Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15484/89

by Edward Thomas WYNNE

against the United Kingdom

The European Commission of Human Rights sitting in private on

15 October 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

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 June 1989 by

Edward Thomas Wynne against the United Kingdom and registered on

13 September 1989 under file No. 15484/89;

Having regard to

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

the Commission;

- the written observations submitted by the respondent Government

on 10 July 1991 and the observations in reply submitted by the

applicant on 11 May 1992 ;

- the further observations submitted by the Government on

21 September 1992 and the further observations submitted by the

applicant on 29 September 1992;

- the parties' submissions at the oral hearing before the

Commission on 15 October 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1939 and currently

serving a prison sentence in Gartree Prison. The facts as submitted

by the parties may be summarised as follows.

The applicant was convicted of murder in 1964 and sentenced to

mandatory life imprisonment. At that time, the doctor who examined the

applicant found no signs of mental illness or abnormality. He was

released on licence in May 1980.

In January 1982 he was convicted of manslaughter. He had been

found to be suffering from an abnormality of mind and not responsible

for his actions. A discretionary sentence of life imprisonment was

imposed. The trial judge considered a life sentence was appropriate

in view of the extreme danger to the public which the applicant

represented. The applicant's life licence was also revoked by the

trial judge. The applicant submits, inter alia, that he was informed

in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was

subject to the regime for discretionary life sentences.

An incident occurred on 17 June 1985 during which the applicant

was seized by a number of nurses and placed in a strip cell. The

applicant alleged that he had been assaulted and contacted his

solicitors with a view to instituting proceedings.

In December 1985 the applicant was transferred to the hospital

wing of Parkhurst prison. Since then he has been transferred to

Gartree Prison where he is held as a "category A" prisoner.

The applicant was considered for parole by the Parole Board in

January 1989. The Board recommended that his case be referred again

to the local review committee in 1994. The applicant's Member of

Parliament wrote on the applicant's behalf to the Home Secretary. By

letter dated 14 August 1989, the Home Office gave the following

information:

"In accordance with paragraph 4, the trial judge and Lord

Chief Justice were consulted in September 1987. In the

light of their views, it was decided that [the applicant's]

case should be referred to the local review committee, as

the first stage in a formal review by the Parole Board, in

June 1988.

The local review committee considered the case at that time

and the Parole Board considered it in January

1989. The Board did not feel able to recommend

applicant's> release and recommended instead that it should

be referred to the local review committee (as the first

stage in a further formal review) in January 1994. This

recommendation was accepted and was

informed accordingly. He should have been told in

February, but owing to an oversight at Gartree I am afraid

that he was not informed until last month. You will

appreciate that I cannot forecast what the outcome of the

next review will be or say when might be

released. When the Parole Board consider

case in 1994 tariff will have been satisfied and the

question of risk will be the overriding consideration.

Indeed, the Parole Board will have borne the question of

risk in mind in making their recommendation as to the date

of the next review. As you know, the safety of the public

is paramount and no life sentence prisoner will be released

if the assessment of risk is unsatisfactory, no matter how

long he has been detained."

The applicant was informed that his trial judge had fixed his

tariff at June 1991.

In a Home Office Memorandum dated 5 June 1992 the applicant was

informed that "the tariff in respect of that original offence [the 1964

conviction] has now been served and your continued detention is based

on the risk you represent."

Relevant Domestic Law and Practice

Life sentences

The sentence for murder is fixed by law as a mandatory sentence

of life imprisonment (Murder (Abolition of Death Penalty) Act 1965).

Discretionary life sentences may be passed in respect of a number

of other offences, e.g. manslaughter.

The principles underlying the passing of a discretionary sentence

are:

(i) that the offence is grave and

(ii) 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.

Release on licence and revocation of licence

Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary

of State may only release on licence a person sentenced to life

imprisonment if recommended to do so by the Parole Board, and after

consultation with the Lord Chief Justice and the trial judge if he is

available.

Under Section 62(7) of the 1967 Act, if a person subject to a

licence is convicted on indictment of an offence the court by which he

is convicted may, whether or not it passes any other sentence on him,

revoke the licence.

The effect of revocation of the licence, in whichever way it

comes about, is that the person is liable to be detained in pursuance

of his sentence (Section 62(9) of the 1967 Act).

The procedure for review

Section 61 of the 1967 Act, which provides the statutory

framework for the release of life sentence prisoners, does not

distinguish between mandatory and discretionary life sentences. The

policy for the review and release of life sentence prisoners is the

responsibility of the Home Secretary who is answerable to Parliament.

After the decision of the Divisional Court in R v Secretary of

State for the Home Department, ex parte Handscombe in March 1987 the

Home Secretary announced that he would consult the judiciary as soon

as practicable following the imposition of a discretionary life

sentence. He also announced that he would apply that procedure in

relation to mandatory life sentences. With effect from 1 October 1987,

in relation to all life sentence cases, the practice was as follows:

immediately after sentence the trial judge wrote to the Home Secretary,

through the Lord Chief Justice, giving his views on the length of

detention necessary to meet the requirements of retribution and

deterrence. The Lord Chief Justice added his own view. In the light

of this advice the Home Secretary set the date on which the case was

to be referred to the Local Review Committee as the first stage in the

first formal review of the case by the Parole Board. The date set for

the first formal review was normally three years before the expiry of

the period thought necessary to mark the seriousness of the offence,

or 17 years, whichever was the sooner. In the case of a discretionary

life sentence the date of the first formal review was to be fixed

strictly in accordance with the judicial view of the requirements of

retribution and deterrence for the offence. In a mandatory life

sentence case the Home Secretary took account of the views of the

judiciary but also had regard to his overall policy for ensuring that

the time served by prisoners serving sentences for the worst offences

of violence fully reflected public concern about violent crime.

COMPLAINTS

The applicant complains inter alia of the assault committed in

1985 and the alleged subsequent cover-up. He complains of being

transferred from hospital to prison in November/December 1985. He

further complains of the Home Office ignoring the 1991 tariff set by

the trial judge in fixing the next local review committee consideration

of parole until 1994. He submits that he has been prevented from

defending himself and that he has no remedy in respect of his

complaints.

He invokes Articles 6, 8, 10, 13 of the Convention and Article

1 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 June 1989 and registered on

13 September 1989.

On 2 March 1991 the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application insofar

as it concerned issues under Article 5 para. 4 of the Convention.

The Government's observations were submitted on 10 July 1991

after one extension in the time-limit and the applicant's observations

in reply were submitted on 11 May 1992 after two extensions in the

time-limit.

On 1 October 1991 the Commission decided to transfer the case to

a Chamber.

On 12 May 1992 the Commission decided to transfer the case to

Plenary.

On 21 September 1992 the Government submitted further documents.

On 29 September 1992 the applicant submitted further written

observations.

The hearing took place on 15 October 1992.

At the hearing the Government were represented by

Ms. Diana BROOKES Agent, Foreign and Commonwealth Office

Mr. D. PANNICK Q. C., Counsel

Mr. H. CARTER Adviser

Ms. V. HARRIS Adviser

Ms. S. REX Adviser

The applicant was represented by;

Mr. Edward FITZGERALD Counsel

Mr. Richard DEVINE Solicitor

THE LAW

1. The applicant, who is serving both a mandatory and a

discretionary life sentence, complains of the absence of any procedure

under domestic law by which he can have reviewed by a court the

continued lawfulness of his detention. He invokes Article 5 para. 4

(Art. 5-4) of the Convention, which provides :

"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 Government have submitted, inter alia, that the applicant is

detained under the original sentence of mandatory life imprisonment in

respect of which the justification for continued detention is provided

by the original trial proceedings. He therefore is not entitled to a

review under the above provision.

The applicant submits that his mandatory life sentence has ceased

to have any practical relevance. He states that he has served the

period necessary to satisfy the requirements of retribution and

deterrence in respect of both sentences and the sole reason for his

present detention is the risk that he may present to the public. He

therefore considers that he is entitled to have the justification for

the continued detention reviewed by a body satisfying the requirements

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

The Commission recalls that in the Thynne, Wilson and Gunnell

case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190-A)

the Court held in respect of the applicants, who were serving

discretionary life sentences, that the factors of mental instability

and dangerousness which governed their continued detention were

susceptible to change with time and that new issues of lawfulness could

arise in the course of their detention. They were consequently

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

proceedings to have the lawfulness of their continued detention decided

by a court at reasonable intervals and to have the lawfulness of any

re-detention determined by a court. The Court found that neither

judicial review nor the review by the Parole Board satisfied these

requirements.

Consequently, the Commission considers that the applicant's

complaint under Article 5 para. 4 (Art. 5-4) raises complex issues of

law and fact under the Convention, the determination of which should

depend on the merits. It must therefore be declared admissible, no

other ground for declaring it inadmissible having been established.

2. The applicant has complained about a number of other matters.

He has complained of an assault committed in 1985 and of being

transferred from hospital to prison in 1985.

The Commission however is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the Convention as under Article 26 (Art. 26) of the

Convention it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. Further, Article 26 (Art. 26) provides that the

Commission "may only deal with a matter ... within a period of six

months from the date on which the final decision was taken." Where

there is no final decision the six month period runs from the date when

the matter complained of occurred.

As regards the applicant's complaint of assault, the Commission

notes that the applicant did not institute proceedings for assault in

the domestic courts. It follows that he has not complied with the

conditions as to the exhaustion of domestic remedies.

As regards the complaint of transfer from hospital to prison, the

Commission notes that this occurred in 1985 whereas the present

application was submitted to the Commission on 15 June 1989, that is

more than six months afterwards. It follows that this complaint has

been introduced out of time.

This part of the application must therefore be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE,

insofar as it concerns the complaint under Article 5 para. 4

(Art. 5-4) of the Convention, without prejudging the merits of

the case.

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NORGAARD)

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WYNNE v. THE UNITED KINGDOM

WYNNE v. THE UNITED KINGDOM

LEXI