AS TO THE ADMISSIBILITY OF

                       Application No. 20448/92

                      by A. T.

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

           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 10 October 1991

by A. T. against the United Kingdom and registered on 6 August 1993

under file No. 20448/92;

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

of Procedure of the Commission;

     Having regard to:

-    the Commission's decision of 7 September 1993 to declare the

     application partly inadmissible and to communicate the remainder

     to the respondent Government for observations on its

     admissibility and merits;

-    the Government's observations of 17 November 1993 and the

     applicant's observations in reply of 30 December 1993;

-    the hearing on the admissibility and merits of the application

     held on 2 December 1994;

-    the Government's further observations of 30 January 1995 and the

     applicant's comments in reply of 30 March 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a United Kingdom citizen born in 1949.  He is

represented before the Commission by Mr. S. Creighton, solicitor, of

Prisoners' Advice Service, and Mr. B. Emmerson, counsel.  The facts of

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

The particular facts of the case

     On 3 June 1988 the applicant pleaded guilty to the manslaughter

of his mother on the grounds of diminished responsibility.  The plea

was accepted.  On 1 July 1988 he was sentenced at the Central Criminal

Court, London, to an indeterminate period of life imprisonment.  The

Common Serjeant, sentencing, made the following remarks.

     "... All the medical evidence before the Court confirms that you

     were suffering from a mental illness called schizophrenia, but

     as no bed was available in any suitable hospital, and I did not

     have the necessary information to make a hospital order, which

     was my declared intention, I accordingly postponed sentence for

     twenty-eight days to see whether or not a bed could be made

     available.

     I am still of the opinion that the proper disposal in your case

     would be by means of a hospital order, but because of the lack

     of facilities - the lack of a bed - I am unable to make that

     order.  The only possible alternative order I can make is to

     sentence you to an indeterminate period of life imprisonment.

     Now that, in your case, I am confident, does not mean life, it

     will mean somewhat less.  How long you stay in prison depends

     upon your improvement and how you behave there, but in order that

     your medical condition shall be fully appreciated by staff at

     hospital ... I shall invite the prison authorities to consider

     whether, in the light of [... medical opinions ...] it would be

     possible to transfer you to a hospital where you could receive

     proper treatment for your illness."

     In 1991 the applicant applied for an extension of time in which

to apply for leave to appeal against sentence.  The single judge

refused and, on 29 July 1991, the full Court of Appeal also refused,

finding the approach of the trial judge to be entirely correct.

     By letter of 8 June 1992 the applicant was informed that

Section 34 of the Criminal Justice Act 1991 applied to his case, and

that the "tariff" in his case, that is, his period of confinement

necessary to satisfy the requirements of retribution and deterrence,

was to expire on 8 December 1992.  Section 34, which entered into force

on 1 October 1992, provides that it shall be the duty of the Secretary

of State to release prisoners to whom the Section applies in cases

where, broadly, the "tariff" has expired and the Board is satisfied

that continued confinement of the prisoner is no longer necessary.  The

applicant was also told that he would be informed of the date on which

his case would be referred to the Parole Board under the new

arrangements.

     The applicant was informed on 5 August 1993 that his case had

been referred to the Parole Board and would be considered by a

Discretionary Lifer Panel (DLP) on 11 or 12 January 1994.  The referral

had in fact taken place on 11 January 1993.  The DLP considered the

case on 12 January 1994.  The applicant was informed by letter of

17 January 1994 that the DLP was not satisfied that it was no longer

necessary for the protection of the public that he be confined.  The

DLP did not, therefore, direct his release.  The DLP noted that the

applicant "remain[ed] vulnerable to the pressures of independent living

and [had] not developed sufficient appreciation of [the] need for

assistance from professional agencies including forensic psychological

and psychiatric services.  They could not be satisfied that without

some experience of living in open conditions [his] release would not

present a risk to the public."

     The DLP recommended that the applicant should be transferred

immediately to a Category D prison and that his case should be further

reviewed in not more than 12 months.

     On 28 February 1994 applicant was told that he would be

transferred to a Category D prison when a suitable vacancy arose, and

that his case would be reviewed internally within the Prison Service

nine to twelve months after transfer, in order to determine the date

of his next DLP hearing.  The letter continued that the date of his

next review would be decided on the basis of his performance in open

conditions and would be held no later than January 1996.

     On 3 March 1995 the applicant was informed by letter that his

case had been referred back to the DLP.  His next review will take

place in September 1995.

Relevant domestic law

     Section 34 of the Criminal Justice Act 1991 makes provision for

the Parole Board (known, in this context, as the Discretionary Lifer

Panel) to have power to direct the Secretary of State to release

discretionary life prisoners where certain conditions are fulfilled.

The operation was discussed in a letter of 14 November 1994 from the

Prison Service to the applicant's representative:

     "... Referral of cases to the Board

     Section 34 (5) of the 1991 Act enables a discretionary life

     prisoner to require the Secretary of State to refer his case to

     the Board after he has served the relevant part of his sentence

     and every two years thereafter beginning with the disposal of

     that reference.

     In practice, it is never necessary for a prisoner to invoke this

     provision because, as a matter of policy, the Secretary of State

     refers a case to the Board on, or shortly after, expiry of the

     relevant part.  The DLP hearing then follows some 23 weeks (see

     the next paragraph) later.  (In certain very exceptional cases

     where the prisoner has made rapid and impressive progress and has

     already been adequately and successfully tested in open

     conditions before expiry of the relevant part, the Secretary of

     State may exercise his discretion to refer such cases to the

     Board before expiry so that the hearing may be held on or shortly

     after the relevant part expires.)

     The significance of the 23 week period is that this is the time

     generally required for the timetable of events leading up to a

     DLP hearing. ...

     For any second and subsequent reviews, the case is referred to

     the Board some 81 weeks following the previous hearing (ie 104

     weeks minus 23 weeks), thus enabling that hearing to take place

     on the second anniversary of the disposal of the previous

     reference.

     Timing of subsequent reviews

     In some cases, the DLP may recommend to the Secretary of State

     that the next review should be held before the period of two

     years has elapsed.  The Panel might specify that this should be

     an internal review by the Prison Service; a DLP review under

     Section 34 of the Act; or simply an early review, leaving the

     precise form of the review open.  It is for the Secretary of

     State to decide whether or not to accept such a recommendation

     and the type of review which should take place."

COMPLAINTS

     The applicant initially alleged a violation of Articles 3 and 8

of the Convention which the Commission declared inadmissible on

7 September 1993.

     The applicant also alleges that, after conviction, he was wrongly

diagnosed schizophrenic and that a life sentence should therefore not

have been imposed.  He alleges a violation of Article 5 para. 4 of the

Convention in that there exists no court which will consider the merits

of his appeal against what he calls the baseless medical evidence

presented at trial.

     In the application as pursued by his representatives, the

applicant alleges a violation of Article 5 para. 4 of the Convention

in two further respects.  First, he alleges that the period of thirteen

months from expiry of his "tariff" to his initial hearing before the

DLP in January 1994 did not comply with the requirement of that

provision that a decision on lawfulness should be taken "speedily".

Secondly, he alleges that the same provision was violated because his

second review will only take place in September 1995.  In this

connection, he considers that the period of 24 months between reviews

envisaged by Section 34 of the Criminal Justice Act is itself

excessive.  He alleges that the fact that Secretary of State did not

follow the DLP's recommendation for a further review in 12 months is

clear indication of the excessive delay in this review.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 10 October 1991 and registered

on 6 August 1993.

     On 7 September 1993 the Commission declared the application

partly inadmissible and communicated the remainder to the respondent

Government for observations on its admissibility and merits.

     The Government's written observations were submitted on

17 November 1993 and the applicant's observations in reply on

30 December 1993.

     On 31 August 1994, the Commission decided to hold a oral hearing.

     At the oral hearing, which was held on 2 December 1994, the

parties were represented as follows:

For the Government:

Ms. S. J. Dickson, Agent of the Government

Mr. N. Garnham, Counsel

Mr. H. Carter, Adviser

Mr. J. Page, Adviser

For the applicant:

Mr. B. Emmerson, Counsel

Mr. S. Creighton, Solicitor

     After the hearing, the Commission decided to request the

Government to submit further written observations.

     On 7 December 1994 the Commission granted the applicant legal

aid.

     The Government's further observations were submitted on

30 January 1995 after an extension of the time-limit fixed for that

purpose. The applicant replied on 31 March 1995, also after an

extension of the time-limit.

THE LAW

     The applicant alleges a violation of Article 5 para. 4

(Art. 5-4) of the Convention which 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 Commission notes, first, that the applicant's initial

complaint was that he was not able to have a review of the decision of

the court which convicted him concerning his mental condition, a

decision which, he alleges, was wrong.  However, in the context of

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

issue are those which decide on the lawfulness of the applicant's

continuing detention.  The decisions of the trial court may fall to be

considered in the context of Article 6 (Art. 6) of the Convention, or

in the context of Article 5 in connection with the applicant's

detention under Article 5 para. 1 (Art. 5+5-1) of the Convention.  The

applicant would, however, be prevented from raising questions

concerning the sentence imposed by virtue of the six months' rule in

Article 26 (Art. 26) of the Convention, and the lawfulness of his

detention under Article 5 para. 1 (Art. 5-1) has not been put in issue

in the present case.  The Commission therefore interprets the

application as being limited to questions arising in connection with

the Discretionary Lifer Panel.

     The applicant alleges a violation of Article 5 para. 4 (Art. 5-4)

of the Convention in connection with the proceedings before the DLP in

two respects.  First, he considers that his initial hearing was not

provided "speedily", and secondly he considers that the second hearing,

which will take place in September 1995, will not have been provided

"speedily".

     The Government consider that the applicant has not exhausted

domestic remedies in several respects.  In connection with the period

up to his first DLP hearing on 12 January 1994, they note that he did

not "require" the Secretary of State to refer the case to the DLP after

the tariff expired and before the case was referred, and consider that

he could have applied 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.  In connection with the period which will

culminate with his second hearing, in September 1995, they consider

that he could challenge any failure on the part of the Secretary of

State to follow the recommendation of the DLP that the applicant's case

should be reviewed in one year, again by way of judicial review.  The

Government refer to the general principles of judicial review (as

summarised, for example, in Eur. Court H.R., Vilvarajah and others

judgment of 30 October 1991, Series A no. 215, pp. 30,31, paras.

90,91), and in particular to the case of Phansopkar (R. v. Secretary

of State for the Home Department ex parte Phansopkar, [1976] 1 Q.B.

606), where the Court of Appeal granted judicial review of a decision

by the Home Secretary not to certify a patrial as such "out of turn".

     The Commission notes that the applicant did not, himself,

"require" a review on the expiry of his tariff in December 1992.  He

had, however, been informed that his case would be referred to the DLP

under the new arrangements, and so in the context of what is

effectively a system of automatic review, it is not surprising that he

did not take any steps to require a review.  In any event, the

applicant's failure to apply for a review can only be relevant in the

period of one month from 8 December 1992 to 11 January 1993, which is

the date when the applicant's case was referred to the DLP, even though

the applicant was only informed of this fact later.

     In connection with the remaining arguments as to exhaustion of

domestic remedies, the only case submitted in which judicial review has

been used to challenge delay by the executive is the case of

Phansopkar, and that case concerned the question whether it was proper

to treat persons with a right of abode in the United Kingdom (but who

needed a certificate to exercise the right) in the same way as persons

who had no right of abode and were applying for the same certificate.

The Home Secretary considered that the two classes should be dealt with

together; the Court of Appeal considered that giving persons in the

former class a certificate would not amount to "queue-jumping" as the

position of the two classes was different.

     In the present case, 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" or (in the case of the failure to

grant a review within 12 months, as recommended by the DLP in

January 1994) that the statutory period of two years between reviews

was itself excessively long or that the Secretary of State had acted

unreasonably in not following the recommendation.  The Commission

considers that insuperable barriers were in the way of any such

application: there is no indication that the priorities set up by the

Home Secretary were in any way unreasonable; it is not possible to

challenge the provisions of a statute by way of judicial review; and

as the recommendation by the DLP was not a clear recommendation for

review by it, but could also have been a reference to an internal

review by the Prison Service - as indicated by the letter of

14 November 1994 to the applicant - judicial review could not have

provided the applicant with an effective remedy within the meaning of

Article 26 (Art. 26) of the Convention.  Even if the DLP intended to

recommend that it should carry out the review, there is to suggest

that, in a context in which reviews are only statutorily required every

two years, the refusal of the Secretary of State to follow the

recommendation could have been successfully challenged as irrational.

The Commission notes in this respect that the Government have not cited

any case comparable to the present case where such a challenge has

succeeded.  The case of Phansopkar, which dealt with the question of

two different classes of applicant is not relevant in the present case,

as here, there was only one category of discretionary life prisoner and

the question was how to establish priorities as between them. The

applicant would indeed have been attempting to "queue-jump" if he had

brought an application.

     The Commission therefore finds that the applicant has not failed

to exhaust domestic remedies.

     In connection with the merits of the case, the applicant

considers that both the delay in having his first hearing before the

DLP on the introduction of the new system, and the subsequent delay

between his first and his second DLP hearings, are excessive.

     As to the first period, the applicant considers it possible that

the period began with his sentence in July 1988, but he puts the

beginning at 8 December 1992, when his tariff expired, at the latest.

He does not agree that the introduction of the DLP system necessarily

involved delay, although he accepts that the priorities which were

applied in dealing with existing life prisoners were reasonable in

themselves.  Mere lack of resources does not, in his view, justify a

13 month delay in bringing before a court - for the first time - the

case of a person whose detention may no longer be justified.

     As to the second period, the applicant points out that it is now

clear that he will not receive his second review before the DLP before

September 1995, and that there will therefore have been a period of

19 months between his first and his second reviews.  He perceives the

problem of delay in this respect as flowing from the statutory period

of 24 months between reviews: recalling that when sentencing the

applicant the Common Serjeant of London would have made a hospital

order for the applicant had a bed been available, he compares the

position with that of a person who is subject to a hospital order with

a restriction order, who would be entitled to review by the Mental

Health Review Tribunal every 12 months.

     As to the first period, the Government point to the large amount

of work which had to be done before the DLPs could operate, from

providing the statutory framework to creating procedures and staff for

a body which would, in an initial phase, have to consider the cases of

all 600 discretionary life prisoners.  They consider that the backlog

was precisely of the temporary nature referred to by the European Court

of Human Rights in the case of Zimmermann and Steiner (Eur. Court H.R.,

judgment of 13 July 1983, Series A no. 66), in the context of civil

cases.  They consider that in ensuring that the first DLP hearings

could be held in early October 1992, and the applicant's case in

January 1994, they acted diligently and speedily.

     As to the second period, the Government point out that the

question of risk assessment is a different matter from the assessment

of mental health undertaken by the Mental Health Review Tribunal, in

that risk assessment is a matter requiring prolonged assessment by

professional and non-professional staff in a variety of circumstances.

In any event, they state that the applicant has consistently denied

suffering from mental illness, and there appears now to be general

agreement that he is not now (if he ever was) suffering from

schizophrenia.  Accordingly, they see no reason to treat him in the

same way as a person subject to a hospital order with a restriction

order.  They consider that the two year interval between reviews is

reasonable as such.  They also underline that the Secretary of State

in the majority of cases (78% in 1994) follows recommendations of the

DLP that a subsequent review should take place in less than two years.

     The Commission finds that the present complaints involve complex

issues of law under the Convention, the determination of which must be

reserved to an examination of the merits.

     The remainder 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 has been established.

     For these reasons, the Commission, unanimously,

     DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

     without prejudging the merits of the case.

Secretary to the First Chamber       President of the First Chamber

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