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EUROPEAN COMMISSION OF HUMAN RIGHTS

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

Application No. 17143/90

Eric OLDHAM

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 2 December 1992)

TABLE OF CONTENTS

page

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

(paras. 1-14)

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

B. The proceedings (paras. 5-10) . . . . . . . . . . . . . . 1

C. The present Report (paras. 11-14) . . . . . . . . . . . . 2

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

(paras. 15-30)

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

(paras. 15-23)

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

(paras. 24-30)

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

(paras. 31-44)

A. Complaints declared admissible. . . . . . . . . . . . . . 6

(para. 31)

B. Points at issue (para. 32). . . . . . . . . . . . . . . . 6

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

(paras. 33-38)

D. Article 5 para. 5 . . . . . . . . . . . . . . . . . . . . 7

(paras. 39-42)

E. Recapitulation (paras. 43-44) . . . . . . . . . . . . . . 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 Eric Oldham, a British citizen born in 1948 and

currently serving a life sentence of imprisonment in HM Prison

Nottingham.

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 and his complaint under Article 5 para. 5 that he has no

enforceable right to compensation in respect of the former.

B. The proceedings

5. The application was introduced on 4 July 1990 and registered on

9 September 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 paras. 4 and 5 of the

Convention. The remainder of the application was declared inadmissible.

7. The Government submitted their written observations on

20 November 1991.

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

application admissible.

9. The parties were then invited to submit any additional

observations on the merits of the application. On 1 September 1992,

the applicant submitted additional observations.

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

accordance with Article 28 (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

11. 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

2 December 1992 and is now transmitted to the Committee of Ministers

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

12. 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.

13. 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.

14. 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

15. In 1970 the applicant was sentenced to life imprisonment for

manslaughter. The Court accepted that the applicant had suffered brain

damage at birth. The applicant did not appeal against his conviction

or sentence.

16. In 1974 the applicant underwent brain surgery to remove the

damaged section of his brain. In 1981 he was released on life licence.

In 1982 the applicant married for a second time. The applicant and his

second wife are now divorced.

17. In 1983 the applicant's licence was revoked after he had been

convicted of handling a stolen credit card.

18. In 1984 the applicant was, once again, released on life licence.

In December 1985 the applicant had an argument with his wife. As a

result of the differences between himself and his wife, the applicant

went to live in a probation hostel. Five days after this and upon

recommendation of an officer of the probation service who considered

the applicant's wife to be "afraid of him", the Home Secretary revoked

the applicant's licence under Section 62 (2) of the Criminal Justice

Act 1967. The probation service recommended that the applicant be

recalled to prison and he was recalled on 16 December 1985, making

written representations to the Secretary of State about one week later.

The Parole Board confirmed the revocation of the applicant's licence

on 2 May 1986.

19. On 27 October 1989 the applicant was notified that the Home

Secretary had decided, upon the recommendation of the Parole Board and

in consultation with the Judiciary, that, subject to the applicant's

continued good conduct and to the satisfactory completion of a period

of six months in open conditions and nine months in a pre-release

employment scheme, the applicant should be released on life licence.

20. On 23 November 1989 the applicant was transferred to Leyhill Open

Prison. He began working at the local branch of NACRO (the National

Association for the Care and Resettlement of Offenders). On

6 December 1989 the applicant was notified that his provisional release

date was 22 February 1991.

21. On 23 March 1990 the applicant failed to return to Leyhill at the

correct time. A taxi driver had taken him to Bristol Prison instead

of to a bus stop from where the applicant and other prisoners were to

be picked up and taken to Leyhill. The applicant was received into

Bristol Prison and remained there for five weeks. At the end of this

period the applicant was informed that the Home Secretary had decided

that he should spend an additional nine months at Leyhill and

consequently that his provisional release date had been put back to

25 October 1991. On 8 May 1990 the applicant resumed his work at

NACRO. On 9 May 1990 the applicant failed to return to Leyhill. On

10 May 1990 the applicant was received into Bristol Prison.

22. On 25 June 1990 the applicant was notified that the Home

Secretary had decided to cancel the applicant's provisional release

date. In addition, the applicant was informed that he was to be

transferred to a Category C establishment (he had previously been a

Category D prisoner).

23. The applicant's case was reviewed by the Parole Board in

June 1992. He was informed on 1 September 1992 that his release had not

been recommended. The Parole Board recommended that his case be

reviewed again in twelve months.

B. Relevant domestic law and practice

Life sentences

24. By virtue of section 5 of the Offences against the Person Act

1861, the maximum punishment for manslaughter is life imprisonment.

25. 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

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

is the responsibility of the Home Secretary who is answerable to

Parliament.

27. 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

28. 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.

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 ..."

Recent legislation

30. 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. Complaints declared admissible

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

that he was unable to have the continued lawfulness of his detention

reviewed by a court and that he had no enforceable right to

compensation in respect of that.

B. Points at issue

32. Accordingly, the issues to be determined are :

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

(Art. 5-4) of the Convention and

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

(Art. 5-5) of the Convention.

C. Article 5 para. 4 (Art. 5-4)

33. 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."

34. 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 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).

35. 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..."

36. 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.

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

The punitive or "tariff" part of his sentence expired and the applicant

was released on life licence on two occasions in 1981 and in 1984.

Following his recall to prison on revocation of his licence in 1983,

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. 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 by a body satisfying the requirements of Article 5

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

Conclusion

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

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

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

39. 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.

40. Article 5 para. 5 (Art. 5-5) 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."

41. 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

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

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

E. Recapitulation

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

violation of Article 5 para. 4 (Art. 5-4) of the Convention (para 38).

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

violation of Article 5 para. 5 (Art. 5-5) of the Convention (para 42).

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

________________________________________________________________

04.07.90 Introduction of the application

09.09.90 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

01.07.92 Commission's decision to declare the application

admissible

Examination of the merits

01.07.92 Commission's deliberations on the merits

01.09.92 Applicant's observations on the merits

02.12.92 Commission's deliberations on the merits and final

votes and adoption of the Report

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OLDHAM v. the UNITED KINGDOM

OLDHAM v. the UNITED KINGDOM

LEXI