Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21681/93

by W., H.& A.

against the United Kingdom

The European Commission of Human Rights sitting in private on

16 January 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

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 10 March 1993 by

W., H. & A. against the United Kingdom and registered on 19 April 1993

under file No. 21681/93;

Having regard to :

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

the Commission;

- the observations by the respondent Government received on

25 April 1994 and the observations in reply submitted on behalf

of the applicant on 10 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Irish citizens. The second and third

applicants were born in 1947 and 1943 respectively. No date of birth

has been supplied for the first applicant. The applicants are currently

at liberty on life licence.

The applicants are represented before the Commission by Messrs.

B.M. Birnberg & Co., solicitors practising in London.

The facts as submitted by the parties may be summarised as

follows.

A. Particular circumstances of the case

The applicants were arrested on 8 March 1973 in England. On

14 November 1973 the applicants and five others were convicted at

Winchester Crown Court of causing two explosions of a nature likely to

endanger life or cause serious injury to property and of conspiring to

cause such explosions. On 15 November 1973 each of the applicants was

sentenced to a term of discretionary life imprisonment for causing

explosions and to 20 years' imprisonment for conspiring to cause

explosions.

From March 1973 until November 1992, the applicants remained in

prison in England classified as Category A. Each had frequently

requested that he serve his sentence of imprisonment in a prison in

Northern Ireland in order to be near to his family and friends who all

reside in Northern Ireland. These requests for transfer had been

refused by the Home Office. In a memorandum dated 27 October 1988, the

first applicant's request was refused on the basis that the Secretary

of State was not satisfied that he would not disrupt or attempt to

disrupt the operation of any prison establishment or otherwise pose an

unacceptable risk to security.

In November 1987 the first applicant was informed, in response

to a petition concerning his tariff, that his case had been dealt with

in the same way as that of any life sentence prisoner. The judiciary

(which meant the Lord Chief Justice as by this date the trial judge had

died without expressing any views on the case to the Home Office) had

been consulted as to the minimum period of detention necessary to meet

the requirements of retribution and deterrence and having taken their

views into account the Home Secretary had decided that his case should

be referred to the Local Review Committee in March 1990. It was made

clear that such review did not imply that twenty years had been set as

the tariff in the first applicant's case. It was also stated that his

case had been reconsidered following the Home Secretary's statement to

Parliament in July 1987 but it had been decided that no adjustment was

necessary in the date of the first review of the first applicant's case

by the Local Review Committee.

On 16 February 1990 the first applicant's solicitors complained

to the Home Secretary that a tariff of at least 20 years was far too

long, because it would correspond to a determinate sentence of 30 years

before remission and was out of line with the period actually served

by all the other co-defendants who had been released.

In July 1990, the first applicant commenced judicial review

proceedings against the Home Secretary. The relief sought was

certiorari to quash the decision of the Home Secretary that the first

applicant should serve at least 20 years to satisfy the requirements

of retribution and deterrence, and declarations that he should not be

required to serve any longer than the period (then 18 years) that he

had already served for that purpose, that there was no other

justification for continuing to detain him and that he was at least

entitled to know the length of the period which the Home Secretary had

fixed as necessary for the requirements of retribution and deterrence.

In the meantime, in late 1990, the Parole Board decided not to

recommend release on life licence but to review the first applicant's

case again in 1995.

On 16 December 1991 the High Court held (R v Secretary of State

for the Home Department, ex parte Walsh) that the Home Secretary is

under a duty to deal fairly and equally with all those serving life

sentences and that accordingly the Home Secretary was under an

obligation to disclose the length of his tariff period to the first

applicant. On 6 May 1992 the Court of Appeal dismissed the Home

Secretary's appeal.

By letter dated 1 June 1992 the applicants were informed by the

Home Secretary that the precise length of the tariff originally fixed

in their cases had been 25 years but the outcome of the review of that

tariff was its reduction to 20 years. They were also informed that the

Secretary of State was prepared to reconsider the question of their

transfer to a prison in Northern Ireland. They renewed their requests

for transfer to Northern Ireland.

The Home Office acknowledged that there was now no other obstacle

to transfer and in October 1992 the Home Secretary informed the

applicants of his agreement in principle to their requests to transfer

permanently to Northern Ireland. In November 1992 the applicants were

transferred to Maghaberry prison in Northern Ireland.

On transfer, the review of the applicants' life sentences became

the responsibility of the Secretary of State for Northern Ireland

pursuant to section 26(4) of the Criminal Justice Act 1961. In

December 1992 the applicants were informed that their first review by

the Northern Ireland Life Sentence Review Board could be expected to

take place in April 1993. In March 1993 the applicants' tariffs

expired.

Having considered the applicants' cases on 26 April 1993 that

review board recommended that the applicants be released on life

licence. On 28 May 1993, the Secretary of State for Northern Ireland

set a provisional release date for 7 March 1994. On 21 June 1993 the

applicants started to work out of Maghaberry prison and lived in the

community from September 1993 which latter phase constituted the final

step in the release process. Subsequently the Secretary of State for

Northern Ireland signed the applicants' licences for release and the

applicants were released on life licence on 4 March 1994.

B. Relevant domestic law and practice

1. Discretionary life sentences in Northern Ireland

The applicants submit that the principles, underlying the

imposition of a discretionary sentence of life imprisonment in Northern

Ireland, are:

(a) that the offence is grave (the "penal" element of the

sentence); and

(b) 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

"risk" element of the sentence).

The Government submit, however, that the concept of the

discretionary life sentence in Northern Ireland does not incorporate

distinct penal and risk elements.

2. The procedure for review of discretionary life sentences

in Northern Ireland

The Secretary of State for Northern Ireland has ultimate

responsibility for the decision to release a life prisoner on life

licence and will not do so unless he is as satisfied as is reasonably

possible that the degree of risk to the public is minimal. He is

assisted and advised, in this regard, by the Life Sentence Unit ("the

Unit") and the Life Sentence Review Board ("the Board") respectively.

The Unit is part of the Northern Ireland Office ("NIO"). The

Board is a non-statutory body established in 1983. The Board is chaired

by the Permanent Under Secretary of State at the NIO and includes

amongst its members other NIO officials, a Prison Medical Officer from

social services, a consultant psychiatrist and the Chief Probation

Officer.

There is no fixed time at which a case must be reviewed as this

is for the Secretary of State for Northern Ireland to decide. However,

in practice, preliminary consideration of each case is completed by the

Unit soon after sentencing or the determination of any appeal. This is

done in order to identify any circumstances which might call for an

early release. Cases are then reviewed by the Unit at the three and six

year stages during which reviews the latest prison reports (which are

prepared annually by prison staff) and other details (including the

nature of the offence, the prisoner's age and the role played by the

prisoner in the commission of the offence) are examined.

The Unit, and at a later stage the Board, have regard to two

factors in considering whether a prisoner should be released:

(a) whether the sentence served has been sufficient to

satisfy the requirements of retribution;

(b) whether there is a risk that if released the prisoner

will commit further acts of violence.

Both the Unit and the Board will also be aware of the views

expressed by the judiciary and the Lord Chief Justice in relation to

sentencing guidelines. The Unit also prepares, for its own guidance,

memoranda setting out the details of similar cases.

If a recommendation for early referral has not been made at the

six year stage by the Unit, the next review of the case will be

completed by the Board at the ten year stage.

The general approach of the Board is that once the likely

retributive period has been served, it is difficult to justify

detention on risk grounds alone and the usual practice is to review

such cases annually. If the Board makes a recommendation for release

and if that recommendation is accepted by the Secretary of State, a

provisional release date is set normally a year or less ahead, to allow

the gradual release of the prisoner through "working-out" of the prison

and living in the community while reporting fortnightly to the prison.

The case is then submitted to the Secretary of State for Northern

Ireland just before the release date for final approval and signing of

the life licence pursuant to the Prison Act (Northern Ireland) 1953.

The life licence is normally conditional on, for example,

reporting on a regular basis to a probation officer. If the person who

is at liberty under a life licence complies with the conditions and

shows that he/she has settled well into the community, the conditions

are normally cancelled after seven years.

Prisoners are not entitled to appear personally before the Board,

do not see the statements, documents or prison reports before the Board

and do not receive any written reasons for decisions reached (though

in some prisons the practice has arisen of communicating those reasons

orally to the prisoners). A prisoner may petition the Secretary of

State for Northern Ireland at any time about any matter relating to the

review of his case and it is now the practice to invite prisoners to

make written representations to the Board prior to a review by the

Board.

3. Release on life licence and revocation of life licences

in Northern Ireland

The life licence remains in force for the rest of the person's

life and can be revoked at any time by the Secretary of State for

Northern Ireland. The circumstances in which a life licence is likely

to be revoked are as follows:

- where there are grounds for believing that the licensee might

again be a danger to the public; or

- where the licensee has committed further offences; or

- where there has been a breach of the conditions attaching to

the life licence.

The consequences of the life licence being revoked are that the

person is recalled to prison and continues to serve the original life

sentence. That prisoner is again subject to the above-described

sentence review procedure.

4. Discretionary life sentences in England & Wales and Scotland

Discretionary life sentences may be imposed in respect of a

number of offences, including the offence of causing an explosion

likely to endanger life or cause serious injury to property.

The principles underlying the imposition of a discretionary life

sentence in the these jurisdictions are as outlined at 1 (a) and (b)

above.

The Criminal Justice Act 1967 established independent Parole

Boards. Pursuant to that legislation the Secretary of State could only

release on life licence, a person sentenced in a court in these

jurisdictions to life imprisonment, if recommended to do so by the

Parole Board, and after consultation with the Lord Chief Justice of

England and the trial judge if available. The provisions establishing

the Parole Boards did not extend to Northern Ireland.

Section 34 of the Criminal Justice Act 1991 introduced new

procedures for the review of discretionary life sentences, whereby

discretionary life prisoners may require their case to be referred to

the Parole Board after they have served the tariff part of their

sentence, and the Secretary of State is under a duty to release them

on life licence if the Parole Board so directs. This new provision was

introduced in the wake of the Court's decision in Thynne, Wilson and

Gunnell (Eur. Court H.R., judgment of 25 October 1990, Series A

no. 190-A). This provision does not apply in Northern Ireland.

COMPLAINTS

The applicants complain under Article 5 para. 4 and Article 6

para. 1 of the Convention that the review of their sentence allows for

no disclosure of materials on which decisions have been based, no

representation and is subject to executive rather than judicial

decision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 March 1993 and was

registered on 19 April 1993.

On 11 January 1994 the Commission decided to communicate the

application to the respondent Government and to request them to submit

written observations on the admissibility and merits of the complaint

of the applicants (in relation to the review of the applicants'

continued detention) under Article 5 para. 4 of the Convention. The

same review procedure was also raised by the applicants under Article

6 para. 1 of the Convention and this latter complaint was adjourned

with the complaint under Article 5 para. 4 of the Convention. The

remainder of the applicants' complaints were declared inadmissible by

the Commission.

The Government's observations were received on 25 April 1994 and

those submitted on behalf of the applicants in reply were received on

10 June 1994.

THE LAW

The applicants complain under Article 5 para. 4 and Article 6

para. 1 (Art. 5-4, 6-1) of the Convention in relation to the life

sentence review procedures applicable in Northern Ireland.

The Commission considers that this complaint of the applicant

should be considered under Article 5 para. 4 (Art. 5-4) of the

Convention. Article 6 para. 1 (Art. 6-1) of the Convention is not

applicable as this complaint does not involve the determination of a

criminal charge and it does not concern a civil right.

Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:

"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 that the applicants were released on life

licence after the decision of the Commission to communicate the present

application and before the observations of the parties were submitted.

However, no distinction has been made by the parties, in their

respective observations, between the period the applicants were

detained in prison in Northern Ireland after the expiry of their tariff

and any future period of detention in Northern Ireland should the

applicants' licences be revoked. The Commission is of the opinion that

there are different issues to be considered in respect of these two

periods of detention and thus they are considered separately below.

1. The period of detention between the expiry of the applicants'

tariff and their release on life licence.

Insofar as the applicants complain about the length of their

detention after the expiry of their tariff, the Commission considers

that such a complaint would also absorb any complaint in respect of the

lack of powers of the body that carried out the April 1993 review. This

is because the lack of power that impacted on the applicants, in the

present case, was the inability to order their immediate release with

the consequent extension (until March 1994) of the overall length of

the applicants' detention after the expiry of their tariff.

The Commission recalls that, depending on the circumstances of

the case, the length of time taken in reviewing a detention and

implementing the decision to release may give rise to an issue under

Article 5 para. 4 (Art. 5-4) of the Convention (cf., for example,

Eur. Court H.R., Sanchez-Reisse judgment of 21 October 1986,

Series A no. 107).

The Commission notes that in the present case the applicants'

first review took place on 26 April 1993, approximately one month after

the expiry of their tariff and they were recommended for release. While

the applicants were not formally released on life licence until almost

eleven months after the April 1993 review, the Commission notes that

within approximately two months of the April 1993 review, the

applicants were "working out" of the prison and within approximately

five months of that review, the applicants were living in the

community.

The Commission therefore considers that, in the circumstances of

the present case, the length of the applicants' detention after the

expiry of their tariff and the lack of powers of the board that

conducted the April 1993 review do not give rise to an issue under

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

Insofar as the applicants complain about the conduct of the April

1993 review and the procedures before that review, the Commission

considers that just as an acquitted defendant may not claim to be a

victim of violations of the Convention which allegedly took place in

the course of proceedings which led to the acquittal (cf., for example,

No. 15831/89, Dec. 25.2.91, D.R. 69 p. 317), the applicants cannot

claim to be victims in respect of any procedural violations of Article

5 para. 4 (Art. 5-4) of the Convention which allegedly took place

during the April 1993 review, which resulted in a recommendation for

their release.

2. Any future period of detention pursuant to a revocation of the

applicants' life licences and consequent recall to prison.

Insofar as the applicants complain in relation to this future

period of detention, the Commission considers that it is not required

to determine the question of the compliance of the life sentence review

procedures in Northern Ireland with Article 5 para. 4 (Art. 5-4) of the

Convention, as this complaint is inadmissible for the following

reasons.

The Commission recalls that, according to the constant case-law

of the Convention organs, Article 25 (Art. 25) of the Convention does

not permit individuals to complain about a domestic law in abstracto

and claim to be a victim of a violation of the Convention simply

because they feel the domestic law contravenes the Convention (cf., for

example, Eur. Court H.R. Klass and others judgment of 6 September 1978,

Series A no. 28). In addition, the Commission recalls that it is not

normally for the Convention organs to pronounce on the existance or

otherwise of potential violations of the Convention (cf. Eur. Court

H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 35, para.

90).

In the present case the Commission notes that the applicants are

at liberty and the Secretary of State for Northern Ireland must

exercise his discretion to revoke the applicants' licences before the

applicants will again be subject to the life sentence review procedures

in Northern Ireland in respect of which they complain. Moreover the

Secretary of State for Northern Ireland can only revoke their licences

if they have been convicted of an offence, have breached their licence

conditions or have done something which provides the Secretary of State

for Northern Ireland with grounds for believing that the applicants

might again be a danger to the public.

The Commission therefore considers that the applicants cannot,

as matters stand, claim to be victims of a violation of the Convention

within the meaning of Article 25 (Art. 25) of the Convention in respect

of any future period of detention consequent on the revocation of their

life licences.

Therefore the Commission must find the complaints of the

applicants under Article 5 para. 4 and Article 6 para. 1

(Art. 5-4, 6-1) of the Convention manifestly ill-founded within the

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W., H. & A. v. THE UNITED KINGDOM

W., H. & A. v. THE UNITED KINGDOM

LEXI