AS TO THE ADMISSIBILITY OF
Application No. 21681/93
by W., H.& A.
against the United Kingdom
The European Commission of Human Rights sitting in private on
16 January 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 March 1993 by
W., H. & A. against the United Kingdom and registered on 19 April 1993
under file No. 21681/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations by the respondent Government received on
25 April 1994 and the observations in reply submitted on behalf
of the applicant on 10 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Irish citizens. The second and third
applicants were born in 1947 and 1943 respectively. No date of birth
has been supplied for the first applicant. The applicants are currently
at liberty on life licence.
The applicants are represented before the Commission by Messrs.
B.M. Birnberg & Co., solicitors practising in London.
The facts as submitted by the parties may be summarised as
follows.
A. Particular circumstances of the case
The applicants were arrested on 8 March 1973 in England. On
14 November 1973 the applicants and five others were convicted at
Winchester Crown Court of causing two explosions of a nature likely to
endanger life or cause serious injury to property and of conspiring to
cause such explosions. On 15 November 1973 each of the applicants was
sentenced to a term of discretionary life imprisonment for causing
explosions and to 20 years' imprisonment for conspiring to cause
explosions.
From March 1973 until November 1992, the applicants remained in
prison in England classified as Category A. Each had frequently
requested that he serve his sentence of imprisonment in a prison in
Northern Ireland in order to be near to his family and friends who all
reside in Northern Ireland. These requests for transfer had been
refused by the Home Office. In a memorandum dated 27 October 1988, the
first applicant's request was refused on the basis that the Secretary
of State was not satisfied that he would not disrupt or attempt to
disrupt the operation of any prison establishment or otherwise pose an
unacceptable risk to security.
In November 1987 the first applicant was informed, in response
to a petition concerning his tariff, that his case had been dealt with
in the same way as that of any life sentence prisoner. The judiciary
(which meant the Lord Chief Justice as by this date the trial judge had
died without expressing any views on the case to the Home Office) had
been consulted as to the minimum period of detention necessary to meet
the requirements of retribution and deterrence and having taken their
views into account the Home Secretary had decided that his case should
be referred to the Local Review Committee in March 1990. It was made
clear that such review did not imply that twenty years had been set as
the tariff in the first applicant's case. It was also stated that his
case had been reconsidered following the Home Secretary's statement to
Parliament in July 1987 but it had been decided that no adjustment was
necessary in the date of the first review of the first applicant's case
by the Local Review Committee.
On 16 February 1990 the first applicant's solicitors complained
to the Home Secretary that a tariff of at least 20 years was far too
long, because it would correspond to a determinate sentence of 30 years
before remission and was out of line with the period actually served
by all the other co-defendants who had been released.
In July 1990, the first applicant commenced judicial review
proceedings against the Home Secretary. The relief sought was
certiorari to quash the decision of the Home Secretary that the first
applicant should serve at least 20 years to satisfy the requirements
of retribution and deterrence, and declarations that he should not be
required to serve any longer than the period (then 18 years) that he
had already served for that purpose, that there was no other
justification for continuing to detain him and that he was at least
entitled to know the length of the period which the Home Secretary had
fixed as necessary for the requirements of retribution and deterrence.
In the meantime, in late 1990, the Parole Board decided not to
recommend release on life licence but to review the first applicant's
case again in 1995.
On 16 December 1991 the High Court held (R v Secretary of State
for the Home Department, ex parte Walsh) that the Home Secretary is
under a duty to deal fairly and equally with all those serving life
sentences and that accordingly the Home Secretary was under an
obligation to disclose the length of his tariff period to the first
applicant. On 6 May 1992 the Court of Appeal dismissed the Home
Secretary's appeal.
By letter dated 1 June 1992 the applicants were informed by the
Home Secretary that the precise length of the tariff originally fixed
in their cases had been 25 years but the outcome of the review of that
tariff was its reduction to 20 years. They were also informed that the
Secretary of State was prepared to reconsider the question of their
transfer to a prison in Northern Ireland. They renewed their requests
for transfer to Northern Ireland.
The Home Office acknowledged that there was now no other obstacle
to transfer and in October 1992 the Home Secretary informed the
applicants of his agreement in principle to their requests to transfer
permanently to Northern Ireland. In November 1992 the applicants were
transferred to Maghaberry prison in Northern Ireland.
On transfer, the review of the applicants' life sentences became
the responsibility of the Secretary of State for Northern Ireland
pursuant to section 26(4) of the Criminal Justice Act 1961. In
December 1992 the applicants were informed that their first review by
the Northern Ireland Life Sentence Review Board could be expected to
take place in April 1993. In March 1993 the applicants' tariffs
expired.
Having considered the applicants' cases on 26 April 1993 that
review board recommended that the applicants be released on life
licence. On 28 May 1993, the Secretary of State for Northern Ireland
set a provisional release date for 7 March 1994. On 21 June 1993 the
applicants started to work out of Maghaberry prison and lived in the
community from September 1993 which latter phase constituted the final
step in the release process. Subsequently the Secretary of State for
Northern Ireland signed the applicants' licences for release and the
applicants were released on life licence on 4 March 1994.
B. Relevant domestic law and practice
1. Discretionary life sentences in Northern Ireland
The applicants submit that the principles, underlying the
imposition of a discretionary sentence of life imprisonment in Northern
Ireland, are:
(a) that the offence is grave (the "penal" element of the
sentence); and
(b) that there are exceptional circumstances which demonstrate
that the offender is a danger to the public and that it is
not possible to say when that danger will subside (the
"risk" element of the sentence).
The Government submit, however, that the concept of the
discretionary life sentence in Northern Ireland does not incorporate
distinct penal and risk elements.
2. The procedure for review of discretionary life sentences
in Northern Ireland
The Secretary of State for Northern Ireland has ultimate
responsibility for the decision to release a life prisoner on life
licence and will not do so unless he is as satisfied as is reasonably
possible that the degree of risk to the public is minimal. He is
assisted and advised, in this regard, by the Life Sentence Unit ("the
Unit") and the Life Sentence Review Board ("the Board") respectively.
The Unit is part of the Northern Ireland Office ("NIO"). The
Board is a non-statutory body established in 1983. The Board is chaired
by the Permanent Under Secretary of State at the NIO and includes
amongst its members other NIO officials, a Prison Medical Officer from
social services, a consultant psychiatrist and the Chief Probation
Officer.
There is no fixed time at which a case must be reviewed as this
is for the Secretary of State for Northern Ireland to decide. However,
in practice, preliminary consideration of each case is completed by the
Unit soon after sentencing or the determination of any appeal. This is
done in order to identify any circumstances which might call for an
early release. Cases are then reviewed by the Unit at the three and six
year stages during which reviews the latest prison reports (which are
prepared annually by prison staff) and other details (including the
nature of the offence, the prisoner's age and the role played by the
prisoner in the commission of the offence) are examined.
The Unit, and at a later stage the Board, have regard to two
factors in considering whether a prisoner should be released:
(a) whether the sentence served has been sufficient to
satisfy the requirements of retribution;
(b) whether there is a risk that if released the prisoner
will commit further acts of violence.
Both the Unit and the Board will also be aware of the views
expressed by the judiciary and the Lord Chief Justice in relation to
sentencing guidelines. The Unit also prepares, for its own guidance,
memoranda setting out the details of similar cases.
If a recommendation for early referral has not been made at the
six year stage by the Unit, the next review of the case will be
completed by the Board at the ten year stage.
The general approach of the Board is that once the likely
retributive period has been served, it is difficult to justify
detention on risk grounds alone and the usual practice is to review
such cases annually. If the Board makes a recommendation for release
and if that recommendation is accepted by the Secretary of State, a
provisional release date is set normally a year or less ahead, to allow
the gradual release of the prisoner through "working-out" of the prison
and living in the community while reporting fortnightly to the prison.
The case is then submitted to the Secretary of State for Northern
Ireland just before the release date for final approval and signing of
the life licence pursuant to the Prison Act (Northern Ireland) 1953.
The life licence is normally conditional on, for example,
reporting on a regular basis to a probation officer. If the person who
is at liberty under a life licence complies with the conditions and
shows that he/she has settled well into the community, the conditions
are normally cancelled after seven years.
Prisoners are not entitled to appear personally before the Board,
do not see the statements, documents or prison reports before the Board
and do not receive any written reasons for decisions reached (though
in some prisons the practice has arisen of communicating those reasons
orally to the prisoners). A prisoner may petition the Secretary of
State for Northern Ireland at any time about any matter relating to the
review of his case and it is now the practice to invite prisoners to
make written representations to the Board prior to a review by the
Board.
3. Release on life licence and revocation of life licences
in Northern Ireland
The life licence remains in force for the rest of the person's
life and can be revoked at any time by the Secretary of State for
Northern Ireland. The circumstances in which a life licence is likely
to be revoked are as follows:
- where there are grounds for believing that the licensee might
again be a danger to the public; or
- where the licensee has committed further offences; or
- where there has been a breach of the conditions attaching to
the life licence.
The consequences of the life licence being revoked are that the
person is recalled to prison and continues to serve the original life
sentence. That prisoner is again subject to the above-described
sentence review procedure.
4. Discretionary life sentences in England & Wales and Scotland
Discretionary life sentences may be imposed in respect of a
number of offences, including the offence of causing an explosion
likely to endanger life or cause serious injury to property.
The principles underlying the imposition of a discretionary life
sentence in the these jurisdictions are as outlined at 1 (a) and (b)
above.
The Criminal Justice Act 1967 established independent Parole
Boards. Pursuant to that legislation the Secretary of State could only
release on life licence, a person sentenced in a court in these
jurisdictions 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. The provisions establishing
the Parole Boards did not extend to Northern Ireland.
Section 34 of the Criminal Justice Act 1991 introduced new
procedures for the review of discretionary life sentences, whereby
discretionary life prisoners may require their case to be referred to
the Parole Board after they have served the tariff part of their
sentence, and the Secretary of State is under a duty to release them
on life licence if the Parole Board so directs. This new provision was
introduced in the wake of the Court's decision in Thynne, Wilson and
Gunnell (Eur. Court H.R., judgment of 25 October 1990, Series A
no. 190-A). This provision does not apply in Northern Ireland.
COMPLAINTS
The applicants complain under Article 5 para. 4 and Article 6
para. 1 of the Convention that the review of their sentence allows for
no disclosure of materials on which decisions have been based, no
representation and is subject to executive rather than judicial
decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 March 1993 and was
registered on 19 April 1993.
On 11 January 1994 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on the admissibility and merits of the complaint
of the applicants (in relation to the review of the applicants'
continued detention) under Article 5 para. 4 of the Convention. The
same review procedure was also raised by the applicants under Article
6 para. 1 of the Convention and this latter complaint was adjourned
with the complaint under Article 5 para. 4 of the Convention. The
remainder of the applicants' complaints were declared inadmissible by
the Commission.
The Government's observations were received on 25 April 1994 and
those submitted on behalf of the applicants in reply were received on
10 June 1994.
THE LAW
The applicants complain under Article 5 para. 4 and Article 6
para. 1 (Art. 5-4, 6-1) of the Convention in relation to the life
sentence review procedures applicable in Northern Ireland.
The Commission considers that this complaint of the applicant
should be considered under Article 5 para. 4 (Art. 5-4) of the
Convention. Article 6 para. 1 (Art. 6-1) of the Convention is not
applicable as this complaint does not involve the determination of a
criminal charge and it does not concern a civil right.
Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
The Commission notes that the applicants were released on life
licence after the decision of the Commission to communicate the present
application and before the observations of the parties were submitted.
However, no distinction has been made by the parties, in their
respective observations, between the period the applicants were
detained in prison in Northern Ireland after the expiry of their tariff
and any future period of detention in Northern Ireland should the
applicants' licences be revoked. The Commission is of the opinion that
there are different issues to be considered in respect of these two
periods of detention and thus they are considered separately below.
1. The period of detention between the expiry of the applicants'
tariff and their release on life licence.
Insofar as the applicants complain about the length of their
detention after the expiry of their tariff, the Commission considers
that such a complaint would also absorb any complaint in respect of the
lack of powers of the body that carried out the April 1993 review. This
is because the lack of power that impacted on the applicants, in the
present case, was the inability to order their immediate release with
the consequent extension (until March 1994) of the overall length of
the applicants' detention after the expiry of their tariff.
The Commission recalls that, depending on the circumstances of
the case, the length of time taken in reviewing a detention and
implementing the decision to release may give rise to an issue under
Article 5 para. 4 (Art. 5-4) of the Convention (cf., for example,
Eur. Court H.R., Sanchez-Reisse judgment of 21 October 1986,
Series A no. 107).
The Commission notes that in the present case the applicants'
first review took place on 26 April 1993, approximately one month after
the expiry of their tariff and they were recommended for release. While
the applicants were not formally released on life licence until almost
eleven months after the April 1993 review, the Commission notes that
within approximately two months of the April 1993 review, the
applicants were "working out" of the prison and within approximately
five months of that review, the applicants were living in the
community.
The Commission therefore considers that, in the circumstances of
the present case, the length of the applicants' detention after the
expiry of their tariff and the lack of powers of the board that
conducted the April 1993 review do not give rise to an issue under
Article 5 para. 4 (Art. 5-4) of the Convention.
Insofar as the applicants complain about the conduct of the April
1993 review and the procedures before that review, the Commission
considers that just as an acquitted defendant may not claim to be a
victim of violations of the Convention which allegedly took place in
the course of proceedings which led to the acquittal (cf., for example,
No. 15831/89, Dec. 25.2.91, D.R. 69 p. 317), the applicants cannot
claim to be victims in respect of any procedural violations of Article
5 para. 4 (Art. 5-4) of the Convention which allegedly took place
during the April 1993 review, which resulted in a recommendation for
their release.
2. Any future period of detention pursuant to a revocation of the
applicants' life licences and consequent recall to prison.
Insofar as the applicants complain in relation to this future
period of detention, the Commission considers that it is not required
to determine the question of the compliance of the life sentence review
procedures in Northern Ireland with Article 5 para. 4 (Art. 5-4) of the
Convention, as this complaint is inadmissible for the following
reasons.
The Commission recalls that, according to the constant case-law
of the Convention organs, Article 25 (Art. 25) of the Convention does
not permit individuals to complain about a domestic law in abstracto
and claim to be a victim of a violation of the Convention simply
because they feel the domestic law contravenes the Convention (cf., for
example, Eur. Court H.R. Klass and others judgment of 6 September 1978,
Series A no. 28). In addition, the Commission recalls that it is not
normally for the Convention organs to pronounce on the existance or
otherwise of potential violations of the Convention (cf. Eur. Court
H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 35, para.
90).
In the present case the Commission notes that the applicants are
at liberty and the Secretary of State for Northern Ireland must
exercise his discretion to revoke the applicants' licences before the
applicants will again be subject to the life sentence review procedures
in Northern Ireland in respect of which they complain. Moreover the
Secretary of State for Northern Ireland can only revoke their licences
if they have been convicted of an offence, have breached their licence
conditions or have done something which provides the Secretary of State
for Northern Ireland with grounds for believing that the applicants
might again be a danger to the public.
The Commission therefore considers that the applicants cannot,
as matters stand, claim to be victims of a violation of the Convention
within the meaning of Article 25 (Art. 25) of the Convention in respect
of any future period of detention consequent on the revocation of their
life licences.
Therefore the Commission must find the complaints of the
applicants under Article 5 para. 4 and Article 6 para. 1
(Art. 5-4, 6-1) of the Convention manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy