Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20448/92

A. T.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 29 November 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-24) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-23). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(para. 24). . . . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 25-50) . . . . . . . . . . . . . . . . . . . . .6

A. Complaints declared admissible

(para. 25). . . . . . . . . . . . . . . . . . . . .6

B. Points at issue

(para. 26). . . . . . . . . . . . . . . . . . . . .6

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

and the initial hearing

(paras. 27-37). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 38). . . . . . . . . . . . . . . . . . . . .8

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

and the second hearing

(paras. 39-47). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 48). . . . . . . . . . . . . . . . . . . . .9

E. Recapitulation

(paras. 49-50). . . . . . . . . . . . . . . . . . .9

APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 10

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 13

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 1949. He was

represented before the Commission by Mr. S. Creighton, solicitor, of

Prisoner's Advice Service, and Mr. B. Emmerson, counsel.

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

respondent Government were represented by their Agent, Ms. Susan

Dickson of the Foreign and Commonwealth Office, London.

4. The case concerns the length of proceedings to determine the

lawfulness of the applicant's detention. The applicant invokes

Article 5 para. 4 of the Convention.

B. The proceedings

5. The application was introduced on 10 October 1991 and registered

on 6 August 1993.

6. On 7 September 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 para. 4 of the

Convention. It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 17 November 1993.

The applicant replied on 30 December 1993. On 7 December 1994, the

Commission granted the applicant legal aid for the representation of

his case.

8. On 31 August 1994 the Commission decided to hold a hearing of the

parties. The hearing was held on 2 December 1994. The Government were

represented by Ms. S.J. Dickson, Agent, Messrs. N. Garnham, Counsel,

H. Carter and J. Page, Advisers. The applicant was represented by

Messrs B. Emmerson, Counsel and S. Creighton, Solicitor.

9. At the Commission's request, the Government submitted further

observations on 30 January 1995, to which the applicant replied on

31 March 1995.

10. On 28 June 1995 the Commission declared admissible the

applicant's complaints under Article 5 para. 4 of the Convention. The

text of the Commission's decision on admissibility was sent to the

parties on 19 July 1995 and they were invited to submit such further

information or observations on the merits as they wished. Factual

information as to the intended hearing in September 1995 was submitted

by the applicant on 25 October 1995 and the Government made comments

on it on 24 November 1995.

11. 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

12. 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:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

13. The text of this Report was adopted on 29 November 1995 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.

14. 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.

15. The Commission's decisions on the admissibility of the

application are annexed as Appendices I and II.

16. 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

17. On 3 June 1988 the applicant pleaded guilty to the manslaughter

of his mother on the grounds of diminished responsibility. The plea

was accepted. On 1 July 1988 he was sentenced at the Central Criminal

Court, London, to an indeterminate period of life imprisonment. The

Common Serjeant, sentencing, made the following remarks.

"... All the medical evidence before the Court confirms that you

were suffering from a mental illness called schizophrenia, but

as no bed was available in any suitable hospital, and I did not

have the necessary information to make a hospital order, which

was my declared intention, I accordingly postponed sentence for

twenty-eight days to see whether or not a bed could be made

available.

I am still of the opinion that the proper disposal in your case

would be by means of a hospital order, but because of the lack

of facilities - the lack of a bed - I am unable to make that

order. The only possible alternative order I can make is to

sentence you to an indeterminate period of life imprisonment.

Now that, in your case, I am confident, does not mean life, it

will mean somewhat less. How long you stay in prison depends

upon your improvement and how you behave there, but in order that

your medical condition shall be fully appreciated by staff at

hospital ... I shall invite the prison authorities to consider

whether, in the light of [... medical opinions ...] it would be

possible to transfer you to a hospital where you could receive

proper treatment for your illness."

18. In 1991 the applicant applied for an extension of time in which

to apply for leave to appeal against sentence. The single judge

refused and, on 29 July 1991, the full Court of Appeal also refused,

finding the approach of the trial judge to be entirely correct.

19. By letter of 8 June 1992 the applicant was informed that

Section 34 of the Criminal Justice Act 1991 applied to his case, and

that the "tariff" in his case, that is, his period of confinement

necessary to satisfy the requirements of retribution and deterrence,

was to expire on 8 December 1992. Section 34, which entered into force

on 1 October 1992, provides that it shall be the duty of the Secretary

of State to release prisoners to whom the Section applies in cases

where, broadly, the "tariff" has expired and the Board is satisfied

that continued confinement of the prisoner is no longer necessary. The

applicant was also told that he would be informed of the date on which

his case would be referred to the Parole Board under the new

arrangements.

20. The applicant was informed on 5 August 1993 that his case had

been referred to the Parole Board and would be considered by a

Discretionary Lifer Panel (DLP) on 11 or 12 January 1994. The referral

had in fact taken place on 11 January 1993. The DLP considered the

case on 12 January 1994. The applicant was informed by letter of

17 January 1994 that the DLP was not satisfied that it was no longer

necessary for the protection of the public that he be confined. The

DLP did not, therefore, direct his release. The DLP noted that the

applicant "remain[ed] vulnerable to the pressures of independent living

and [had] not developed sufficient appreciation of [the] need for

assistance from professional agencies including forensic psychological

and psychiatric services. They could not be satisfied that without

some experience of living in open conditions [his] release would not

present a risk to the public."

21. The DLP recommended that the applicant should be transferred

immediately to a Category D prison and that his case should be further

reviewed in not more than 12 months.

22. On 28 February 1994 applicant was told that he would be

transferred to a Category D prison when a suitable vacancy arose, and

that his case would be reviewed internally within the Prison Service

nine to twelve months after transfer, in order to determine the date

of his next DLP hearing. The letter continued that the date of his

next review would be decided on the basis of his performance in open

conditions and would be held no later than January 1996. He was

transferred to an open prison on 26 April 1994.

23. On 3 March 1995 the applicant was informed by letter that his

case had been referred back to the DLP. His next review was due to

take place in September 1995, but it did not take place.

B. Relevant domestic law

24. Section 34 of the Criminal Justice Act 1991 makes provision for

the Parole Board (known, in this context, as the Discretionary Lifer

Panel) to have power to direct the Secretary of State to release

discretionary life prisoners where certain conditions are fulfilled.

Its operation was discussed in a letter of 14 November 1994 from the

Prison Service to the applicant's representative:

"... 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.

Timing of subsequent reviews

In some cases, the DLP may recommend to the Secretary of State

that the next review should be held before the period of two

years has elapsed. The Panel might specify that this should be

an internal review by the Prison Service; a DLP review under

Section 34 of the Act; or simply an early review, leaving the

precise form of the review open. It is for the Secretary of

State to decide whether or not to accept such a recommendation

and the type of review which should take place."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

that neither the first nor the second review of the lawfulness of his

detention after the expiry of his "tariff" was taken "speedily".

B. Points at issue

26. The issues to be determined are whether there has been a

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

virtue of:

- the period which elapsed before he was given an initial hearing

before the DLP in January 1994, and

- the period which elapsed before a subsequent hearing.

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

initial hearing

27. 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."

28. The applicant puts the beginning of the period to be considered

in determining whether the lawfulness of his detention was decided

"speedily" by the DLP at 8 December 1992, when his tariff expired, at

the latest. He accepts that the priorities which were applied in

dealing with existing life prisoners were reasonable in themselves, but

does not agree that any particular delay was necessarily involved in

introducing the DLP system. Mere lack of resources does not, in his

view, justify a 13 month delay in bringing before a court - for the

first time - the case of a person whose detention may no longer be

justified.

29. 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 January 1994, they

acted diligently and speedily.

30. 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 (see Eur. Court H.R., Iribarne Pérez judgment of

24 October 1995, to be published in Series A no. 325-C, para. 30, with

reference back to inter alia the Thynne, Wilson and Gunnell judgment

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

31. The "tariff" in the applicant's case, that is, the period of

confinement necessary to satisfy the requirements of retribution and

deterrence, expired on 8 December 1992. From that date the applicant

was entitled to take proceedings by which the lawfulness of his

detention would be determined speedily be 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).

32. The regime created by Section 34 of the Criminal Justice Act 1991

in reply to the findings of the Court in the above-mentioned Thynne,

Wilson and Gunnell case provided that those affected by the provisions

could "require" a review of their detention by the Discretionary Lifer

Panel of the Parole Board (which had power to release if it considered

that the detention was no longer justified). In practice, however, the

regime operates on the basis of reference by the Secretary on or soon

after the expiry of the "tariff". To that extent it is de facto an

automatic periodic review of a judicial character (see Eur. Court H.R.,

Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 24,

para. 75 with further references).

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

by a court with power to release was held on 12 January 1994. 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.

34. The initial review of 12 January 1994 was the first review after

the expiry of the applicant's "tariff". It was therefore the first

time that the question of risk, or danger, was before the DLP. Such

a first review must, in the Commission's opinion, be dealt with

particularly expeditiously.

35. The Commission recalls that the European Court of Human Rights

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 "promptly" in

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

urgency that the notion "speedily" in Article 5 para. 4 (Art. 5-4)

(Eur. Court H.R., E. v. Norway 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).

36. In the present case, 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 present case,

that there is no indication that the priorities were unreasonable.

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

between 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, even the above considerations cannot justify a period of over

12 months before a such a first review.

CONCLUSION

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

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

of the period which elapsed before the applicant was given an initial

hearing before the DLP in January 1994.

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

second hearing

39. The Commission must also determine whether the subsequent review

was given "speedily".

40. At the admissibility stage of the proceedings, the applicant

pointed out that he would not receive his second review before the DLP

before September 1995, and that there would therefore have been a

period of 19 months between his first and his second reviews. He

perceived the problem of delay in this respect as flowing from the

statutory period of 24 months between reviews. He has since submitted

material from which it appears that the review in September did not

take place.

41. The Government point out that risk assessment is a matter

requiring prolonged assessment by professional and non-professional

staff in a variety of circumstances. They consider that the two year

interval between reviews is reasonable as such. They also underline

that the Secretary of State in the majority of cases (78% in 1994)

follows recommendations of the DLP that a subsequent review should take

place in less than two years.

42. As indicated above, the Commission considers that a first review

must be dealt with particularly expeditiously. It is already

established in the case-law of the Convention organs that where a

system of automatic review of the lawfulness of detention has been

instituted, the decisions of the courts must follow at reasonable

intervals (see the above-mentioned Herczegfalvy judgment, p. 24,

para. 75). In considering such a system, where the domestic

legislation provided for annual reviews, the European Court of Human

Rights has considered intervals of 15 months and two years not to fall

within the notion of "speedily". It was silent as to whether an

interval of nine months was compatible with Article 5 para. 4

(Art. 5-4) of the Convention (above-mentioned Herczegfalvy judgment,

pp. 24, 25, paras. 77, 78).

43. The system for review of the lawfulness of the continued

detention of discretionary life prisoners is, notwithstanding

Section 34 (5) of the Criminal Justice Act 1991 which provides for a

prisoner to "require" reference to the DLP, in effect a system of

automatic review, in which the automatic review by the DLP takes place

every two years. The Commission is not, however, required to consider

whether this interval is reasonable as such, because in the present

case the DLP indicated that the case should be reviewed within a

shorter period.

44. When the DLP heard the applicant in January 1994, it recommended

that he should be transferred to a Category D prison, and that his case

should be reviewed in not more than 12 months. The Prison Service

interpreted this statement to mean that his case should be reviewed

internally by the Prison Service within 12 months of his transfer to

a Category D prison.

45. Whatever the DLP in fact meant when it recommended that the

applicant's case should be reviewed in not more than 12 months, the

last DLP review of the lawfulness of the applicant's continued

detention took place in January 1994. A review was planned before the

DLP for 19 September 1995, but had to be deferred.

46. The position in the present case is therefore that the DLP

recommended in January 1994 that the applicant's case should be

reviewed in under 12 months (although it did not expressly say by

whom), and that almost two years later, his case has still not been

examined for a second time by the DLP.

47. The Commission finds that the circumstances of the case do not

justify the period of almost two years before this second review.

CONCLUSION

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

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

of the period which has elapsed before a subsequent hearing.

E. Recapitulation

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

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

of the period which elapsed before the applicant was given an initial

hearing before the DLP in January 1994 (para. 38).

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

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

of the period which has elapsed before a subsequent hearing (para. 48).

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

A.T. v. THE UNITED KINGDOM

A.T. v. THE UNITED KINGDOM

LEXI