Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23812/94

by Vincent KING

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 4 February 1994

by Vincent KING against the United Kingdom and registered on

6 April 1994 under file No. 23812/94;

Having regard to the report 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 a United Kingdom citizen, born in 1939, and he

currently resides in London. He is represented before the Commission

by Mr. R. Bhatt, a solicitor practising in London.

A. Particular circumstances of the case

In 1963 the applicant was convicted of murdering his mother-in-

law, his two sisters-in-law and his son. He received a mandatory life

sentence and was released on licence in 1977.

While the applicant was at liberty he set up two successful

businesses, re-married in 1980 and now has three children from that

marriage.

Between 1977 and 1981 the applicant was convicted under the

Obscene Publications Act 1964. He was fined and put on probation until

1981. In or around 24 January 1992 the applicant was charged with rape

and actual bodily harm ("A.B.H.") of a woman.

On 30 March 1992 the Secretary of State revoked the applicant's

licence pursuant to section 62(1) of the Criminal Justice Act 1967

("the 1967 Act") and the applicant was immediately recalled to prison

because the Secretary of State was of the opinion that the applicant's

presence in the community constituted "an unacceptable risk to the

public".

On or about 8 July 1992 the Parole Board reviewed the applicant's

case pursuant to section 62(4) of the 1967 Act based on his written

representations and the information placed before it by the Home

Office, the latter information having not been supplied to the

applicant. The Parole Board did not recommend release but recommended

that the applicant's case be reviewed immediately following the outcome

of his trial on the rape and A.B.H. charges.

The applicant's trial took place between 7 and 14 September 1992

and the applicant was acquitted of rape but convicted on the charge of

A.B.H.. He received a sentence of imprisonment of 28 days which (due

to his re-detention since March 1992) in effect meant that he was

entitled to immediate release if he were to be released on licence

again.

On 2 November 1992 the Parole Board reviewed the applicant's case

pursuant to section 61 of the 1967 Act (despite the applicant's request

for another review pursuant to section 62(4) of the 1967 Act). By

letter dated 19 January 1994 the Secretary of State communicated his

decision not to release the applicant. The applicant deduced from the

wording of that letter that the Parole Board had, in fact, made a

recommendation for his release but the Secretary of State has refused

to disclose to the applicant the nature of the Parole Board's

recommendation.

On 12 March 1993 the applicant commenced judicial review

proceedings. The outcome of those proceedings was a consent order,

dated 4 August 1993, by which the applicant was to receive a further

review before the Parole Board but this time pursuant to section 39(4)

of the Criminal Justice Act 1991 ("the 1991 Act") - formerly section

62(4) of the 1967 Act. The applicant was also to receive full

disclosure (subject to some exceptions) of all documents which had been

and would be before the Parole Board in respect of his case, was to be

given the opportunity to make oral representations and was to receive

notification of the Parole Board's decision by the end of the first

week in August 1993.

The Parole Board accordingly reviewed the applicant's case and

recommended the release of the applicant. Since this recommendation was

made pursuant to section 39(4) of the 1991 Act (formerly section 62(4)

of the 1967 Act), the Secretary of State was bound to give effect to

that decision immediately.

The applicant was therefore released on licence on 6 August 1993.

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 Court 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. In practice, the use of such a discretionary life sentence

is reserved, broadly speaking, 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 is, therefore,

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, explained that the policy

(whereby murder was treated as an offence so grave that the proper

penal element of the sentence was detention for life) was inconsistent

with the practice adopted by successive Secretaries of State that a

mandatory life sentence included a "tariff" period to reflect the

requirements of retribution and deterrence. Lord Mustill went on to

recognise that the mandatory life sentence may be converging with the

discretionary life sentence but stated that 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

Under section 61 of the Criminal Justice Act 1967 ("the 1967

Act") the Secretary of State may release on licence a person only 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

decision on whether to release is, however, for the Secretary of State

alone.

By virtue of section 62(1) of the 1967 Act the Secretary of State

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

the recommendation of the Parole Board. Under section 62(7) of the 1967

Act, 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.

Pursuant to section 62(9) of the 1967 Act the effect of the

revocation of a licence, whether by a Secretary of State or a court,

is that the person is liable to be re-detained in pursuance of his

original sentence.

According to section 62(4) of the 1967 Act when the prisoner's

licence is revoked by the Secretary of State, and the prisoner makes

written representations against the decision to revoke his licence, he

is entitled to a special review by the Parole Board. For the purposes

of that review the prisoner can only make written representations to

the Parole Board and is not entitled to access to the documents placed

before the Parole Board. The decision of the Parole Board, made

pursuant to this section, is binding on the Secretary of State. If the

prisoner is not released after that review any further review is

completed pursuant to section 61 of the 1967 Act and the outcome of the

latter review is not binding on the Secretary of State.

Since October 1992 the above provisions, having been incorporated

into the 1991 Act, continue to apply to mandatory life prisoners.

COMPLAINTS

The applicant complains under Article 5 para. 4 of the Convention

that he was entitled to, and did not receive, a prompt, fair and

"court-like" review by a tribunal empowered to order his release,

immediately on the revocation of his licence in March 1992 and

thereafter. In this regard the applicant argues, inter alia, that:

(a) according to recent domestic case-law a mandatory life sentence

incorporates a tariff period and a security element. The applicant's

first release indicated that he had exhausted the penal consequences

of his crime and his re-detention could only be authorised if he was

considered to be a danger to the public. Alternatively, his 15 year

period of conditional liberty was so substantial as to break the chain

of causation between the punitive element of his sentence and his

further detention and any recall is justified on preventative grounds

only.

(b) regardless of the characterisation of the mandatory life sentence

which is to be accepted by the Commission, the 15 year period of

conditional liberty broke the chain of causation between any objective

(whether punitive, preventative or both) of the original sentence and

the purpose of the recall. Therefore even if the Commission views the

mandatory life sentence as being imposed for a punitive, and thus

unchanging, objective the mere fact that the applicant was on

conditional liberty for so long means that any re-detention requires

reviews complying with the provisions of Article 5 para. 4 of the

Convention.

THE LAW

The applicant alleges that he was entitled to a review, which

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

Convention, of the lawfulness of his re-detention from the time his

licence was revoked and that the requirements of Article 5 para. 4

(Art. 5-4) of the Convention were not satisfied by the reviews which

were conducted.

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 his detention is not lawful."

The Commission notes that the arguments advanced by the applicant

at (a) above, in support of his complaints, are expressly based on the

premise that the mandatory life sentence is, in fact, composed of a

"tariff" period, to reflect the requirements of retribution and

deterrence, and a subsequent security element. The applicant argues

that recent domestic case-law recognises these elements of the

mandatory life sentence.

Therefore, according to the applicant, any revocation of a

licence and consequent re-detention must be justified on the basis of

risk to the public. In such circumstances the applicant claims that the

reviews conducted on such revocation and during such re-detention must

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

Convention as is the case with discretionary life prisoners in the

post-"tariff" stage. The Commission notes, therefore, that the

applicant is effectively making the case that the distinction between

the two types of life sentence, noted by the Court in the case of

Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25

October 1990, Series A no. 190-A, pp. 27 and 29, paras. 70, 73-74), is

no longer valid.

The Commission recalls the judgment of the European Court in the

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

July 1994, Series A no. 294-A). In that case the applicant's licence

had been revoked and it was established 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 was arguing that the distinction

between mandatory and discretionary life sentences set out in the

above-mentioned Thynne, Wilson and Gunnell case was no longer valid

referring in support of his arguments to recent domestic practices,

case-law and official pronouncements. 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's

licence was also revoked. It is further noted that he was also re-

detained pursuant to the original mandatory life sentence (section

62(9) of the 1967 Act). The Commission also notes that the applicant,

in making the case that there is no meaningful difference between

mandatory and discretionary life sentences, relies on the same domestic

case-law as the applicant in the Wynne case (loc. cit., paras. 22-23).

The Commission considers 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 Wynne case, that

the applicant has advanced no cogent reason to depart from the finding

in the above-mentioned Thynne, Wilson and Gunnell case.

The Commission notes that the applicant makes one argument (at

(b) above) which he submits is not dependent on the interpretation of

the character of the mandatory life sentence as confirmed above by the

Commission or indeed as submitted by the applicant. He argues that the

fact that he was at liberty, albeit conditional liberty, for such a

substantial period of time is of itself reason enough for a review in

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

Convention because the sheer passage of time breaks the chain of

causation between any objective of the original sentence and the

purpose of any recall.

The Commission does not accept that the fact of, or the period

of, release on licence is relevant as to whether or not the applicant

was entitled to a review in accordance with Article 5 para. 4

(Art. 5-4) of the Convention. The Commission notes that, on revocation

of the applicant's licence, he was re-detained under the original

mandatory life sentence (section 62(9) of the 1967 Act). The Commission

recalls that the reason the requirements of Article 5 para. 4

(Art. 5-4) of the Convention are found to be satisfied by the original

trial, in the case of a mandatory life sentence, is the unchanging

quality of the objective of that life sentence (see the above-mentioned

Thynne, Wilson and Gunnell judgment, pp. 27 and 29, paras. 70, 73-74).

Therefore once the mandatory life sentence is imposed, the objective

of that sentence is not changed by the release of the prisoner on

licence even for a period of 15 years.

The Commission therefore 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.

Accordingly, no new issues of lawfulness arose, in relation to the

applicant's detention in 1992 and 1993, which entitled the applicant

to a review under 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 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 he received fell short of the

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

Convention.

Therefore the Commission must reject the applicant's complaints

as manifestly ill-founded pursuant to 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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KING v. THE UNITED KINGDOM

KING v. THE UNITED KINGDOM

LEXI