Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21848/93

T. M.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-12) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 13-17). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-26) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 18-23). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(para. 24-26) . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 27-45) . . . . . . . . . . . . . . . . . . . . .5

A. Complaints declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . .5

B. Points at issue

(para. 28). . . . . . . . . . . . . . . . . . . . .5

C. As regards Article 5 para. 4 of the Convention

(paras. 29-38). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 39). . . . . . . . . . . . . . . . . . . . .7

D. As regards Article 5 para. 5 of the Convention

(paras. 40-42). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 43). . . . . . . . . . . . . . . . . . . . .7

E. Recapitulation

(paras. 44-45). . . . . . . . . . . . . . . . . . .7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .8

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 1959. He was

represented before the Commission by Mr. David Watson, who is also

serving a sentence of life imprisonment.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agent, Mr. M. Eaton of

the Foreign and Commonwealth Office, London.

4. The case, as declared admissible, concerns the applicant's

complaints regarding the speed of the review by the Parole Board of his

continued detention and the absence of any enforceable right to

compensation. The applicant invokes Article 5 paras. 4 and 5 of the

Convention.

B. The proceedings

5. The application was introduced on 3 December 1992 and registered

on 13 May 1993.

6. On 19 October 1993 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant's complaints under Article 5 paras. 4 and 5 of

the Convention and to adjourn examination of other complaints.

7. The Government's observations were submitted on 6 July 1994 and

the applicant was invited to make submissions in reply by

20 September 1994.

8. On the applicant's representative failing to respond, the

Secretariat informed him by letter dated 7 November 1994 that in the

absence of any response the Commission might proceed to an examination

of the case as it stood. By a registered letter dated 6 December 1994,

the Secretariat referred to the continuing lack of response and warned

that in the absence of any explanation the Commission might proceed to

strike the case from its list.

9. Following a letter from the applicant's representative dated

24 January 1995, in which he stated he wished to continue with the

application, the Commission on 22 February 1995 agreed to an extension

in the time-limit for submission of observations on behalf of the

applicant. The applicant's representative submitted observations in

reply on 20 March 1995.

10. On 18 October 1995 the Commission declared admissible the

applicant's complaints relating to the speed of review of his detention

by the Parole Board under Article 5 paras. 4 and 5 of the Convention.

The remaining complaints were declared inadmissible. The text of the

Commission's decision on admissibility was sent to the parties on

27 October 1995 and they were invited to submit such further

information or observations on the merits as they wished.

11. The applicant's representative submitted further observations and

information on 8 November 1995, 14 December 1995, 17 January 1996 and

10 March 1996.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

14. The text of this Report was adopted on 4 September 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

16. The Commission's decision on the admissibility of the application

is annexed hereto.

17. 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. The particular circumstances of the case

18. From the age of seven, the applicant was in the care of a local

authority during which time he suffered emotional, physical and sexual

abuse. He developed a drink problem and a history of self-mutilation

and attempted suicide.

19. At the age of 17, the applicant who had been drinking was

involved in the killing of two women. He pleaded guilty to manslaughter

and received a discretionary life sentence on 13 October 1978. He

recalls that the judge stated that he would be released when it was

safe.

20. After serving about four and a half years, the applicant recalls

being informed that he would not be considered for release for another

nine years. He later was shown a letter from the Secretary of State

stating that he might be considered three years earlier.

21. His tariff (the part of his sentence attributable to deterrence

and punishment) had been fixed after his trial at 18 years. This was

reduced by the Secretary of State to 15 years in 1987. The applicant

was not informed of these matters at the time.

22. In a letter dated 21 July 1992 on behalf of the Secretary of

State, the applicant was informed that the "relevant part of

your sentence is 15 years, which expires on 6 May 1993". At that date

his case would be referred to the Parole Board under the provisions of

the Criminal Justice Act 1991.

23. The Parole Board considered the applicant's case on

1 February 1994 and recommended that the applicant be transferred to

open prison conditions and his case be reviewed in eighteen months,

which recommendation was accepted by the Secretary of State.

B. Relevant domestic law and practice

24. On 1 October 1992, Part II of the Criminal Justice Act 1991 (the

1991 Act) came into force. The 1991 Act instituted changes to the

regime applying to the release of discretionary life prisoners

following the decision of the Court in the Thynne, Wilson and Gunnell

case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190).

In its judgment, the Court had found a violation of Article 5 para. 4

in that the applicants, serving discretionary life sentences of

imprisonment, had no opportunity to obtain judicial control of the

lawfulness of their continued detention after the expiry of their

tariff (the part of sentence attributable to deterrence and punishment)

when risk, or prevention, became the basis for further detention.

25. Pursuant to section 34 of the 1991 Act, after the tariff of a

discretionary life prisoner has expired, the prisoner may require the

Secretary of State to refer his case to the Parole Board (known in this

context as the Discretionary Life Panel "DLP") which has the power to

order his release if it is satisfied that it is no longer necessary for

the protection of the public that he be detained. Pursuant to the

Parole Board Rules 1992 which came into force on 1 October 1992, a

prisoner is entitled to an oral hearing, to disclosure of all evidence

before the panel and to be legally represented. There is provision

enabling a prisoner to apply to call witnesses on his behalf and to

cross-examine those who have written reports about him.

26. The operation of the procedure has been described by the Prison

Service as follows (A.T. v. the United Kingdom, Comm. Rep. 29.11.95

para. 24).

"... Referral of cases to the Board

Section 34 (5) of the 1991 Act enables a discretionary life

prisoner to require the Secretary of State to refer his case to

the Board after he has served the relevant part of his sentence

and every two years thereafter beginning with the

disposal of that reference.

In practice, it is never necessary for a prisoner to invoke this

provision because, as a matter of policy, the Secretary of State

refers a case to the Board on, or shortly after, expiry of the

relevant part. The DLP hearing then follows some 23 weeks (see

the next paragraph) later. (In certain very exceptional cases

where the prisoner has made rapid and impressive progress and has

already been adequately and successfully tested in open

conditions before expiry of the relevant part, the Secretary of

State may exercise his discretion to refer such cases to the

Board before expiry so that the hearing may be held on or shortly

after the relevant part expires.)

The significance of the 23 week period is that this is the time

generally required for the timetable of events leading up to a

DLP hearing. ...For any second and subsequent reviews, the case

is referred to the Board some 81 weeks following the previous

hearing (ie 104 weeks minus 23 weeks), thus enabling that hearing

to take place on the second anniversary of the disposal of the

previous reference."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

27. The Commission has declared admissible the applicant's complaints

that the review of the lawfulness of his detention after the expiry of

his "tariff" was not taken "speedily" and that he has no enforceable

right to compensation in respect of that failing.

B. Points at issue

28. The issues to be determined are:

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention;

- whether there has been a violation of Article 5 para. 5

(Art. 5-5) of the Convention.

C. As regards Article 5 para. 4 (Art. 5-4) of the Convention

29. Article 5 para. 4 (Art. 5-4) of the Convention provides 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."

30. The applicant submits that a lack of sentence planning resulted

in a failure to prepare him for release in advance of his tariff date

and thus enable the question of his "dangerousness" to be dealt with

promptly and avoid an unjustified and prolonged detention after the

expiry of his tariff . He contends that had he been subject to a

preliminary review three years before the expiry of tariff (as is now

the current practice) he would have been held in open conditions at the

time of the Parole Board's consideration of his case in February 1994

and in such circumstances it is likely that he would have been

released.

31. The Government point to the large amount of work which had to be

done before the DLPs could operate, from providing the statutory

framework to creating procedures and staff for a body which would, in

an initial phase, have to consider the cases of all 600 discretionary

life prisoners. They consider that the backlog was precisely of the

temporary nature referred to by the European Court of Human Rights in

the case of Zimmermann and Steiner (Eur. Court H.R., judgment of

13 July 1983, Series A no. 66), in the context of civil cases. They

consider that in ensuring that the first DLP hearings could be held in

early October 1992, and the applicant's case in February 1994, they

acted diligently and speedily.

32. The Commission recalls that the review required by Article 5

para. 4 (Art. 5-4) of the Convention is generally incorporated in the

decision depriving a person of his liberty when that decision is made

by a court at the close of judicial proceedings, but that the provision

may require the possibility of subsequent review of the lawfulness of

detention by a court. This is so in the case of the continuing

detention of a person sentenced to an discretionary life sentence in

the United Kingdom where the tariff, or the period of confinement

necessary to satisfy the requirements of retribution and deterrence,

has expired (see Thynne, Wilson and Gunnell judgment of

25 October 1990, Series A no. 190-A).

33. The "tariff" in the applicant's case expired on 6 May 1993. From

that date the applicant was entitled to take proceedings by which the

lawfulness of his detention would be determined speedily by a court

(see, in this connection, No. 18757/91, Dec. 14.10.92, unpublished,

where the Commission found that the complaint by a discretionary life

prisoner that he could not challenge the lawfulness of his detention

was premature because his tariff had not expired).

34. The first review of the lawfulness of the applicant's detention

by the Parole Board, which pursuant to the 1991 Act had power to order

his release, was held on 1 February 1994, eight months and 24 days

after expiry of the applicant's tariff. The Commission must therefore

decide whether that decision was taken "speedily" within the meaning

of Article 5 para. 4 (Art. 5-4) of the Convention.

35. Since that review was the first time that the question of risk,

or danger, as the basis of the applicant's continued detention was

before the Parole Board, such a review must, in the Commission's

opinion, be dealt with particularly expeditiously (see eg. A.T. v. the

United Kingdom, No. 20488/92 Comm. Rep. 29.11.95, para. 34,

unpublished).

36. The Commission recalls that the Court has considered the

"speediness" of review under Article 5 para. 4 (Art. 5-4) on several

occasions. For example, in its E. v. Norway judgment the Court

recalled - in the context of a first challenge to a newly decided

ground for detention -that the notion of "promptly" in Article 5

para. 3 (Art. 5-3) of the Convention indicated greater urgency that the

notion of "speedily" in Article 5 para. 4 (Art. 5-4) (Eur. Court

H.R.,judgment of 29 August 1990, Series A no. 181-A, p. 13, para. 30

and p. 27 para. 64). Having examined the circumstances of the case,

it nevertheless found that a period of eight weeks could not be

reconciled with the notion of "speedily" (p. 28, paras. 65 - 67).

37. In the present case, as observed by the Commission in the case

of A.T. (loc. cit. para. 36), the entire system of court review of the

lawfulness of discretionary life prisoners' detention was new. The

system was brought into being by the Criminal Justice Act 1991, which

was enacted on 25 July 1992 and the relevant parts of which entered

into force on 1 October 1992. The Commission does not underestimate

the size of this operation, and appreciates the need for criteria to

determine the order in which to deal with the "old" cases - that is,

the cases of those whose tariff expired before, or (like the

applicant's) soon after, 1 October 1992. The Commission has already

commented, in its final decision on admissibility in the case of A.T.

(No. 20448/92, dec. 7.9.95), that there was no indication that the

priorities were unreasonable.

38. However, the Commission notes that a two-year period elapsed

between the judgment in the case of Thynne, Wilson and Gunnell and the

entry into force of the relevant parts of the Criminal Justice Act

1991. It considers that there was time for contingency planning of the

logistical measures to be taken if the law was passed. Further, it

recalls the importance of the right to liberty in a democratic society

(cf. in connection with Article 5 para. 1 (Art. 5-1) of the Convention,

Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no.

33, p. 16, para. 37 with further references). In the context of a first

decision on the risk posed by a person whose "tariff" has expired, the

Commission finds that the above considerations (para. 37 above) cannot

justify a period of over eight months before such a first review.

CONCLUSION

39. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards

the delay in the review of the applicant's continued detention.

D. As regards Article 5 para. 5 (Art. 5-5) of the Convention

40. The applicant further complains of a violation of Article 5

para. 5 (Art. 5-5) of the Convention in that he does not have an

enforceable right to compensation in respect of the violation of

Article 5 para. 4 (Art. 5-4) in his case.

41. Article 5 para. 5 (Art. 5-4) of the Convention provides as

follows:

"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."

42. In the present case, the Commission has found a violation of

Article 5 para. 4 (Art. 5-4) of the Convention. It is not contested by

the Government that this violation could not give rise to an

enforceable claim for compensation before the domestic courts.

CONCLUSION

43. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 5 (Art. 5-5) of the Convention.

E. Recapitulation

44. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards

the delay in the review of the applicant's continued detention

(para. 39).

45. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 43).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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T.M. v. THE UNITED KINGDOM

T.M. v. THE UNITED KINGDOM

LEXI