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EUROPEAN COMMISSION OF HUMAN RIGHTS

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

Application No. 15767/89

Arnold Ernest CLARKE

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 14 October 1992)

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. . . . . . . . . . . . . . . . . 3-4

(paras. 17-25)

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

(paras. 17-18)

B. Relevant domestic law and practice. . . . . . . . . . . 3-4

(paras. 19-25)

III. OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 5-6

(paras. 26-33)

A. Complaint declared admissible . . . . . . . . . . . . . . 5

(para. 26)

B. Point at issue (para. 27) . . . . . . . . . . . . . . . . 5

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

(paras. 28-32)

D. Conclusion (para. 33) . . . . . . . . . . . . . . . . . . 6

APPENDIX I History of the proceedings . . . . . . . . . . . . 7

APPENDIX II Decision on the admissibility

of the application . . . . . . . . . . . . . . .8-10

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 Arnold Ernest Clarke, a British citizen born in

1955 and currently serving a life sentence of imprisonment in HM Prison

Long Lartin.

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 that he is unable to

have the continued lawfulness of his detention reviewed by an

independent tribunal. It raises issues under Article 5 para. 4 of the

Convention.

B. The proceedings

5. The application was introduced on 9 October 1989 and registered

on 15 November 1989.

6. On 13 March 1990, the Commission decided to give notice of the

application to the respondent Government but not to invite them to

submit any observations pending the outcome of the Thynne, Gunnell and

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

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

7. On 2 March 1991, the Commission invited the Government to submit

observations on the admissibiility and merits of the application.

8. The Government submitted their written observations on

13 May 1991. The applicant submitted his written observations in reply

on 6 June 1991.

9. On 1 July 1991, the Commission referred the application 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. On 3 December 1991, the

applicant submitted additional observations.

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. 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

B. MARXER

The text of the Report was adopted by the Commission on

14 October 1992 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

17. The applicant was sentenced to life imprisonment in January 1984

in Preston Crown Court on one charge of rape. Psychiatric evidence was

adduced by the prosecution during his trial that he suffered from a

personality disorder. He was thus given a discretionary life sentence

by the court, as opposed to a fixed term sentence, on the basis that

he was a danger to the public. An appeal against sentence was rejected

by the Court of Appeal (Criminal Division) in 1985.

18. The tariff period of his sentence was completed in 1988 and his

case was reviewed by the Parole Board in September 1988. The Parole

Board was unable to recommend his release on this occasion. His case

was reviewed in December 1991 but his release not recommended.

B. Relevant domestic law and practice

Life sentences

19. By virtue of section 37 of, and Schedule 2 to, the Sexual

Offences Act 1956, the maximum punishment for rape is life

imprisonment.

20. 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

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

is the responsibility of the Home Secretary who is answerable to

Parliament.

22. 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

23. Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary

of State may 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 is

available.

24. Section 59 of the 1967 Act sets 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

25. 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 will have the

power to direct the prisoner's release and the Secretary of State will

then be under a duty to release the prisoner on licence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

26. The Commission declared admissible the applicant's complaint that

he was unable to have the continued lawfulness of his detention

determined by a court.

B. Point at issue

27. 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)

28. 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."

29. 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).

30. 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..."

31. 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.

32. The present applicant is serving a discretionary life sentence

and the punitive or "tariff" part of his sentence expired in 1988.

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 which is only concerned

with the situation prevailing under the legislation described in

paras. 17 to 22 above. In light of the above case-law, the Commission

finds

that, under that legislation, 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.

D. Conclusion

33. 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 President of the First Chamber

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

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

09.10.89 Introduction of the application

15.10.89 Registration of the application

Examination of admissibility

13.03.90 Commission's decision to bring the application to the

notice of the Government

02.03.91 Commission's decision to invite the parties to submit

observations on the admissibility and merits

13.05.91 Government's observations

06.06.91 Applicant's reply

14.10.91 Commission's decision to declare the application

admissible

Examination of the merits

14.10.91 Commission's deliberations on the merits

03.12.91 Applicant's observations on the merits

05.09.92 Consideration of the state of proceedings

14.10.92 Commission's deliberations on the merits, final votes

and adoption of the Report

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CLARKE v. THE UNITED KINGDOM

CLARKE v. THE UNITED KINGDOM

LEXI