AS TO THE ADMISSIBILITY OF
Application No. 21681/93
by Robert Patrick WALSH, Paul HOLMES,
William ARMSTRONG, Mary WALSH,
Patrick WALSH and Roisin WALSH
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 11 January 1994, the following members
being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 March 1993
by Robert Patrick Walsh, Paul Holmes, William Armstrong, Mary
Walsh, Patrick Walsh and Roisin Walsh against the United Kingdom
and registered on 19 April 1993 under file No. 21691/93;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first three applicants are Irish citizens born in [no
date supplied for the first applicant], 1947 and 1943
respectively and are currently serving prison sentences in HM
Prison Maghaberry in Lisburn, Northern Ireland.
The fourth applicant, the wife of the first applicant, and
the fifth and sixth applicants, their children are also Irish
citizens born in 1948, 1971 and 1973 respectively and resident in
Belfast.
The applicants are represented before the Commission by
Messrs. B.M. Birnberg & Co., solicitors practising in London.
The facts as submitted by the applicants and as may be
deduced from the documents may be summarised as follows.
The first three applicants were arrested on 8 March 1973 in
England. On 14 November 1973 these 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 them was sentenced to a term of
discretionary life imprisonment for causing explosions and to 20
years' imprisonment for conspiring to cause explosions. A ninth
defendant was found not guilty on all three counts. A tenth
defendant, Liam McLarnon, pleaded guilty to all three counts and
was sentenced to concurrent terms of 15 years' imprisonment in
respect of them.
These applicants are now the only defendants from that trial
remaining in custody. Liam McLarnon was released after serving
10 years in prison when he was granted one third remission.
Marion and Dolores Price were transferred to Northern Ireland in
1975 following a hunger strike. They were released from prison in
Northern Ireland in 1980 and 1981 after serving 7 1/2 and 8 years
respectively, on grounds of their medical condition. Gerard
Kelly, Hugh Feeney and Martin Brady were released from prisons in
Northern Ireland in 1989, 1990 and 1991 respectively.
From March 1973 until November 1992, the first, second and
third 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. They all have children. 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 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 first, second and third
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 first, second and third 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 further review of their life sentences
became the responsibility of the Northern Ireland Life Sentence
Review Board. In December 1992 the applicants were informed that
their first review would be expected to take place in April 1993.
In March 1993 their tariff expired.
RELEVANT DOMESTIC LAW AND PRACTICE
Life sentences
Discretionary life sentences may be passed in respect of a
number of offences e.g. the offence of causing an explosion
likely to endanger life or cause serious injury to property.
The principles underlying the passing of a discretionary
sentence of life imprisonment are:
i. that the offence is grave and
ii. that there are exceptional circumstances which
demonstrate that the offender is a danger to the public
and that it is not possible to say when that danger
will subside.
Release of discretionary lifers
Under section 61 of the Criminal Justice Act 1967 ("the 1967
Act"), the Secretary of State could only release on licence a
person sentenced to life imprisonment if recommended to do so by
the Parole Board, and after consultation with the Lord Chief
Justice of England and the trial judge if available.
The procedure for review of discretionary life sentences
In the statutory framework provided by the 1967 Act, the
policy for the review and release of discretionary life sentence
prisoners was the responsibility of the Home Secretary who is
answerable to Parliament.
In November 1983 the Home Secretary in a written answer to
the House of Commons stated that a life sentence contained two
periods: first, the "tariff" period necessary to serve the
requirements of retribution and deterrence, as to which the Home
Secretary looked to the judiciary for advice; and, second, a
further period if release would pose an unacceptable risk to the
public, as to which the Home Secretary looked to the Parole Board
for advice.
On 23 July 1987 the Home Secretary in a written answer to
the House of Commons responded to the judgment of the Divisional
Court in the Handscomb case on 2 March 1987 (R v Secretary of
State for the Home Department, Ex parte Handscomb (1988) 86 Cr
App R 59). He accepted the court's conclusion that the
consultation exercise with the judiciary on the question of the
period necessary to meet the requirements of retribution and
deterrence should be carried out as soon as practicable following
the imposition of a discretionary life sentence. It had been
agreed with the Lord Chief Justice that as from 1 October 1987
the judicial view would be obtained by asking the trial judge to
write to the Home Secretary, through the Lord Chief Justice, in
every case where a discretionary life sentence is passed, giving
the judge's view on the period necessary to meet the requirements
of retribution and deterrence. This view would be related to the
determinate sentence that would have been passed but for the
element of mental instability and/or public risk which led the
judge to pass a life sentence and would also take account of the
notional period of the sentence which a prisoner might have
expected to have been remitted for good behaviour had a
determinate sentence been passed. The date of the first formal
review by the Parole Board machinery would then be fixed in
accordance with the judicial view on the requirements of
retribution and deterrence and the review would, as before,
normally take place three years before the expiry of that period.
The Home Secretary also undertook to arrange for a review of
all discretionary life sentence cases with a first formal review
date of January 1988 or later. Where account had been taken of
factors other than the judicial view on the requirements of
retribution and deterrence in fixing the date, the date would be
adjusted to bring it into line with the judicial view.
Recent legislation
Under section 34 of the Criminal Justice Act 1991, which
came into force on 1 October 1992, a discretionary life prisoner
may require that his case be referred to the Parole Board after
he has served the "tariff" part of his sentence. The Board has
the power to direct a prisoner's release and the Secretary of
State is then under a duty to release the prisoner on licence.
These provisions do not apply in Northern Ireland.
The procedure for review of discretionary life sentences
in Northern Ireland
In Northern Ireland, life sentence cases fall under the
responsibility of the Life Sentence Unit of the Northern Ireland
Office (NIO).
The Life Sentence Review Board was established in 1983. Its
function is to advise the Secretary of State for Northern Ireland
on the release of life prisoners and those detained at the
Secretary of State's pleasure.
The board is chaired by the Permanent Under Secretary of
State at the NIO and includes amongst its members other NIO
officials, a Principal Medical Officer, a consultant psychiatrist
and the chief Probation Officer.
In deciding whether a prisoner should be released, the Board
is directed to have regard to two factors:
1. whether the sentence served has been sufficient to
satisfy the requirements of deterrence and retribution;
2. whether there is a risk that if released the
prisoner will commit another offence of violence.
Prisoners do not see the statements or reports about them
which are before the Board and do not receive any written
explanation for decisions reached.
COMPLAINTS
Complaints concerning the fixing of the tariff
The first three applicants complain that their sentences
have been fixed by executive decision of the Secretary of State
and not by a properly constituted judicial hearing in breach of
Article 5 para. 4 of the Convention.
These applicants also complain that they have not received a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law contrary to
Article 6 para. 1 of the Convention. They submit that they should
have been given an opportunity to make informed representations
on the term to be fixed but were given neither that opportunity
or informed of the factual basis on which the specified period is
to be fixed, the advice of the judiciary or any further materials
considered by the Secretary of State.
The applicants complain that they have been retrospectively
sentenced in that a heavier sentence has been imposed on them
than the one applicable at the time the criminal offence was
committed, contrary to Article 7 of the Convention. At the time,
it would have been expected the average life sentence would have
lasted 13-15 years. They submit that the tariff of 20 years has
been fixed in reference to current sentencing practice applied to
explosives cases of 1992 so that in effect they have been re-
sentenced.
The applicants complain that there is no viable domestic
remedy available in respect of these violations of the
Convention, contrary to Article 13 of the Convention. They submit
that judicial review is limited in scope and cannot be used by
the courts to enter into the exercise of fixing the period that
should be served.
Complaints concerning refusal of transfer to Northern Ireland
The applicants complain of the denial of their family life
in that the length of their sentence was incorrectly used as a
reason for refusing to transfer them to prisons in Northern
Ireland to be near to their families, in breach of Article 8 of
the Convention. The fourth, fifth and sixth applicants complain
of the difficulties in maintaining their relationship with the
first applicant and the distress caused, for no correspondingly
good reason, by the location of the first applicant in mainland
United Kingdom. The fifth and sixth applicants have been seen by
a child psychologist and a psychiatrist.
The applicants also complain that they have been
discriminated against on grounds of national origin, political
opinion and association with a national minority, contrary to
Article 14 of the Convention, in that the refusal of their
requests for transfer to a Northern Ireland prison was based on
the identification of their offence with the Irish Republican
movement.
They complain of having no effective remedy available to
them in respect of these breaches.
Complaints concerning lack of proper review of their continued
detention in Northern Ireland
The applicants further complain of continuing violations of
Article 5 para. 4 and Article 6 para. 1 of the Convention in that
the review of their sentence by the Northern Ireland Life
Sentence Committee allows for no disclosure of materials on which
decisions have been based, no representation and is subject to
executive rather than judicial decision.
THE LAW
1. The first, second and third applicants complain of the
procedure by which their tariff was fixed by executive rather
than judicial authority. They invoke in the context Articles 5
para. 4, 6 para. 1 and 7 (Art. 5-4, 6-1, 7) of the Convention.
However the Commission is not required to decide whether or
not the facts alleged by the applicants disclose any appearance
of a violation of these provisions, as Article 26 (Art. 26) of
the Convention provides that the Commission "may only deal with
the matter...within a period of six months from the date on which
the final decision was taken". In the absence of any relevant
decision, the period runs from the date of the event or act
complained of.
In the present case, the first applicant had instituted
judicial review proceedings in respect, inter alia, of the review
date set and the failure to inform him of his tariff. Following
the conclusion of those proceedings on 6 May 1992, the applicants
were informed by letter dated 1 June 1992 that their original
tariff had been reduced from 25 to 20 years. Assuming no further
challenge was possible to this decision, the date for the
purposes of calculating the six month time limit must be the date
of that notification. The applicants' complaints concerning the
tariff were however introduced on 10 March 1993, more than six
months after this notification.
An examination of the case does not reveal the existence of
any special circumstances which might have interrupted or
suspended the running of the six month period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
2. The applicants complain of the refusal to transfer the
first, second and third applicant to serve their sentences in
Northern Ireland where they would be in closer proximity to their
families. They submit that this was in violation of their right
to respect for their family life contrary to Article 8 (Art. 8)
of the Convention, disclosed discrimination contrary to Article
14 (Art. 14) and that they had no effective remedy in respect of
their complaints contrary to Article 13 (Art. 13) of the
Convention.
The Commission notes however that the first, second and
third applicants were transferred to a prison in Northern Ireland
in November 1992.
In these circumstances, the Commission finds that the
applicants may no longer claim to be victims of any breach of the
provisions of the Convention in this regard.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The first, second and third applicants further complain of
the absence of a procedure in Northern Ireland whereby they can
obtain a review by a judicial body of the continued lawfulness of
their detention as discretionary life prisoners. They invoke
Articles 5 para. 4 and 6 para. 1 (Art. 5-4, 6-1) of the
Convention in this regard.
The Commission finds that these complaints raise issues of
fact and law under the Convention. It considers however that it
cannot, on the basis of the file, determine the admissibility of
these complaints and considers that it is therefore necessary, in
accordance with Rule 48 para. 2 (b) of the Commission's Rules of
Procedure, to give notice of them to the respondent Government.
For these reasons, the Commission unanimously
DECIDES TO ADJOURN the examination of the applicants'
complaints concerning the lack of a review procedure of the
lawfulness of their continued detention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy