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AS TO THE ADMISSIBILITY OF

Application No. 17143/90

by Eric OLDHAM

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1992, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

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

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 July 1990 by

Eric OLDHAM against the United Kingdom and registered on 9 September

1990 under file No. 17143/90;

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 British citizen, born in 1948 and is currently

serving a sentence of life imprisonment in H. M. Prison Nottingham.

The facts of this case as submitted by the parties may be

summarised as follows.

In 1970 the applicant was sentenced to life imprisonment for

manslaughter. The Court accepted that the applicant had suffered brain

damage at birth. The applicant did not appeal against his conviction

or sentence.

In 1974 the applicant underwent brain surgery to remove the

damaged section of his brain. In 1981 he was released on life licence.

In 1982 the applicant married for a second time. The applicant and his

second wife are now divorced.

In 1983 the applicant's licence was revoked after he was

convicted of handling a stolen credit card. In 1984 the applicant was,

once again, released on life licence. In December 1985 the applicant

had an argument with his wife. As a result of the differences between

himself and his wife, the applicant went to live in a probation hostel.

Five days after this and upon recommendation of an officer of the

probation service who considered the applicant's wife to be "afraid of

him", the Home Secretary revoked the applicant's licence under Section

62 (2) of the Criminal Justice Act 1967. The probation service

recommended that the applicant be recalled to prison and he was

recalled on 16 December 1985, making written representations to the

Secretary of State about one week later. The Parole Board confirmed

the revocation of the applicant's licence on 2 May 1986.

On 27 October 1989 the applicant was notified that the Home

Secretary had decided, upon the recommendation of the Parole Board and

in consultation with the Judiciary, that, subject to the applicant's

continued good conduct and to the satisfactory completion of a period

of six months in open conditions and nine months in a pre-release

employment scheme, the applicant should be released on life licence.

On 23 November 1989 the applicant was transferred to Leyhill Open

Prison. He began working at the local branch of NACRO (the National

Association for the Care and Resettlement of Offenders). On 6 December

1989 the applicant was notified that his provisional release date was

22 February 1991.

On 23 March 1990 the applicant failed to return to Leyhill at the

correct time. A taxi driver had taken him to Bristol Prison instead

of to a bus stop from where the applicant and other prisoners were to

be picked up and taken to Leyhill. The applicant was received into

Bristol Prison and remained there for five weeks. At the end of this

period the applicant was informed that the Home Secretary had decided

that he should spend an additional nine months at Leyhill and

consequently that his provisional release date had been put back to 25

October 1991. On 8 May 1990 the applicant resumed his work at NACRO.

On 9 May 1990 the applicant failed to return to Leyhill. On 10 May

1990 the applicant was received into Bristol Prison.

On 25 June 1990 the applicant was notified that the Home

Secretary had decided to cancel the applicant's provisional release

date. In addition, the applicant was informed that he was to be

transferred to a Category C establishment (he had previously been a

Category D prisoner). The applicant was furthermore informed that he

was to receive a review in September 1991.

The applicant petitioned the Secretary of State for the purpose

of asking for his recall to be considered by a body other than the

Parole Board. This petition was refused. The applicant then

petitioned the Court of Appeal for the purpose of seeking leave to

appeal out of time. This petition was also refused.

COMPLAINTS

The applicant complains that his rights under Article 5 para. 4

of the Convention have been violated by virtue of the fact that he is

unable to have his continued detention reviewed by an independent body

capable of ordering his release. He further complains that his rights

under Article 5 para. 5 of the Convention have been violated on the

ground that he was not given an enforceable right to compensation under

United Kingdom law in respect of the violation of Article 5 para. 4 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 July 1990 and registered

on 9 September 1990.

On 2 September 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 applicant's

complaint under Article 5 para. 4 of the Convention. The Commission

declared the remainder of the application inadmissible.

The Government's observations were submitted on 20 November 1991.

THE LAW

The applicant, who is serving 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 and para. 5 (Art. 5-4, 5-5)

of the Convention, which provide :

"(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 Government have made no objection to admissibility.

The Commission recalls that in the Thynne, Wilson and Gunnell

cases (Eur. Court H.R., judgments of 25 October 1990, Series A no.

190A) the Court held that the applicants who were serving discretionary

life sentences were 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. The Court also found, in the case

of Wilson, a violation of Article 5 para. 5 (Art. 5-5) in that there

was no enforceable right to compensation under the law of the United

Kingdom in these circumstances.

Consequently, the Commission considers that the application

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.

For these reasons, the Commission unanimously

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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OLDHAM v. THE UNITED KINGDOM

OLDHAM v. THE UNITED KINGDOM

LEXI