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AS TO THE ADMISSIBILITY OF

Application No. 13183/87

by Norman BAMBER

against the United Kingdom

The European Commission of Human Rights sitting in private

on 14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 18 February 1988

by Norman BAMBER against the United Kingdom and registered

on 7 September under file No. 13183/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, Norman Bamber, is a citizen of the United

Kingdom currently residing in Bristol, born in Lancashire in 1935 and

a toolmaker by profession. The facts of the case as submitted by him

may be summarised as follows:

On 7 July 1965, the applicant was convicted after a trial in

Bristol of murdering his girlfriend's husband with an axe while the

latter was at home in bed. He was given a mandatory sentence of life

imprisonment.

On 21 April 1977, he was released on parole licence. That

licence was revoked for a period of three months in 1978 because he

failed to report to his probation officer, and again for nine months

between August 1979 and April 1980 because he was alleged to have

failed to co-operate with the Probation Service. It was again revoked

in November 1980 whilst the applicant was awaiting trial for offences

of theft and burglary, for which he was subsequently convicted on 10

April 1981 and sentenced to eighteen months' immediate imprisonment.

In the event, the Parole Board recommended against revocation of his

licence and he was released, after serving the fixed term, in

April 1982.

On 21 September 1984, the applicant was convicted by the

Bristol Crown Court of further offences relating to the fraudulent use

of credit cards; on this occasion he was sentenced to three years

immediate imprisonment. By virtue of Section 62 (7) of the Criminal

Justice Act 1967, the Judge at the Crown Court had the power to revoke

the applicant's licence, whether or not he passed any other sentence

upon him. During the course of his observations upon sentence,

however, the Judge specifically stated that he did not consider it

proper to do so, bearing in mind particularly that the offences for

which he was then convicted were of a qualitatively different nature

to that for which the life sentence had been imposed.

Notwithstanding this, the applicant's licence was revoked by

the Home Secretary in May 1985. Under section 62 (1) of the 1967 Act,

the Home Secretary may revoke the licence if recommended to do so by

the Parole Board. He also has the power to revoke the licence without

consulting the Board "where it appears to him that it is expedient in

the public interest to recall that person before such consultation is

practicable" (Section 62 (2)), though his decision may be overruled by

the Parole Board (Section 62 (5)).

In November 1985 the applicant was notified that his date of

release had been set at 20 March 1987, though this was subsequently

cancelled by the Home Office for reasons which the applicant alleges to

be inconsistent and arbitrary. Following a petition to the Home

Secretary, the applicant was advised on 1 May 1987 that his

provisional release date was now 21 September 1987, that is exactly

one year later than the date on which he would ordinarily have been

released from the fixed term of imprisonment of three years imposed by

the Crown Court on 21 September 1984 (one third of a sentence may be

remitted for industry and good conduct). The applicant had no

possibility of challenging this decision.

COMPLAINTS

The applicant complains that his continued detention,

following the decision of the Home Secretary in May 1985 to revoke his

parole licence, constituted a breach of Article 5 para. 1 (a) of the

Convention. He argues, notwithstanding the fact that his sentence

of life imprisonment was fixed by law after conviction by a competent

court, that after a passage of time where he remained free of offences

and of activities which could be classed as similar in nature to his

original offence, the Home Secretary lost the right to revoke his

licence save in circumstances where he had grounds for believing that

the applicant's continued liberty would constitute a danger to the

public or to the applicant himself. Furthermore, where a court of

competent jurisdiction had had the opportunity of dealing with the

question under 62 (7) of the 1967 Act, and of hearing the applicant's

arguments against revocation, the Home Secretary should not have

exercised his powers in a manner inconsistent with those of the court

in the absence of other circumstances not then known to the court.

The applicant also alleges a breach of Article 5 para. 4 of

the Convention, in that he had no opportunity to take proceedings by

which the lawfulness of the revocation, and therefore of his

re-detention, could be determined speedily by a court. Nor did any

court have the power to release him from detention. In this respect,

the applicant relies upon the judgment of the Court in the Weeks case

(Eur. Court H.R., Weeks judgment of 2 March 1987, Series A, No. 114).

The applicant further complains under Article 5 para. 4 that

he was not entitled to present his case for release or to challenge

the decision of the Home Office to cancel his original release date of

20 March 1987.

THE LAW

1. The applicant has complained that his continued detention as a

result of the Home Secretary's decision in May 1985 to revoke his

parole licence constituted a violation of his rights under Article 5

par. 1 (a) (Art. 5-1-a) of the Convention, which provides as follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law:

(a) the lawful detention of a person after

conviction by a competent court;

..."

The applicant points out that the Home Secretary revoked his

licence in May 1985 after a court of competent jurisdiction had

considered it inappropriate to do so on the grounds that the offences

for which he was then convicted were of a qualitatively different

nature to that for which the life sentence had been imposed. He

submits that in these circumstances and after a passage of time where

he remained free of offences and of activities which could be classed

as similar in nature to his original offence, the Home Secretary lost

the power to revoke his licence save in circumstances where he had

grounds for believing that the applicant's release would constitute a

danger to the public or to the applicant himself.

The Commission first recalls that there is no incompatibility

with the Convention in the imposition of a life sentence in a

particular case or in a decision to keep a recidivist or habitual

offender at the disposal of the Government (e.g. No. 7994/77, Kotälla

v. the Netherlands, Dec. 6.5.78, D.R. 14 p. 238). Nor does the

Convention confer, in general, a right to release on licence or

require that parole decisions be taken by or subject to review by a

court, and it is clear in this respect that the executive must enjoy a

certain discretion in implementing or executing decisions of the

courts entrusted to its supervision (see Weeks v. the United Kingdom,

Comm. Report 7.12.84, para. 73, Eur. Court H.R., Series A No. 114 p.

43).

It is established in this connection that the justification

for a person's continued detention or redetention on the basis of a

life sentence previously imposed on him is normally considered to have

been provided by the original conviction and appeal procedures, and

that such detention therefore constitutes a "lawful detention ...

after conviction by a competent court" within the meaning of Article 5

para. 1 (a) (Art. 5-1-a) of the Convention (e.g., No. 9089/80, Dec.

9.12.80, D.R. 24 p. 227).

It is true that there are certain exceptional cases in which

the clearly stated purpose for which a life sentence is imposed, taken

together with the particular facts pertaining to the offence for which

a person is convicted, places the sentence in a "special category"

which may subsequently give rise to an issue under Article 5 para. 1

(a) (Art. 5-1-a) of the Convention when a person is redetained in

reliance upon it (see Weeks judgment, loc. cit., para. 46, p. 24).

However in the Weeks case the Court stressed in particular,

that the applicant was given a discretionary life sentence not because

of the inherent gravity of the offence he had committed but because he

was considered to be a danger to the public. For this reason the

Court found that his case was assimilable to that of the habitual

offender who is kept at the disposal of the executive (loc. cit.,

para. 47).

The Commission finds that the present case, on the other hand,

cannot be said to fall within this category of cases, because the

applicant was sentenced to mandatory life imprisonment in 1965 on

account of the inherent gravity of his offence, namely murder.

In consequence, the Commission finds that the applicant's

continued detention as a result of the decision to revoke his parole

licence was a "lawful detention ... after conviction by a competent

court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention.

It follows that this aspect of the application is manifestly

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

the Convention.

2. The applicant has also complained that he had no opportunity

to take proceedings by which the lawfulness of the revocation of his

licence, and therefore of his continued detention, could be determined

by a court, and further, that he could not challenge the decision of

the Home Secretary in respect of the original date of his release on

parole. He invokes Article 5 para. 4 (Art. 5-4) of the Convention, which

provides as follows:

"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."

The Commission has found above that the applicant's continued

detention was justified under Article 5 para. 1 (a) (Art. 5-1-a) as

"the lawful detention of a person following conviction by a competent

court". It is established in this respect that the necessary

supervision of the lawfulness of such detention under Article 5 para.

4 (Art. 5-4) is incorporated at the outset in the applicant's original

trial and possible appeal against conviction and sentence (Eur. Court

H.R., De Wilde, Ooms and Versyp case, judgment of 18 June 1971, Series

A No. 12 para. 76, p.40).

Furthermore, the applicant in the present case cannot derive

from Article 5 para. 4 (Art. 5-4) of the Convention a right to release

on parole or to judicial review of parole decisions (see No. 9089/80,

loc. cit.)

It follows that this aspect of the application is also

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

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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BAMBER v. THE UNITED KINGDOM

BAMBER v. THE UNITED KINGDOM