Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

F I R S T C H A M B E R

Application No. 13195/87

P., K. and G.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 8 January 1993)

TABLE OF CONTENTS

page

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . .1-2

(paras. 1-16)

A. The application (paras. 2-4) . . . . . . . . . . . .1

B. The proceedings (paras. 5-12). . . . . . . . . . . .1

C. The present Report (paras. 13-16). . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS . . . . . . . . . . . . . .3-6

(paras. 17-31)

A. Particular circumstances of the case . . . . . . .3-5

(paras. 17-25)

B. Relevant domestic law and practice . . . . . . . .5-6

(paras. 26-31)

III. OPINION OF THE COMMISSION. . . . . . . . . . . . . . .7-8

(paras. 32-41)

A. Complaints declared admissible . . . . . . . . . . .7

(para. 32)

B. Point at issue (para. 33). . . . . . . . . . . . . .7

C. Article 5 para. 4 of the Convention. . . . . . . .7-8

(paras. 34-40)

D. Conclusion (para. 41). . . . . . . . . . . . . . . .8

APPENDIX I History of the proceedings . . . . . . . . . .9

APPENDIX II Decision on the. . . . . . . . . . . . . .10-15

admissibility of the application

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 first applicant is a British citizen born in 1960 and

resident in Hartwell. The second applicant, a British citizen born in

1945, is currently serving a sentence of life imprisonment in HM Prison

Dartmoor. The third applicant, a British citizen born in 1955, is

serving a sentence of life imprisonment in HM Prison Blundeston. The

applicants were represented in the proceedings before the Commission

by Mr. Peter Ashman, a barrister.

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 applicants' complaints under

Article 5 para. 4 of the Convention that they were unable to have the

continued lawfulness of their detention reviewed by an independent

tribunal.

B. The proceedings

5. The application was introduced on 23 July 1987 and registered on

3 September 1987.

6. On 13 October 1989, the Commission decided to bring the

application to the notice of the respondent Government but not to

invite any observations pending the outcome of the Thynne, Wilson and

Gunnell case before the Court (Eur. Court H.R., Thynne, Wilson and

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

7. On 2 March 1991, the Commission decided to invite the Government

to submit written observations on the admissibility and merits.

8. The Government submitted their written observations on

15 May 1991. The applicants submitted their observations on

20 June 1991.

9. On 1 July 1991, the Commission decided to refer the case to the

First Chamber.

10. On 14 October 1991, the Commission (First Chamber) declared the

application admissible.

11. The parties were then invited to submit any additional

observations on the merits of the application.

12. 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

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:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

The text of the Report was adopted by the Commission on

8 January 1993 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

14. 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.

15. 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.

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. Particular circumstances of the case

The first applicant

17. On 30 June 1978 the first applicant pleaded guilty at the

Northampton Crown Court to three offences of possession of a firearm

with intent to endanger life, three offences of possession of a firearm

with intent to resist arrest and one offence of burglary. He was

sentenced to life imprisonment for the first six offences and three

years' imprisonment for the burglary.

18. On 10 July 1979 the Court of Appeal (Criminal Division) dismissed

the first applicant's appeal and upheld the sentence of the applicant's

imprisonment. Lord Justice Lane, giving the judgment of the Court,

stated as follows:

"This man suffers from a psychopathic disorder. He is highly

dangerous. He has an explosive temper which is likely to flare

up at any minute, with consequences which can be disastrous.

There is no need to say more than that. The prognosis is

uncertain, ...

If, therefore, a determinate sentence is to be imposed what

length should it be? No-one can answer that. If it is too long

it is not fair to the appellant. If it is too short it may very

well mean that some innocent member of the public will lose his

life as a result. On the one hand we have the appalling prospect

for a young man of 19, as he now is, of an indeterminate sentence

of imprisonment stretching into the future. On the other hand

there is the difficulty, if not the impossibility, of forming a

prognosis in relation to his mental condition. There is the fact

that this man is undoubtedly highly dangerous ..."

19. On 29 June 1990, the Secretary of State authorised the first

applicant's release on licence, subject, inter alia, to the conditions

that he could only reside or work where approved by his probation

officer. The first applicant was released on 6 July 1990. The licence

may be varied or revoked by the Secretary of State at any time.

The second applicant

20. On 15 November 1976 the second applicant pleaded guilty at the

Plymouth Crown Court to one offence of burglary and one offence of

arson. The Court had wanted to find a place for him in a hospital but

none was available, and on 3 December 1976 it passed sentences of three

years' imprisonment for the burglary and life imprisonment for the

arson. The first applicant appealed, arguing that his sentence was

based on his past crimes and his history of sub-normality in relation

to sexual fantasies with eight-year-old girls.

21. On 18 November 1977 the Court of Appeal (Criminal Division)

dismissed the applicant's appeals against the sentences. Lord Justice

Bridge, giving the judgment of the Court, stated as follows:

"Passing sentence the [first instance] court said: 'It may be

right that it is correct for us to sympathise with you rather

than condemn you, but we have got a duty to protect the public

and it is quite clear that this is a case where the public have

to be protected from you at least for the time being. We cannot

see into the future, and the only way we can deal with this

matter is by way of what is called an indeterminate

sentence,...'.

When one analyses it, [the argument of counsel for the applicant]

really comes to this,... Before the court can impose a

protective sentence, in the sense of a sentence which is

appropriate to protect the public against this man, it must wait

until an offence of the worst kind, which the doctors apprehend

will be committed against a young girl, is committed. In our

judgment the court would be totally abdicating its

responsibility, looking at this matter realistically, if it did

that. It is clear to us that the indeterminate sentence the

court imposed was the only sentence which could properly be

imposed and the appeal against it is accordingly dismissed."

22. The second applicant has been reviewed for parole four times

unsuccessfully. The Parole Board did not give any reasons for its

refusals.

The third applicant

23. On 14 June 1984 the third applicant pleaded guilty, at the

Manchester Crown Court, to offences of rape, robbery and attempted

rape. In committing these offences, he was in breach of a suspended

sentence for assault. He was sentenced to life imprisonment for the

offences of rape and attempted rape, five years' imprisonment for the

robbery and twelve months' imprisonment for the breach of the suspended

sentence. Before sentencing the judge ordered medical reports on the

third applicant which showed that the he had no mental disorder, so

prison was the only alternative. After sentencing, the following

exchange between the applicant and the trial judge took place:

Mr. Justice Griffiths: "You are a serious danger to the public,

and that there is every likelihood that if you were free to do

so you would commit similar offences. You are clearly at present

a danger to the public."

The prisoner: "No, I am not."

Mr. Justice Griffiths: "Until such time as the passing of years

alters your character it is clear that you will continue to be

so. In these circumstances my duty is to protect the public from

you - and, in particular, women. I do this by passing upon you

in respect of the two counts of rape and the one count of

attempted rape a concurrent sentence of life imprisonment."

The prisoner: "That's fair enough with me."

Mr. Justice Griffiths: "This will permit those in authority to

review your condition and to consider whether at some time in the

future it will be safe to set you at large again."

24. On 12 December 1974, the third applicant's appeal against his

life sentence was dismissed. The Court of Appeal did, however, change

the sentence of life imprisonment for the attempted rape to seven

years, that being the maximum possible for attempted rape.

25. The third applicant has not been released on life licence, but

he is now a category B prisoner. His case was reviewed in March and

October 1987, August 1988 and December 1989 by the Local Review

Committee.

B. Relevant domestic law and practice

Life sentences

26. 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.

The procedure for review

27. The policy for the review and release of life sentence prisoners

is the responsibility of the Home Secretary who is answerable to

Parliament.

28. Since the introduction in 1983 of a new parole policy in respect

of life sentences, the Home Secretary consults the Lord Chief Justice

and the trial judge as to the period of detention necessary to satisfy

the requirements of retribution and deterrence, i.e. the tariff period.

As indicated in the Handscombe judgment (R. V. Secretary of State for

Home Department, ex parte Handscombe and others (1988) 86 Cr. App.

R. 59 at p. 74-75),

"...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".

Release on licence

29. Under 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.

30. 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 ..."

Recent legislation

31. 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

32. The Commission has declared admissible the applicants' complaints

that they were unable to have the continued lawfulness of their

detention reviewed by a court.

B. Point at issue

33. Accordingly, 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

34. 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."

35. 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).

36. 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..."

37. 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.

38. The present applicants have also been sentenced to terms of

discretionary life imprisonment. The second and third applicants are

still in prison. The punitive or "tariff" part of their sentences has

expired and since then the question of their continued detention has

been considered by the Parole Board. While the first applicant has been

released on life licence subject to recall, his continued detention

prior to this was subject to the same regime. The powers and procedures

of the Parole Board have changed with the implementation of new

legislation. These changes are however not in issue in the present

case.

39. In light of the above case-law, the Commission finds that, under

the then prevailing legislation, the applicants were not able to have

the lawfulness of their continued detention reviewed at reasonable

intervals by a body satisfying the requirements of Article 5 para. 4

(Art. 5-4) of the Convention.

40. The applicants have also submitted that there is a violation of

Article 5 para. 4 (Art. 5-4) in that even after completion of the

tariff a prisoner is not entitled to be released unless he is judged

to present no more than a minimal risk in the subjective appreciation

of the Parole Board. In view of its finding above however the

Commission finds it unnecessary to reach a separate conclusion on this

allegation.

D. Conclusion

41. The Commission concludes, unanimously, that there has been

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

case of all three applicants.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

23.07.87 Introduction of the application

03.09.87 Registration of the application

Examination of admissibility

13.10.89 Commission's decision to bring the application to the

notice of the respondent Government without inviting

observations

02.03.91 Commission's decision to invite the parties to submit

observations on the admissibility and merits

15.05.91 Government's observations

20.06.91 Applicant's observations

14.10.91 Commission's decision to declare the application

admissible

Examination of the merits

08.09.92 Commission's consideration of the state of proceedings

08.01.93 Commission's deliberations on the merits, final votes

and adoption of the Report

Menu

P., K. AND G. v. the UNITED KINGDOM

P., K. AND G. v. the UNITED KINGDOM

LEXI