AS TO THE ADMISSIBILITY OF
Application No. 12118/86
by Peter WEBSTER
against the United Kingdom
The European Commission of Human Rights sitting in private
on 4 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
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 7 December 1985
by Peter WEBSTER against the United Kingdom and registered on
17 April 1986 under file N° 12118/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United States of America,
born in 1945, who at the time of lodging his application was detained
in H.M. Prison Maidstone, Kent. He was apparently released and
deported to France in February 1986.
The applicant served a five year prison sentence during which
he was refused parole, in August 1985. The applicant lodged a
petition of complaint to the Home Secretary against this refusal, in
which petition he relied on his deteriorating physical health and the
fact that arrangements could easily be made for him to rejoin his
family in France on his deportation from the United Kingdom. He also
made allegations of discrimination in respect of the grant of parole
to foreign prisoners when deportation is not contested. In respect of
his latter allegations he was apparently allowed access to certain
prison records at Maidstone prison, which records he claims
substantiate his complaint.
The Home Secretary replied to the applicant's petition on
3 December 1985 informing him as follows:
"No person is excluded from parole consideration and early
release on licence by his race or nationality. These are
not factors determining a man's suitability for release
on licence ....
You are advised that as each case is considered on its
individual merits you will not find it helpful to compare
your case with that of another prisoner ....
The Secretary of State is satisfied that you have received
the appropriate medical care treatment and advice throughout
your sentence, and understands that there has been little
change in your general physical condition. He also understands
that you declined a transfer to Wormwood Scrubs where there
were physiotherapy facilities not available at Maidstone.
I am afraid that medical circumstances alone cannot determine
a parole decision."
The Secretary of State therefore refused to order a further
review of the applicant's requests for parole.
Pursuant to a request for information from the Rapporteur as
to the parole opportunities of foreign prisoners (Rule 40 para. 1 of
the Commission's Rules of Procedure), the Government provided the
following information:
"There is a local Review Committee for every prisoner which, by
virtue of the Local Review Committee Rules 1967 (S.I. 1967/1462),
is charged with the responsibility of reviewing the case of all
prisoners who are eligible for release on licence under section
60 of the Criminal Justice Act 1967. That section provides that
the Home Secretary cannot release any prisoner on licence unless
recommended to do so by the Parole Board or, in certain classes
of cases agreed with the Parole Board, by the prison's Local
Review Committee."
All Local Review Committee members and all members of the
Parole Board are given the following note following their appointment:
"PAROLE AND DEPORTATION
Note by the Home Office
All prisoners, whatever their nationality, who are serving
determinate sentences of more than about ten and a half months'
imprisonment are eligible for parole consideration after they
have served one-third of the sentence or six months from the date
of sentencing whichever expires the later.
The general policy on parole and deportation is that prisoners
should not have their chances of parole reduced because they are
liable for deportation and may have no realistic plans for
release in this country. Where it is evident during the review,
therefore, that deportation is a possibility (e.g. where a
prisoner has been recommended for deportation by the court) no
account should be taken of the possibility of deportation when a
prisoner's suitability for release on licence is being
considered. Each case should be assessed on its individual merits
against the general criteria for parole selection but, in those
cases where (due to the liability for deportation) no realistic
plans for release in this country are available, consideration
should proceed as if, in effect, the release plans were
satisfactory.
The Home Secretary has a dual responsibility for both parole and
deportation but it is not until a favourable recommendation has
been made and accepted that final consideration can be given to
any further action which might be appropriate under the
Immigration Act 1971. Because of this, it is not the usual
practice to advise a prisoner of the outcome of a parole review
until the question of possible deportation has been examined.
Generally speaking a prisoner will not be released on licence
until the decision has been made as to whether he or she is to be
removed from the country but, in some cases, it may be considered
acceptable to allow parole to proceed although the decision on
deportation has not been reached. Where a prisoner is not to be
removed from the country at the time of release on licence, it
will be necessary to establish and approve release plans before a
release date can be agreed. Contrary to the advice given in
paragraph 402 of the Local Review Committee Notes for Guidance,
it will not be necessary for the LRC to reconvene to consider the
suitability of release plans obtained by the Parole Unit. Such
consideration will be undertaken at the Home Office - in
consultation, as appropriate with the Parole Board - in order to
reduce the delay in completing the review. Those prisoners who
are released on licence before deportation consideration has been
concluded are advised prior to release that their release on
licence will not affect their liability to be deported.
In those cases where the Home Secretary considers a prisoner
should not be released on licence pending the outcome of
deportation proceedings but eventually decides that deportation
is the proper course, a deportation order is made and put into
effect on the day on which that person would otherwise have been
released on parole. There is no need for release plans to be
obtained in these cases. If, on the other hand, a potential
deportee whose parole had been considered without a release plan
appeals successfully against deportation, release on licence in
this country will proceed only when a suitable release plan has
been constructed and approved by the Home Office in consultation,
as appropriate, with the Parole Board."
The applicant commented that this note fails to specify
whether or not in practice prospective deportees do receive a
similar rate of parole, compared with United Kingdom nationals. He
contends that the statistics which he collected "strongly indicate
that they do not, i.e. that foreign nationals are discriminated
against in the application of parole law under which prisoners are
deprived of liberty. Administrative details, such as the order in
which parole and deportation decisions are generally taken (mentioned
in the Home Office Note) constitute no justification whatever for the
unequal and discriminatory application of law."
COMPLAINTS
The applicant complains, on behalf of himself and other
prisoners who are not United Kingdom citizens and who have or had
deportation recommendations as part of their sentence, that foreign
prisoners are discriminated against by the Home Office Parole Board.
He claims that statistically the rate of parole is far less for
foreign prisoners, but that there is no justification in law for such
a practice. The applicant contends that he has been a victim of a
violation of Article 5 of the Convention, read in conjunction with
Article 14.
THE LAW
The applicant has alleged that the Home Office operates a
discriminatory parole policy against prisoners who are not United
Kingdom citizens. He claims to have been a victim of that policy, not
having been granted parole, unlike other prisoners of United Kingdom
citizenship at Maidstone Prison. He also brings his case on behalf of
other foreign prisoners who were in a similar position to himself.
According to the information submitted by the Government, a
prisoner's nationality is of no relevance in the considerations of the
parole authorities.
The Commission has examined the applicant's claim in so far as
he may have been personally affected. The Commission cannot examine his
abstract complaint on behalf of prisoners who are also not United
Kingdom citizens.
The Commission notes that the applicant was detained in
accordance with a procedure prescribed by law after conviction by a competent
court, pursuant to Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
According to that conviction the applicant could have been expected to serve
his full five year sentence. The Commission considers, nevertheless, that if a
prison pre-release scheme were operated in a discriminatory manner, an issue
could arise under Article 5 of the Convention, read in conjunction with Article
14 (Art. 5+14). Article 14 (Art. 14) guarantees freedom from discrimination in
the securement of Convention rights such as the right to liberty and security
of person laid down in Article 5 (Art. 5).
The Commission finds, however, that the applicant's claim of
discrimination against foreign prisoners in respect of parole is
unsubstantiated. The statistics that the applicant has provided as
regards the prison where he was detained do not adequately reflect the
personal circumstances of the prisoners concerned, which circumstances
are essential in determining a grant of parole. Moreover the
Government's instructions to the parole authorities show clearly that
a prisoner's nationality is not to be taken into consideration when
reviewing his suitability for such release on licence.
In these circumstances the Commission concludes that the
application is 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 INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)