Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 16791/90

by B.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 24 May 1989

by 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 applicant's

representatives 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 2 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 him that he had

completed the punitive element of his sentence and the decision not to

recommend the release of the applicant 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 that the imposition of a life sentence

was totally disproportionate in its severity to the gravity of the

offence committed. As such it amounts to cruel or inhuman or degrading

treatment, contrary to Article 3 of the Convention.

The applicant complains that the imposition of the life

sentence on him was not in accordance with domestic law in that the

trial court departed from well-established principles of sentencing in

two respects, namely that the accused's offence of September 1984 was

not serious, and that it was not likely that he would commit further

serious offences. He invokes Article 5 para. 1 of the Convention.

The applicant also complains under Article 5 para. 4 that he

has been denied an opportunity to have his detention reviewed by a

court with power to order his release.

THE LAW

1. The applicant alleges violation of Articles 3 and 5 para. 1

(Art. 3, 5-1) of the Convention by virtue of the imposition of a life

sentence out of proportion to the offence and incompatible with

principles of domestic law.

However, the Commission is not required to decide whether or

not this complaint discloses any appearance of a violation of these

provisions as Article 26 (Art. 26) of the Convention 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". The

nature of the life sentence imposed on the applicant was apparent from

the time of its imposition, and any allegation that the imposition of

the life sentence was in violation of Article 3 (Art. 3) or unlawful

within the meaning of Article 5 (Art. 5) should therefore have been

brought within six months of the final decision in respect of the

sentence, that is, the decision of the Court of Appeal of 22 January

1985. The present application, however, was only submitted to the

Commission on 24 May 1989, 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. In

particular, the petitions to the Home Secretary could not be effective

remedies to be taken into consideration in determining the date of the

final decision for the purposes of applying the test laid down in

Article 26 (Art. 26) of the Convention.

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.

2. The applicant also alleges a violation of Article 5 para. 4

(Art. 5-4) by reason of the lack of court review of his continued

detention. The Commission recalls that in the case of Thynne, Wilson

and Gunnell (Eur. Court H.R., judgment of 23 October 1990, Series A

no. 190) the European Court of Human Rights considered this question.

It finds that it requires further examination in the present case.

The Commission therefore adjourns this part of the

application.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaint

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

availability of a judicial review of the applicant's

detention;

DECLARES INADMISSIBLE the remainder of the application

Secretary to the Commission President of the Commission

(H. C. KRÜGER) ( C. A. NØRGAARD)

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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM

LEXI