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EUROPEAN COMMISSION OF HUMAN RIGHTS

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

Application No. 16791/90

B.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 8 December 1992)

TABLE OF CONTENTS

page

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

(paras. 1-15)

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

B. The proceedings (paras. 5-11). . . . . . . . . . . .1

C. The present Report (paras. 12-15). . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS . . . . . . . . . . . . . .3-5

(paras. 16-35)

A. Particular circumstances of the case . . . . . . .3-4

(paras. 16-28)

B. Relevant domestic law and practice . . . . . . . .4-5

(paras. 29-35)

III. OPINION OF THE COMMISSION. . . . . . . . . . . . . . .6-7

(paras. 36-45)

A. Complaint declared admissible. . . . . . . . . . . .6

(para. 36)

B. Point at issue (para. 37). . . . . . . . . . . . . .6

C. Article 5 para. 4. . . . . . . . . . . . . . . . .6-7

(paras. 38-44)

D. Conclusion (para. 45). . . . . . . . . . . . . . . .7

APPENDIX I History of the proceedings . . . . . . . . . .8

APPENDIX II Partial decision on the. . . . . . . . . . 9-12

admissibility of the

application

APPENDIX III Final decision on the. . . . . . . . . . .13-16

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 applicant is B., a British citizen born in 1938 and currently

serving a life sentence of imprisonment in HM Prison Acklington.

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

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 24 May 1989 and registered on

28 June 1990.

6. On 2 September 1991, the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

their observations on the admissibility and merits of the application

insofar as it raised issues under Article 5 para. 4 of the Convention.

The remainder of the application was declared inadmissible.

7. The Government submitted their written observations on

20 November 1991. The applicant submitted his observations on

10 January and 27 March 1992 and the Government submitted further

observations in reply on 2 June 1992.

8. The Commission (First Chamber) granted the applicant legal aid

on 19 February 1992.

9. On 1 July 1992, the Commission (First Chamber) declared the

application admissible.

10. The parties were then invited to submit any additional

observations on the merits of the application. On 17 September 1992,

the applicant submitted additional observations.

11. 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. 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

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:

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

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

The text of the Report was adopted by the Commission

on 8 December 1992 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

13. 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.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decisions on the admissibility of the application as APPENDICES II

and III.

15. 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

16. Since the age of 18 the applicant, suffering from psychopathic

disorders, has been compulsorily placed in mental hospitals on a number

of occasions for considerable periods.

17. In 1963, after conviction for setting fire to a church, the

applicant was placed in Broadmoor under a hospital order. The order

empowered the Home Secretary to release the applicant when he saw fit

and thereafter recall him at any time to hospital. The applicant was

conditionally released on two occasions from hospital but recalled

under the hospital order after failing to keep to the terms of his

conditional release.

18. In 1980 the applicant was released for the third time. Whilst at

liberty, he kept in touch with his probation officer and voluntarily

sought help for his psychological problems. In December 1982 the

applicant set fire to his own bed in rented accommodation. Damage of

about £500 was caused to the property. Following the incident, the

applicant voluntarily admitted himself to hospital. No steps were taken

to prosecute the applicant. In early 1983 the applicant left hospital.

19. In September 1983 the applicant was arrested on a charge of arson

with intent to damage property, namely property in his rented

accommodation. On 24 January 1984 the applicant pleaded guilty to the

offence at Knightsbridge Crown Court.

20. The medical reports on the applicant stated that his psychopathic

condition was not likely to respond to treatment and such treatment was

not guaranteed to be effective in preventing the applicant's dangerous

behaviour. There was some risk of future fire-setting. Relying on the

medical reports, the judge took the view that the applicant's condition

could not be altered by treatment and that he was "liable perhaps" to

perform acts dangerous to other people. The judge held that given the

applicant's medical condition, the best course was to sentence him to

life imprisonment.

21. The applicant appealed against sentence to the Court of Appeal.

On 22 January 1985 the Court of Appeal dismissed the appeal.

22. There is no record of the judgment of the Court of Appeal. On

30 January 1986 the applicant's petition to the Home Secretary, on the

ground that there was no justification for his continued detention

since he was no longer ill, was refused.

23. On 4 March 1986, the applicant's petition to the Home Secretary

to release him early on parole was refused.

24. In April 1987, as a result of a decision of the Divisional Court

in the case of R. v. Secretary of State for the Home Department ex

parte Handscomb and others, the Secretary of State was put under a

legal duty to review the applicant's case and determine the punitive

period in his sentence, so that a date could be fixed for a review of

the question of his release thereafter.

25. In January 1988 the applicant's case was reviewed by the Parole

Board. It informed the applicant that his case would not be reviewed

again until June 1990.

26. The applicant sought clarification of the decision from the

Secretary of State who informed him on 20 April 1988 that he had

completed the punitive element of his sentence and the decision not to

recommend release was based on the concern over his continued

dangerousness.

27. In July 1988 the Secretary of State refused the applicant's

petition that his case be reviewed before June 1990.

28. In December 1988 the Secretary of State refused a request by the

applicant that his case be reheard by the Court of Appeal following the

judgment of the European Court of Human Rights in the Weeks case (Eur.

Court H.R., judgment of 2 March 1987, Series A no. 114).

B. Relevant domestic law and practice

Life sentences

29. By virtue of sections 1 (3) and 4 of the Criminal Damage Act

1971, the maximum punishment for arson is life imprisonment.

30. 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

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

is the responsibility of the Home Secretary who is answerable to

Parliament.

32. 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

33. 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.

34. 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

35. Under Section 34 of the Criminal Justice Act 1991, which has come

into force on 1 October 1992, a discretionary life prisoner will be

able to 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. Complaint declared admissible

36. 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

37. 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)

38. 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."

39. The case-law of the Commission and Court establishes that

prisoners serving a sentence of discretionary life sentence 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).

40. 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..."

41. 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.

42. The present applicant is serving a discretionary life sentence.

The punitive or "tariff" part of his sentence expired in or about 1988

and since then the question of the applicant's continued detention has

been considered by the Parole Board. The powers and procedures of this

body have changed with the implementation of new legislation. These

changes are however not in issue in the present case.

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

the then prevailing domestic law, 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

(Art. 5-4) of the Convention after the expiry of his "tariff" in 1988.

44. The applicant has 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

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

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

Secretary to the First Chamber a.i.President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

24.05.89 Introduction of the application

28.06.90 Registration of the application

Examination of admissibility

02.09.91 Commission's decision to invite the parties to submit

observations on the admissibility and merits as

regards the complaint under Article 5 para. 4 of the

Convention. The remainder of the application was

declared inadmissible.

20.11.91 Government's observations

10.01.92 Applicant's observations

27.03.92 Applicant's further observations

02.06.92 Government's further observations

01.07.92 Commission's decision to declare the application

admissible

Examination of the merits

01.07.92 Commission's deliberations on the merits

19.09.92 Applicant's observations on the merits

02.12.92 Commission's deliberations on the merits and final

votes

08.12.92 Commission's adoption of the Report

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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM