Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21309/93

by Desmond FINNEGAN

against the United Kingdom

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

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 15 November 1992

by Desmond FINNEGAN against the United Kingdom and registered on

2 February 1993 under file No. 21309/93;

Having regard to :

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

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is an Irish citizen born in 1945 and is currently

serving a sentence of life imprisonment in HM Prison Gartree.

A. Particular circumstances of the case

The applicant was convicted of murdering his girlfriend in July

1974 and was sentenced to life imprisonment.

In June 1987 the applicant was released on licence. In December

1987 the applicant was returned to prison following a charge of

wounding the woman with whom he had been living. In or around June or

July 1988 he was convicted on this charge and he received a sentence

of four years' imprisonment. His licence was then revoked.

The applicant's case was reviewed by the Parole Board in May 1990

but he was not recommended for release. His case was again reviewed by

the Parole Board in November 1992 and he was informed, in June 1993,

that the Parole Board had declined to recommend his release. The

applicant's next review date has been set for May 1995.

B. Relevant domestic law and practice

In addition to the facts as submitted by the applicant the

Commission has had regard to the outline of relevant domestic law and

practice in the judgment of the European Court of Human Rights in the

Wynne case (judgment of 18 July 1994, Series A no. 294-A,

paras. 12-23). In particular the Commission has noted the following:

1. Life sentences

Murder carries a mandatory sentence of life imprisonment under

the Murder (Abolition of Death Penalty) Act 1965.

A life sentence may also be passed, in the exercise of the

court's discretion, on a person convicted of any of the offences for

which life imprisonment is provided by the relevant legislation as the

maximum penalty for the offence concerned - a discretionary life

sentence. Broadly speaking, the use of such a discretionary life

sentence is reserved for cases where the offence is grave and it

appears that the accused is a person of unstable character likely to

commit such offences in the future, thus making him dangerous to the

public in respect of his probable future behaviour unless there is a

change in his condition.

The Criminal Justice Act 1991 ("the 1991 Act") introduced changes

to the procedures for the release of discretionary life prisoners to

reflect the fact that reviews, complying with Article 5 para. 4 of the

Convention, are required in respect of the non-punitive period of

discretionary life sentences. These changes were not extended to

mandatory life prisoners.

In the course of the debate in the House of Commons in respect

of what was to become the 1991 Act, the Minister of State for Home

Affairs explained, inter alia, the difference between mandatory and

discretionary life sentences, and described mandatory life sentences

as follows:

"The nature of the mandatory sentence is different. The element

of risk is not the decisive factor in handing down a life

sentence. According to the judicial process, the offender has

committed a crime of such gravity that he forfeits his liberty

to the State for the rest of his days. If necessary he can be

detained for life without the necessity for a subsequent judicial

intervention."

However the English courts have recognised, in determining the

principles of fairness that apply to the procedures governing the

review of mandatory life sentences, that the mandatory sentence is,

like the discretionary sentence, composed of both a punitive period

("the tariff") and a security period, the latter period being linked

to the assessment of the prisoner's risk to the public following the

expiry of the tariff.

The English courts have also recognised that there continues to

be a gap between the theory and practice in respect of mandatory life

sentences (R. v. Secretary of State for the Home Department, ex parte

Doody [1993] 3 All England Reports 92). In that case Lord Mustill, with

whom the other Law Lords agreed, went on to state that, while the

mandatory life sentence may be converging with the discretionary life

sentence, nevertheless there remained a substantial gap between the two

types of sentences and it would be a task for Parliament to further

assimilate the effect of the two types of life sentences.

2. Release of life prisoners on licence and revocation of a

licence

The Criminal Justice Act 1967 ("the 1967 Act") contained the

relevant statutory provisions in respect of Parole Board reviews and

the powers of the Secretary of State in this regard. These provisions

have been incorporated into the 1991 Act since October 1992 and

continue to apply to mandatory life prisoners.

Pursuant to the above legislation the Secretary of State may,

after certain consultations, release on licence a person if recommended

to do so by the Parole Board. The Secretary of State may revoke the

licence of a person either on his own initiative or on the

recommendation of the Parole Board. If a person subject to a licence

is convicted on indictment of an offence, the trial court may, whether

or not it passes any other sentence on him, revoke the licence. The

effect of a revoking a licence is that the person is liable to be re-

detained in pursuance of his original sentence (formerly section 62(9)

of the 1967 Act).

COMPLAINTS

The applicant complains under Article 3 of the Convention, in

relation to the length of his detention and alleged maltreatment by

prison officers. He also complains under Article 5 paras. 4 and 5 of

the Convention in relation to the reviews conducted by the Parole Board

in respect of his detention. Finally, the applicant invokes Article 6

paras. 2 and 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 November 1992 and was

registered on 2 February 1993.

On 3 May 1993 the Commission decided to communicate the

applicant's complaints under Article 5 para. 4 of the Convention to the

respondent Government without requesting observations.

By letter dated 4 August 1994 the Secretariat of the Commission

provided the applicant with a copy of the judgment of the Court in the

Wynne case (Eur. Court H.R., Wynne judgment of 18 July 1994, Series A

294-A), requesting the applicant to inform the Commission whether, in

light of that judgment, the applicant wished to maintain his case.

By letter dated 18 August 1994 the applicant confirmed that he

wished to continue with his application.

On 3 September 1994 the Commission decided to continue its

examination of the admissibility of the application without seeking the

observations of the Government.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention, in relation to the length of his ongoing detention and

alleged maltreatment by prison officers.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

In relation to the applicant's complaint about the length of his

life sentence, the Commission recalls that Article 3 (Art. 3) of the

Convention cannot be read as requiring that an individual serving a

sentence of life imprisonment must have that sentence reconsidered by

a national authority (judicial or administrative) with a view to its

remission or termination (No. 11635/85, Dec. 3.3.86, D.R. 46 p. 237).

In the present case the Commission notes that the applicant is serving

a sentence of life imprisonment.

As to whether there are particular factors in the present case

which would bring the applicant's detention within the scope of Article

3 (Art. 2) of the Convention, the Commission recalls that, according

to the constant case-law of the Convention organs, the treatment in

respect of which an applicant complains must attain a minimum level of

severity if it is to fall within the scope of Article 3 (Art. 3) of the

Convention. The assessment of the minimum is relative and depends,

therefore, on all the circumstances of the case (see, for example, No.

8463/78, Dec. 9.7.81, D.R. 26 p. 49 and Eur. Court H.R., Ireland v.

United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,

para. 162).

The Commission has examined all of the submissions of the

applicant but does not consider that, in the circumstances of this

case, the treatment of which the applicant complains reaches the

threshold of severe ill-treatment prohibited by Article 3 (Art. 3) of

the Convention. The Commission therefore finds this aspect of the

application manifestly ill-founded within the meaning of Article 27

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

In relation to the applicant's complaint under Article 3

(Art. 3) of the Convention about alleged maltreatment by prison

officers, the Commission finds that the applicant has not shown that

he has complied with Article 26 (Art. 26) of the Convention as regards

exhaustion of domestic remedies. It does not appear from the case-file

that the applicant has pursued any civil action for assault or other

tort against a prison officer. Accordingly the Commission finds this

complaint inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of

the Convention.

2. The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention in relation to the Parole Board reviews which have been

conducted in respect of his detention. He also complains under Article

5 para. 5 (Art. 5-5) of the Convention that he has no enforceable right

to compensation in this regard.

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

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 his 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."

The Commission recalls the judgment of the European Court of

Human Rights in the case of Wynne v. the United Kingdom (Eur. Court

H.R., judgment of 18 July 1994, to be published in Series A no. 294-A).

In that case the applicant received a mandatory life sentence and was

released on licence, which licence was subsequently revoked. It was

found by the Court that the legal basis for his continuing detention

was a mandatory life sentence (although "supplemented" by a subsequent

discretionary life sentence). The applicant in the Wynne case submitted

that the distinction between mandatory and discretionary life

sentences, set out in the Thynne, Wilson and Gunnell case (Eur. Court

H.R., Thynne, Wilson and Gunnell judgment of the 25 October 1990,

Series A no. 190), was no longer valid referring in support of his

arguments to recent domestic practices, case-law and official

pronouncements. Therefore, the applicant in the Wynne case argued that

he was entitled to a review complying with Article 5 para. 4

(Art. 5-4) of the Convention. The Court in the Wynne case (loc. cit.,

paras. 35-36), however, found as follows:

"..... the fact remains that the mandatory life sentence belongs

to a different category from the discretionary sentence in the

sense that it is imposed automatically as the punishment for the

offence of murder irrespective of considerations pertaining to

the dangerousness of the offender ..... That mandatory life

prisoners do not actually spend the rest of their lives in prison

and that a notional tariff period is also established in such

cases - facts of which the Court was fully aware in Thynne,

Wilson and Gunnell ..... - does not alter this essential

distinction between the two types of life sentence .....

..... Against the above background, the Court sees no cogent

reasons to depart from the finding in the Thynne, Wilson and

Gunnell case that, as regards mandatory life sentences, the

guarantee of Article 5 para. 4 (Art. 5-4) was satisfied by the

original trial and appeal proceedings and confers no additional

right to challenge the lawfulness of continuing detention or re-

detention following revocation of the life sentence .....

Accordingly, in the circumstances of the present case, there are

no new issues of lawfulness which entitle the applicant to a

review of his continued detention under the original mandatory

life sentence."

In the present case the Commission notes that the applicant was

sentenced to a mandatory life sentence and was released on licence,

which licence was revoked following his conviction for another offence.

It is also noted that the applicant was then re-detained in pursuance

of the original mandatory life sentence (section 62 (9) of the 1967

Act).

The Commission further notes that the applicant has submitted no

evidence to demonstrate that the character of the mandatory life

sentence has changed in domestic law. It remains a sentence imposed

automatically as punishment for the offence of murder irrespective of

considerations pertaining to the dangerousness of the offender. The

Commission therefore finds, as did the Court in the above-mentioned

Wynne case, that the applicant has advanced no cogent reason to depart

from the finding in the Thynne, Wilson and Gunnell case (loc. cit.).

Accordingly, the Commission concludes that the guarantees

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

satisfied by the original trial and appeal proceedings (if any) of the

applicant. It finds that no new issues of lawfulness arose in relation

to the applicant's detention which entitled the applicant to a review

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

As no appearance of a violation of either paragraph 4 or

paragraphs 1 to 3 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the

Convention has been established in the present case, the applicant is

not entitled to an enforceable right to compensation under Article 5

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

It follows that the Commission must reject the complaints of the

applicant under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the

Convention as manifestly ill-founded pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

3. Finally, the applicant complains under Article 6 paras. 2 and 3

(Art. 6-2, 6-3) of the Convention, but does not specify the nature of

the alleged violation of these provisions.

The Commission has examined the matters raised by the applicant,

but finds no evidence in the case-file which might disclose any

appearance of a violation of Article 6 paras. 2 or 3 (Art. 6-2-, 6-3)

of the Convention. The Commission therefore finds the applicant's

complaints in this regard manifestly ill-founded within the meaning of

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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FINNEGAN v. THE UNITED KINGDOM

FINNEGAN v. THE UNITED KINGDOM

LEXI