Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21387/93

by David WATSON

against the United Kingdom

The European Commission of Human Rights sitting in private on

21 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 April 1992 by

David WATSON against the United Kingdom and registered on

16 February 1993 under file No. 21387/93;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

13 March 1995 and those of the applicant submitted on

19 January 1996.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, was born in 1942, is

currently in prison in Devon and is represented before the Commission

by B. M. Birnberg, Solicitors practising in London. The facts of the

case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

In April 1975 the applicant was sentenced to a term of

discretionary life imprisonment for four offences of buggery of boys

aged between 12 and 15. He also received a fixed sentence of 7 years.

He appealed unsuccessfully against his life sentence to the Court of

Appeal. The Court of Appeal commented that the applicant was better off

with a discretionary life sentence than with a fixed sentence.

In 1978 the Joint Committee considered the applicant's case for

the first time and decided to review the matter again in March 1984.

The Home Office referred the matter to the Joint Committee again in

August 1983 when the Joint Committee recommended that the case be

referred to the Local Review Committee in August 1985. That latter

committee found that the applicant was not fit to be given a

provisional release date.

In March 1986 the Minister of State consulted the trial judge and

the Lord Chief Justice. The trial judge urged that the applicant not

be released "unless there are the strongest grounds for believing he

is no longer a menace to boys". The Lord Chief Justice considered that

there was no doubt that the applicant would remain a menace to any

available boy for some time to come but that it did not seem right to

keep him in prison until he lost his libido. He concluded that "At a

guess I would suggest 15 years as a minimum. He is intelligent enough

to know what will happen if he is caught again". Having considered the

papers, the Minister of State set the applicant's tariff at 15 years.

The applicant was not informed of these developments. The Parole Board

examined the applicant's case in June 1986. They concluded that he

still represented a very clear risk of re-offending and they

recommended that he should be transferred to Category C conditions with

a review two years after the transfer.

On 1 October 1992 section 34 of the Criminal Justice Act 1991

came into force. As part of the certification process envisaged by

paragraph 9 of Schedule 12 of that Act, the applicant was informed by

certificate dated 29 July 1992 that section 34 applied to his case,

that his tariff was 15 years and that it had accordingly expired in

September 1989. The applicant submits that he had known informally of

the tariff for a number of months previously. On 28 August 1992 the

applicant was informed that his case had been referred to the Parole

Board and that it would be considered by a Discretionary Lifer Panel

in January 1993. Following a hearing on 19 January 1993 by that panel

(which by then had the power to direct the applicant's release pursuant

to the 1991 Act), a direction was given for the applicant's release.

Accordingly, the applicant was released on licence on

1 February 1993. However, he was subsequently recalled to prison and

he has introduced another application to the Commission in relation to

his recall and subsequent detention. B. Relevant domestic law and

practice

1. Prior to 1 October 1992

Pursuant to section 61 of the Criminal Justice Act 1967 the power

to release on licence a person sentenced to life imprisonment lay with

the Secretary of State. He could release a prisoner on licence if

recommended to do so by the Parole Board and after consultation with

the Lord Chief Justice and the trial judge if available. The

consultation with the judiciary related to the requirements of

retribution and deterrence (the tariff) and to risk assessment.

The Joint Committee, made up of representatives of the Parole

Board and the Home Office, was set up in 1973 and its purpose was to

recommend to the Home Secretary in each life sentence case a date for

the first formal review by the Local Review Committee and thereafter

by the Parole Board. The Joint Committee's consideration of the timing

of the first review normally took place when the prisoner had been

detained for about three years. When release seemed a realistic

possibility (for example, when the Joint Committee had recommended that

it was an appropriate time for the case to be referred to the Parole

Board), the Secretary of State would seek the views of the judiciary.

Pursuant to section 59 of the 1967 Act, the Secretary of State

established for every prison a Local Review Committee with the function

of advising him on the suitability for release on licence of prisoners.

It was the practice for this assessment to take place before referring

the matter to the Parole Board. Before the Local Review Committee

reviewed a case, a member of that committee was to interview the

prisoner if he was willing. (Local Review Committees were abolished by

the Parole Board Rules 1992.)

In 1983 the then Home Secretary announced a change in the tariff

setting procedures whereby the Home Secretary would seek the

judiciary's views on tariff usually after the prisoner had been

detained for three years and the first review by the Local Review

Committee normally took place three years before the expiry of the

tariff at which stage the judiciary would again be consulted.

In March 1987 the Court of Appeal gave judgment in the Hanscomb

case (R v. Secretary of State for the Home Department ex parte Hanscomb

and Others [1988] 86 Cr. Rpts 59). It was decided that the Home

Secretary's consultation with the judiciary should take place as soon

as possible after sentencing. In addition, the tariff should correspond

strictly to the punitive fixed-term sentence that would be imposed by

way of punishment alone (taking account of a notional period which

would be remitted due to good behaviour).

Following this judgment, the Home Secretary issued a policy

statement in 1987 stating that the date of the first formal review

would be fixed in accordance with the judicial view of the requirements

of retribution and deterrence. The judgment in the case of McCartney

(judgment of the Court of Appeal of 19 May 1994) which followed noted

that it would be "surprising" if Parliament intended the Secretary of

State to have a wholly unfettered discretion to set whatever tariff he

thought fit in the light of his own view on deterrence and retribution

because that would be contrary to the declared policy in 1987 that the

Secretary of State would accept the views of the judiciary.

2. After 1 October 1992

Following the judgment of the Court in Thynne, Wilson and Gunnell

(Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom

judgment of 25 October 1990, Series A no. 190), the Criminal Justice

Act 1991 ("the 1991 Act") came into force on 1 October 1992.

The 1991 Act instituted changes to the regime applicable to the

release of discretionary life prisoners. Pursuant to section 34 of the

1991 Act, the tariff of a discretionary life prisoner is fixed in open

court by the trial judge after conviction. After the tariff has

expired, the prisoner may require the Secretary of State to refer his

case to the Parole Board which has the power to order his release if

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

the public that he be detained.

Under paragraph 9 of Schedule 12 to the 1991 Act, which is a

transitional provision of that Act, the Secretary of State can apply

the provisions of section 34 to discretionary life prisoners who were

sentenced before the Act came into force. This is done by issuing a

certificate stating that, if the 1991 Act had been in force when the

person was sentenced, section 34 would have applied.

Three members of the Parole Board are appointed by that board's

chairman to consider discretionary life cases and they constitute a

Discretionary Life Panel ("DLP"). Pursuant to the Parole Board Rules

1992 (which came into effect on 1 October 1992) a prisoner before the

DLP is entitled to, inter alia, an oral hearing before the DLP, to have

relevant papers (including prison reports) in advance of the hearing,

to comment on the evidence in advance of the hearing, to attend the

hearing, to be legally represented and to be legally aided if he

qualifies under the normal rules. A prisoner can also apply to call

witnesses on his behalf and to cross-examine other witnesses who have

written reports about him. A reasoned decision by the DLP is delivered

within seven days of the hearing.

COMPLAINTS

1. The applicant complains that he was unlawfully deprived of his

liberty. He also complains about the manner in which his tariff was

fixed and about the length of that tariff period. He invokes Article

5 paras. 1, 4 and 5 and Article 6 para. 1 of the Convention.

2. The applicant also complains that the review procedure applicable

after the expiry of his tariff did not conform with Article 5 para. 4

of the Convention as it was neither speedy nor conducted by a body

satisfying the requirements of that provision. He also invokes Article

5 para. 5 of the Convention in this respect.

3. The applicant further complains about not being released from

prison in order to pursue his complaint before the Commission. He also

submits that the decision of the Commission dated 30 August 1994 should

be re-opened in light of his initial lack of legal representation

before the Commission, the subsequent inadequate nature of his legal

representation and on the basis of certain evidence which has come to

light.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 April 1992 and was

registered on 16 February 1993.

On 30 August 1994 the Commission decided to communicate to the

respondent Government the applicant's complaints concerning the review

procedure applied to the applicant as a discretionary life prisoner and

the role played by the executive in fixing the applicant's tariff and

to declare the remainder of the application inadmissible.

The Government's written observations were received on

13 March 1995 after two extensions of the time-limit fixed for that

purpose.

On 13 April 1995 the Commission granted the applicant legal aid

and the applicant's observations were received on 19 January 1996 after

two extensions of the time-limit fixed for that purpose.

THE LAW

1. The applicant complains under Article 5 paras. 1, 4, 5 and

Article 6 para. 1 (Art. 5-1, 5-4, 5-5, 6-1) of the Convention about the

lawfulness of his original detention. He also complains under these

Articles about the manner in which his tariff was fixed and about the

length of that tariff period.

Article 5 (Art. 5), insofar as relevant, reads as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a

competent court...

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.

5. 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."

Article 6 para. 1 (Art. 6-1) provides, insofar as relevant, as

follows:

"1. In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law..."

At the outset the Commission notes the announcement of the Home

Secretary in 1983, the judgment in the Hanscomb case (R v. Secretary

of State for the Home Department ex parte Hanscomb and Others [1988]

86 Cr. Rpts 59) and the subsequent announcement of the Home Secretary

in 1987. Insofar as these developments may give rise to an issue as to

non-exhaustion of domestic remedies, the Commission recalls that it is

its normal practice, where an application has been communicated to the

respondent Government in part or as a whole, not to declare the

relevant complaint inadmissible for failure to exhaust domestic

remedies unless this matter has been raised by the Government in their

observations (No. 23924/94, Dec. 27.6.96, unpublished).

In the present case, the Government have not objected to the

admissibility of the complaint on grounds of non-exhaustion of domestic

remedies and, accordingly, the Commission finds that the application

cannot be declared inadmissible on such grounds.

As to the substance of the complaints, the Government submit that

the determination of the criminal charges against the applicant took

place at his original trial by the imposition of the life sentence

since it was the life sentence which provided the justification for the

subsequent tariff. Any period fixed by the executive as a tariff was

imposed as a direct consequence of the sentence of life imprisonment

imposed by the sentencing court which court was fully aware that the

tariff would be fixed by the executive after consultation with the

judiciary. The Government also argue that, in any event, the safeguards

(particularly the fixing of the tariff in accordance with judicial

advice) inherent in the tariff fixing system were sufficient to assure

the fairness requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.

The applicant maintains that the Convention organs recognise that

the determination of the sentence constitutes as much a part of the

determination of the criminal charge as the finding as to guilt or

innocence. Accordingly, the fixing by the Home Secretary of the tariff

period amounted to a determination of the length of the punitive period

of the applicant's sentence and, as such, Article 6 para. 1 (Art. 6-1)

of the Convention is clearly applicable. However, his tariff was fixed

secretly by the executive, approximately eleven years after the trial.

He had no opportunity to comment and no hearing. He was not copied with

any reports, the advice of the judiciary or informed that his tariff

had been fixed or even expired. He also refers to expert evidence in

arguing that a tariff of 15 years (equivalent to a 22 and a half year

sentence) was excessive.

These matters, according to the applicant, demonstrate a

violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards

the fixing and length of his tariff. The applicant argues, in the

alternative, that the tariff-fixing exercise attracts the safeguards

of Article 5 para. 4 (Art. 5-4) of the Convention which guarantees were

clearly not satisfied by that procedure and that the absence of any

enforceable right to compensation for the unjustifiably long tariff

gives rise to a violation of Article 5 para. 5 (Art. 5-5) of the

Convention. The applicant maintains his complaint under Article 5 para.

1 (Art. 5-1) of the Convention as to the unlawfulness of his detention.

The Commission finds, in the light of the parties' submissions,

that this part of the application raises complex and serious issues

under the Convention which require determination on their merits. It

follows that it cannot be dismissed as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring it inadmissible has been established.

2. The applicant also complains that, following the expiry of his

tariff in 1989, he did not have available a speedy review of the

lawfulness of his continued detention by a court-like body, as required

by Article 5 para. 4 (Art. 5-4) of the Convention. He also claims that

he did not have an enforceable right to compensation.

As far as the "speediness" of the review is concerned the

Government consider that only the period after the Court's judgment in

the case of Thynne, Wilson and Gunnell (Eur. Court HR, Thynne, Wilson

and Gunnell v. the United Kingdom judgment, loc. cit.) can be

considered as the relevant period since after that judgment the

applicant could have taken his own application before the Commission

in order to establish his rights under Article 5 para. 4 (Art. 5-4) of

the Convention.

In addition, the Government refer to the complexity and breadth

of the changes necessary following the above-mentioned judgment in the

Thynne, Wilson and Gunnell application involving introducing primary

legislation, dealing with a backlog consisting of an exceptionally

large number of cases to whom the new arrangements applied and to large

administrative changes required. The effect was that it took over three

months after the coming into force of the 1991 Act for the applicant's

review to take place which, in the opinion of the Government, was

sufficiently swift for the purposes of Article 5 para. 4 (Art. 5-4) of

the Convention.

As to the character of the reviewing body, the Government refer

to section 34 of the 1991 Act and the procedural rules made under that

Act which answer the problems noted by the Court in the Weeks judgment

as regards the Parole Board (Eur. Court HR, Weeks v. the United Kingdom

judgment of 2 March 1987 Series A Nos. 114). Accordingly, the

applicant's review on 19 January 1993 under the system set up by the

1991 Act constituted a review by a court-like body within the meaning

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

The Government therefore submit that these complaints disclose

no violation of Article 5 para. 4 (Art. 5-4) or, consequently, of

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

The applicant maintains that he was deprived of a speedy

determination of the lawfulness of his detention (pointing to a delay

between September 1989 and 19 January 1993) by a body satisfying the

requirements of article 5 para. 4 (Art. 5-4) of the Convention. As to

the speediness of the review and the character of the reviewing body

the applicant refers to the E v. Norway case (Eur. Court HR, E. v.

Norway judgment of 29 August 1990, Series A no. 181-A) and to the

above-mentioned cases of Weeks and Thynne, Wilson and Gunnell as

regards the absence of a court-like body.

The Commission finds that, in the light of the parties'

submissions, this aspect of the case also raises serious issues of fact

and law under the Convention which require determination on their

merits. It follows that it cannot be dismissed as manifestly ill-

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

Convention. No other ground for declaring it inadmissible has been

established.

3. The applicant also complains about not being released from prison

in order to pursue his complaint before the Commission. He also submits

that the decision of the Commission dated 30 August 1994 should be re-

opened on the basis that he did not have legal representation before

the Commission for a long period of time, that his legal representative

when appointed did not adequately represent him and on the basis of

evidence which has recently come to light.

The Commission has considered the applicant's complaints about

his conducting his application to the Commission from prison under

Article 25 (Art. 25) of the Convention. However, the Commission

considers that there is no evidence that the applicant was prevented

in any way by the prison authorities from making his submissions to the

Commission. In addition, Article 25 (Art. 25) of the Convention does

not guarantee the right to be released from prison while conducting

such an application. Accordingly, the Commission considers that no

action is required to be taken under Article 25 (Art. 25) of the

Convention.

As regards the applicant's request to re-open his application,

the Commission notes that pursuant to Article 27 para. 1(b)

(Art. 27-1-b) of the Convention it may not reconsider a complaint

already examined by the Commission unless the applicant presents

relevant new information. Having reviewed the applicant's submissions

in this respect, the Commission finds no relevant new information and,

accordingly, considers these complaints of the applicant inadmissible

pursuant to Article 27 para. 1 (Art. 27-1) of the Convention.

For the these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints concerning the lawfulness of his

detention, the speed of the reviews of his detention after the

expiry of the tariff period, the absence of a court-like body

conducting those reviews, the length of his tariff and the manner

of its fixing;

DECLARES INADMISSIBLE the remainder of the application; and

DECIDES to take no action concerning the applicant's allegation

of interference with his right of petition and not to re-open its

partial decision as to the admissibility of the application dated

30 August 1994.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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WATSON v. THE UNITED KINGDOM

WATSON v. THE UNITED KINGDOM

LEXI