Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21848/93

by T.M.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 23 November 1992

by T.M. against the United Kingdom and registered on 13 May 1993 under

file No. 21848/93;

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

6 July 1994 and the applicant's observations in reply dated

20 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1959 and is currently

serving a prison sentence of discretionary life imprisonment in HM

Prison Lindholme. He is represented before the Commission by

Mr. David Watson, who is also serving a sentence of life imprisonment.

A. The particular circumstances of the case

The facts as submitted by the parties may be summarised as

follows.

From the age of seven, the applicant was in the care of a local

authority during which time he suffered emotional, physical and sexual

abuse. He developed a drink problem and a history of self-mutilation

and attempted suicide.

At the age of 17, the applicant who had been drinking was

involved in the killing of 2 women. He pleaded guilty to manslaughter

and received a discretionary life sentence on 13 October 1978. He

recalls that the judge stated that he would be released when it was

safe.

After serving about four and a half years, the applicant recalls

being informed that he would not be considered for release for another

nine years. He later was shown a letter from the Secretary of State

stating that he might be considered three years earlier.

His tariff (the part of his sentence attributable to deterrence

and punishment) had been fixed after his trial at 18 years. This was

reduced by the Secretary of State to 15 years in 1987. The applicant

was not informed of these matters at the time.

In a letter dated 21 July 1992 on behalf of the Secretary of

State, the applicant was informed that the "relevant part of

your sentence is 15 years, which expires on 6 May 1993". At that date

his case would be referred to the Parole Board under the provisions of

the Criminal Justice Act 1991.

The Parole Board considered the applicant's case on

1 February 1994 and recommended that the applicant be transferred to

open prison conditions and his case be reviewed in eighteen months,

which recommendation was accepted by the Secretary of State.

B. Relevant domestic law and practice

Release on licence and revocation of licences

Persons sentenced to mandatory and discretionary life

imprisonment, custody for life and those detained at Her Majesty's

pleasure have a "tariff" set in relation to that period of imprisonment

they should serve to satisfy the requirements of retribution and

deterrence. After the expiry of the tariff, the prisoner becomes

eligible for release on licence. Applicable provisions and practice in

respect of the fixing of the tariff and release on licence have been

subject to change in recent years, in particular, following the coming

into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991

Act).

i. Prior to 1 October 1992

Section 61 (1) of the Criminal Justice Act 1967 provided, inter

alia:

"The Secretary of State may if recommended to do so by the Parole

Board, release on licence a person serving a sentence of

imprisonment for life or a person detained under section 53 of

the Children and Young Persons Act 1933 (young offenders

convicted of grave crimes), but shall not do so in the case of

a person sentenced to imprisonment for life or to detention

during Her Majesty's pleasure or for life except after

consultation with the Lord Chief Justice of England together with

the trial judge if available."

The applicable procedures were the subject of examination in

judicial review proceedings in the Handscomb case (R. v. Secretary of

State for Home Department, ex parte Handscomb and others (1988) 86 Cr.

App. R. 59) in which the Divisional Court noted that the Lord Chief

Justice and the trial judge were being asked to provide a tariff

representing the number of years which a discretionary life prisoner

should be detained to serve the twin purposes of retribution and

deterrence and that the views of the judges as to tariff were intended

to have a decisive bearing in all cases as regarded the fixing of the

review procedures.

In a parliamentary written answer to the House of Commons on

23 July 1987, the Secretary of State stated that in respect of

discretionary life prisoners the tariff would be fixed in accordance

with the judicial view which would be sought as soon as practicable

after sentence.

ii. From 1 October 1992

On 1 October 1992, Part II of the Criminal Justice Act 1991 (the

1991 Act) came into force.

The 1991 Act instituted changes to the regime applying to the

release of discretionary life prisoners following the decision of the

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

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

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. Pursuant to the Parole Board Rules 1992 which came into force

on 1 October 1992, a prisoner is entitled to an oral hearing, to

disclosure of all evidence before the panel and to be legally

represented. There is provision enabling a prisoner to apply to call

witnesses on his behalf and to cross-examine those who have written

reports about him.

COMPLAINTS

The applicant complains under Article 3 of the Convention of the

treatment which he received while in care of the local authority

referring to physical and sexual abuse and a denial of information in

relation to his family.

The applicant also complains about the length of his sentence as

fixed by the tariff. He invokes Article 5 para. 1 (a) of the Convention

in that the 15 year tariff was in effect fixed by a committee sitting

in private in or about 1983 five years after his trial. Since this

committee did not constitute an independent and impartial tribunal and

its decision was not made public or reached within a reasonable time,

he invokes Article 6 of the Convention. He also invokes Article 3 as

regards the cruelty of being kept in prison under these circumstances.

The applicant further complains that the he did not obtain a

proper review of the lawfulness of his continued detention by the

previous Parole Board as required by Article 5 para. 4 and that he has

no possibility of speedy review by the new Parole Board in view of the

huge waiting list of cases. He claims compensation under Article 5

para. 5 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 December 1992 and registered

on 13 May 1993.

On 19 October 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application in respect of issues

arising under Article 5 paras. 4 and 5.

The Government's observations were submitted on 6 July 1994 and

the applicant invited to make submissions in reply by

20 September 1994. On the applicant's representative failing to

respond, the Secretariat informed him by letter dated 7 November 1994

that in the absence of any response the Commission might proceed to an

examination of the case as it stood. By a registered letter dated

6 December 1994, the Secretariat referred to the continuing lack of

response and warned that in the absence of any explanation the

Commission might proceed to strike the case from its list.

Following a letter from the applicant's representative dated

24 January 1995, in which he stated he wished to continue with the

application, the Commission on 22 February 1995 agreed to an extension

in the time-limit for submission of observations on behalf of the

applicant. The applicant's representative submitted observations in

reply on 20 March 1995.

THE LAW

As to the delay concerning review by the new Parole Board

1. The applicant complains of the delay between the expiry of his

tariff and the review of his detention by the Parole Board. He alleges

a violation of Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the

Convention which provide 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.

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 26 (Art. 26) of the Convention: exhaustion of domestic

remedies

The Government consider that the applicant has not exhausted

domestic remedies since he could have applied to the courts for

judicial review of delay in respect of the listing of the case, or in

respect of delay in the hearing of the case once it had been listed.

The Commission recalls that the same argument was raised in the

case of A.T. v the United Kingdom (No. 20448/92, dec. 28.6.95) which

also concerned a complaint of delay in the review given to a

discretionary life prisoner by the new Parole Board. In its decision

on admissibility the Commission noted that an application for judicial

review would have been alleging that the priorities set by the Home

Secretary for putting the cases of discretionary life prisoners were

irrational or otherwise "Wednesbury unreasonable". The Commission

found that insuperable barriers were in the way of any such application

since, for example, there was no indication that the priorities set up

by the Home Secretary were in any way unreasonable and it was not

possible to challenge the provisions of a statute such as the Criminal

Justice Act 1991 by way of judicial review.

The Commission finds that the same considerations apply in the

present case. It therefore concludes that the applicant has not failed

to exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention.

As regards the substance of the complaints

The Government explain that, on the coming into force of the

Criminal Justice Act 1991, the authorities established a priority list

of cases to be heard, with precedence being given to prisoners whose

tariffs had expired before 1 October 1992 (when the Act came into

force). The delay in hearings for prisoners whose tariff expired after

that date was, in their submission, slight and an inevitable

consequence of the large number of prisoners who became eligible for

review at the same time. Further, steps were taken to minimise any

delay by, inter alia, adding 22 new members to the Parole Board to cope

with the new workload.

The applicant's representative submits that a discretionary life

sentence does not authorise imprisonment beyond the tariff date unless

there is evidence of dangerousness and that Article 5 para. 4

(Art. 5-4) requires that this element be reviewed speedily which

should, in his opinion, be a matter of days not months. He points out

that time before the expiry of tariff can be used to prepare for a

hearing and that proper sentence planning can prevent undue delays on

expiry of tariff periods.

The Commission finds that the present complaints under Article

5 paras. 4 and 5 (Art. 5-4, 5-5) involve serious issues of law under

the Convention, the determination of which must be reserved to an

examination of the merits.

This part of the application cannot therefore be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, no other ground for declaring it

inadmissible having been established.

As to the remaining complaints

2. The applicant complains also of a lack of a proper review prior

to the new system coming into force and invokes Article 5 para. 4

(Art. 5-4) of the Convention also in this respect.

The Commission recalls that the case-law of the Commission and

Court establishes that prisoners serving a 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" part of their sentence has expired (see Eur. Court H.R., Weeks

judgment of 2 March 1987, Series A no. 114, and Thynne, Wilson and

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

The Commission notes that in the present case the applicant's

tariff expired on 6 May 1993 after the new system had come into force.

In these circumstances, the Commission finds that the applicant's

complaints about a lack of proper review prior to this date fail to

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

(eg. No. 18757/91, dec. 14.10.92, to be published in D.R.). It follows

that this part of the application must be rejected as manifestly ill-

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

Convention.

3. The applicant also makes a number of complaints relating to the

tariff fixed in respect of his sentence. He complains of it being

excessively long and that it was fixed by a committee rather than a

judicial body fulfilling the necessary judicial guarantees. He invokes

Articles 3, 5 paras. 1 (a) and 6 (Art. 3, 5-1-a, 6) of the Convention.

Insofar as the applicant complains of the length of the tariff,

the Commission notes that matters of the fixing of the appropriate

length of sentence for particular offences generally fall outside the

scope of the Convention. Even assuming an issue could arise as regards

the imposition of a sentence excessively disproportionate to the crime

charged, the Commission is satisfied that the facts of the present case

would not fall within that category. The Commission also finds that the

applicant's complaints with regard to the cruelty of his continued

detention do not disclose ill-treatment of a nature or degree to fall

within the scope of Article 3 (Art. 3) of the Convention.

As regards the applicant's complaints as to the fixing of the

tariff by a committee and not a court, the Commission recalls that the

basis of the applicant's detention is his conviction by a competent

court, which sentenced him to a term of discretionary life

imprisonment. Further it appears that the practice since 1983 has been

for the Secretary of State to accept the judicial view of tariff. While

there may have been some confusion in the applicant's case as to

whether the tariff was 18 or 15 years, there is no indication that the

Home Secretary departed from the view of the judiciary in this case.

Consequently, the Commission finds that the applicant's

complaints in this regard fail to disclose any appearance of a

violation of Article 5 para. 1 (a) or Article 6 para. 1

(Art. 5-1-a, 6-1) of the Convention.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant, lastly, complains under Article 3 (Art. 3) of the

Convention of the treatment which he received while in care of the

local authority, referring to physical and sexual abuse and a denial

of information in relation to his family.

The Commission, however, is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken". Where no remedies exist in relation to the complaints in issue,

the six month period runs from the date of the act complained of.

In the present case, even assuming that the applicant has

exhausted any domestic remedies which might have been available to him

in relation to his treatment while in care, the Commission notes that

the applicant left the care of the local authority in or about 1977

whereas the application was submitted to the Commission on

23 November 1992, that is, more than six months after this period had

ended. Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the applicant's complaints under Article 5

paras. 4 and 5 (Art. 5-4, 5-5) of the Convention regarding the

speed of the review before the Parole Board, without prejudging

the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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T.M. v. THE UNITED KINGDOM

T.M. v. THE UNITED KINGDOM

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