Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20755/92

by Walter HOWDEN

against the United Kingdom

The European Commission of Human Rights sitting in private on

10 October 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

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 3 August 1992 by

Walter HOWDEN against the United Kingdom and registered on 2 October

1992 under file No. 20755/92;

Having regard to :

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

Commission;

- the observations submitted by the respondent Government on

15 June 1993 and the observations in reply submitted by the

applicant on 14 September 1993; ;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the parties may be summarised as

follows.

The applicant is a United Kingdom citizen born in 1944 and is

currently released on licence, subject to a sentence of life

imprisonment, in the United Kingdom. He is represented by Stephen

Morrison, a solicitor practising in Dunfermline.

A. Particular circumstances of the case

In 1972 the applicant was convicted of the murder of a nineteen

year old girl and received a mandatory sentence of life imprisonment.

He had seven previous convictions for various offences including lewd

and libidinous practices and assault causing severe injury.

Prior to his trial, the applicant had been examined by two

psychiatrists who agreed that he was sane and fit to plead. However it

was noted that the applicant frequently experienced feelings of intense

rage which he had difficulty controlling.

In sentencing the applicant to life imprisonment, the judge did

not make any statutory recommendation as to the minimum period which

should elapse before the applicant could be released on licence.

The applicant was imprisoned in Scotland and several reviews of

the applicant's suitability for release on licence were carried out

between 1979 and 1986 by the Scottish Parole Board.

On 17 September 1986 the Parole Board recommended the applicant

for release on life licence and a provisional release date was set for

7 October 1987 subject to his satisfactorily completing a pre-release

programme.

On 12 June 1987, as part of that pre-release programme, the

applicant was released on 48 hours parole.

On his return to prison on 14 June 1987, the applicant was

charged with rape and/or incest ("the 1987 charges") of his 14 year old

niece, which incidents had allegedly taken place that day. The

applicant maintained that the allegations were false, made because the

applicant had threatened his brother (the niece's father), who

therefore wished to jeopardise the applicant's release. The applicant

also contended that the niece had made similar allegations against

other people in the past.

The 1987 charges were reported to the Parole Board and the Parole

Board decided to postpone further consideration of the applicant's case

pending the outcome of the trial of the applicant on these charges.

The applicant was tried in the High Court from 7 to

14 October 1987. The jury reached a unanimous verdict of not guilty and

he was acquitted.

On 6 April 1988 the Parole Board decided to withdraw its

recommendation that the applicant should be released. In a letter dated

7 June 1988 to the applicant's Member of Parliament, the Scottish

Office stated that the Parole Board had not been satisfied that the

applicant would present an acceptable risk if released.

By letter dated 9 May 1989 the applicant was informed by the

Scottish Office that it was the responsibility of the Secretary of

State and the Parole Board to satisfy themselves that an individual

would not present a danger to the public on release.

In July 1989 the Parole Board reviewed his case again and refused

to recommend release.

In August 1991 the applicant lodged a petition for judicial

review of the decision of 6 April 1988, alleging that the withdrawal

of the release recommendation was unfair, unreasonable and contrary to

natural justice because, inter alia, the Parole Board had failed to

properly take into account the applicant's acquittal on the 1987

charges.

On 30 September 1991, the morning of the first calling in court

of the petition for judicial review, the applicant was informed that

he had been given a new provisional release date of January 1993 by the

Parole Board. This decision was the result of a Parole Board review

that either commenced or took place in January 1990.

The application seeking judicial review went ahead and was heard

on 3 October 1991 in the Court of Session. In the course of its

submissions to the Court of Session, the Parole Board stated that

although the applicant had been acquitted by the jury, there had been

sufficient evidence to go to the jury in the first place.

In the judgment of the Court of Session, delivered on

8 April 1992 by Lord MacLean, it was conceded that the only relevant

events which occurred between the recommendation for release and its

withdrawal were the 1987 charges made against the applicant and his

trial on those charges. However Lord MacLean stated that the Parole

Board had an unfettered discretion in reaching any particular decision

as to whether a prisoner could be released on licence without an

unacceptable risk to the safety of the public. He noted that:

"the must have considered all the

circumstances of the trial. They were not bound by the

outcome of the trial, but were free to form their own

judgment about the evidence led against the at

the trial. It cannot be said in my opinion that the

decision in these circumstances was irrational in that it

was so outrageous in defiance of logic or of accepted moral

standards that no sensible person who had applied his mind

to the question could have arrived at it."

The applicant's petition for judicial review was dismissed.

In October 1992, the Parole Board recommended deferring the

applicant's provisional release date to May 1993 in the light of

uncertainty in the applicant's accommodation plans on release. The

Secretary of State accepted the recommendation and informed the

applicant by letter sent on 13 November 1992.

On 4 May 1993 the applicant was released on licence by the

Secretary of State.

B. Relevant domestic law and practice

1. The mandatory life sentence

A person convicted of murder in Scotland must be sentenced to

imprisonment for life. At the relevant time this was required pursuant

to section 1(1) of the Murder (Abolition of the Death Penalty) Act

1965, but that legislation has been repealed and re-enacted in section

205 of the Criminal Procedure (Scotland) Act 1975. Since the court is

required, once the accused is found guilty, to impose this sentence it

is termed a "mandatory" life sentence.

2. Release on licence

Under section 26(1) of the Prisons (Scotland) Act 1989 ("the 1989

Act"), the Secretary of State may, on the recommendation of the Parole

Board, release on licence a person serving a sentence of imprisonment

for life. He must consult beforehand the Lord Justice General together

with the trial judge if available.

3. Procedure for review

(a) Local review committee

The Local Review Committee ("the LRC") consists of the relevant

prison governor, an officer of the local authority social work

department and at least one independent member.

The procedure under the 1989 Act is that the LRC reviews the case

on the date set for the first review. It reports in writing to the

Secretary of State. If it recommends that a prisoner is or may be

suitable for release on licence, it may recommend that he should be

granted a provisional date for release subject to satisfactory

completion of a pre-release programme. If the Secretary of State

accepts the recommendation, he consults the judiciary and the Parole

Board.

(b) Parole Board

The Parole Board is now established under section 18 of the 1989

Act. It consists of a Chairman and at least four other members, all

appointed by the Secretary of State. It has purely advisory functions.

When the Secretary of State consults the Board, he provides a dossier

containing, inter alia, any recommendations (as to time to be served)

by the trial judge, the comments of the Lord Justice General and the

trial judge when consulted on the proposed release, psychiatric

reports, reports by the prison authorities and any other relevant

documents.

The prisoner is not provided with copies of the documents before

the Parole Board. A life prisoner is interviewed by two members of the

Parole Board, who report back to a full meeting. The factors which can

be considered by the Parole Board, up until the date of release of the

prisoner, were outlined by Lord Penrose in Rea v. Parole Board (an

unreported decision dated 27 February 1991 p. 14) as follows:

"The range of factors considered by the Board in advising the

Secretary of State is potentially wide and, until the date of

release on licence, must involve a continuing process in which

new facts are additive, extending the total number of relevant

considerations, and not necessarily to be dealt with in

substitution for material previously available. The weight given

to any particular factor must depend on the context provided by

the whole information and the body of policy known to and applied

by the Board."

While the Parole Board has a duty to act fairly, the statutory

scheme is accepted by the domestic courts as being comprehensive and

thus those courts have not elaborated additional procedural

requirements (see eg. the above-mentioned case of Rea v. Parole Board).

If the Parole Board decides not to recommend release, the

Secretary of State has no power to do so. While the prisoner is

informed of the decision, he is not informed of the reasons. The

refusal to give reasons has been upheld by the domestic courts in

recent judgments (see eg. Payne v. Lord Harris of Greenwich, [1981] 1

WLR 754).

If the Parole Board recommends release, it will recommend that

the prisoner should be given a provisional date for his release on

licence subject to satisfactory completion of a pre-release programme.

(c) The Secretary of State

There are no legislative criteria governing the decision-making

process followed by the Secretary of State in reviewing life sentences.

The practice is that the Secretary of State has regard to two

main criteria in deciding whether to release a prisoner serving, inter

alia, a mandatory sentence and they are:

- the punitive or criminal justice factors ie. the period of

imprisonment satisfying the requirements of retribution and

deterrence; and

- the risk factor ie. whether and to what extent he would pose

an unacceptable risk to the public if released.

The Government submit that both criteria are taken into account

by all persons or bodies involved at each stage of the review procedure

and, in particular, that there is no equivalent in Scotland of the

approach adopted in England which recognises an initial "tariff" period

(corresponding to the period to be served as punishment for the crime

committed) followed by a "risk" period (the period during which the

applicant is accepted as having exhausted the punitive element of his

sentence and remains imprisoned because of the risk he may present to

the community on release).

The applicant submits that, in practice in Scotland, a prisoner

will not be seriously considered by any person or body for release on

life licence until, at the very least, the punitive period is completed

and thereafter the only consideration is the existence of risk to the

public.

4. Pre-release programme and withdrawal of a release recommendation

When a life prisoner is given a provisional release date he is

sent on a pre-release programme which may last 12 to 18 months and

involve semi-open conditions, open conditions or outside employment.

If during the pre-release programme there are adverse developments, the

case is referred back to the Parole Board which may withdraw its

recommendation for release and recommend another review date. No

reasons are required to be given for the withdrawal of the release

recommendation.

COMPLAINTS

1. The applicant complains that he was entitled to a review of the

lawfulness of his continued detention by a body satisfying the

requirements of Article 5 para. 4 of the Convention and that the

reviews by the Parole Board of his suitability for release did not

satisfy those requirements.

The applicant also complains under Article 5 para. 5 of the

Convention that he has no enforceable right to compensation in respect

of the above shortcoming.

2. The applicant further complains that, in withdrawing its release

recommendation following his being acquitted of the 1987 charges, the

Parole Board failed to pay due regard to the presumption of innocence

contained in Article 6 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 August 1992 and registered

on 2 October 1992.

On 6 January 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the case.

The Government's observations were submitted on 15 June 1993

after two extensions in the time-limit and the applicant's observations

in reply were submitted on 14 September 1993 after one extension in the

time-limit.

On 7 July 1993, the Commission decided to grant legal aid to the

applicant.

On 30 November 1993 the Commission decided to adjourn further

consideration of the application pending the judgment of the the

European Court of Human Rights in the case of Wynne v. the United

Kingdom (No. 15484/89, Comm. Report 4.5.93).

Supplementary observations of the applicant were received on 11

April 1994.

On 18 July 1994 the Court delivered its judgment in the case of

Wynne v. the United Kingdom (Eur. Court H.R., judgment of 18 July 1994,

Series A no. 294-A).

THE LAW

1. The applicant complains that he was entitled to reviews of his

detention in accordance with the provisions of Article 5 para. 4

(Art. 5-4) of the Convention and that the reviews he received from the

Parole Board were insufficient in this regard. He also complains under

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

enforceable right to compensation in respect of this shortcoming.

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

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."

The applicant argues that, in practice in Scotland, a life

sentence will not be reviewed until it is considered that the punitive

period has been exhausted and that thereafter the risk factor is the

sole consideration in reviewing a life prisoner's continued detention.

The applicant therefore submits that, at the latest, the Parole Board

viewed the punitive period of his sentence as having been exhausted

once it recommended his release on licence on 17 September 1986. Any

subsequent reviews of his detention, including that resulting in the

withdrawal of the release recommendation, were based on the issue of

risk to the public only. That risk factor is an issue which changes

with the passage of time and therefore he was entitled to the

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

of subsequent reviews.

The Government argue that the punitive and risk factors are taken

into account by any body or person when reviewing a person's life

sentence at every stage of the sentence. In this regard there is no

clear "tariff" period (as is the case in England). The Government also

argue that in any event the applicant received a mandatory life

sentence and thus, according to the decisions of the Court in the

Vagrancy cases (Eur. Court H.R., De Wilde, Ooms and Versyp judgment of

18 June 1971, Series A no. 12 p. 40), the Weeks case (Eur. Court H.R.,

Weeks judgment of 2 March 1987, Series A no. 114) and that of Thynne,

Wilson and Gunnell (Eur. Court H.R., Thynne, Wilson and Gunnell

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

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

original trial.

The Commission recalls the case-law noted in the above paragraph

and further the decision of the Court in the Wynne case (Eur. Court

H.R., Wynne judgment 18 July 1994, Series A no. 294-A). In the Wynne

case the applicant was making essentially the same argument as the

applicant in the present case in support of the applicability of the

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

to reviews conducted in relation to the release on licence of a

prisoner who had received a mandatory life sentence.

In response to such an argument, the Court in its Wynne judgment

recalled its findings in the Thynne, Wilson and Gunnell case (loc.

cit.) and noted the following:

"However, the fact remains that the mandatory 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 conditions 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 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" (loc. cit. para. 35).

Therefore the Court concluded in the Wynne case, in view of the

punitive objective of the mandatory life sentence, that the

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

satisfied by the original trial.

The Commission notes that in the present case the applicant

received a mandatory life sentence in 1972, was recommended for release

in 1987 but, in light of subsequent charges of rape and/or incest laid

against him, that recommendation was withdrawn by the Parole Board.

The Commission considers that the applicant has not submitted any

evidence to demonstrate that the character of the mandatory life

sentence in Scotland is anything other than a sentence imposed

automatically as punishment for the offence of murder, irrespective of

considerations pertaining to the dangerousness of the offender.

Therefore the Commission finds that the applicant has shown no reason

to depart from the reasoning of the Court in the Wynne case.

Furthermore, the question of whether or not an effective tariff

period is applied to life sentences in Scotland, after which the risk

factor is the sole reason for continued detention, does not affect the

above finding. The Commission recalls that the Court in the Wynne case

accepted that in practice a notional tariff is applied to mandatory

life sentences in England after which the sole consideration is one of

risk to the public. Despite this, in light of the punitive objective

of the mandatory life sentence, the Court found that the requirements

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

original trial (loc. cit. paras. 35-36).

The Commission therefore finds that, even assuming the sole issue

under consideration by the Parole Board after its release

recommendation in 1986 was risk to the public, the nature of the

applicant's mandatory life sentence is such that the requirements of

Article 5 para. 4 (Art. 5-4) of the Convention have been satisfied by

his original trial.

Accordingly the Commission concludes that, in the circumstances

of the present case, no new issues of lawfulness arose which entitled

the applicant to a review of his life sentence in accordance with the

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

In view of the finding above that the applicant was not entitled

to a review of his continued detention in accordance with the

provisions of Article 5 para. 4 (Art. 5-4) of the Convention, no issue

arises in respect of the applicant's complaint that the reviews,

conducted by the Parole Board in relation to his sentence, fell short

of the standards required by this Convention provision.

As the Commission concludes that no contravention of Article 5

para. 4 (Art. 5-4) of the Convention has occurred 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 this part of the

application as being manifestly ill-founded within the meaning of

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

2. The applicant also complains that the Parole Board, in

withdrawing its release recommendation, failed to take account of his

acquittal on the 1987 charges, in violation of Article 6 para. 2

(Art. 6-2) of the Convention.

Article 6 para. 2 (Art. 6-2) of the Convention provides as

follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The applicant argues that the only intervening factors, between

the Parole Board's release recommendation and the subsequent withdrawal

of that recommendation, were the 1987 charges, the applicant's

subsequent trial and his acquittal. In such circumstances, by

withdrawing the release recommendation, the Parole Board was ignoring

the established innocence of the applicant and thus violating the

applicant's rights under Article 6 para. 2 (Art. 6-2) of the

Convention. In particular the applicant refers to the fact that the

Parole Board submitted, in the judicial review proceedings, that

although the applicant had been acquitted by the jury there was

sufficient evidence against him to put the matter to the jury in the

first place.

The Government submit, as regards Parole Board reviews, that the

applicant was not "charged with a criminal offence" within the meaning

of Article 6 para. 2 (Art. 6-2) of the Convention and that the decision

of the Parole Board to withdraw the recommendation to release the

applicant was not, in any event, a "judicial decision" as that term was

used by the Court in the Minelli case (Eur. Court H.R., Minelli

judgement of 25 March 1993, Series A no. 62, p. 18, para. 37). The

Government further submit that the decision to withdraw the release

recommendation was not only directed to the guilt or innocence of the

applicant but to all the circumstances of the case.

The Commission notes that the Government are contesting the

applicability of Article 6 para. 2 (Art. 6-2) of the Convention to the

decision of the Parole Board to withdraw the release recommendation.

However the Commission recalls its decision in the case of Krause v.

Switzerland (No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73). In that case

the applicant complained that public officials had made statements

publicly to the effect that she had committed criminal acts of which

she had not been convicted. The Commission noted the following:

"Article 6 (2) (Art. 6-2) of the Convention, laying down the

presumption of innocence, is certainly first of all a procedural

guarantee applying in any kind of criminal procedure ....

However, the Commission is of the opinion that its application

is wider than this. It is a fundamental principle embodied in

this Article which protects everybody against being treated by

public officials as being guilty of an offence before this is

established according to the law by a competent court."

The above-mentioned Krause case was cited with approval by the

Commission in the case of X v. Austria (No. 9295/81, Dec. 6.10.82, D.R.

30 p. 227). In the latter case the applicant was acquitted on criminal

charges but subsequently unsuccessfully challenged his dismissal from

his employment before the civil courts. The decision in the civil

dismissal proceedings was based on the same facts in respect of which

he had been already acquitted on the criminal charges. The Commission

found as follows:

"The Commission accepts that the presumption of innocence ....

is binding not only on the criminal court before which the person

concerned is charged with a criminal offence, but also on other

state organs ..... No authority may treat a person as guilty of

a criminal offence unless he has been convicted by a competent

court and in the case of an acquittal the authorities may not

continue to rely on the 1987 charges which have been raised

before that court but which have proved to be unfounded. This

rule also applies to courts which have to deal with non-criminal

consequences of behaviour which has been subject to criminal

proceedings. They must be bound by the criminal court's finding

according to which there is no criminal responsibility for the

acts in question although this naturally does not prevent them

to establish e.g. a civil responsibility arising out of the same

facts."

As to the Government's reliance on the above-mentioned Minelli

judgment, the Commission notes that the Court's reference to a

"judicial decision" stemmed from the fact that the case concerned a

decision of a domestic court. The Commission does not interpret the

Court's judgment as confining the application of Article 6 para. 2

(Art. 6-2) of the Convention to cases where a person is treated as

guilty of a criminal offence by the judicial authorities.

In the light of these considerations, the Commission considers

that the Parole Board, being a public authority, was bound by Article

6 para. 2 (Art. 6-2) of the Convention in the present case not to treat

the applicant as guilty of the 1987 charges after his acquittal by the

criminal court. This would not prevent them, however, from examining

the circumstances leading up to the prosecution and including them in

its overall assessment of the applicant's suitability after the trial

for a release recommendation.

It is clear from the facts of the present case that the

prosecution of the applicant altered the Parole Board's earlier view

that the applicant was a suitable case for release on licence at that

stage. It waited three years before recommending his release again.

However, the Commission considers that there is no evidence in the

present case that the Parole Board was usurping the role of the

criminal courts or contravening the presumption of innocence guaranteed

by Article 6 para. 2 (Art. 6-2) of the Convention. In assessing the

applicant's suitability for a release recommendation, the Parole

Board's function was wider than that of the trial court and it was

entitled to add the trial material to the previous data it held on the

applicant. The Commission notes, for example, that the applicant

submitted that the allegations of rape and incest came about as a

result of the applicant threatening his brother. While the Commission

is not aware of the precise nature of those threats, such material

would be relevant to the Board's continuous assessment of the risk the

applicant would pose to the public if released.

The Commission concludes in the circumstances that the present

case does not disclose an appearance of a violation of Article 6 para.

2 (Art. 6-2) of the Convention. It follows that this part of the

application must also be rejected as being 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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HOWDEN v. THE UNITED KINGDOM

HOWDEN v. THE UNITED KINGDOM

LEXI