Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16791/90

by R.B.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 1 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 24 May 1989

by

R.B. against the United Kingdom and registered on 28 June 1990

under file No. 16791/90;

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 1938. He is

currently serving a life prison sentence in Acklington prison,

Northumberland. He is represented by Messrs B.M. Birnberg Co.,

solicitors, London.

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

summarised as follows.

Since the age of 18 the applicant, suffering from

psychopathic disorders, has been compulsorily placed in mental

hospitals on a number of occasions for considerable periods.

In 1963, after conviction for setting fire to a church, the

applicant was placed in Broadmoor under a hospital order. The

order empowered the Home Secretary to release the applicant when

he saw fit and thereafter recall him at any time to hospital. The

applicant was conditionally released on two occasions from

hospital but recalled under the hospital order after failing to

keep to the terms of his conditional release. In 1980 the

applicant was released for the third time. Whilst at liberty, he

kept in touch with his probation officer and voluntarily sought

help for his psychological problems. In December 1982 the

applicant set fire to his own bed in rented accommodation. Damage

of about £500 was caused to the property. Following the incident,

the applicant voluntarily admitted himself to hospital. No steps

were taken to prosecute the applicant. In early 1983 the

applicant left hospital.

In September 1983 the applicant was arrested on a charge of

arson with intent to damage property, namely property in his

rented accommodation. On 24 January 1984 the applicant pleaded

guilty to the offence at Knightsbridge Crown Court.

The medical reports on the applicant stated that his

psychopathic condition was not likely to respond to treatment and

such treatment was not guaranteed to be effective in preventing

the applicant's dangerous behaviour. There was some risk of

future fire-setting. Relying on the medical reports, the judge

took the view that the applicant's condition could not be altered

by treatment and that he was "liable perhaps" to perform acts

dangerous to other people. The judge held that given the

applicant's medical condition, the best course was to sentence

him to life imprisonment.

The applicant appealed against sentence to the Court of

Appeal. On 22 January 1985 the Court of Appeal dismissed the

appeal.

There is no record of the judgment of the Court of Appeal.

On 30 January 1986 the applicant's petition to the Home

Secretary, on the ground that there was no justification for his

continued detention since he was no longer ill, was refused.

On 4 March 1986, the applicant's petition to the Home

Secretary to release him early on parole was refused.

In April 1987, as a result of a decision of the Divisional

Court in the case of R. v. Secretary of State for the Home

Department ex parte Handscomb and others, the Secretary of State

was put under a legal duty to review the applicant's case and

determine the punitive period in his sentence, so that a date

could be fixed for a review of the question of his release

thereafter.

In January 1988 the applicant's case was reviewed by the

local review committee. It informed the applicant that his case

would not be reviewed again until June 1990.

The applicant sought clarification of the decision from the

Secretary of State who informed him on 20 April 1988 that he had

completed the punitive element of his sentence and the decision

not to recommend release was based on the concern over his

continued dangerousness.

In July 1988 the Secretary of State refused the applicant's

petition that his case be reviewed before June 1990.

In December 1988 the Secretary of State refused a request

by the applicant that his case be reheard by the Court of Appeal

following the judgment of the European Court of Human Rights in

the Weeks case (Eur. Court H.R., judgment of 2 March 1987, Series

A no. 114).

COMPLAINTS

The applicant complains under Article 5 para. 4 of the

Convention that he has been denied an opportunity to have his

detention reviewed by a court with power to order his release.

He also complained, by letter of 10 January 1992, under Article

5 para. 4 of the Convention, that the test applied by the

domestic courts in judicial review proceedings is too strict, in

that it imposes too heavy a burden on the detainee to establish

that he is not dangerous.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 May 1989 and registered

on 28 June 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.

On 20 November 1991 the Government submitted that they did

not wish to submit observations on the admissibility of the case.

The applicant's observations were submitted on 27 March 1992, and

on

2 June 1992 the Government submitted further observations in

reply to the applicant's submissions of 27 March 1992.

On 19 February 1992, the Commission decided to grant legal

aid to the applicant.

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 (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 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) 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 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 Chamber

(M. de SALVIA) (F. ERMACORA)

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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM

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