EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15484/89
Edward Wynne
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 4 May 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . .1-2
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . .1-2
C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-39) . . . . . . . . . . . . . . . . . . . .3-6
A. Particular circumstances of the case
(paras. 19-24). . . . . . . . . . . . . . . . . .3-4
B. Relevant domestic law and practice
(paras. 25-39). . . . . . . . . . . . . . . . . .4-6
III. OPINION OF THE COMMISSION
(paras. 40-52) . . . . . . . . . . . . . . . . . . . .7-9
A. Complaint declared admissible
(para. 40). . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 41). . . . . . . . . . . . . . . . . . . . .7
C. Article 5 para. 4 of the Convention
(paras. 42-51). . . . . . . . . . . . . . . . . .7-9
CONCLUSION
(para. 52) . . . . . . . . . . . . . . . . . . . . . . .9
DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL,
MRS. G.H. THUNE, SIR BASIL HALL AND MR. B. MARXER . . . .10-11
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 12
APPENDIX II DECISION ON THE ADMISSIBILITY. . . . . . .13-18
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen born in 1939 and currently
serving two sentences of life imprisonment in HM Prison Gartree. He
is represented by Mr. Edward FitzGerald, counsel, and by
Mr. Richard Devine, solicitor.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mrs. Audrey Glover of the Foreign and Commonwealth Office.
4. The case concerns the applicant's complaint under
Article 5 para. 4 of the Convention that he was unable to have the
continued lawfulness of his detention reviewed by an independent
tribunal.
B. The proceedings
5. The application was introduced on 15 June 1989 and registered on
13 September 1989.
6. On 2 March 1991, the Commission decided to invite the Government
to submit written observations on the admissibility and merits.
7. The Government submitted their written observations on
10 July 1991. The applicant submitted his observations on 11 May 1992,
having been granted legal aid by the Commission on 8 April 1992.
8. On 19 May 1992, the Commission decided to invite the parties to
make further submissions at an oral hearing.
9. On 21 September 1992, the Government submitted further documents.
On 29 September 1992, the applicant submitted further written
observations.
10. At the hearing which was held on 15 October 1992, the Government
were represented by Ms. Diana Brookes, as Agent, Mr. D. Pannick Q.C.
and by Mr. H. Carter, Mrs. V. Harris and Ms. S. Rex, advisers. The
applicant was represented by Mr. Edward FitzGerald, counsel and
Mr. Richard Devine, solicitor.
11. On 15 October 1992, the Commission declared the application
admissible insofar as it raised issues under Article 5 para. 4 of the
Convention. The remainder of the application was declared inadmissible.
The parties were then invited to submit any additional observations on
the merits of the application.
12. On 23 October 1992 and 18 March 1993, the applicant submitted
further material.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Consultations with the parties took place
between 22 October 1991 and 1 September 1992. In the light of the
parties' reactions, the Commission now finds that there is no basis on
which a friendly settlement can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
15. The text of the Report was adopted by the Commission on
4 May 1993 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
19. The applicant was convicted of murder in 1964 and sentenced to
mandatory life imprisonment. At that time, the doctor who examined the
applicant found no signs of mental illness or abnormality. He was
released on licence in May 1980.
20. In January 1982 he was convicted of manslaughter. He had been
found to be suffering from an abnormality of mind and not responsible
for his actions. A discretionary sentence of life imprisonment was
imposed. The trial judge considered a life sentence was appropriate
in view of the extreme danger to the public which the applicant
represented. The applicant's life licence was also revoked by the
trial judge. The applicant submits, inter alia, that he was informed
in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was
subject to the regime for discretionary life sentences.
21. In December 1985 the applicant was transferred to the hospital
wing of Parkhurst prison. Since then he has been transferred to
Gartree Prison where he is held as a "Category A" prisoner.
22. The applicant was considered for parole by the Parole Board in
January 1989. The Board recommended that his case be referred again
to the local review committee in 1994. The applicant's Member of
Parliament wrote on the applicant's behalf to the Home Secretary. By
letter dated 14 August 1989, the Home Office gave the following
information:
"In accordance with paragraph 4, the trial judge and Lord
Chief Justice were consulted in September 1987. In the
light of their views, it was decided that [the applicant's]
case should be referred to the local review committee, as
the first stage in a formal review by the Parole Board, in
June 1988.
The local review committee considered the case at that time
1989. The Board did not feel able to recommend be referred to the local review committee (as the first stage in a further formal review) in January 1994. This recommendation was accepted and informed accordingly. He should have been told in February, but owing to an oversight at Gartree I am afraid that he was not informed until last month. You will appreciate that I cannot forecast what the outcome of the next review will be or say when released. When the Parole Board consider case in 1994 tariff will have been satisfied and the question of risk will be the overriding consideration. Indeed, the Parole Board will have borne the question of risk in mind in making their recommendation as to the date of the next review. As you know, the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory, no matter how long he has been detained." 23. The applicant was informed that his trial judge had fixed his tariff at June 1991. 24. In a Home Office Memorandum dated 5 June 1992 the applicant was informed that "the tariff in respect of that original offence [the 1964 conviction] has now been served and your continued detention is based on the risk you represent." B. Relevant domestic law and practice Life sentences 25. The sentence for murder is fixed by law as a mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty) Act 1965). 26. Discretionary life sentences of imprisonment may be passed in respect of a number of other offences, e.g. manslaughter. 27. 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 on licence and revocation of a licence 28. 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 and the trial judge if he was available. By virtue of Section 62(1) the Secretary of State could revoke the licence of a person whose recall to prison was recommended by the Parole Board. 29. Section 59 of the 1967 Act set out the role of the Parole Board: "59. (1) For the purposes of exercising the functions conferred on it by this part of this Act as respects England and Wales there shall be a body known as the Parole Board ... consisting of a chairman and not less than four other members appointed by the Secretary of State. ... (3) It shall be the duty of the Board to advise the Secretary of State with respect to: (a) the release on licence under section 60 (1) or 61, and the recall under section 62, of this Act of persons whose cases have been referred to the Board by the Secretary of State ..." 30. Under Section 62(7) of the 1967 Act, if a person subject to a licence is convicted on indictment of an offence the court by which he is convicted may, whether or not it passes any other sentence on him, revoke the licence. 31. The effect of revocation of the licence, in whichever way it comes about, is that the person is liable to be detained in pursuance of his sentence (Section 62(9) of the 1967 Act). The procedure for review 32. Section 61 of the 1967 Act, which provides the statutory framework for the release of life sentence prisoners, does not distinguish between mandatory and discretionary life sentences. The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament. 33. 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 for retribution of deterrence and then a further period if the Parole Board or Secretary of State considered the prisoner to pose an unacceptable risk to the public if he were released. 34. The applicable procedures were the subject of examination in judicial review proceedings in the Handscomb case (R. v. Secretary of State for Home Department, ex parte Handscomb and others (1988) 86 Cr. App. R. 59 at p. 74-75). The Divisional Court found that : "...the Lord Chief Justice and the trial judge are being asked to provide ... a figure (the tariff) representing a term of years during which a prisoner should be detained to serve only the twin purposes of retribution and deterrence. They are in other words asked to say what would have been an appropriate tariff in the circumstances of the case if a determinate and not a life sentence could have been and had been passed when the prisoner was sentenced, without considering risk. The risk element is of course present in the judicial mind when a discretionary life sentence is passed. The element of continuing risk, I should add, is the concern of the prison authorities and doctors, the local review committee, the Parole Board and finally the Home Secretary. Fourthly, the views of the judges as to tariff are intended to have a decisive bearing in all cases upon the decision as to when the first reference to the local review committee will take place, i.e. three years before the end of the tariff period. Special circumstances may serve to bring forward that time." 35. After the decision of the Divisional Court, the Home Secretary announced that he would consult the judiciary as soon as practicable following the imposition of a discretionary life sentence. He also announced that he would apply that procedure in relation to mandatory life sentences. 36. With effect from 1 October 1987, in relation to all life sentence cases, the practice was as follows: immediately after sentence the trial judge wrote to the Home Secretary, through the Lord Chief Justice, giving his views on the length of detention necessary to meet the requirements of retribution and deterrence - the so-called "tariff" period. The Lord Chief Justice added his own view. In the light of this advice the Home Secretary set the date on which the case was to be referred to the Local Review Committee as the first stage in the first formal review of the case by the Parole Board. The date set for the first formal review was normally three years before the expiry of the period thought necessary to mark the seriousness of the offence, or 17 years, whichever was the sooner. In the case of a discretionary life sentence the date of the first formal review was to be fixed strictly in accordance with the judicial view of the requirements of retribution and deterrence for the offence. 37. As regarded mandatory life sentences, the Home Secretary in a statement to the House of Commons on 23 July 1987 announced: "... In cases of prisoners serving life sentences for murder, where the sentence is not at the discretion of the court, the question of the notional equivalent determinate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidence in the system of justice) to be weighed in the balance in setting the first review date. I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving life sentences for the worst offences of violence fully reflects public concern about violent crime." 38. In the debate in the House of Commons on 16 July 1991 concerning the proposed Criminal Justice bill, the Minister of State for the Home Office made the following statement concerning the differences between mandatory and discretionary life sentences: "Mandatory life sentence cases, however, raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases. In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the state for the rest of his days. If necessary, he can be detained for life without the necessity for a subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. In exercising his continued discretion in this respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner's release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his." Recent legislation 39. Under Section 34 of the Criminal Justice Act 1991, which has come 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 the prisoner's release and the Secretary of State is then under a duty to release the prisoner on licence. These new release provisions are stated not to effect a person who is serving, in addition to a discretionary sentence of life imprisonment, a mandatory term of life imprisonment. III. OPINION OF THE COMMISSION A. Complaint declared admissible 40. The Commission has declared admissible the applicant's complaint that he was unable to have the continued lawfulness of his detention reviewed by a court. B. Point at issue 41. The issue to be determined is whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention. C. Article 5 para. 4 (Art. 5-4) of the Convention 42. Article 5 para. 4 (Art. 5-4) provides that: "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." 43. The case-law of the Commission and Court establishes that prisoners serving a sentence of discretionary life imprisonment are entitled under the above provision to take proceedings at reasonable intervals to have the lawfulness of their detention decided by a court where the punitive or "tariff" period of their sentence has expired (see Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114 and the Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A). 44. In the Thynne, Wilson and Gunnell case (loc. cit. p. 30, para.79), the Court stated: "Article 5 para. 4 (Art. 5-4) does not guarantee a right to judicial control of such scope as to empower the 'court' on all aspects of the case, including questions of expediency, to substitute its own discretion for that of the decision-making authority; the review should, nevertheless, be wide enough to bear on those conditions which, according to the Convention, are essential for the lawful detention of a person subject to the special type of deprivation of liberty ordered against these three applicants..." 45. In light of the above, the Court held that neither the Parole Board nor judicial review satisfied the requirements of Article 5 para. 4 (Art. 5-4). It based itself on its findings in the Weeks case (loc. cit. pp. 30-33, paras. 62-69) in which it found, inter alia, that the Parole Board lacked the power of decision and procedural guarantees required by that provision and that the scope of control afforded by judicial review was not wide enough to include an examination of whether the detention was consistent with and therefore justified by the objectives of the indeterminate sentence imposed. 46. The present applicant has been sentenced to a term of discretionary life imprisonment. He continues however also to be subject to a term of mandatory life imprisonment, following the revocation of his licence in 1982. 47. The Government submit that since the applicant is still detained pursuant to the mandatory sentence the requirements of Article 5 para. 4 (Art. 5-4) are fulfilled by the original trial and appeal procedure (see eg. Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 40, para. 76). They refer to the distinction drawn by the Court between mandatory and discretionary life sentences, the former being imposed because of the gravity of the offence and the latter influenced by factors of instability and dangerousness (Weeks judgment, loc. cit. p. 29, para. 58 and Thynne, Wilson and Gunnell judgment, loc. cit. p. 29, paras. 73-74). They further state that mandatory life sentences are not subject to the same review procedure as discretionary ones since, in respect of the former, risk is only one of the relevant criteria and the factor of maintaining public confidence in the criminal justice system comes into play. 48. The applicant submits that the mandatory life sentence has in reality been overtaken by subsequent events - the imposition of the discretionary life sentence which was based on a finding of diminished responsibility - and that the justifications for both sentences have merged. The applicant's position is therefore to all intents and purposes identical to that of a discretionary life prisoner. The applicant also submits that in any case mandatory life sentences should attract the same procedural protection as discretionary ones since in practice the two categories are treated in the same way. In particular, both are divided into a tariff period covering the punitive and deterrent part of the sentence and the remaining period where the justification for the continued detention is the factor of risk. 49. The Commission has had regard to the Court's case-law in the Weeks case and the Thynne, Wilson and Gunnell case. It notes that the Court's reasoning was based on the special character of the discretionary life sentences, which it found had developed as a measure to deal with mentally unstable and dangerous offenders. In the Weeks case, where a sentence of life imprisonment had been imposed for a robbery in which 35 pence had been stolen, the Court equated the measure to the placing of a recidivist or habitual offender at the disposal of the Government as in the Van Droogenbroek case (Eur. Court H.R., Van Droogenbroek judgment of 24 June 1982, Series A no. 50). In such cases, the causal link between detention initially justified under Article 5 para. 1 (Art. 5-1) and continued detention could be broken where a decision not to release or to re-detain was based "on grounds that were inconsistent with the objectives of the sentencing court" (Weeks judgment loc. cit. p. 26, para. 49).In those circumstances a detention that was at its outset lawful would be transformed into a deprivation of liberty that was arbitrary and consequently incompatible with Article 5 (Art. 5). 50. Since the grounds relied on by judges in passing discretionary life sentences are by their nature susceptible of change with the passage of time, new issues of lawfulness may therefore arise which require the possibility of recourse to a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. These factors do not arise in the context of mandatory life sentences. The Commission notes that the mandatory life sentence is a determinate sentence fixed by law and based solely on the perceived gravity of the offence of murder. The fact that for purposes of release on licence discretionary and mandatory life prisoners are subject to a similar, though not identical, review procedure is not sufficient to bring the mandatory life sentence within the category of special type of deprivation of liberty identified above. 51. The Commission does not accept the submission of the applicant that his mandatory sentence has ceased to be operative. Following the applicant's conviction for manslaughter in 1982, the trial judge revoked his licence. Pursuant to Section 62(9) of the 1967 Act, he therefore has continued to be detained under the original mandatory sentence. The intervening event of the imposition of an additional discretionary life sentence does not break the causal link between the earlier conviction and his continued detention. To hold otherwise would have the bizarre result of rendering it advantageous for a prisoner held under a sentence of mandatory life imprisonment to commit a subsequent offence attracting a discretionary life sentence. Consequently, the Commission finds that in the circumstances of the present case the requirements imposed by Article 5 para. 4 (Art. 5-4) as to the supervision of lawfulness of the applicant's detention were satisfied by the original trial procedure. CONCLUSION 52. The Commission concludes, by 10 votes to 5, that there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) (Or. English) DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL, MRS. G.H. THUNE, SIR BASIL HALL AND MR. B. MARXER We regret that we are unable to agree with the opinion of the majority of the Commission that in this case there has been no violation of Article 5 para. 4 of the Convention. The present applicant has been sentenced to a term of discretionary life imprisonment. The majority of the Commission however base their conclusion on the fact that the applicant continues also to be subject to a term of mandatory life imprisonment, following the revocation of his licence in 1982. We note that the Court in the cases of Weeks and Thynne, Wilson and Gunnell (loc. cit.) drew a distinction between mandatory and discretionary life sentences on the basis that the first category was based on the gravity of the offence committed rather than other special factors, namely, the special character of the discretionary life sentences, which it found had developed as a measure to deal with mentally unstable and dangerous offenders. It appears however that following the decision in the Handscomb case (see paras. 34-37) mandatory life sentences were treated in the same way as the special category of discretionary sentences in that both sentences were divided into two distinct parts - the "tariff" part serving the purpose of deterrence and retribution and the remainder in which the consideration of risk to the public was the crucial factor. While the Government contend that an additional factor, namely, the consideration of the maintenance of public confidence in the criminal justice system, is operative in mandatory cases, we note that in the 1987 policy statement (para. 37 above) this was relevant to the stage of deciding as to the appropriate length of the tariff and was not stated to be a factor which could require the continued detention of a person who had served his tariff and was no longer considered a risk. We further have doubts as to whether the criterion of maintaining public confidence is not merely a restatement of the risk principle. We finds it unnecessary however to decide in the present case whether a mandatory life sentence can legitimately be distinguished from discretionary life sentences for the purposes of Article 5 para. 4. The present applicant is held under a discretionary life sentence which was imposed on him because of the existence of special factors of mental instability and dangerousness. This intervening event has, in our view, broken the causal link between the original mandatory life sentence and his continued detention. The punitive or "tariff" part of both sentences has expired. We have found nothing in the Government's submissions to indicate that, contrary to the information given to the applicant by the Home Office, his continued detention is not based on the risk which he continues to represent. Since this is a factor which is subject to change, the applicant is entitled under the provisions of Article 5 para. 4 to judicial control of the continued justification of his detention. The majority draw attention to the result that a mandatory life prisoner who commits an offence attracting an additional discretionary life sentence would appear to benefit therefrom. We would merely reply that it would be for the domestic courts to determine whether the subsequent offence disclosed the special factors of mental instability which would warrant the imposition of a discretionary life sentence. As regards whether the available remedies satisfy the requirements of Article 5 para. 4, we recall that since the expiry of his tariff the applicant has been subject to the same regime which was under consideration in the Weeks and Thynne, Wilson and Gunnell cases (loc. cit.: see paras. 43-45 above). While the powers and procedures of the Parole Board have changed with the implementation of new legislation, these changes are not in issue in the present case. Consequently, in light of the above case-law, we conclude that, under the then prevailing legislation, the applicant was not able to have the lawfulness of his continued detention reviewed at reasonable intervals by a body satisfying the requirements of Article 5 para. 4 of the Convention. There has therefore been a violation of this provision. APPENDIX I HISTORY OF THE PROCEEDINGS Date Item ________________________________________________________________ 15.06.89 Introduction of the application 13.09.89 Registration of the application Examination of admissibility 02.03.91 Commission's decision to invite the parties to submit observations on the admissibility and merits 10.07.91 Government's observations 01.10.91 Commission's decision to refer the case to a Chamber 08.04.92 Commission's grant of legal aid 11.05.92 Applicant's observations 12.5.92 Chamber's decision to relinquish jurisdiction to the Plenary 19.05.92 Commission's decision to invite the parties to an oral hearing 15.10.92 Hearing on admissibility and merits 15.10.92 Commission's decision to declare the application partly admissible, partly inadmissible. Examination of the merits 15.10.92 Commission's deliberations on the merits 23.10.92 Applicant's submissions 18.03.93 Applicant's further submissions 13.02.93 Commission's consideration of the state of proceedings 04.05.93 Commission's deliberations on the merits, final votes and adoption of the Report
Full & Egal Universal Law Academy