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AS TO THE ADMISSIBILITY OF

Application No. 28376/95

by K.M.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 June 1995 by

K.M. against the United Kingdom and registered on 30 August 1995 under

file No. 28376/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1961. He is

currently in prison in Doncaster and is represented before the

Commission by Mr R Hatch, a solicitor practising in Doncaster. The

facts of the application, as they have been submitted by the

applicant's representative, may be summarised as follows.

A. The particular circumstances of the case

The applicant was born on the 16 May 1961. He was convicted on

4 November 1983 for the rape of a 60 year old woman, committed on

6 February 1983, and for two offenses of burglary. He was sentenced

to life imprisonment for the rape and received 5 years and 2 years

imprisonment for the two offenses of burglary, the sentences to run

consecutive to each other but concurrent to the life sentence. The

applicant pleaded not guilty to the offence of rape and has continued

to protest his innocence. The applicant has a prior conviction for

rape (1980 - 4 years), for which he acknowledges guilt.

As a discretionary life prisoner the applicant has been in

custody in HMP Wakefield (initial allocation), HMP Stockon (category

C) and from 20 June 1991, HMP Lindholme (category C). The transfers

to Stockon and Lindholme were career moves and in each case followed

Parole Board reviews.

The tariff (period of detention relating to punishment and

deterrence) for the applicant expired on 11 February 1991.

On 28 April 1993 the Secretary of State referred the applicant's

case to the Parole Board Discretionary Lifer Panel ("DLP"). The

reference concluded with this passage:

"3. If the Board does not consider it appropriate to direct

release, it is invited to advise the Secretary of State

regarding:

i) whether the prisoner should be transferred to

less secure conditions including, where

appropriate, open conditions. If the Board

makes such a recommendation, it is invited to

comment on the degree of risk involved.."

On 13 July 1993, the DLP announced their decision. Their

conclusion was as follows:

"4. ...the panel concluded that you [the applicant] will remain

a risk until your progress can be further tested and consolidated

in less secure conditions.

5. The panel therefore recommended to the Secretary of State

that you should be transferred to a category D prison, which can

provide you with the necessary training for future employment,

as well as developing your social skills, particularly with

regards to your relationships with women, before the next review

[July 1995]."

This recommendation was not accepted by the Secretary of State

who responded by a letter of 16 August 1993:

"The Secretary of State cannot accept the Panel's recommendation

for transfer to a category D establishment, as you [the

applicant] have not fully confronted or tackled your sexual

offending behaviour."

The applicant appealed against the decision of the Secretary of

State. On 27 July 1994 the High Court of Justice, Queen's Bench

Division, refused an application for leave for judicial review, after

consideration of the documents only. On 27 July 1994 the High Court

of Justice, Queen's Bench Division, refused an application for leave

for judicial review after hearing oral submissions from counsel on

behalf of the applicant. On 22 February 1995 the Court of Appeal Civil

Division refused the applicant's renewed application for judicial

review of the decision of 16 August 1993.

On 16 August 1995 the applicant had a further DLP hearing at HMP

Lindholme. The Parole Board DLP recommended that the applicant should

remain a category C Prisoner and undertake the sex offender treatment

programme. The next Discretionary Lifer Parole Board hearing will be

in August 1997.

B. Relevant domestic law

With regard to decisions connected with the early release of

prisoners Section 32 (2) of the Criminal Justice Act 1991 states:

"It shall be the duty of the Board to advise the Secretary of

State with respect to any matter referred to it by him which is

connected with the early release or recall of prisoners."

Under Section 34 of the Criminal Justice Act 1991 the

Discretionary Lifer Panel of the Parole Board may direct the release

of a discretionary life prisoner in certain circumstances, and when it

so directs, the Secretary of State is under a duty to release the

prisoner. The Board is not permitted to give a direction unless it "is

satisfied that it is no longer necessary for the protection of the

public that the prisoner should be confined" (Section 34 (4) (b).

COMPLAINTS

The applicant complains that the refusal of the Secretary of

State to accept the Parole Board DLP's recommendation to move the

applicant to an open prison in 1993, rendered an effective assessment

of the applicant's danger to the public impossible. The applicant

considers such lack of an effective review of his dangerousness and

thus the lawfulness of his detention, was in violation of Article 5

para. 4 of the Convention. He further complains that the retention of

discretion by the Secretary of State under the Criminal Justice Act

1991, as to whether to follow recommendations of the Parole Board DLP

with regard to the removal of a prisoner to a lower security prison,

is a violation of Article 5 para. 4 of the Convention.

The applicant complains in the alternative that the Secretary of

State's decision not to accept the decision of the Parole Board DLP was

so unreasonable as to render it unlawful, and as such the applicant's

continued detention in a category C prison was likewise unlawful.

THE LAW

The applicant complains that the refusal of the Secretary of

State to accept the Parole Board DLP's recommendation to move him to

a less secure prison amounted to a breach of Article 5 para. 4

(Art. 5-4) of the Convention.

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

follows:

"4. 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."

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., Thynne, Wilson and Gunnell v. the United Kingdom

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

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

confinement necessary to satisfy the requirements of retribution and

deterrence, expired on 11 February 1991. From that date the applicant

was entitled to take proceedings by which the lawfulness of his

detention would be determined speedily by a court (see No. 20448/92,

A.T. v. the United Kingdom, Comm. Rep. 29.11.95).

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" (see the above-mentioned Report of

29 November 1995, Application No. 20448/92). To that extent there is

de facto an automatic periodic review of a judicial character (see Eur.

Court H.R., Herczegfalvy v. Austria judgment of 24 September 1992,

Series A no. 244, p. 24, para. 75 with further references).

The DLP, in its decision of 13 July 1993, found that the

applicant was still a risk. It was not satisfied that it was not

necessary for the protection of the public that the applicant should

be confined, and in the exercise of its statutory powers, did not

direct his release.

In order to ascertain whether the provisions of Article 5 para. 4

(Art. 5-4) of the Convention were complied with in the present case,

the Commission is not required to look beyond the wording of that

provision. Article 5 para. 4 (Art. 5-4) requires a review by which the

"lawfulness" of detention will be determined, and on 13 July 1993 the

DLP determined that issue. It had power to release, or at least to

direct release, if it considered that the applicant's detention was no

longer necessary for the protection of the public, and therefore

complied with the structural requirements of Article 5 para. 4

(Art. 5-4) of the Convention. No complaint has been made about any

procedural aspects of the DLP's decision.

The applicant complains that the Secretary of State's refusal to

follow the DLP's recommendation to transfer the applicant to a category

D prison was unreasonable and, indeed, it was in respect of this

refusal that the applicant attempted judicial review proceedings.

However, the Secretary of State, when refusing to follow that

recommendation, was not determining the lawfulness of detention within

the meaning of Article 5 para. 4 (Art. 5-4) of the Convention, and so

the guarantees of that provision cannot apply to the refusal.

Finally, the Commission notes that the applicant, in his

complaints, makes reference to alleged unlawfulness of his detention.

The applicant was convicted in November 1983, and there is nothing in

the application to suggest that his detention was not compatible with

the provisions of Article 5 para. 1 (Art. 5-1) of the Convention

throughout: Article 5 para. 1 (a) (Art. 5-1-a) until the expiry of the

tariff in 1991, and Article 5 para. 1 (a) and/or (e)(Art. 5-1-a, 5-1-e)

thereafter.

It follows the application is manifestly ill-founded as a whole

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M. F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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K.M. v. THE UNITED KINGDOM

K.M. v. THE UNITED KINGDOM

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