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AS TO THE ADMISSIBILITY OF

Application No. 13195/87

by M. P., V. K.

and C. G.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 14 October 1991, the following members being

present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

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 23 July 1987

by M.P., V.K. and C.G. against the United Kingdom and registered on 3

September 1987 under file No. 13195/87;

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 first applicant is a citizen of the United Kingdom, born

in 1960. He is, at present, serving a life sentence of imprisonment

in H. M. Prison, L.

The second applicant is a citizen of the United Kingdom, born

in 1945. He is, at present, serving a life sentence in H. M. Prison,

D.

The third applicant is also a citizen of the United Kingdom,

born in 1955. He is, at present, detained at H.M. Prison, B.

The applicants are represented before the Commission by Mr. P.

Ashman, legal officer of Justice (British Section of the International

Commission of Jurists), London.

The facts, as agreed by the parties, may be summarised as follows:

The first applicant

On 30 June 1978 the first applicant pleaded guilty at the

Northampton Crown Court to three offences of possession of a firearm

with intent to endanger life, three offences of possession of a

firearm with intent to resist arrest and one offence of burglary. He

was sentenced to life imprisonment for the first six offences and

three years' imprisonment for the burglary.

On 10 July 1979 the Court of Appeal (Criminal Division)

dismissed the first applicant's appeal and upheld the sentence of the

applicant's imprisonment. Lord Justice Lane, giving the judgment of

the Court, stated as follows:

"This man suffers from a psychopathic disorder. He is

highly dangerous. He has an explosive temper which is

likely to flare up at any minute, with consequences which

can be disastrous. There is no need to say more than that.

The prognosis is uncertain, ...

If, therefore, a determinate sentence is to be imposed what

length should it be? No-one can answer that. If it is too

long it is not fair to the appellant. If it is too short it

may very well mean that some innocent member of the public

will lose his life as a result. On the one hand we have the

appalling prospect for a young man of 19, as he now is, of

an indeterminate sentence of imprisonment stretching into

the future. On the other hand there is the difficulty, if

not the impossibility, of forming a prognosis in relation to

his mental condition. There is the fact that this man is

undoubtedly highly dangerous ..."

On 29 June 1990 the Secretary of State authorised the

applicant's release on licence, subject, inter alia, to the

conditions that he could only reside or work where approved by his

probation officer. The first applicant was released on 6 July 1990.

The licence may be varied or revoked by the Secretary of State at any

time.

The second applicant

On 15 November 1976 the second applicant pleaded guilty at the

Plymouth Crown Court to one offence of burglary and one offence of arson.

The Court had wanted to find a place for him in a hospital but none

was available, and on 3 December 1976 it passed sentences of three

years' imprisonment for the burglary and life imprisonment for the

arson. The first applicant appealed, arguing that his sentence was

based on his past crimes and his history of sub-normality in relation

to sexual fantasies with eight-year-old girls.

On 18 November 1977 the Court of Appeal (Criminal Division)

dismissed the applicant's appeals against the sentences. Lord Justice

Bridge, giving the judgment of the Court, stated as follows:

"Passing sentence the [first instance] court said: 'It may

be right that it is correct for us to sympathise with you

rather than condemn you, but we have got a duty to protect

the public and it is quite clear that this is a case where

the public have to be protected from you at least for the

time being. We cannot see into the future, and the only way

we can deal with this matter is by way of what is called an

indeterminate sentence,...'.

When one analyses it, [the argument of counsel for

the applicant] really comes to this,... Before the court

can impose a protective sentence, in the sense of a sentence

which is appropriate to protect the public against this man,

it must wait until an offence of the worst kind, which the

doctors apprehend will be committed against a young girl, is

committed. In our judgment the court would be totally

abdicating its responsibility, looking at this matter

realistically, if it did that. It is clear to us that the

indeterminate sentence the court imposed was the only

sentence which could properly be imposed and the appeal

against it is accordingly dismissed."

The second applicant has been reviewed for parole three times

unsuccessfully. The Parole board did not give any reasons for its

refusals. The case was to be reviewed again in July 1991.

The third applicant

On 14 June 1984 the third applicant pleaded guilty, at the

Manchester Crown Court, to offences of rape, robbery and attempted

rape. In committing these offences, he was in breach of a suspended

sentence for assault. He was sentenced to life imprisonment for the

offences of rape and attempted rape, five years' imprisonment for the

robbery and twelve months' imprisonment for the breach of the

suspended sentence. Before sentencing the judge ordered medical

reports on the third applicant which showed that the he had no mental

disorder, so prison was the only alternative. After sentencing, the

following exchange between the applicant and the trial judge took

place:

Mr. Justice Griffiths: "You are a serious danger to the

public, and that there is every likelihood that if you were

free to do so you would commit similar offences. You are

clearly at present a danger to the public."

The prisoner: "No, I am not."

Mr. Justice Griffiths: "Until such time as the passing of

years alters your character it is clear that you will

continue to be so. In these circumstances my duty is to protect

the public from you - and, in particular, women. I do this by

passing upon you in respect of the two counts of rape and the one

count of attempted rape a concurrent sentence of life

imprisonment."

The prisoner: "That's fair enough with me."

Mr. Justice Griffiths: "This will permit those in authority

to review your condition and to consider whether at some

time in the future it will be safe to set you at large

again."

On 12 December 1974, the third applicant's appeal against his

life sentence was dismissed. The Court of Appeal did, however, change

the sentence of life imprisonment for the attempted rape to seven

years, that being the maximum possible for attempted rape.

The third applicant has not been released on life licence, but

he is now a category B prisoner. His case was reviewed in March and

October 1987, August 1988 and December 1989 by the Local Review

Committee.

COMPLAINTS AND SUBMISSIONS

The applicants allege that it is apparent from the judgment in

each case that punishment was not the reason for the life sentence

imposed. The major consideration was the personality disorder from

which the respective applicants suffered. Hospital places were not

available, or not appropriate, and indeterminate sentences enabled the

authorities to keep the cases under review so that the applicants

could be released when it was safe to do so. The applicants submit

that their cases fall within the principles laid down by the European

Court of Human Rights in the Weeks case (Eur. Court H.R., Weeks

judgment of 2 March 1987, Series A no. 114), in that they, too, fall

within the same "special category" of detention as Weeks. They allege

violations of Article 5 para. 4 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 July 1987 and registered

on 3 September 1987.

On 13 October 1989, the Commission decided to bring the

application to the notice of the respondent Government but not to

invite any observations pending the outcome of the Thynne,

Gunnell and Wilson cases before the Court (Eur. Court H.R.

Thynne, Gunnell and Wilson judgment of 25 October 1990 Series A

no. 190).

On 2 March 1991, the Commission decided to invite the

respondent Government to submit observations on the admissibility

and merits.

The Government's response was submitted on 15 May 1991 and

observations from the applicants were submitted on 20 June 1991.

On 1 July 1991, the Commission referred the application

to the First Chamber.

THE LAW

The applicants, who are serving discretionary life sentences,

complain of the absence of any procedure under domestic law by which

they can have reviewed by a court the continued lawfulness of their

detention. They invoke 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, Gunnell and Wilson

cases (Eur. Court H.R., Thynne, Gunnell and Wilson judgment of

25 October 1990, Series A no. 190) 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 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 APPLICATION ADMISSIBLE,

without prejudging the merits.

Secretary to the First Chamber President of the First Chamber

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

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P., K., and G. v. THE UNITED KINGDOM

P., K., and G. v. THE UNITED KINGDOM

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