Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22761/93

by R. M.

against the United Kingdom

The European Commission of Human Rights sitting in private

on

14 April 1994 the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

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

M.A. NOWICKI

I. CABRAL CONFORTI

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C KRUGER, 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 8 October

1993 by R. M. against the United Kingdom and registered on 13

October 1993 under file No. 22761/93;

Having regard to :

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

Procedure of the Commission;

- the Commission's decision of 21 October 1993 to communicate

the application;

- the observations submitted by the respondent Government on

19 November 1993 and the observations in reply submitted by

the applicant on 3 February 1994;

Having deliberated;

Decides as follows:

THE FACTS

1. The particular circumstances of the case

The applicant is a British citizen born in 1951 and

currently serving a sentence of imprisonment in HM Prison

Brixton. He is represented before the Commission by Mr. Ben Rose,

a solicitor practising in London, and Mr. Ben Emerson, counsel

practising in London.

The facts as submitted by the parties may be summarised as

follows.

The applicant has been a heroin addict since 1976. From

1982, he was a registered addict under the care of St. Thomas'

Hospital undergoing methadone treatment.

In October-November 1991, the applicant was diagnosed as

infected with HIV (human immunodeficiency viruses).

The applicant is married with 2 children. His wife suffers

from mental illness and the applicant has been acknowledged by

the Social Services as being the primary carer for the children.

On 2 August 1992, the applicant was found under the

influence of drugs by the police who, discovering him to be in

possession of 84 grams of heroin and £1939, arrested him.

On 30 November 1992, the applicant pleaded guilty to

possession of heroin with intent to supply. Sentence was

adjourned pending the preparation of reports.

On 8 January 1993, the applicant was sentenced by the trial

judge to 5 years' imprisonment. It had been submitted to the

court in mitigation of sentence that the applicant had the

symptoms of the onset of AIDS (acquired immune deficiency

syndrome) and that he had between 12 and 24 months to live.

It was also submitted to the court that account should be

taken of the effect of a custodial sentence on the members of his

family, in particular in the context of the counselling which

would be required to enable the children to come to terms with

the loss of their father and in which the applicant should

participate.

The judge in passing sentence declined to make any allowance

for the applicant's illness, referring to recent decisions

regarding sentencing policy in AIDS cases:

"I do not think it is for me to deal with the matter of

your life expectancy and so on. These are medical matters

which I think have to be dealt with within the province of

the Home Office..."

The applicant was granted leave to appeal against sentence

to the Court of Appeal, inter alia, on the grounds that

insufficient regard was given to his reduced life expectancy and

the hardship which would result for his family.

A report dated 12 May 1993 from the specialist treating the

applicant stated, inter alia:

"...his life expectancy is severely limited and is in

the order of no more than one to two years. However

the course of HIV disease is very unpredictable and

because he has a severely damaged immune system he is

at risk of developing a sudden rapidly terminal

complication. The quality of the remainder of his life

will undoubtedly deteriorate and he is likely to

require long periods of hospital care..."

The applicant's appeal was heard on 18 May 1993. The Court

of Appeal reduced sentence to three and a half years on the basis

that insufficient weight had been given to the guilty plea and

the judge had erred in his valuation of the drugs at issue. The

Court refused to take into account the exceptional circumstances

arising from the applicant's life expectancy. It held inter alia:

" submits that there was a lack of sufficient

weight given by the learned judge to the exceptional

circumstances arising from the life

expectancy...The learned judge in that regard no doubt had

in mind the decision of this court in Stark (1992) 13

Cr.App.R.(S) 548. In terms of life expectancy that was a

very similar case indeed to the present case. In giving the

court's judgment, Jowitt J. at page 550 said this:

`In the view of this court, the sentence of four

years' imprisonment was a proper one. It is not for

this court to manipulate the sentence so as to achieve

a desirable social end. Desirable though that is, that

seems to us to be a matter for the exercise of the

Royal Prerogative of Mercy and not for us. The appeal

is therefore dismissed. We direct that the medical

reports which are before us be furnished to the prison

authorities.'

That decision had been preceded by another decision of this

court in the case of Moore (1990) 12 Cr.App.R.(S) 384.

invited this court to take the view that no

hard and fast rule was laid down by this court in Stark and

that the life expectancy should be weighed in

the balance as part of the sentencing process. In support

of that submission she referred the court to Leatherbarrow

(1992) 13 Cr.App.r. (S) 632. It is to be noted that neither

Moore nor Stark appears to have been cited to the court in

Leatherbarrow. On the other hand, this point was

specifically considered by the court in Stark. Stark was a

case involving a prisoner suffering from AIDS and having a

greatly reduced life expectancy in consequence. It seems to

us that the inescapable conclusion is that this court is

bound by the approach of the court in Stark to hold that it

is not for the court to alter an otherwise proper sentence

in order to achieve a desirable end. That is a matter for

the Royal Prerogative of Mercy. The sentencing judge was

right so to conclude. But, as in the case of Stark, we

shall direct that all the medical and other reports before

this court are placed before the prison authorities."

Since other prisoners refuse to share a cell with him, the

applicant has been confined alone. He spends up to 23 hours alone

in his cell each day.

The applicant petitioned the Home Office for early release.

By letter dated 28 April 1993, the Home Office stated that:

" case for compassionate release under the

terms of CI 36/1992 has now been considered and it has been

decided that he does not meet the criteria for early

release at this time."

The applicant's request was reconsidered by the Home Office

in June 1993. In a letter dated 28 June 1993, the applicant's

solicitors were informed that it was considered that the

applicant's medical condition was not such as would justify the

exceptional course of early release. An assurance was added that

the applicant's condition would continue to be closely monitored

and, if there was significant change, his case would be

reconsidered.

Following the communication of this application to the

respondent Government, a further review of the applicant's case

was conducted. Since however a report from the consultant who had

visited the applicant in prison suggested that the applicant had

a life expectancy of up to two years and his condition was not

so acute as to suggest that death was imminent, the Home Office

maintained its decision not to grant the applicant early release.

The letter dated 4 November 1993 from the consultant to the

Home Office stated:

"This patient ... is very immunosuppressed, had had a

number of medical problems including pneumonia, viral

meningitis and has a CD4 count persistently in the 0.1 x

10'9/1 range (normal range >0.4). This gentleman has

advanced HIV disease and thus has a poor prognosis. I think

it entirely reasonable that he should be considered for

parole on medical grounds as obviously his life expectancy

is very limited." [The consultant further explained by

telephone to the Home Office that the applicant was likely

to live at least for months and possibly up to two years.]

Pursuant to the provisions for release for persons serving

sentences less than 4 years and taking into account 24 additional

days awarded against him as disciplinary punishment, the

applicant is due to be released on licence on 26 May 1994.

2. Relevant domestic law and practice

a. Sentencing policy in the Court of Appeal

Section 9 of the Criminal Appeals Act 1968 provides a right

of appeal against sentence, after conviction on indictment, to

the Court of Appeal. The Court of Appeal recognises that judges

must be allowed a measure of discretion: it will only interfere

where the sentence imposed is wrong in law, wrong in principle,

where the judge took a wrong approach to sentencing or followed

the wrong procedure or where the sentence is "manifestly

excessive". If it finds any one of these grounds to have been

satisfied, the Court of Appeal may quash any sentence or impose

any sentence which was available to the Crown Court, save that

it may not deal with the appellant, taking the sentence as a

whole more severely than he/she was originally dealt with.

The cases before the Court of Appeal indicate that a number

of health related matters may be taken into account as mitigating

factors.

In R v. Herasymenko (12.12.75, (1975) CSP C5-2B01), the

offender had suffered a severe heart attack and a medical report

referred to the likelihood of another attack which if not treated

promptly might lead to death. The Court of Appeal reduced the 18

month sentence to allow his immediate release "in view of this

man's extremely ill condition".

In R v. Saunders (unreported 16.5.91), the Court of Appeal

accepted that the appellant was suffering from pre-senile

dementia. While the gravity of the case was such that the Court

of Appeal was not able to allow Saunders' immediate release, in

light of the medical evidence the sentence was reduced from 5

years to two and a half to render him immediately eligible for

parole.

In R v. Green (1992 13 Cr. App.R(S) 613), the offender had

been diagnosed as suffering from sickle cell anaemia from the age

of 16 months and suffered a very serious form of the disease

requiring blood transfusions on many occasions. Management of the

condition was severely hampered by his imprisonment and there was

a risk of deterioration leading to sudden death. The Court of

Appeal adjusted a sentence of 5 years, which it considered

otherwise appropriate for the offence, to secure his immediate

release:

"It must be obvious to any person of ordinary sensibility

that subjection to so painful and life-threatening a

disease is one of the most powerful mitigating factors

which can be put forward by a defendant. Here in addition

there is some material to suggest that if the appellant

remains in prison he may possibly be in enhanced danger."

In the case of R v. Leatherbarrow (1992 Cr.App.R(S) 632) the

offender had chronic emphysema and was subject to severe and

sometimes critical breathing difficulties. The Court of Appeal

varied the 15 month sentence of imprisonment to effect his

immediate release:

"The Court has in the past taken an exceptionally merciful

course by reason of the medical condition of an appellant

who, but for his illness, would have merited severe

punishment."

There have been a number of cases dealing with HIV/AIDS

sufferers.

In R v. Rees (unreported 10.8.88), the Court of Appeal

reduced a seven year sentence to four in respect of an appellant

who had been seropositive for some time, had recently contracted

AIDS and had a life expectancy of 2-3 years. It stated:

"This court has never shrunk in appropriate cases from

exercising mercy...it seems to us right that this court

should continue in the case of AIDS sufferers to exercise

mercy when the circumstances appear to demand it."

In R v. Archibald Moore (1990 12 Cr.App.R.(S) 384), the

offender was infected with HIV and there was a likelihood that

he would develop AIDS within 2 years. The Court of Appeal

declined to take his reduced life expectancy into account as a

mitigating factor:

"...We do not know what the future may hold with regard to

this particular Appellant. If the time should come when it

is no longer possible to hold this Appellant in hospital

because of his physical condition, then it is the job of

the Home Office, who have at least two methods by which

they can take action in circumstances of this sort as this

Court has reason to know..."

In R v. Stark (1992 13 Cr.App.R.(S) 548), the appellant

suffering from AIDS had a life expectancy of 1-2 years. The Court

of Appeal held, in declining to interfere with the sentence, that

to afford a reduction in sentence based upon AIDS was "not within

the province of this Court":

"In the view of this court, the sentence of four years'

imprisonment was a proper one. It is not for this court to

manipulate the sentence so as to achieve a desirable social

end. Desirable though that is, that seems to us to be a

matter for the exercise of the Royal Prerogative of Mercy

and not for us."

In his commentary on the cases of Leatherbarrow and Green

(see above) in the Criminal Law Review, Dr. Thomas (author of the

authoritative textbook "Principles of Sentencing") stated :

"The interest of these cases is that they appear to

contrast with the attitude displayed in Archibald Moore,

where the appellant was HIV positive , and Stark, where the

appellant was suffering from AIDS. In those cases the Court

indicated that the condition of the appellant was not a

matter which could lead to mitigation of sentence."(1992

Criminal Law Review 520-1)

b. Provisions governing early release on compassionate

grounds

Section 36 of the Criminal Justice Act 1991 provides:

"1. The Secretary of State may at any time release a

prisoner on licence if he is satisfied that

exceptional circumstances exist which justify the

prisoner's release on compassionate grounds."

Circular Instruction 36/1992 concerns the policy applied in

respect of early release of prisoners on compassionate grounds

under the Criminal Justice Act 1991. It recommends early release

where a prisoner is suffering from a terminal illness and death

is likely to occur soon (within three months is given as an

appropriate period). The criteria to be satisfied are:

"- the prisoner is suffering from a terminal illness

and death is likely to occur soon; or the prisoner is

bedridden or similarly incapacitated, and

- the risk of further crime is past, and

- there are adequate facilities for the prisoner's

care and treatment outside prison, and

- early release will bring some significant benefit to

the prisoner or his/her family."

COMPLAINTS

The applicant complains that he has been discriminated

against in respect of sentencing policy and treatment in prison

as a result of being an AIDS sufferer. He submits that factors

of illness and life expectancy are mitigating factors in

sentencing generally, and were so in the cases of AIDS sufferers

until the case of STARK, which has established a policy of

treating AIDS sufferers differently.

Because he is suffering from AIDS, the applicant is kept in

a single cell, and is not permitted to undertake any form of work

or partake in recreational facilities. He spends 23 hours in his

cell. He is classified as Category C which would normally allow

sentence to be passed in an open prison. Since however only

Category B prisons have hospitals, he is confined in a more

restrictive regime than his classification warrants.

The applicant invokes Article 14 in conjunction with Article

5 of the Convention in the above respect.

The applicant also invokes Article 5 para. 5 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 October 1993 and

registered on 13 October 1993.

On 21 October 1993, the Commission decided to communicate

the application to the Government and to ask for written

observations on the admissibility and merits of the application.

The Commission decided to give the case priority pursuant to Rule

33 of its Rules of Procedure.

The Government's observations were submitted on 19 November

1993 and the applicant's observations in reply were submitted on

3 February 1994 after one extension in the time-limit.

On 9 March 1994, the Commission examined the application.

THE LAW

1. The applicant complains that he has been the subject of

discrimination in sentencing policy as a result of suffering from

AIDS.

He invokes Article 14 in conjunction with Article 5 (Art. 14+5)

of the Convention. These provide as relevant:

Article 14 (Art. 14) of the Convention

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

Article 5 (Art. 5) of the Convention

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law..."

According to the case-law of the Convention organs, Article

14 (Art. 14) of the Convention in effect has no independent

existence but plays an important role in supplementing the other

provisions of the Convention and its Protocols. Article 14 (Art.

14) safeguards individuals, placed in similar situations, from

discrimination in the enjoyment of the rights and freedoms set

out in those other provisions. A measure which as such might be

in conformity with the normative provision in issue may

nevertheless violate that provision taken in conjunction with

Article 14 (Art. 14), if it is applied in a discriminatory

manner. It is as though Article 14 (Art. 14) formed an integral

part of each of the provisions laying down the specific rights

and freedoms (see eg. Eur. Court H.R. Belgian Linguistic judgment

of 23 July 1968, Series A no. 6 p. 33-4, paras. 8-9).

The applicant submits that the United Kingdom has a

discernible sentencing policy which applies only to offenders

with HIV/AIDS in violation of Article 14 in conjunction with

Article 5 (Art. 14+5) of the Convention. He contends that the

previous and continuing practice of the courts indicates that if

an offender is suffering from an illness which will definitely

shorten his life it will usually be accepted as a substantial

mitigating factor. Since however two cases in the Court of

Appeal, Moore and Stark, a departure has been made from this

established practice restricted to offenders who are diagnosed

as HIV positive or suffering from AIDS which excludes

consideration of their medical condition as presenting any

mitigating factor.

The Government, while not arguing that Article 14 taken in

conjunction with Article 5 (Art. 14+5) of the Convention is not

applicable to the applicant's complaints, submit that the case-

law of the Court of Appeal concerning mitigating circumstances

does not involve treating those with HIV any differently from any

other offender. Whatever the illness or condition involved, the

Court of Appeal can only take into account those matters which

are certain present realities and must ignore uncertain future

contingencies.

The Commission in light of its finding below considers it

unnecessary to reach a conclusion as to whether the applicant has

been subject to a difference in treatment which falls within the

scope of Article 14 in conjunction with Article 5 (Art. 14+5) of

the Convention.

Even assuming that a distinction has been made in this case,

the case-law of the Convention organs establishes that not every

difference in treatment is discriminatory within the meaning of

Article 14

(Art. 14). The Commission must determine whether the difference

has an "objective and reasonable" justification. This is to be

assessed in relation to the aims and effects of the measure under

consideration; it must pursue a legitimate aim and there must be

a reasonable relationship of proportionality between the means

employed and the aim sought to be realised (see Eur. Court H.R.

Belgian Linguistic judgment of 23 July 1968, loc. cit., p. 34,

para. 10).

The Government argue that insofar as HIV sufferers are being

treated differently from offenders suffering from other

illnesses, this has objective and reasonable justification since

HIV infection is characteristic of being uncertain and

unpredictable in its effects. In such cases, future developments

are more appropriately dealt with in compassionate release

applications.

As regards the alleged differences between HIV/AIDS and

other illnesses, the applicant attacks the Government's analysis

as medically unsound. He refers to a medical opinion of a

Professor of Immunology which states that HIV/AIDS infections,

in their poor prognosis and risk of recurrent infections and

premature death, are no less predictable than many conditions

which have an early fatal outcome such as cancer or severe

emphysema. He points out that the Government, from their

observations and reference to an annexed passage from Paul

Sieghart, appear to confuse symptomless HIV which can last 8-10

years with the onset of AIDS or symptomatic HIV with low CD4

counts where death within 1-2 years (or much less) almost

inevitably ensues.

The Commission recalls that the applicant was diagnosed as

HIV positive in October-November 1991. By the time of his trial

in January 1993 he had been diagnosed as suffering from symptoms

of the onset of AIDS and had a life expectancy of 12-24 months.

A report submitted in the applicant's appeal in May 1993 referred

to his life expectancy as "severely limited" and in the order of

12-24 months. The most recent medical report (as elaborated by

the consultant by telephone in November 1993) gave the opinion

that the applicant was likely to live at least for months and

possibly up to two years. The Commission notes that the applicant

is due to be released in May 1994.

The gravity of the illness from which the applicant suffers

cannot be in dispute. It appears however that in the applicant's

case the prognosis has remained unchanged over the period of his

trial and detention. There is no indication from the material

submitted that he has suffered during that time any significant

deterioration or that he is incapacitated in any way. There is

no complaint that he is by reason of his continued detention

failing to receive the necessary care or monitoring of his

condition. In these circumstances, the Commission finds that the

decision of the Court of Appeal not to take his condition into

account as a mitigating factor in sentence was in the

circumstances of this case not unreasonable or disproportionate.

Further, it would have been apparent from the length of sentence

substituted by the Court of Appeal that the applicant was not

precluded from the hope of surviving the term of detention

imposed and consequently it was legitimate to leave the question

of the applicant's release in light of any future change in his

condition to the discretion of the Secretary of State.

Consequently, having regard to the margin of appreciation

accorded to the national authorities, the Commission finds that

in the present case any difference in treatment was reasonably

and objectively justified. It follows that this part of the

application discloses no appearance of a violation of Article 14

of the Convention in conjunction with Article 5 (Art. 14+5) and

must be rejected as manifestly ill-founded within the meaning of

Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has also invoked Article 5 para. 5 (Art. 5-5)

of the Convention which provides:

"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 right to compensation under this provision presupposes

that a violation of one of the other paragraphs of Article 5

(Art. 5) has been established either by a domestic authority or

by the Convention organs (see eg. No. 7950/77, Dec. 4.3.80, D.R.

19, p. 213). Even assuming that a complaint of discriminatory

detention could found a right to compensation under this

provision, the Commission has in any event found no appearance

in this case of a violation of Article 14 in conjunction with

Article 5 (Art. 14+5).

It follows that this complaint must be rejected as

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. KRUGER) (C.A. NØRGAARD)

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R.M. v. THE UNITED KINGDOM

R.M. v. THE UNITED KINGDOM

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