the
ground that they were manifestly excessive and resulted in custody for
a longer time than the appropriate determinate sentence. This appeal
was dismissed by the Court of Appeal on 22 March 1976. The Court
pointed out that the attack was serious and violent and subjected the
victim to "indecency" and "indignities". It did not consider that the
life sentence was manifestly excessive and stated as follows:
"We do not see the life sentence in this case as necessarily
involving detention in custodial conditions for a very long
period of time. It depends upon the regime to which he is
subjected and the treatment he can get. If a determinate
sentence were to be substituted, then the court would have
to pass such a sentence as would ensure that he was kept in
custody for a longer time than he probably will remain under
a life sentence."
The Court considered that the sentence was correct in
principle in the circumstances of the case, adding that:
"Life sentences are imposed in circumstances where the
offence is so grave that even if there is little risk of
repetition it merits such a severe, condign sentence and
life sentences are also imposed where the public require
protection and must have protection even though the gravity
of the offence may not be so serious because there is a very
real risk of repetition. This case falls within neither of
these categories which express extreme situations but
undoubtedly the offences here were very grave indeed and
undoubtedly in the light of the medical reports on this man,
the Court cannot be sure by any means that he would, in
society, not give way to outbursts of this nature which
would very seriously affect other persons."
In May 1977 the applicant was accepted for treatment at
Grendon Underwood - a psychiatric prison. He decided not to accept
the place offered on being told that he would not automatically be
given early release. In the opinion of most of the psychiatrists and
other doctors dealing with the applicant his personality disorder was
not amenable to either surgery or psychiatric treatment. The Senior
Medical Officer at Maidstone Prison diagnosed the applicant as an
untreatable aggressive psychopath.
The applicant claims that he received only limited therapy
between 21 March 1978 and September 1979 which consisted of a short
interview by a psychiatrist every two to six weeks.
Following representations on the applicant's behalf the Home
Secretary decided that the case should be referred to the Joint Parole
Board - Home Office Committee the following month. In August 1980 the
Committee recommended that it should be referred to the Local Review
Committee in September 1981 when the applicant would have been
detained for six years. The Local Review Committee (which advises the
Secretary of State) did not recommend release.
After absconding from an open prison on 1 May 1982 the
applicant stole a gold bracelet from a jewelery shop and when pursued
by the manager of the shop he had brandished, but not used, a knife.
He was arrested on 26 July 1982 and found to be in possession of
cannabis. He was placed in a detention room and in an effort to
escape he broke a door frame. He was subsequently sentenced to six
months' imprisonment on charges of theft, unlawful possession of drugs
and criminal damage. The sentence was to run concurrently with the
existing life sentence.
On 22 October 1982 the Parole Board recommended that the
applicant's case be referred to the Local Review Committee nine months
after his arrival at Maidstone Prison. However on 16 March 1983, when
visiting his mother who was gravely ill, he escaped on an impulse and
was recaptured two days later. The date of the referral of his case
to the Local Review Committee was put back to June 1984. The
applicant was transferred to Blundestone Prison in June 1983 where he
was examined by the prison department psychiatrist who found no
evidence of mental illness and saw no grounds for recommending
psychiatric treatment. The prison's medical officer agreed with these
findings. The Local Review Committee did not recommend release.
In July 1985 the applicant's case was referred to the Parole
Board which recommended that he remain in a category B Prison with a
further review in two years time. A further review was carried out by
the Local Review Committee in July 1987. It was recommended that he
remain in custody. A further review is scheduled for May 1989.
WILSON
The second applicant, born in 1916 has a long record of sexual
offences beginning in 1935 and has served a number of prison
sentences. On 29 March 1973 he pleaded guilty to charges of buggery
and indecent assault on boys under the age of 16 and was sentenced to
life imprisonment for buggery and seven years, to be served
concurrently, for, inter alia, indecent assault.
In passing sentence the Judge said:
"I entirely accept that, to a large extent, you cannot help
yourself. To that extent, your moral guilt is the less, but
I have two duties to perform. One is a duty to find the
correct sentence as far as you are concerned, having regard
to your make-up; your physical and mental make-up. The other
duty I have, and in the circumstances of this particular case,
I think it is the more important: I have a duty to the public,
and in particular, to the young public, to protect them from
people like you who, for one reason or another, can't control
themselves.
I hope that, in the course of time a method of treatment for
your particular freakish affliction can be found. I think it
will be in the best interest of society generally, and yourself
in particular, if some form of treatment for you could be found.
What I am going to do in your case may sound harsh from your
point of view, but it will be explained to you, no doubt, by
hereafter, that it may in fact hold out more hope
to you than if I merely went up to perhaps 4, 5 or 6 years, or
even 7 years in a particular case.
The sentence of the court is that so far as the count of
buggery is concerned, that is the eighth count on the indictment,
you will go to prison for life. So far as the counts of
attempted buggery and indecent assault are concerned, you will
go to prison for a period of 7 years. All these sentences to be
concurrent. Now I am sure that will have a word
with you hereafter and will indicate what the situation is with
regard to a life sentence, but as I say, I think my main duty in
this particular case is to protect the public and the young
public, in the light of what I have heard occurred in your case.
I only hope that, in due course, some form of treatment, perhaps
that to which the doctor refers in the medical report which I
have seen, may help you".
The applicant applied for leave to appeal but abandoned his
application. He later tried to re-open the appeal in November 1976
and, though the Court of Appeal turned down his application, they also
expressed the view that the applicant had better prospects of release
under a life sentence than a long fixed term sentence if he used the
opportunity to improve his character.
"There are circumstances in which the Court is empowered to
allow the withdrawal of the notice of abandonment. The Court
has thought it right, as it would have had to say in the end,
simply that the applicant has not established a situation in
which this Court could properly allow him to withdraw the
notice of abandonment. The Court has thought it right to go
to some extent into the history of the matter in order to
establish that even if such a withdrawal were permitted, it
could not possibly be of advantage to the applicant, if we
were to substitute for the life sentence a very long sentence
that it really would not be distinguishable from a life
sentence. But if he wishes to take advantage of it, build
himself up and strengthen his own character, he has far better
prospects under an indeterminate sentence than under a long
determinate sentence."
The applicant's case was first referred to the Joint Committee
of the Parole Board and the Home Office after three years of his
sentence and they recommended that he should be considered for parole
after seven years of his sentence. Thus, on 11 December 1981, the
Parole Board recommended, after an interview with the applicant, that
he be released into a controlled environment with psychiatric
supervision. The Secretary of State decided to release him on licence
on 3 September 1982 on condition that he:
i) live at a probation hostel;
ii) co-operate with his probation officer;
iii) attend on appointed medical practitioner and took any
prescribed treatment; and
iv) refrained from any activity involving young boys without the
permission of his probation officer.
The applicant was released on 14 September 1982 and took up
residence at a probation hostel. He asked for alternative
accommodation on the ground that his room was uncomfortable and rain
leaked in through the roof. He also requested permission to join
Haringay Athletics Club but this was refused due to possible contact
with young boys.
On 11 February 1983, the Parole Board recommended his recall
and on 14 February 1983 the Secretary of State revoked his licence.
The applicant on his return to prison was informed that the reason for
his recall was that his conduct gave cause for concern and that he had
failed to co-operate with his supervisory officer. The applicant
exercised his right to make written representations against his recall
but on 16 September 1983 the Parole Board declined to change the
decision.
On 6 April 1984, the applicant commenced judicial review
proceedings to quash this decision on the ground that he had not been
provided with adequate details of the reason for his recall as
required by S. 62(3) of the Criminal Justice Act 1967 and that he had
accordingly been unable to make effective representations.
The Home Office conceded the inadequacy of the reasons given
and provided a one page statement of allegations on 5 October 1984,
which included the allegations that:
i) the applicant had sought to leave the probation hostel;
ii) a school boys' cap had been found in the living room of the
hostel;
iii) the applicant had protested against the probation officer's
refusal to allow him to take part in sporting activities;
iv) the applicant had shown an interest in watching boys play
football and his psychiatrist suspected that he was exploring
ways of contacting boys again.
The Home Office then agreed to allow the applicant the
opportunity to make further representations to the Parole Board, which
he did. On 7 November 1984, the applicant's solicitors also requested
disclosure of a number of reports which were before the Parole Board
when it made its decision.
On 20 March 1985 the Divisional Court considered the
applicant's case. The court quashed the decision to confirm the
applicant's recall made by the Parole Board on 16 September 1983 after
referral by the Secretary of State on the ground that it was flawed by
a procedural impropriety, in that the applicant had not been given
sufficient reasons to enable him to make proper representations. In
the course of these proceedings the applicant's counsel expressly
abandoned the argument that the applicant's detention following recall
had been unlawful.
The applicant's lawyer then requested to see the probation
report which alleged non co-operation and that the applicant be given
an oral hearing with legal representatives. However, the Parole Board
did not answer this request and after a meeting on 22 March 1985
maintained the decision not to release the applicant.
The applicants' case was reconsidered by the Parole Board in
November 1986 without a recommendation to release. He is still in
detention.
WEEKS
The factual background of the application brought by the third
applicant has been set out by the European Court of Human Rights in
its judgment in the Weeks case (loc. cit., pp. 10-14, paras. 10 - 23).
That application arose out of the applicant's sentence to life
imprisonment on 6 December 1966 for armed robbery, assaulting a police
officer and being in the unlawful possession of a firearm.
The present application concerns events which have occurred
following the decision of the Commission to declare the former
application admissible (No. 9787/82, Dec. 17.1.84, D.R. 35 p. 104).
In May 1984 the applicant, who had been released from prison
on licence, resigned from his employment as a park keeper following a
disageement with another member of staff. In June 1984 the applicant
applied for, and was issued with a passport and left the United
Kingdom to seek work in France. The probation service reported that
the applicant was out of touch with his supervising officer, had
vacated his flat and was believed to have gone abroad. The case was
referred to the Parole Board which, on 5 October 1984, recommended
that the applicant's life licence should be revoked on the grounds
that he was in breach of the conditions of his licence. Condition 6
of his licence required that he seek the prior permission of his
probation officer before travelling outside Great Britain.
In November 1984 the Home Secretary revoked the applicant's
licence on the grounds inter alia that he was in breach of this
condition. When the applicant returned to the United Kingdom in April
1985 he was arrested and returned to prison to resume his life
sentence.
He was again released on licence on 25 September 1985. In
December 1985, being unable to find work in the United Kingdom, the
applicant sought the views of his probation officer about returning
to the south of France to resume his work there as a casual labourer.
He was informed that he would not be given permission to leave the
country so he left without obtaining that permission. In consequence,
the applicant's licence was again revoked and he was liable to
re-arrest and re-imprisonment on his return to the United Kingdom.
The Parole Board recommended on 7 February 1986 that his
licence be revoked on the same ground as in 1984. The Home Secretary
acted on this recommendation on 13 March 1986.
Following the judgment of the European Court of Human Rights
in his case, the Parole Board, on 3 April 1987, revoked its
recommendation that the applicant be recalled. On 29 April 1987, on
the recommendation of the Home Secretary, Her Majesty the Queen
remitted the applicant's life sentence by means of the Royal
Prerogative. Accordingly, the applicant is no longer subject to the
limitations of a life licence and is no longer liable to be recalled
to prison.
In the light of the favourable judgment of the Court,
the applicant applied for judicial review of the Home Secretary's
refusal to pay compensation. The application was dismissed in
February 1988. The Divisional Court held that the existing ex gratia
scheme compensating persons wrongfully imprisoned did not extend to
cases such as that of the applicant and that a violation of the
Convention was not justiciable in English courts. The applicant was
advised that there was no appeal against this decision.
GUNNELL
The fourth applicant was found guilty in December 1965 of four
offences of rape and two offences of attempted rape, and he was
sentenced to life imprisonment. A pattern was discernible in a number
of those offences, in that he approached women at their home and in
the gardens of their homes and then committed the offence. Although
there was uncontradicted medical evidence that the applicant was
suffering from a "mental disorder" within the meaning of that term in
the 1959 Mental Health Act (namely psychopathy) and that he needed
constant care and treatment in a maximum security medical setting, the
sentencing judge nevertheless declined to act on the recommendation of
the medical experts and concluded that, because of the gravity of the
offences, "punishment must be an element in this case" and "punishment
can only be achieved by imprisonment". On passing sentence, the trial
judge, Mr. Justice Roskill, stated as follows:
"Edward James Gunnell, you stand convicted of no less than
four charges of rape and two of attempted rape, as well as
three charges of stealing, two of which were connected with
two of the rapes, and all those offences were committed
within the period of a month. It is only thanks to the
courage of the two women involved, those concerned in
counts 1 and 2, that you are not standing convicted on no
less than six charges of rape. These must be amongst the
worst cases of rape or attempted rape ever to come before a
court in this country. But though I accept you have spent
much of your early life in mental institutions, and I accept
certain evidence I have heard this morning that you are
suffering from psychopathic disorder, the evidence leaves no
doubt and can leave no doubt in anybody's mind, that you
did know what you were doing and you were well aware of the
wickedness of what you had done. I have listened with
great attention to the medical evidence which I have had
the opportunity of hearing this morning, and I have
endeavoured to give all the weight to it that I properly
can.
It has been urged upon me that I should deal with you by
making a hospital order and sending you to Rampton, where
you will be kept in secure conditions and receive any
treatment which you may require. In many cases it is
clearly right for a court in discharging its
responsibilities to have regard solely or mainly to the
needs of the offender, but the present case in my view is
one of such magnitude that I cannot only have regard to such
needs. It is true, to send you to Rampton would involve you
being kept under secure conditions and to that extent would
keep the public from you. But there are other matters which
I must take into account in the public interest, not the
least of which is to make it clear that crimes of this kind
committed against ordinary housewives in their ordinary
homes doing their every day business while their men-folk
are away at work are such as must, when brought home to a
particular offender, be dealt with in such a way as to make
plain that the law is concerned and ever will be concerned
to protect people who suffer as you caused these women to
suffer by these quite appalling sexual attacks that you made
upon them. Punishment must be an element in this case, and
that punishment can only be achieved by imprisonment.
Imprisonment will afford security to the public from you,
and the Home Secretary has ample power if and when the need
for treatment arises, to transfer you to any institution
where such treatment can be received.
In my judgment there is only one sentence which is
appropriate in this case, and I will deal with count 3
first. Upon count 3 the sentence of the court is that you
be imprisoned for the term of your natural life. There will
be corresponding life sentences on counts 4, 5 and 7, upon
which you stand convicted of rape. On the first two counts
in the indictment, those of attempted rape the sentence will
be one of 7 years imprisonment, such sentences to run
concurently with one another and with the life sentence. On
count 6 and count 8 there will be sentences concurrent with
each other of 3 years' imprisonment and concurrent with the
life sentences. On count 9 there will be a concurrent
sentence of two years' imprisonment. Those are the
sentences of the court on every count."
The applicant was refused leave to appeal to the Court of
Appeal on 22 June 1966. In the course of his judgment the
Lord Chief Justice stated:
"It is a shocking case and there is no conceiviable ground
upon which he could succeed in his application for leave to
appeal against conviction. Indeed, all he says is that he
would like to call three of the women complainants to
challenge their evidence all over again. This court refuses
the extension of time in which to apply for leave to appeal
against conviction.
In regard to the application for leave to appeal against
sentence in regard to the rapes and attempted rapes, the
applicant is 35 and, though he has committed offences
before, none of them have been offences of violence or of
a sexual nature, but he has a long mental history. As long
ago as 1946 he was committed to Manor Hospital, Epsom, from
which he escaped 18 times. In 1950 he was admitted to
Farmfield Hospital, Horley. He absconded three times. In
1951 he was transferred to Rampton hospital where he made no
attempts to escape, possibly knowing that it is difficult to
do so. In 1959, however, he was released on licence from
Rampton and in 1960 he was discharged from the operation of
the Mental Deficiency Act 1959.
There was evidence, indeed it was uncontradicted, from the
doctors that the applicant could be made the subject of a
hospital order under the Mental Health Act 1959, in that he
was a psychopath who needed constant care and treatment in a
medical setting of maximum security such as Rampton and such
a vacancy was then available. The learned judge refused to
take that course and the ground of appeal here is that he
was wrong in principle, when two doctors certified that the
applicant was a fit subject for a hospital order and that
treatment was warranted, not sending him to hospital but
sending him to prison ...
This court would like it to be known that they agree with
every word that the learned judge there said, indeed in an
earlier case of Morris [1961] 2 QB 237, it was pointed out
that there may be cases where although a court has powers to
make a hospital order, yet where a punishment is required it
would be right to send the offender to prison, it being
recognised that the Home Secretary has ample powers under
section 72 of the Mental Health Act 1959 to cause him to be
treated in hospital when the need arises.
This court would like to add one further reason justifying
the judge's order in the present case. The applicant is
obviously a dangerous psychopath. It is clear unless he is
kept in circumstances of strict security he is liable to be
a menace to the public. True, Rampton is said to be a
secure hospital, but it does not mean that he would not get
away from there. More important, it has to be observed that
this dangerous psychopath has already been released on
licence from Rampton. Bearing the interests of the public
in mind, this court thinks it far safer that he should be
kept in prison for as long as is necessary rather than he
should be left to be dealt with as a hospital might deal
with him, on a doctor and patient relationship under which
it might be considered safe for him to be free, whereas
from the public angle he remains a menace.
This court is quite satisfied that the sentence was right
and the application is refused."
In December 1980 the Parole Board recommended that, subject to
continued good conduct, to the satisfactory completion of periods both
in open conditions and the pre-release employment scheme, the
applicant should be released on licence under the provisions of the
Criminal Justice Act 1967. On 7 September 1981 he joined the
pre-release employment scheme at Wormwood Scrubs prison. Arrangements
were made for him to take anti-libidinal drugs and he was released on
licence on 4 March 1982.
On 19 February 1983 information was received from Finchley
Police that the applicant had been seen watching a woman cleaning her
car and had then been found in her back garden. The police said that
there had been a similar incident in January 1983, when a woman
complained to the police that the applicant was in her back garden
looking through her rear window. The police had arrested the
applicant on that occasion but did not hold him. Following the second
incident, the Minister of State authorised the immediate revocation of
the applicant's life licence under Section 62 (2) of the 1967 Act
on 19 February 1983 because of the similarities between the
applicant's current behaviour and the circumstances in which the
original offences were committed. The applicant was taken to
Pentonville Prison the same day and was subsequently transferred to
Wormwood Scrubs. At no stage of the proceedings was he charged with
any criminal offence in relation to the incidents in January and
February 1983.
The applicant was interviewed by the Assistant Governor on
25 February 1983 and states that he was told that his licence had been
revoked "because his behaviour was giving cause for concern". He was
also informed of his right under Section 62 (3) of the 1967 Act to
make written representations to the Parole Board.
The applicant was subsequently seen by a member of the Local
Review Committee on 1 March 1983. On 4 March 1983 the Parole Board
confirmed the revocation of the applicant's licence when the case was
referred to them under Section 62 (4) of the 1967 Act. On 25 March
the Parole Board rejected the applicant's representations but
recommended that, subject to satisfactory re-settlement arrangements
being made and to continuing psychiatric supervision he should be
released in a month's time. The Secretary of State decided not to
accept the Board's recommendation after consultations with the Lord
Chief Justice and the trial judge in accordance with Section 67 (1) of
the 1967 Act. The applicant subsequently petitioned the Secretary of
State, complaining that he had not been allowed to defend himself.
The petition was rejected in a reply dated 3 August 1983. The
applicant states that the reply contained the first written
explanations of the reasons for his recall and the first official
account in any detail of the allegations made against him.
On 9 August 1983 the applicant applied for leave to move for
judicial review of the decisions of the Parole Board and the Home
Secretary, confirming the initial revocation of the licence. The
applicant was granted leave to move for judicial review on 18 August
1983. His application was eventually dismissed on 2 November 1983.
An appeal against this decision to the Court of Appeal was also
dismissed on 30 October 1984. The applicant's case was reviewed again
by the Parole Board and the Home Secretary in 1984 but he was not
released. He was released on licence once more in September 1988.
Relevant domestic law and practice
By virtue of section 37 of, and Schedule 2 to, the Sexual
Offences Act 1956 the maximum punishment for rape is life
imprisonment. The maximum penalty for buggery with a boy under the
age of 18 is life imprisonment by virtue of Section 37 of, and
Schedule 2 to, the 1956 Act.
Under the Criminal Justice Act 1967 the Secretary of State may
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 of England and the trial judge if available.
In practice the Home Secretary consults the Lord Chief Justice
and the trial judge as to the period on detention necessary to satisfy
the needs for retribution and deteterrence, i.e. the tariff period.
By virtue of section 62 (1) the Secretary of State may revoke
the licence of a person, whose recall to prison is recommended by the
Parole Board. A prisoner recalled in such circumstances is entitled
to be informed of the reasons for his recall and of his right to make
representations. If he makes representations the Secretary of State
must refer his case to the Board. If the Board recommends the
immediate release of a re-called prisoner, the Secretary of State is
bound to give effect to the recommendation.
Under section 62 (2) the Secretary of State may himself
revoke the licence of a life licensee without consulting the Parole
Board if it appears expedient in the public interest to do so before
such consultation is practicable; but the case of a prisoner so
recalled must be referred to the Board. If the Board recommends the
immediate release of a re-called prisoner, the Secretary of State is
bound to give effect to the recommendation.
Under Section 59 of the 1967 Act the Secretary of State has
established for every prison a Local Review Committee with the
function of advising him on the suitability for release on licence of
prisoners. It is the practice to obtain a Local Review Committee's
assessment before referring the case to the Parole Board. The date
when a life sentence prisoner's case was to be referred to the Parole
Board was normally determined by a joint Parole Board-Home Office
Committee.
Section 60 (4) of the 1967 Act provides that a person subject
to a licence shall comply with such conditions, if any, as may for the
time being be specified in the licence. Section 60 (5) provides:
"The Secretary of State shall consult the Board before
including on release, or subsequently inserting, a condition
in a licence under this section or varying or cancelling any
such condition; and for the purposes of this subsection the
Secretary of State shall be treated as having consulted the
Board about a proposal to include, insert, vary or cancel a
condition in any case if he has consulted the Board about
the implementation of proposals of that description
generally or in that class of case."
It is the practice that all prisoners released on life licence
are required to remain under the supervision of a probation officer.
The licensee maintains regular contact with his probation officer and
obtains his probation officer's approval for the place where he lives
and works.
COMPLAINTS
The first applicant (Thynne) complains under Article 5 para.
4 of the Convention of the absence of any procedure under the law of
the United Kingdom by which he can have reviewed the continuing
lawfulness of his detention by a court.
The second applicant (Wilson) makes the following complaints,
also under Article 5 para. 4 of the Convention:
i) between March 1973 and September 1982, i.e. the date
of his release on licence, he was deprived of the right to
have the lawfulness of his continued detention determined at
reasonable intervals by a "court" which could determine the
substantive merits of the justification advanced by the
authorities for his continued detention;
ii) between 14 February 1983 and 22 March 1985 he was
deprived of his right to have the lawfulness of his recall
and renewed detention determined by a "court" competent to
decide whether the recall and detention were justified; and
iii) since March 1985, he has been deprived of his right
to a periodic review of the lawfulness of his detention at
reasonable intervals by a "court".
He further complains under Article 5 para. 5 of the Convention
that there is no enforceable right to compensation in respect of the
above breaches of Article 5 para. 4 under the law of the United
Kingdom.
The third applicant (Weeks) complains that his re-detention
was in breach of Article 5 para. 1 of the Convention in that there
exists no sufficient connection between his original conviction in
1966 and the decision to re-detain him because of a breach of an
administrative requirement, i.e. one of the conditions of his licence.
He further alleges a breach of Article 5 para. 4 of the
Convention in that he was unable to take proceedings to challenge the
lawfulness of the decision to re-detain him.
Finally, he alleges a breach of Article 5 para. 5 of the
Convention in that there is no enforceable right to compensation
under the law of the United Kingdom.
The fourth applicant (Gunnell) complains under Article 5 para.
4 of the Convention that he was unable to challenge before a court the
lawfulness of the decision to re-detain him.
Complaints originally made by the second applicant (Wilson)
under Articles 5 para. 1 (e) and 5 para. 2 and by the fourth applicant
(Gunnell) under Article 5 para. 2 of the Convention were expressly
withdrawn in the course of the hearing before the Commission.
PROCEEDINGS BEFORE THE COMMISSION
The first application (Thynne) was introduced on 3 June 1985
and registered on 10 September 1985.
The second application (Wilson) was introduced on
1 September 1985 and registered on 1 February 1986.
The third application (Weeks) was introduced on 3 October 1985
and registered on 14 February 1986.
The fourth application (Gunnell) was introduced on 24 April
1985 and registered on 12 February 1986.
The applications were first examined by the Commission on
1 December 1986 (Thynne), 1 February 1986 (Wilson), 1 December 1986
(Weeks) and 18 July 1986 (Gunnell).
The Commission decided to give notice of the applications to
the respondent Government but not to ask for their observations on the
admissibility and merits of the cases until judgment had been handed
down by the European Court of Human Rights in the Weeks case (Eur.
Court H.R., judgment of 2 March 1987, Series A no. 114).
On 1 April 1987, following the judgment of the Court in the
Weeks case, the President of the Commission requested submissions on
the admissiblity and merits of the applications insofar as they raised
issues under Article 5 of the Convention. The Government's
observations were submitted on 12 June 1987 (Thynne, Wilson and
Gunnell) and 20 July 1987 (Weeks). The applicants' observations in
reply were subitted on 21 July 1987 (Thynne), 23 September 1987
(Wilson), 25 September 1987 (Weeks) and 29 October 1987 (Gunnell).
The Commission next considered the applications on
9 March 1988 when it was decided to hold a joint oral hearing to take
place in Strasbourg on 6 September 1988.
The applicant Wilson was granted legal aid by decision of the
Commission on 13 May 1988.
The applicants Thynne and Wilson were granted legal aid by
decision of the President on 19 August 1988.
At the hearing, at which the applications were joined
pursuant to Rule 29 of the Commission's Rules of Procedure, the
parties were represented as follows:
Respondent Government
Mr. M. C. Wood, Foreign and Commonwealth Office, Agent
Mr. A. Moses, Counsel
Mr. C. Osborne, Home Office, Adviser
Mrs. V. Harris, Home Office, Adviser
The applicants
(for MM. Wilson and Gunnell):
Mr. E. Fitzgerald, counsel
Mr. P. Hunt, Legal Officer, National Council for Civil Liberties
(for MM. Thynne and Weeks):
Mr. P. Ashman, Legal Officer, JUSTICE
SUBMISSIONS OF THE PARTIES
Respondent Government
Article 5 para. 1 (a) of the Convention
WEEKS
The Government refer to the decision of the Court in the Weeks
case (loc. cit.) concerning the interpretation of Article 5 para. 1
(a) of the Convention. In particular the Court has held that there
was a sufficient causal connection between the applicant's conviction
in 1966 and his re-detention in 1977, after having examined the
sufficiency of the grounds on which the re-detention in 1977 was
based, bearing in mind the discretion conferred by the Convention on
the national authorities in this area.
The Government submit that the release which the life sentence
system provides for is release on licence and that licensees have to
subject themselves to supervision by a probation officer. It follows
that the monitoring of a life sentence prisoner's progress continues
after he has been released through contact with the probation
officer. Such monitoring is only possible if the licensee maintains
regular contact with the probation officer. It breaks down if the
licensee goes abroad without permission.
Once a prisoner has been released, the authorities lose direct
control over him and the necessary continuing contact with the
probation officer can only be maintained with his co-operation. The
authorities cannot compel him to maintain that contact. The only
effective sanction which they have is recall to prison. Thus the
revocation of a life licence may be the only effective way of
reminding a licensee, as well as other life sentence prisoners and
licensees, of the licence obligations.
In the present case the applicant had from June 1984 to the
time of his re-arrest, been out of touch with his probation officer
as a result of having moved his residence to France. This constitutes
a breach of the conditions attached to the applicant's licence. In
these circumstances the continued supervision required by his licence
could no longer take place.
Accordingly the applicant's re-arrest in May 1985 was in no
way arbitrary or unreasonable in terms of the sentence imposed on
him. His failure to maintain contact with the probation officer
and his subsequent re-arrest were consistent with the objectives of
the sentencing court which were that the applicant should be subject
to continuing supervision even after release from prison. If the
applicant's argument was correct it would mean that the Home Secretary
could never recall a person on licence for breach of licence
conditions but could only recall him if he considered that person to
be a danger to himself or to the public. It is therefore submitted
that there has been no breach of Article 5 para. 1 of the Convention.
General
-------
The Government refer to the decision of the European Court of
Human Rights in the Weeks case (Eur. Court H.R., judgment of 2 March
1987, Series A no. 114) where the Court held that, in the case of life
sentences falling into a special category, the prisoner was entitled
to apply to a court-like body to have the lawfulness of his detention
following recall and continuing detention reviewed. In such a case,
the supervision required by Article 5 para. 4 was not incorporated in
the decision of the sentencing court. However, in the Weeks case, the
Court stressed that the purpose for which the defendant's sentence had
been imposed, taken together with the particular facts relevant to
the offence placed the sentence in a special category. Neither the
trial judge nor the Court of Appeal in the Weeks case had suggested
that the offence in itself was so serious as to merit a life
sentence. Moreover, the Court was careful to distinguish Mr. Weeks's
exceptional sentence, which was imposed solely for the purpose stated
by the trial court and the Court of Appeal, from the unexceptional
life sentence imposed where the gravity of the offence is one of the
reasons for the imposition of the sentence.
It follows from the Court's judgment that, for the purposes of
Article 5 of the Convention, life sentences in the United Kingdom fall
into two categories. The first category consists of two types of life
sentence which are distinct in English law, namely mandatory life
sentences and discretionary life sentences. In the case of mandatory
life sentences, the offences are so grave that Parliament has
legislated that no discretion should be given to the court as to the
appropriate sentence. In the case of discretionary life sentences,
the combination of the gravity of the offence and the danger presented
to the public by the offender is such as to merit an indeterminate
sentence. The combination of gravity and dangerousness gives rise to
a special need for the Home Secretary to maintain public confidence in
the system of life sentences.
The second category is the special category that the Weeks
case belongs where the life sentence is imposed solely to meet the
need for continued supervision and custody. It is submitted that this
category is very small and that the Weeks case is unique.
The Government submit that the applicants' submissions based on
the Handscombe decision (R v. Secretary of State for the Home
Department, ex parte Handscombe and Others (1988) 86 Cr. App. R.59) are
misconceived since the gravity of the offence is also part of the
justification for re-detention. The gravity of the offence gives rise
to a special consideration of maintaining public confidence in the
life sentence system. The Home Secretary's duty in this respect means
that he must have regard to the risk to the public involved in the
release of a particular prisoner in the light of the gravity of the
offence. Such judgment may depend on issues of fact which are not
susceptible to judicial analysis. Courts, unlike the Home Secretary,
are not answerable to the public.
THYNNE
The Government submit that the facts of this application place
it in a wholly different category from that of Mr. Weeks. In contrast
with the Weeks case, the facts of the applicant's offence were of the
utmost seriousness, as reflected in the remarks of the trial judge and
the Court of Appeal. The applicant had raped and buggered a 45
year-old married woman after gaining entrance to her flat by claiming
to be a policeman. He threatened her, saying he had a knife, struck
her and attempted to strangle her. It is clear that the incident was
very grave and that retribution and deterrence were important elements
in the imposition of the two life sentences.
The Government accept that an element in the choice of a life
sentence was the possibility of monitoring the applicant's progress in
prison so that he could receive the necessary treatment. However,
this did not place the applicant's case into the special category
identified by the Court in the Weeks case. It is clear that the life
sentence imposed involved a substantial element of punishment for the
gravity of the offence committed.
The applicant has not been released because the Home
Secretary, in the light of his responsibility for public safety, and
in the light of his responsiblity to maintain public confidence, does
not consider it safe to do so. It is submitted that such a
consideration is not a suitable matter for a "court" to determine. It
is difficult to see how the issue as to whether he should be released
or not is susceptible to a hearing at which Mr. Thynne can make
representations.
Accordingly, the requirements of Article 5 para. 4 are met by
the proceedings before the sentencing court and the subsequent appeal.
Finally, the Government note that medical opinion is unanimous in the
view that the applicant's personality disorder is not susceptible to
treatment. His case is, nevertheless, kept under regular review.
WILSON
The Government submit that it is beyond dispute that offences
which involve sexual interference with children are very grave. The
applicant has a long history of convictions for buggery and indecent
assault on young boys going back to 1935. Such offences may have a
lasting detrimental effect on the psychological and emotional
development of the young. It is for this reason that English law
distinguishes buggery with children under the age of 16 from offences
with men over that age as an offence for which it is necessary to
retain a maximum sentence of life imprisonment. The applicant's
criminal history, taken together with the facts of his offences in
1973 show a high degree of damaging physical interference with the
young.
Both the trial judge and the Court of Appeal recognised that
punishment was an important element in the sentence. In such
circumstances the Government submit that, even though there was an
intention that the applicant should be subject to supervision for the
protection of the public, the life sentence was justified having
regard to the seriousness of the applicant's behaviour. The
requirements of Article 5 para. 4 are thus incorporated in the
decision of the sentencing court.
WEEKS
The Government point out that he was recalled in 1984 because
of breaches of the conditions of his licence and not because he was
considered to be a danger to the public which was the reason for his
recall in 1977. However, the applicant's special category position
relates only to decisions to recall him because he was a danger to the
public. It is this feature which was susceptible to change over time
which has therefore made his case analogous to the Van Droogenbroeck
case (Eur. Court H.R. judgment of 24 June 1982, Series A no. 50).
However, the grounds for recall in 1984 to 1985 were the breaches of
the licence conditions which rendered it impossible for the Home
Secretary to determine whether the applicant was dangerous or not.
Such grounds do not change over the passage of time.
The Government also point out that as a result of the exercise
of the Royal Prerogative the applicant is no longer subject to his
life licence. He is thus no longer liable to be recalled to prison
and there can, accordingly, be no continuing breach of Article 5 para.
4 of the Convention.
GUNNELL
The Government contend that the facts of this application
place it in a wholly different category from that of Mr. Weeks, since
his offences were of the utmost seriousness as reflected in the
remarks of both Mr. Justice Roskill and the Court of Appeal. The
applicant was convicted on four separate charges of rape of four
married women and received a sentence of life imprisonment in respect
of each count. The offences were described by the trial judge as
amongst the worst cases of rape to come before an English court. It
is clear that the life sentence imposed involved a substantial element
of punishment. It is submitted that the undisputed existence of an
element of retribution and deterrence means that the applicant's case
cannot fall into the Weeks special category. The trial judge could
have imposed a hospital order which would have involved the
applicant's detention in Rampton, which is a secure special hospital.
As the judge acknowledged, detention in Rampton would have provided
the necessary public protection. However, he rejected the course of a
hospital order and imposed a life sentence expressly in order to
punish the applicant and to deter others from emulating his offences.
It is therefore submitted that the requirements of Article 5
para. 4 were satisfied by the applicant's trial and subsequent appeal.
Article 5 para. 5 of the Convention
WILSON and WEEKS
The Government submit that Article 5 para. 5 is intended to
confer an enforceable right to compensation only in cases where there
has been a contravention of the provisions of paras. 1 - 4 by reason
of the fact that the arrest or detention is not lawful within the
meaning of those paragraphs. Such an interpretation not only accords
more closely with the intention of the drafters of the Convention but
reconciles the provisions of paras. 4 and 5 of Article 5. It follows
that in the Wilson case Article 5 para. 5 does not come into play
since the arrest and detention was lawful.
In the case of Weeks, the Government note that the complaint
appears to relate to the application of Article 5 para. 5 in relation
to the breach of Article 5 para. 4 which was found by the Court to
have taken place in respect of his earlier application. The
applicant did not make any complaint under Article 5 para. 5 in this
earlier application. Moreover, the question of damages for breach of
Article 5 para. 4 under Article 50 of the Convention is pending before
the Court. It is clear from the case-law that the Court will take
into consideration under Article 50 the rule of substance contained in
Article 5 para. 5. In these circumstances, the Government submit that
it is neither necessary nor appropriate for the Commission to consider
the application of Article 5 para. 5 in relation to the breach of
Article 5 para. 4 found by the Court.
The applicants
Article 5 para. 1 (a) of the Convention
WEEKS
The applicant submits that the only proper interpretation of
the judgment of the Court in respect of this provision is that no
violation was established because the Court had found that there was
evidence upon which the Home Secretary could conclude that the
applicant was a danger to the public and himself. The causal link
between the original conviction and re-detention was created by the
test of dangerousness.
The applicant points out that after his release on licence in
1982 there was a period of unstable behaviour which resulted in a
number of minor criminal convictions for which he received modest
penalties. However, neither the Parole Board nor the courts nor the
Home Secretary considered these matters to be sufficiently grave to
re-detain the applicant in 1983. They cannot be relied upon by the
Government now as a justification for his deprivation of liberty in
April 1985.
The applicant was re-detained in April 1985 by way of a
punishment for failing to comply with the conditions of his licence.
It is significant that the Government made no attempt to seek the
extradition of the applicant from France on the grounds that he was a
dangerous offender who was unlawfully at large.
With respect to the Government's argument that the power to
re-detain is essential to ensure compliance with licence obligations
the applicant states that this is tantamount to an argument based on
Article 5 para. 1 (b) of the Convention. However, the Commission has
specifically held in the case of Eggs v. Switzerland (No. 7341/78,
Comm. Report 4.3.78, D.R. 15 p. 35) that deprivation of liberty to
compel fulfilment of an obligation is only permissible where that
obligation is specific and concrete. In the present case the penal
sanction was applied as punishment for past behaviour and was not
intended to secure the fulfilment of a legal obligation. The Home
Secretary was not simply executing the judgment of the original
sentencing court but was imposing his own disciplinary sanction for
failing to obey the conditions he had imposed. The true reason
underlying his recall was not because of perceived dangerousness but
to punish the applicant and in so doing discourage other licencees
from breaching the conditions of their licence. The amount of time
actually served by the applicant after recall (five months and
seventeen days) was the equivalent, with remission, of a sentence of
over eight months' imprisonment. This is a penalty which can only be
imposed in England by the Circuit judges in the Crown Court for
serious offences.
It is accordingly submitted that the applicant's detention was
not lawful within the meaning of this provision.
Article 5 para. 4 of the Convention
General
-------
The applicants submit that the basic flaw in the Government's
argument is to treat discretionary life sentences as belonging to the
same category as mandatory life sentences. Following this approach,
the Government submit that the applicants Thynne, Wilson and Gunnell
have been punished because of the gravity of the offence. However, it
is clear that the discretionary life sentence falls to be
distinguished from a mandatory life sentence.
Firstly it is clearly established in United Kingdom law that a
disretionary life sentence is imposed not only because the offence is
a grave one, but because the accused is regarded as mentally unstable
and dangerous (e.g. Picker (1970) 54 Cr. App. R 330; Wilkinson (1983)
5 Cr. App. R (S) 105; Headly (1979), 1 Cr. App. R (S) 159). For
example, the Court of Appeal in the case of Picker stated as follows
in relation to the discretionary life sentence in general:
"Where the nature of the offence and the make-up of the
offender are of such a nature that the public requires
protection for a considerable period of time ... it is right
for the judge to impose a life sentence ... but where no
such conditions exist it is quite clear that a judge should
not pass the difficult matter of sentencing and the length
of detention to others" (p. 332).
Second, the discretionary life sentence is preferred to a fixed-term
sentence only when punishment is not the sole objective and it is
necessary to authorise detention by the executive beyond the period
that would have been merited as punishment in order to protect the
public.
Third, in the recent decision of the Divisional Court (R v. Secretary of
State for the Home Department, ex parte Handscombe & Others (1988) 86
Cr. App. R. 59) the Court recognised that every discretionary life
sentence contains within it an authority to detain a prisoner for the
purposes of punishment for no longer than he would have served if he
had been sentenced to a fixed-term sentence as punishment for his
offence rather than an indeterminate sentence because of his
dangerousness. It further contains an additional authority to detain
the prisoner beyond this tariff or punitive period if he continues to
remain a danger to the public. In his judgment, Lord Justice Watkins
indicated that the rationale of the discretionary life sentence leads
to the conclusion that the punitive part of the sentence is completed
at a particular point in time. He stated:
"On the other hand, the tariff in the discretionary life
sentence is the appropriate fixed-term sentence in the
absence of a mental element, the existence of which led to
the life sentence."
The Handscombe judgment recognises that after the completion
of the punitive period, dangerousness becomes the sole justification
for further detention.
It follows from the above analysis that prisoners like Thynne,
Wilson and Gunnell reached a point where they had completed the tariff
period of their sentences. At that point they could only be detained
further if they were still considered to be dangerous. From that
point on they were in precisely the same position as the applicants in
the Van Droogenbroeck and Weeks cases (loc. cit.). Justification for
any recall and continued detention depends entirely on the continued
presence of a propensity to dangerous behaviour which is susceptible
to change with time.
The applicants point out that an offender sentenced to a
fixed-term sentence has the benefit of one-third remission of sentence
for good behaviour. They also submit an affidavit (29 July 1988) from
a recognised expert in sentencing (Dr. D. A. Thomas, author of
Principles of Sentencing, 1979, Heinemann) who has studied extensively
the practice of the Court of Appeal in this area. He states with
reference to the practice of the Court of Appeal in sentencing matters
that there is an upper limit of 10 years for offences of buggery
against minors, in the absence of mental instability. He further
states that the upper limit for the worst type of rape, where
punishment is the sole object, is 18 years.
THYNNE
The applicant points out that the sentence of life
imprisonment for rape is not a common one. Between 1977 and 1986
criminal statistics for England and Wales show that 3,765 men were
convicted of rape, of whom only 85 were sentenced to life
imprisonment. As was indicated by Dr. Thomas, it is almost always for
reasons of personality disorder that a life sentence is imposed and
rarely, if ever, as pure punishment. Under current practice in
England, the period of detention which has to be served for the
purposes of retribution and deterrence in an indeterminate sentence
can be estimated from the date of the first parole review plus three
years. In the applicant's case this would mean that a period of
punishment would have been recommended by the trial judge and the Lord
Chief Justice of 9 years' imprisonment to represent retribution.
In 1980 all the medical experts had agreed that the applicant
was not suffering from any mental illness and that no medical or
psychiatric treatment was available to him. The applicant had various
reviews by the Local Review Committee and the Parole Board between
September 1981 and July 1987. No reasons were given to him for the
recommendations which were that he remain in custody and he was not
allowed to see the reports on which these recommendations were based.
A further review is scheduled for May 1989 which means that,
effectively, the earliest hope of a date of release is 1992, by which
time he will have served 17 years' imprisonment for these offences: 9
years for punishment and 8 years for potential risk.
Against this background, it is submitted that there has been a
breach of Article 5 para. 4 of the Convention in the applicant's case,
because of the lack of periodic review of lawfulness, for the same
reasons as in the Weeks case. Although the facts of the applicant's
case differ from the Weeks case the reasons on which their sentences
were based are, in principle, the same. Each was given a life
sentence not necessarily because of the gravity of the crime but
because their psychological condition warranted supervision. Hospitals
were not available at the time and therefore life sentences were
imposed so that they could be detained for the purposes of social
protection and monitored for the rest of their lives either in
detention or on a life licence. These considerations are reflected in
the reasons given for the sentence by the Recorder and in the Court of
Appeal.
Although there was undoubtedly an element of punishment in the
applicant's sentence it was not the overriding factor in the
imposition of the sentence. The difference between Weeks and the
present case is one of degree with the applicant's sentence containing
a greater element of punishment. However, once the retributive period
had ended the sole basis for continuing detention is as a security
measure in the interests of public safety.
WILSON
The applicant submits that his own life sentence was not
imposed because of the gravity of the offence he had committed. His
offence would only have justified a long fixed term sentence which
would undoubtedly have allowed for his release within ten years as
noted by Dr. Thomas. He is still detained after 15 years. The
additional factors justifying the imposition of the life sentence were
his mental affliction and the need to protect the public. Thus the
trial judge made specific reference to the fact that the punishment of
moral guilt was not his purpose so much as the protection of the
public. He also indicated that an indeterminate sentence allowed for
the applicant's release by the executive at an earlier stage than if a
fixed term sentence had been imposed.
The applicant states that the Government's submission that his
sentence was imposed because of the seriousness of the offence is
wholly inconsisent with the principles governing the imposition of
discretionary life sentences in sexual cases in general and buggery in
particular. The Court of Appeal has consistently held that a life
sentence can only be imposed in cases of buggery if the person is
mentally unstable. He refers to the cases of Simpson (1981) 3 Cr.
App. R(S) 345 and Johanssen (1977) 65 Cr. App. R 101 and the
affidavit submitted by Dr. Thomas. The applicant concludes that his
case also falls into a special category which attracts the safeguards
of Article 5 para. 4 of the Convention.
WEEKS
The applicant submits that his inability to challenge the
circumstances of the revocation of his licence did not materially
differ from the situation in 1977 which the Court found to violate
Article 5 para. 4. The applicant spent 170 days in Winchester prison
which is the equivalent, with remission, of a sentence of 8 months'
imprisonment. This is a sentence which the courts can only impose for
more serious offences.
He contends that the Government have conceded that there was a
violation of Article 5 para. 4 in respect of the applicant's
re-detention in April 1985. He maintains, however, that he has served
longer in prison than he would have done if the Article 5 para. 4
guarantees had been in force. If a domestic court with competent
jurisdiction had considered the justification for his re-detention in
the light of the criteria laid down by the original sentencing court,
it would have found it inadequate.
While it is true that the applicant can no longer be recalled
to prison, the Commission must have regard to the situation prevailing
in April 1985. If the applicant was detained in breach of the
provisions of Article 5 para. 4 he was wrongly detained and he
should be compensated.
GUNNELL
The applicant accepts that his offences were of a serious
nature which might have attracted a fixed-term punishment of up to 18
years (cf. affidavit of Dr. Thomas). However, he had a long history
of detention in mental hospitals as a mental defective and as someone
diagnosed by at least two doctors as suffering from psychopathy. As
such he satisfied the extra condition of mental instability which
justified the imposition of a life sentence rather than a long
fixed-term sentence. He submits that the judge could not lawfully
have imposed, nor could the Court of Appeal have upheld, a life
sentence if this additional feature had not been present. He refers
to the following statement of the Court of Appeal in the case of
Headley (1979) 1 Cr. App. R (S) 158:
"The sentence of life imprisonment is inappropriate, even for
grave sexual ofences, where there is no evidence that the
offender is in need of treatment or is likely to be a danger
to society in the future."
The applicant states that the Court of Appeal made it clear
when it described him as a dangerous psychopath that protection of the
public was the real determinant of the choice of the life sentence.
Moreover, the Court justified the choice of a life sentence because it
was not satisfied that an indefinite hospital order would provide for
the protection of the public as well as a life sentence.
When the applicant was released on licence in March 1982 he
had served 17 years in custody - the equivalent of a fixed term of 25
years. At that stage his release must have been approved by the Lord
Chief Justice and the trial judge after the process of statutory
consultation required by Section 61 (2). They must have approved it
on the basis that the applicant had served the tariff period necessary
for punishment. Thereafter it cannot be said, as the Government
maintain, that the applicant's recall can be justified on the grounds
of retribution. In this post-tariff stage, the sole question, as the
Divisional Court in Handscombe establishes, is the applicant's
continuing dangerousness to the public.
The applicant notes that he was recalled on the basis of
police allegations but was never given an opportunity to test those
allegations by cross-examination or by giving evidence himself.
Article 5 para. 5
WILSON and WEEKS
The applicant Wilson submits that since there is no right to
enforceable compensation under United Kingdom law in respect of his
complaints there is also a breach of Article 5 para. 5 of the
Convention.
The applicant Weeks complains that he has been denied an
enforceable right to compensation in respect of the foregoing breaches
of Article 5. He points out that there is no statutory scheme in the
United Kingdom for compensating persons wrongfully detained and that
the Divisional Court has refused to give any effect to the judgment
of the European Court of Human Rights. Under an ex gratia scheme, the
Home Secretary will compensate an individual inter alia in compliance
with the United Kingdom's international obligations. The Home
Secretary under this scheme has decided to give effect to Article 14
(6) of the United Nations Covenant on Civil and Political Rights but
not to Article 5 para. 5 of the Convention.
He submits that the possibility that compensation might be
ordered by the court under Article 50 is no substitute for a
substantive right to compensation under the domestic law where
long-established criteria as to quantum of damages are liable to
result in a more equitable remedy. The object of compensation is to
remedy material loss as well as to compensate for the suffering
necessarily caused by excessive imprisonment or the loss of
opportunity to end imprisonment. It is submitted that the failure to
provide an enforceable right has caused the applicant extra expense
and material suffering and constitutes a breach of Article 5 para. 5
of the Convention.
THE LAW
The first applicant (Thynne) complains of the absence of any
procedure under the law of the United Kingdom by which he can have
reviewed by a court the continued lawfulness of his detention. He
invokes Article 5 para. 4 (Art. 5-4) of the Convention.
The second applicant (Wilson) also complains that he was
unable to have the lawfulness of his continued detention determined at
reasonable intervals by a court and, further, that he was unable to
challenge the lawfulness of his re-detention before a court as
required by Article 5 para. 4 (Art. 5-4) of the Convention. He
further complains under Article 5 para. 5 (Art. 5-5) of the Convention
that he has no enforceable right to compensation under the law of the
United Kingdom in respect of his complaints.
The third applicant (Weeks) complains that his re-detention in
1985 was in breach of Article 5 para. 1 (Art. 5-1) of the Convention
since there existed no sufficient causal connection between his
original conviction in 1966 and the decision to re-detain him for
breach of a condition of his licence. He further alleges a breach of
Article 5 para. 4 (Art. 5-4) in that he was unable to take proceedings
to challenge the lawfulness of his detention. Finally, he alleges a
breach of Article 5 para. 5 (Art. 5-5) on the ground that he has no
enforceable right to compensation under United Kingdom law. In
particular, he complains that he was unable to obtain compensation
before the courts of the United Kingdom on the basis of the judgment
of the European Court of Human Rights that there was a breach of
Article 5 para. 4 (Art. 5-4) of the Convention in his case.
The fourth applicant (Gunnell) complains under Article 5 para.
4 (Art. 5-4) that he was unable to challenge before a court the
lawfulness of his recall on 19 February 1983.
All four applicants emphasise that they were given a
discretionary life sentence as compared with a fixed-term sentence
because it was considered necessary to protect the public. They
contend that such a sentence falls into the special category of
sentences recognised by the European Court of Human Rights in the
Weeks case (Eur. Court H.R., judgment of 2 March 1987, Series A no.
114) attracting the safeguards of Article 5 para. 4 (Art. 5-4) of the
Convention.
The relevant parts of Article 5 (Art. 5) of the Convention
read as follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
...
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 refer to the decision of the European Court of
Human Rights in the Weeks case (loc. cit.). The Court held that in
cases of life sentences falling into a special category, a prisoner
was entitled to apply to a court-like body to have the lawfulness of
his detention following recall and of continuing detention reviewed.
The Government however contend that the facts of the cases
Thynne, Wilson and Gunnell place them in a wholly different category
from that of the first Weeks case. It is clear from the court
decisions that the life sentences imposed in these cases involved
punishment as a significant element and that the gravity of the
offence was a continuing and unchanging reason for the applicants'
re-detention after release or, as in the case of Thynne, his continued
detention.
The Government therefore submit that it follows from the
case-law of the Commission and Court that the requirement of Article 5
para. 4 (Art. 5-4) is incorporated in the decision of the trial court
and any subsequent appeal against its decision.
As regards the present application brought by Weeks the
Government submit that life prisoners who are released on licence,
are, as an important condition of the licence, subject to supervision
by a probation officer. Such monitoring is only possible if the
licencee maintains regular contact with the probation officer. It
follows that the applicant's re-arrest in May 1985 is consistent with
the objectives of the sentencing court which were that the applicant
should be subject to continuing supervision even after release from
prison. It was thus in conformity with Article 5 para. 1 (Art. 5-1)
of the Convention.
As regards the applicant Weeks's complaint under Article 5
para. 4 (Art. 5-4) , the Government observe that the circumstances of
his recall in 1985 were wholly different from those in 1977. It is
submitted that recall for a breach of a licence condition, as opposed
to determination by the Secretary of State that he was a danger to the
public does not place him in a special category so as to attract the
safeguards of Article 5 para. 4 (Art. 5-4) of the Convention.
Finally, with regard to the complaints made under Article 5
para. 5 (Art. 5-5) in the cases of Wilson and Weeks, the Government
contend that no right to compensation arises under this provision
where the detention is lawful within the meaning of Article 5 para. 1
(Art. 5-1) of the Convention.
The Commission considers, in the light of the parties'
submissions, that the applications raise complex issues of law and
fact under the Convention, the determination of which should depend on
an examination of their merits. It follows that they cannot be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)