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AS TO THE ADMISSIBILITY OF

Application No. 18757/91

by D.M.

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 October 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

Mr. M.P. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber

assisted by K. Reid.

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 December 1990

by D.M. against the United Kingdom and registered on 2 September 1991

under file No. 18757/91;

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 applicant is a citizen of the United Kingdom, born in 1953

and detained in H.M. Prison Albany, Newport, Isle of Wight.

The facts of the present case, as submitted by the parties, may

be summarised as follows.

In 1988 the applicant was found guilty, at Sheffield Crown Court,

of two counts of aggravated burglary, one of attempted rape and one of

indecent assault. On 16 May 1988, he received three discretionary life

sentences and also a 6 year sentence to run concurrently. The judge

commented in sentencing that the applicant, who had a history of

offences of violence against women, would probably be a danger to the

opposite sex for a long time to come.

The applicant's application for an extension of time in which to

appeal against conviction and sentence was dismissed on 17 February

1989 by the Court of Appeal, which commented that in any case the

applicant had no ground for complaint.

The tariff period of the applicant's sentence was fixed after

consultation with the judiciary at eight years.

RELEVANT DOMESTIC LAW AND PRACTICE

By virtue of section 37 of, and Schedule 2 to, the Sexual

Offences Act 1956, the maximum punishment for rape is life

imprisonment. Pursuant to section 10 of the Theft Act 1960, the maximum

penalty for aggravated burglary is life imprisonment.

The principles underlying the passing of a discretionary sentence

of life imprisonment 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.

The procedure for review

The policy for the review and release of life sentence prisoners

is the responsibility of the Home Secretary who is answerable to

Parliament.

Since the introduction in 1983 of a new parole policy in respect

of life sentences, the Home Secretary consults the Lord Chief Justice

and the trial judge as to the period of detention necessary to satisfy

the requirements of retribution and deterrence, i.e. the tariff period.

As indicated in the Handscombe judgment (R. v. Secretary of State for

the Home Department, ex parte Handscombe and others, (1988) 86 Cr. App.

R. 59 at p. 74-75) :

"... the Lord Chief Justice and the trial judge are being asked

to provide ... a figure (the tariff) representing a term of years

during which a prisoner should be detained to serve only the twin

purposes of retribution and deterrence. They are in other words

asked to say what would have been an appropriate tariff in the

circumstances of the case if a determinate and not a life

sentence could have been and had been passed when the prisoner

was sentenced, without considering risk. The risk element is of

course present in the judicial mind when a discretionary life

sentence is passed. The element of continuing risk, I should

add, is the concern of the prison authorities and doctors, the

local review committee, the Parole Board and finally the Home

Secretary. Fourthly, the views of the judges as to tariff are

intended to have a decisive bearing in all cases upon the

decision as to when the first reference to the local review

committee will take place, i.e. three years before the end of the

tariff period. Special circumstances may serve to bring forward

that time".

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.

Recent legislation

Under Section 34 of the Criminal Justice Act 1991, which will

come into force in October 1992, a discretionary life prisoner will be

able to require that his case be referred to the Parole Board after he

has served the "tariff" part of his sentence. The Board will have the

power to direct the prisoner's release and the Secretary of State will

then be under a duty to release the prisoner on licence.

COMPLAINTS

The applicant complains in effect that he has no possibility of

a review of the lawfulness of his continued detention as required by

Article 5 para. 4 of the Convention.

The applicant also complains of his conviction and sentence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 December 1990 and registered

on 2 September 1991.

On 2 April 1992, the Commission (First Chamber) requested the

respondent Government to provide information concerning the

application.

The Government submitted the information on 5 June 1992 and the

applicant submitted a letter in reply on 29 June 1992.

THE LAW

1. The applicant complains that he has no possibility of a review

of the lawfulness of his continued detention contrary to the

requirements of 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 Commission recalls that the case-law of the Commission and

Court establishes that prisoners serving a discretionary life sentence

are entitled under the above provision to take proceedings to have the

lawfulness of their detention decided by a court where the punitive or

"tariff" period of their sentence has expired (see Eur. Court H.R.,

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

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

The Commission recalls that in the present case the applicant is

still serving the tariff part of his sentence which does not expire

until 1996. The Commission also notes that when the applicant becomes

eligible for the review of his continued detention a different system,

with new procedures, will be in force. In these circumstances, the

Commission finds that the applicant cannot claim at the present time

to be a victim of a violation of Article 5 para. 4 (Art. 5-4) of the

Convention.

It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains of his conviction and sentence.

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 Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

In the present case the decision of the Court of Appeal which was

the final decision regarding the subject of this particular complaint,

was given on 17 February 1989, whereas the application was submitted

to the Commission on 4 December 1990, that is, more than six months

after the date of this decision. Furthermore, an examination of the

case does not disclose the existence of any special circumstances which

might have interrupted or suspended the running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de Salvia) (J.A. FROWEIN)

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D.M. v. THE UNITED KINGDOM

D.M. v. THE UNITED KINGDOM

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