Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11787/85 Application No. 11978/86

by Michael K. THYNNE by Benjamin WILSON

Application No. 12000/86 Application No. 12009/86

by Robert Malcolm WEEKS by Edward James GUNNELL

against the United Kingdom

The European Commission of Human Rights sitting in private

on 6 September 1988, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

G. BATLINER

J. CAMPINOS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission,

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to:

(1) the application introduced on 3 June 1985 by

Michael K. Thynne against the United Kingdom and registered on

10 September 1985 under file No. 11787/85;

(2) the application introduced on 1 September 1985 by

Benjamin Wilson against the United Kingdom and registered on

1 February 1986 under file No. 11978/86;

(3) the application introduced on 3 October 1985 by

Robert Malcolm Weeks against the United Kingdom and registered on

15 February 1986 under file No. 12000/86;

(4) the application introduced on 24 April 1985 by

Edward James Gunnell against the United Kingdom and registered on

12 February 1986 under file No. 12009/86;

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

Rules of Procedure of the Commission;

Having regard to the Commission's decision of 6 September 1988

to join the applications pursuant to Rule 29 of the Rules of

Procedure;

Having regard to the parties' written and oral submissions,

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, Mr. Michael Keith Thynne, is a citizen of

the United Kingdom born in 1951. He is, at present, serving a life

sentence of imprisonment in HM Prison, Lewes, Sussex.

The second applicant, Mr. Benjamin Wilson, is a British

citizen born in 1916 and currently serving a life sentence in HM

Prison Wormwood Scrubs, London.

The third applicant, Mr. Robert Malcolm Weeks, is a citizen of

the United Kingdom, born in 1949. He is, at present, unemployed and

living in a mobile home in southern France. He brought a previous

application to the Commission (No. 9787/82) which eventually led to a

judgment of the European Court of Human Rights (Eur. Court H.R., Weeks

judgment of 2 March 1987, Series A no. 114).

The fourth applicant, Mr. Edward James Gunnell, is also a

citizen of the United Kingdom, born in 1930. At the time of the

introduction of his application he was detained in prison. He was

released on parole on 6 September 1988.

The first and third applicants (Thynne and Weeks) are

represented before the Commission by Mr. Peter Ashman, Legal Officer

of JUSTICE (British Section of the International Commission of

Jurists), London. The second and fourth applicants (Wilson and

Gunnell) are represented before the Commission by Mr. Paul Hunt, Legal

Officer, National Council for Civil Liberties and Mr. Edward

Fitzgerald, of counsel.

The facts, which are not disputed by the parties, can be

summarised as follows:

THYNNE

On 27 October 1975 the first applicant, then aged 24, pleaded

guilty, at the Central Criminal Court to rape and buggery. He was

sentenced by the Recorder to life imprisonment on each count on 24

November 1975.

On 7 August 1975 the applicant, who had just been released from

prison, had gained entrance to a flat under the pretence that he was a

member of the police force investigating a burglary. The flat was

occupied at the time by a 45 year old married woman. The applicant

told the woman that he had a knife and would kill her if she made a

noise. He then told her to take her clothes off. He took a pair of

scissors which were in the flat and raped and buggered her. In the

course of this assault he inflicted some minor puncture wounds with

the scissors. The applicant had been released from prison the previous

day and had been staying with friends in the same block of flats where

the offences took place. It was established in the course of the trial

that the offence was committed within 36 hours of the applicant's

coming out of prison at a time when he had had little sleep, had

consumed a certain amount of alcohol and taken drugs. He also had a

long criminal record, having served various sentences of imprisonment

for theft and burglary.

Medical evidence which was presented to the Recorder made it

clear that a hospital order was not appropriate in the circumstances

of his case. The Recorder considered, however, that an indeterminate

life sentence would be the most humane sentence as it would enable the

Home Secretary to release him as soon as it was observed that his

personality disorder - described by a psychiatrist as a severe

psychopathic character disorder - had so improved that it would be

reasonably safe to release him. The Recorder stated as follows:

"But for the psychiatric reports that I have seen I would

impose on you a very long prison sentence. As it is, I am

going to sentence you to life on each count in order that

those in a position to observe any improvement in your

personality disorder, those capable of carrying out any

operative treatment which may [be] seen to be necessary,

with your consent, on your frontal lobe, may judge the time

when it is reasonably safe that you should be free."

The applicant appealed against the life sentences on the

ground that they were manifestly excessive and resulted in custody for

a longer time than the appropriate determinate sentence. This appeal

was dismissed by the Court of Appeal on 22 March 1976. The Court

pointed out that the attack was serious and violent and subjected the

victim to "indecency" and "indignities". It did not consider that the

life sentence was manifestly excessive and stated as follows:

"We do not see the life sentence in this case as necessarily

involving detention in custodial conditions for a very long

period of time. It depends upon the regime to which he is

subjected and the treatment he can get. If a determinate

sentence were to be substituted, then the court would have

to pass such a sentence as would ensure that he was kept in

custody for a longer time than he probably will remain under

a life sentence."

The Court considered that the sentence was correct in

principle in the circumstances of the case, adding that:

"Life sentences are imposed in circumstances where the

offence is so grave that even if there is little risk of

repetition it merits such a severe, condign sentence and

life sentences are also imposed where the public require

protection and must have protection even though the gravity

of the offence may not be so serious because there is a very

real risk of repetition. This case falls within neither of

these categories which express extreme situations but

undoubtedly the offences here were very grave indeed and

undoubtedly in the light of the medical reports on this man,

the Court cannot be sure by any means that he would, in

society, not give way to outbursts of this nature which

would very seriously affect other persons."

In May 1977 the applicant was accepted for treatment at

Grendon Underwood - a psychiatric prison. He decided not to accept

the place offered on being told that he would not automatically be

given early release. In the opinion of most of the psychiatrists and

other doctors dealing with the applicant his personality disorder was

not amenable to either surgery or psychiatric treatment. The Senior

Medical Officer at Maidstone Prison diagnosed the applicant as an

untreatable aggressive psychopath.

The applicant claims that he received only limited therapy

between 21 March 1978 and September 1979 which consisted of a short

interview by a psychiatrist every two to six weeks.

Following representations on the applicant's behalf the Home

Secretary decided that the case should be referred to the Joint Parole

Board - Home Office Committee the following month. In August 1980 the

Committee recommended that it should be referred to the Local Review

Committee in September 1981 when the applicant would have been

detained for six years. The Local Review Committee (which advises the

Secretary of State) did not recommend release.

After absconding from an open prison on 1 May 1982 the

applicant stole a gold bracelet from a jewelery shop and when pursued

by the manager of the shop he had brandished, but not used, a knife.

He was arrested on 26 July 1982 and found to be in possession of

cannabis. He was placed in a detention room and in an effort to

escape he broke a door frame. He was subsequently sentenced to six

months' imprisonment on charges of theft, unlawful possession of drugs

and criminal damage. The sentence was to run concurrently with the

existing life sentence.

On 22 October 1982 the Parole Board recommended that the

applicant's case be referred to the Local Review Committee nine months

after his arrival at Maidstone Prison. However on 16 March 1983, when

visiting his mother who was gravely ill, he escaped on an impulse and

was recaptured two days later. The date of the referral of his case

to the Local Review Committee was put back to June 1984. The

applicant was transferred to Blundestone Prison in June 1983 where he

was examined by the prison department psychiatrist who found no

evidence of mental illness and saw no grounds for recommending

psychiatric treatment. The prison's medical officer agreed with these

findings. The Local Review Committee did not recommend release.

In July 1985 the applicant's case was referred to the Parole

Board which recommended that he remain in a category B Prison with a

further review in two years time. A further review was carried out by

the Local Review Committee in July 1987. It was recommended that he

remain in custody. A further review is scheduled for May 1989.

WILSON

The second applicant, born in 1916 has a long record of sexual

offences beginning in 1935 and has served a number of prison

sentences. On 29 March 1973 he pleaded guilty to charges of buggery

and indecent assault on boys under the age of 16 and was sentenced to

life imprisonment for buggery and seven years, to be served

concurrently, for, inter alia, indecent assault.

In passing sentence the Judge said:

"I entirely accept that, to a large extent, you cannot help

yourself. To that extent, your moral guilt is the less, but

I have two duties to perform. One is a duty to find the

correct sentence as far as you are concerned, having regard

to your make-up; your physical and mental make-up. The other

duty I have, and in the circumstances of this particular case,

I think it is the more important: I have a duty to the public,

and in particular, to the young public, to protect them from

people like you who, for one reason or another, can't control

themselves.

I hope that, in the course of time a method of treatment for

your particular freakish affliction can be found. I think it

will be in the best interest of society generally, and yourself

in particular, if some form of treatment for you could be found.

What I am going to do in your case may sound harsh from your

point of view, but it will be explained to you, no doubt, by

hereafter, that it may in fact hold out more hope

to you than if I merely went up to perhaps 4, 5 or 6 years, or

even 7 years in a particular case.

The sentence of the court is that so far as the count of

buggery is concerned, that is the eighth count on the indictment,

you will go to prison for life. So far as the counts of

attempted buggery and indecent assault are concerned, you will

go to prison for a period of 7 years. All these sentences to be

concurrent. Now I am sure that will have a word

with you hereafter and will indicate what the situation is with

regard to a life sentence, but as I say, I think my main duty in

this particular case is to protect the public and the young

public, in the light of what I have heard occurred in your case.

I only hope that, in due course, some form of treatment, perhaps

that to which the doctor refers in the medical report which I

have seen, may help you".

The applicant applied for leave to appeal but abandoned his

application. He later tried to re-open the appeal in November 1976

and, though the Court of Appeal turned down his application, they also

expressed the view that the applicant had better prospects of release

under a life sentence than a long fixed term sentence if he used the

opportunity to improve his character.

"There are circumstances in which the Court is empowered to

allow the withdrawal of the notice of abandonment. The Court

has thought it right, as it would have had to say in the end,

simply that the applicant has not established a situation in

which this Court could properly allow him to withdraw the

notice of abandonment. The Court has thought it right to go

to some extent into the history of the matter in order to

establish that even if such a withdrawal were permitted, it

could not possibly be of advantage to the applicant, if we

were to substitute for the life sentence a very long sentence

that it really would not be distinguishable from a life

sentence. But if he wishes to take advantage of it, build

himself up and strengthen his own character, he has far better

prospects under an indeterminate sentence than under a long

determinate sentence."

The applicant's case was first referred to the Joint Committee

of the Parole Board and the Home Office after three years of his

sentence and they recommended that he should be considered for parole

after seven years of his sentence. Thus, on 11 December 1981, the

Parole Board recommended, after an interview with the applicant, that

he be released into a controlled environment with psychiatric

supervision. The Secretary of State decided to release him on licence

on 3 September 1982 on condition that he:

i) live at a probation hostel;

ii) co-operate with his probation officer;

iii) attend on appointed medical practitioner and took any

prescribed treatment; and

iv) refrained from any activity involving young boys without the

permission of his probation officer.

The applicant was released on 14 September 1982 and took up

residence at a probation hostel. He asked for alternative

accommodation on the ground that his room was uncomfortable and rain

leaked in through the roof. He also requested permission to join

Haringay Athletics Club but this was refused due to possible contact

with young boys.

On 11 February 1983, the Parole Board recommended his recall

and on 14 February 1983 the Secretary of State revoked his licence.

The applicant on his return to prison was informed that the reason for

his recall was that his conduct gave cause for concern and that he had

failed to co-operate with his supervisory officer. The applicant

exercised his right to make written representations against his recall

but on 16 September 1983 the Parole Board declined to change the

decision.

On 6 April 1984, the applicant commenced judicial review

proceedings to quash this decision on the ground that he had not been

provided with adequate details of the reason for his recall as

required by S. 62(3) of the Criminal Justice Act 1967 and that he had

accordingly been unable to make effective representations.

The Home Office conceded the inadequacy of the reasons given

and provided a one page statement of allegations on 5 October 1984,

which included the allegations that:

i) the applicant had sought to leave the probation hostel;

ii) a school boys' cap had been found in the living room of the

hostel;

iii) the applicant had protested against the probation officer's

refusal to allow him to take part in sporting activities;

iv) the applicant had shown an interest in watching boys play

football and his psychiatrist suspected that he was exploring

ways of contacting boys again.

The Home Office then agreed to allow the applicant the

opportunity to make further representations to the Parole Board, which

he did. On 7 November 1984, the applicant's solicitors also requested

disclosure of a number of reports which were before the Parole Board

when it made its decision.

On 20 March 1985 the Divisional Court considered the

applicant's case. The court quashed the decision to confirm the

applicant's recall made by the Parole Board on 16 September 1983 after

referral by the Secretary of State on the ground that it was flawed by

a procedural impropriety, in that the applicant had not been given

sufficient reasons to enable him to make proper representations. In

the course of these proceedings the applicant's counsel expressly

abandoned the argument that the applicant's detention following recall

had been unlawful.

The applicant's lawyer then requested to see the probation

report which alleged non co-operation and that the applicant be given

an oral hearing with legal representatives. However, the Parole Board

did not answer this request and after a meeting on 22 March 1985

maintained the decision not to release the applicant.

The applicants' case was reconsidered by the Parole Board in

November 1986 without a recommendation to release. He is still in

detention.

WEEKS

The factual background of the application brought by the third

applicant has been set out by the European Court of Human Rights in

its judgment in the Weeks case (loc. cit., pp. 10-14, paras. 10 - 23).

That application arose out of the applicant's sentence to life

imprisonment on 6 December 1966 for armed robbery, assaulting a police

officer and being in the unlawful possession of a firearm.

The present application concerns events which have occurred

following the decision of the Commission to declare the former

application admissible (No. 9787/82, Dec. 17.1.84, D.R. 35 p. 104).

In May 1984 the applicant, who had been released from prison

on licence, resigned from his employment as a park keeper following a

disageement with another member of staff. In June 1984 the applicant

applied for, and was issued with a passport and left the United

Kingdom to seek work in France. The probation service reported that

the applicant was out of touch with his supervising officer, had

vacated his flat and was believed to have gone abroad. The case was

referred to the Parole Board which, on 5 October 1984, recommended

that the applicant's life licence should be revoked on the grounds

that he was in breach of the conditions of his licence. Condition 6

of his licence required that he seek the prior permission of his

probation officer before travelling outside Great Britain.

In November 1984 the Home Secretary revoked the applicant's

licence on the grounds inter alia that he was in breach of this

condition. When the applicant returned to the United Kingdom in April

1985 he was arrested and returned to prison to resume his life

sentence.

He was again released on licence on 25 September 1985. In

December 1985, being unable to find work in the United Kingdom, the

applicant sought the views of his probation officer about returning

to the south of France to resume his work there as a casual labourer.

He was informed that he would not be given permission to leave the

country so he left without obtaining that permission. In consequence,

the applicant's licence was again revoked and he was liable to

re-arrest and re-imprisonment on his return to the United Kingdom.

The Parole Board recommended on 7 February 1986 that his

licence be revoked on the same ground as in 1984. The Home Secretary

acted on this recommendation on 13 March 1986.

Following the judgment of the European Court of Human Rights

in his case, the Parole Board, on 3 April 1987, revoked its

recommendation that the applicant be recalled. On 29 April 1987, on

the recommendation of the Home Secretary, Her Majesty the Queen

remitted the applicant's life sentence by means of the Royal

Prerogative. Accordingly, the applicant is no longer subject to the

limitations of a life licence and is no longer liable to be recalled

to prison.

In the light of the favourable judgment of the Court,

the applicant applied for judicial review of the Home Secretary's

refusal to pay compensation. The application was dismissed in

February 1988. The Divisional Court held that the existing ex gratia

scheme compensating persons wrongfully imprisoned did not extend to

cases such as that of the applicant and that a violation of the

Convention was not justiciable in English courts. The applicant was

advised that there was no appeal against this decision.

GUNNELL

The fourth applicant was found guilty in December 1965 of four

offences of rape and two offences of attempted rape, and he was

sentenced to life imprisonment. A pattern was discernible in a number

of those offences, in that he approached women at their home and in

the gardens of their homes and then committed the offence. Although

there was uncontradicted medical evidence that the applicant was

suffering from a "mental disorder" within the meaning of that term in

the 1959 Mental Health Act (namely psychopathy) and that he needed

constant care and treatment in a maximum security medical setting, the

sentencing judge nevertheless declined to act on the recommendation of

the medical experts and concluded that, because of the gravity of the

offences, "punishment must be an element in this case" and "punishment

can only be achieved by imprisonment". On passing sentence, the trial

judge, Mr. Justice Roskill, stated as follows:

"Edward James Gunnell, you stand convicted of no less than

four charges of rape and two of attempted rape, as well as

three charges of stealing, two of which were connected with

two of the rapes, and all those offences were committed

within the period of a month. It is only thanks to the

courage of the two women involved, those concerned in

counts 1 and 2, that you are not standing convicted on no

less than six charges of rape. These must be amongst the

worst cases of rape or attempted rape ever to come before a

court in this country. But though I accept you have spent

much of your early life in mental institutions, and I accept

certain evidence I have heard this morning that you are

suffering from psychopathic disorder, the evidence leaves no

doubt and can leave no doubt in anybody's mind, that you

did know what you were doing and you were well aware of the

wickedness of what you had done. I have listened with

great attention to the medical evidence which I have had

the opportunity of hearing this morning, and I have

endeavoured to give all the weight to it that I properly

can.

It has been urged upon me that I should deal with you by

making a hospital order and sending you to Rampton, where

you will be kept in secure conditions and receive any

treatment which you may require. In many cases it is

clearly right for a court in discharging its

responsibilities to have regard solely or mainly to the

needs of the offender, but the present case in my view is

one of such magnitude that I cannot only have regard to such

needs. It is true, to send you to Rampton would involve you

being kept under secure conditions and to that extent would

keep the public from you. But there are other matters which

I must take into account in the public interest, not the

least of which is to make it clear that crimes of this kind

committed against ordinary housewives in their ordinary

homes doing their every day business while their men-folk

are away at work are such as must, when brought home to a

particular offender, be dealt with in such a way as to make

plain that the law is concerned and ever will be concerned

to protect people who suffer as you caused these women to

suffer by these quite appalling sexual attacks that you made

upon them. Punishment must be an element in this case, and

that punishment can only be achieved by imprisonment.

Imprisonment will afford security to the public from you,

and the Home Secretary has ample power if and when the need

for treatment arises, to transfer you to any institution

where such treatment can be received.

In my judgment there is only one sentence which is

appropriate in this case, and I will deal with count 3

first. Upon count 3 the sentence of the court is that you

be imprisoned for the term of your natural life. There will

be corresponding life sentences on counts 4, 5 and 7, upon

which you stand convicted of rape. On the first two counts

in the indictment, those of attempted rape the sentence will

be one of 7 years imprisonment, such sentences to run

concurently with one another and with the life sentence. On

count 6 and count 8 there will be sentences concurrent with

each other of 3 years' imprisonment and concurrent with the

life sentences. On count 9 there will be a concurrent

sentence of two years' imprisonment. Those are the

sentences of the court on every count."

The applicant was refused leave to appeal to the Court of

Appeal on 22 June 1966. In the course of his judgment the

Lord Chief Justice stated:

"It is a shocking case and there is no conceiviable ground

upon which he could succeed in his application for leave to

appeal against conviction. Indeed, all he says is that he

would like to call three of the women complainants to

challenge their evidence all over again. This court refuses

the extension of time in which to apply for leave to appeal

against conviction.

In regard to the application for leave to appeal against

sentence in regard to the rapes and attempted rapes, the

applicant is 35 and, though he has committed offences

before, none of them have been offences of violence or of

a sexual nature, but he has a long mental history. As long

ago as 1946 he was committed to Manor Hospital, Epsom, from

which he escaped 18 times. In 1950 he was admitted to

Farmfield Hospital, Horley. He absconded three times. In

1951 he was transferred to Rampton hospital where he made no

attempts to escape, possibly knowing that it is difficult to

do so. In 1959, however, he was released on licence from

Rampton and in 1960 he was discharged from the operation of

the Mental Deficiency Act 1959.

There was evidence, indeed it was uncontradicted, from the

doctors that the applicant could be made the subject of a

hospital order under the Mental Health Act 1959, in that he

was a psychopath who needed constant care and treatment in a

medical setting of maximum security such as Rampton and such

a vacancy was then available. The learned judge refused to

take that course and the ground of appeal here is that he

was wrong in principle, when two doctors certified that the

applicant was a fit subject for a hospital order and that

treatment was warranted, not sending him to hospital but

sending him to prison ...

This court would like it to be known that they agree with

every word that the learned judge there said, indeed in an

earlier case of Morris [1961] 2 QB 237, it was pointed out

that there may be cases where although a court has powers to

make a hospital order, yet where a punishment is required it

would be right to send the offender to prison, it being

recognised that the Home Secretary has ample powers under

section 72 of the Mental Health Act 1959 to cause him to be

treated in hospital when the need arises.

This court would like to add one further reason justifying

the judge's order in the present case. The applicant is

obviously a dangerous psychopath. It is clear unless he is

kept in circumstances of strict security he is liable to be

a menace to the public. True, Rampton is said to be a

secure hospital, but it does not mean that he would not get

away from there. More important, it has to be observed that

this dangerous psychopath has already been released on

licence from Rampton. Bearing the interests of the public

in mind, this court thinks it far safer that he should be

kept in prison for as long as is necessary rather than he

should be left to be dealt with as a hospital might deal

with him, on a doctor and patient relationship under which

it might be considered safe for him to be free, whereas

from the public angle he remains a menace.

This court is quite satisfied that the sentence was right

and the application is refused."

In December 1980 the Parole Board recommended that, subject to

continued good conduct, to the satisfactory completion of periods both

in open conditions and the pre-release employment scheme, the

applicant should be released on licence under the provisions of the

Criminal Justice Act 1967. On 7 September 1981 he joined the

pre-release employment scheme at Wormwood Scrubs prison. Arrangements

were made for him to take anti-libidinal drugs and he was released on

licence on 4 March 1982.

On 19 February 1983 information was received from Finchley

Police that the applicant had been seen watching a woman cleaning her

car and had then been found in her back garden. The police said that

there had been a similar incident in January 1983, when a woman

complained to the police that the applicant was in her back garden

looking through her rear window. The police had arrested the

applicant on that occasion but did not hold him. Following the second

incident, the Minister of State authorised the immediate revocation of

the applicant's life licence under Section 62 (2) of the 1967 Act

on 19 February 1983 because of the similarities between the

applicant's current behaviour and the circumstances in which the

original offences were committed. The applicant was taken to

Pentonville Prison the same day and was subsequently transferred to

Wormwood Scrubs. At no stage of the proceedings was he charged with

any criminal offence in relation to the incidents in January and

February 1983.

The applicant was interviewed by the Assistant Governor on

25 February 1983 and states that he was told that his licence had been

revoked "because his behaviour was giving cause for concern". He was

also informed of his right under Section 62 (3) of the 1967 Act to

make written representations to the Parole Board.

The applicant was subsequently seen by a member of the Local

Review Committee on 1 March 1983. On 4 March 1983 the Parole Board

confirmed the revocation of the applicant's licence when the case was

referred to them under Section 62 (4) of the 1967 Act. On 25 March

the Parole Board rejected the applicant's representations but

recommended that, subject to satisfactory re-settlement arrangements

being made and to continuing psychiatric supervision he should be

released in a month's time. The Secretary of State decided not to

accept the Board's recommendation after consultations with the Lord

Chief Justice and the trial judge in accordance with Section 67 (1) of

the 1967 Act. The applicant subsequently petitioned the Secretary of

State, complaining that he had not been allowed to defend himself.

The petition was rejected in a reply dated 3 August 1983. The

applicant states that the reply contained the first written

explanations of the reasons for his recall and the first official

account in any detail of the allegations made against him.

On 9 August 1983 the applicant applied for leave to move for

judicial review of the decisions of the Parole Board and the Home

Secretary, confirming the initial revocation of the licence. The

applicant was granted leave to move for judicial review on 18 August

1983. His application was eventually dismissed on 2 November 1983.

An appeal against this decision to the Court of Appeal was also

dismissed on 30 October 1984. The applicant's case was reviewed again

by the Parole Board and the Home Secretary in 1984 but he was not

released. He was released on licence once more in September 1988.

Relevant domestic law and practice

By virtue of section 37 of, and Schedule 2 to, the Sexual

Offences Act 1956 the maximum punishment for rape is life

imprisonment. The maximum penalty for buggery with a boy under the

age of 18 is life imprisonment by virtue of Section 37 of, and

Schedule 2 to, the 1956 Act.

Under the Criminal Justice Act 1967 the Secretary of State may

only release on licence a person sentenced to life imprisonment if

recommended to do so by the Parole Board, and after consultation with

the Lord Chief Justice of England and the trial judge if available.

In practice the Home Secretary consults the Lord Chief Justice

and the trial judge as to the period on detention necessary to satisfy

the needs for retribution and deteterrence, i.e. the tariff period.

By virtue of section 62 (1) the Secretary of State may revoke

the licence of a person, whose recall to prison is recommended by the

Parole Board. A prisoner recalled in such circumstances is entitled

to be informed of the reasons for his recall and of his right to make

representations. If he makes representations the Secretary of State

must refer his case to the Board. If the Board recommends the

immediate release of a re-called prisoner, the Secretary of State is

bound to give effect to the recommendation.

Under section 62 (2) the Secretary of State may himself

revoke the licence of a life licensee without consulting the Parole

Board if it appears expedient in the public interest to do so before

such consultation is practicable; but the case of a prisoner so

recalled must be referred to the Board. If the Board recommends the

immediate release of a re-called prisoner, the Secretary of State is

bound to give effect to the recommendation.

Under Section 59 of the 1967 Act the Secretary of State has

established for every prison a Local Review Committee with the

function of advising him on the suitability for release on licence of

prisoners. It is the practice to obtain a Local Review Committee's

assessment before referring the case to the Parole Board. The date

when a life sentence prisoner's case was to be referred to the Parole

Board was normally determined by a joint Parole Board-Home Office

Committee.

Section 60 (4) of the 1967 Act provides that a person subject

to a licence shall comply with such conditions, if any, as may for the

time being be specified in the licence. Section 60 (5) provides:

"The Secretary of State shall consult the Board before

including on release, or subsequently inserting, a condition

in a licence under this section or varying or cancelling any

such condition; and for the purposes of this subsection the

Secretary of State shall be treated as having consulted the

Board about a proposal to include, insert, vary or cancel a

condition in any case if he has consulted the Board about

the implementation of proposals of that description

generally or in that class of case."

It is the practice that all prisoners released on life licence

are required to remain under the supervision of a probation officer.

The licensee maintains regular contact with his probation officer and

obtains his probation officer's approval for the place where he lives

and works.

COMPLAINTS

The first applicant (Thynne) complains under Article 5 para.

4 of the Convention of the absence of any procedure under the law of

the United Kingdom by which he can have reviewed the continuing

lawfulness of his detention by a court.

The second applicant (Wilson) makes the following complaints,

also under Article 5 para. 4 of the Convention:

i) between March 1973 and September 1982, i.e. the date

of his release on licence, he was deprived of the right to

have the lawfulness of his continued detention determined at

reasonable intervals by a "court" which could determine the

substantive merits of the justification advanced by the

authorities for his continued detention;

ii) between 14 February 1983 and 22 March 1985 he was

deprived of his right to have the lawfulness of his recall

and renewed detention determined by a "court" competent to

decide whether the recall and detention were justified; and

iii) since March 1985, he has been deprived of his right

to a periodic review of the lawfulness of his detention at

reasonable intervals by a "court".

He further complains under Article 5 para. 5 of the Convention

that there is no enforceable right to compensation in respect of the

above breaches of Article 5 para. 4 under the law of the United

Kingdom.

The third applicant (Weeks) complains that his re-detention

was in breach of Article 5 para. 1 of the Convention in that there

exists no sufficient connection between his original conviction in

1966 and the decision to re-detain him because of a breach of an

administrative requirement, i.e. one of the conditions of his licence.

He further alleges a breach of Article 5 para. 4 of the

Convention in that he was unable to take proceedings to challenge the

lawfulness of the decision to re-detain him.

Finally, he alleges a breach of Article 5 para. 5 of the

Convention in that there is no enforceable right to compensation

under the law of the United Kingdom.

The fourth applicant (Gunnell) complains under Article 5 para.

4 of the Convention that he was unable to challenge before a court the

lawfulness of the decision to re-detain him.

Complaints originally made by the second applicant (Wilson)

under Articles 5 para. 1 (e) and 5 para. 2 and by the fourth applicant

(Gunnell) under Article 5 para. 2 of the Convention were expressly

withdrawn in the course of the hearing before the Commission.

PROCEEDINGS BEFORE THE COMMISSION

The first application (Thynne) was introduced on 3 June 1985

and registered on 10 September 1985.

The second application (Wilson) was introduced on

1 September 1985 and registered on 1 February 1986.

The third application (Weeks) was introduced on 3 October 1985

and registered on 14 February 1986.

The fourth application (Gunnell) was introduced on 24 April

1985 and registered on 12 February 1986.

The applications were first examined by the Commission on

1 December 1986 (Thynne), 1 February 1986 (Wilson), 1 December 1986

(Weeks) and 18 July 1986 (Gunnell).

The Commission decided to give notice of the applications to

the respondent Government but not to ask for their observations on the

admissibility and merits of the cases until judgment had been handed

down by the European Court of Human Rights in the Weeks case (Eur.

Court H.R., judgment of 2 March 1987, Series A no. 114).

On 1 April 1987, following the judgment of the Court in the

Weeks case, the President of the Commission requested submissions on

the admissiblity and merits of the applications insofar as they raised

issues under Article 5 of the Convention. The Government's

observations were submitted on 12 June 1987 (Thynne, Wilson and

Gunnell) and 20 July 1987 (Weeks). The applicants' observations in

reply were subitted on 21 July 1987 (Thynne), 23 September 1987

(Wilson), 25 September 1987 (Weeks) and 29 October 1987 (Gunnell).

The Commission next considered the applications on

9 March 1988 when it was decided to hold a joint oral hearing to take

place in Strasbourg on 6 September 1988.

The applicant Wilson was granted legal aid by decision of the

Commission on 13 May 1988.

The applicants Thynne and Wilson were granted legal aid by

decision of the President on 19 August 1988.

At the hearing, at which the applications were joined

pursuant to Rule 29 of the Commission's Rules of Procedure, the

parties were represented as follows:

Respondent Government

Mr. M. C. Wood, Foreign and Commonwealth Office, Agent

Mr. A. Moses, Counsel

Mr. C. Osborne, Home Office, Adviser

Mrs. V. Harris, Home Office, Adviser

The applicants

(for MM. Wilson and Gunnell):

Mr. E. Fitzgerald, counsel

Mr. P. Hunt, Legal Officer, National Council for Civil Liberties

(for MM. Thynne and Weeks):

Mr. P. Ashman, Legal Officer, JUSTICE

SUBMISSIONS OF THE PARTIES

Respondent Government

Article 5 para. 1 (a) of the Convention

WEEKS

The Government refer to the decision of the Court in the Weeks

case (loc. cit.) concerning the interpretation of Article 5 para. 1

(a) of the Convention. In particular the Court has held that there

was a sufficient causal connection between the applicant's conviction

in 1966 and his re-detention in 1977, after having examined the

sufficiency of the grounds on which the re-detention in 1977 was

based, bearing in mind the discretion conferred by the Convention on

the national authorities in this area.

The Government submit that the release which the life sentence

system provides for is release on licence and that licensees have to

subject themselves to supervision by a probation officer. It follows

that the monitoring of a life sentence prisoner's progress continues

after he has been released through contact with the probation

officer. Such monitoring is only possible if the licensee maintains

regular contact with the probation officer. It breaks down if the

licensee goes abroad without permission.

Once a prisoner has been released, the authorities lose direct

control over him and the necessary continuing contact with the

probation officer can only be maintained with his co-operation. The

authorities cannot compel him to maintain that contact. The only

effective sanction which they have is recall to prison. Thus the

revocation of a life licence may be the only effective way of

reminding a licensee, as well as other life sentence prisoners and

licensees, of the licence obligations.

In the present case the applicant had from June 1984 to the

time of his re-arrest, been out of touch with his probation officer

as a result of having moved his residence to France. This constitutes

a breach of the conditions attached to the applicant's licence. In

these circumstances the continued supervision required by his licence

could no longer take place.

Accordingly the applicant's re-arrest in May 1985 was in no

way arbitrary or unreasonable in terms of the sentence imposed on

him. His failure to maintain contact with the probation officer

and his subsequent re-arrest were consistent with the objectives of

the sentencing court which were that the applicant should be subject

to continuing supervision even after release from prison. If the

applicant's argument was correct it would mean that the Home Secretary

could never recall a person on licence for breach of licence

conditions but could only recall him if he considered that person to

be a danger to himself or to the public. It is therefore submitted

that there has been no breach of Article 5 para. 1 of the Convention.

General

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The Government refer to the decision of the European Court of

Human Rights in the Weeks case (Eur. Court H.R., judgment of 2 March

1987, Series A no. 114) where the Court held that, in the case of life

sentences falling into a special category, the prisoner was entitled

to apply to a court-like body to have the lawfulness of his detention

following recall and continuing detention reviewed. In such a case,

the supervision required by Article 5 para. 4 was not incorporated in

the decision of the sentencing court. However, in the Weeks case, the

Court stressed that the purpose for which the defendant's sentence had

been imposed, taken together with the particular facts relevant to

the offence placed the sentence in a special category. Neither the

trial judge nor the Court of Appeal in the Weeks case had suggested

that the offence in itself was so serious as to merit a life

sentence. Moreover, the Court was careful to distinguish Mr. Weeks's

exceptional sentence, which was imposed solely for the purpose stated

by the trial court and the Court of Appeal, from the unexceptional

life sentence imposed where the gravity of the offence is one of the

reasons for the imposition of the sentence.

It follows from the Court's judgment that, for the purposes of

Article 5 of the Convention, life sentences in the United Kingdom fall

into two categories. The first category consists of two types of life

sentence which are distinct in English law, namely mandatory life

sentences and discretionary life sentences. In the case of mandatory

life sentences, the offences are so grave that Parliament has

legislated that no discretion should be given to the court as to the

appropriate sentence. In the case of discretionary life sentences,

the combination of the gravity of the offence and the danger presented

to the public by the offender is such as to merit an indeterminate

sentence. The combination of gravity and dangerousness gives rise to

a special need for the Home Secretary to maintain public confidence in

the system of life sentences.

The second category is the special category that the Weeks

case belongs where the life sentence is imposed solely to meet the

need for continued supervision and custody. It is submitted that this

category is very small and that the Weeks case is unique.

The Government submit that the applicants' submissions based on

the Handscombe decision (R v. Secretary of State for the Home

Department, ex parte Handscombe and Others (1988) 86 Cr. App. R.59) are

misconceived since the gravity of the offence is also part of the

justification for re-detention. The gravity of the offence gives rise

to a special consideration of maintaining public confidence in the

life sentence system. The Home Secretary's duty in this respect means

that he must have regard to the risk to the public involved in the

release of a particular prisoner in the light of the gravity of the

offence. Such judgment may depend on issues of fact which are not

susceptible to judicial analysis. Courts, unlike the Home Secretary,

are not answerable to the public.

THYNNE

The Government submit that the facts of this application place

it in a wholly different category from that of Mr. Weeks. In contrast

with the Weeks case, the facts of the applicant's offence were of the

utmost seriousness, as reflected in the remarks of the trial judge and

the Court of Appeal. The applicant had raped and buggered a 45

year-old married woman after gaining entrance to her flat by claiming

to be a policeman. He threatened her, saying he had a knife, struck

her and attempted to strangle her. It is clear that the incident was

very grave and that retribution and deterrence were important elements

in the imposition of the two life sentences.

The Government accept that an element in the choice of a life

sentence was the possibility of monitoring the applicant's progress in

prison so that he could receive the necessary treatment. However,

this did not place the applicant's case into the special category

identified by the Court in the Weeks case. It is clear that the life

sentence imposed involved a substantial element of punishment for the

gravity of the offence committed.

The applicant has not been released because the Home

Secretary, in the light of his responsibility for public safety, and

in the light of his responsiblity to maintain public confidence, does

not consider it safe to do so. It is submitted that such a

consideration is not a suitable matter for a "court" to determine. It

is difficult to see how the issue as to whether he should be released

or not is susceptible to a hearing at which Mr. Thynne can make

representations.

Accordingly, the requirements of Article 5 para. 4 are met by

the proceedings before the sentencing court and the subsequent appeal.

Finally, the Government note that medical opinion is unanimous in the

view that the applicant's personality disorder is not susceptible to

treatment. His case is, nevertheless, kept under regular review.

WILSON

The Government submit that it is beyond dispute that offences

which involve sexual interference with children are very grave. The

applicant has a long history of convictions for buggery and indecent

assault on young boys going back to 1935. Such offences may have a

lasting detrimental effect on the psychological and emotional

development of the young. It is for this reason that English law

distinguishes buggery with children under the age of 16 from offences

with men over that age as an offence for which it is necessary to

retain a maximum sentence of life imprisonment. The applicant's

criminal history, taken together with the facts of his offences in

1973 show a high degree of damaging physical interference with the

young.

Both the trial judge and the Court of Appeal recognised that

punishment was an important element in the sentence. In such

circumstances the Government submit that, even though there was an

intention that the applicant should be subject to supervision for the

protection of the public, the life sentence was justified having

regard to the seriousness of the applicant's behaviour. The

requirements of Article 5 para. 4 are thus incorporated in the

decision of the sentencing court.

WEEKS

The Government point out that he was recalled in 1984 because

of breaches of the conditions of his licence and not because he was

considered to be a danger to the public which was the reason for his

recall in 1977. However, the applicant's special category position

relates only to decisions to recall him because he was a danger to the

public. It is this feature which was susceptible to change over time

which has therefore made his case analogous to the Van Droogenbroeck

case (Eur. Court H.R. judgment of 24 June 1982, Series A no. 50).

However, the grounds for recall in 1984 to 1985 were the breaches of

the licence conditions which rendered it impossible for the Home

Secretary to determine whether the applicant was dangerous or not.

Such grounds do not change over the passage of time.

The Government also point out that as a result of the exercise

of the Royal Prerogative the applicant is no longer subject to his

life licence. He is thus no longer liable to be recalled to prison

and there can, accordingly, be no continuing breach of Article 5 para.

4 of the Convention.

GUNNELL

The Government contend that the facts of this application

place it in a wholly different category from that of Mr. Weeks, since

his offences were of the utmost seriousness as reflected in the

remarks of both Mr. Justice Roskill and the Court of Appeal. The

applicant was convicted on four separate charges of rape of four

married women and received a sentence of life imprisonment in respect

of each count. The offences were described by the trial judge as

amongst the worst cases of rape to come before an English court. It

is clear that the life sentence imposed involved a substantial element

of punishment. It is submitted that the undisputed existence of an

element of retribution and deterrence means that the applicant's case

cannot fall into the Weeks special category. The trial judge could

have imposed a hospital order which would have involved the

applicant's detention in Rampton, which is a secure special hospital.

As the judge acknowledged, detention in Rampton would have provided

the necessary public protection. However, he rejected the course of a

hospital order and imposed a life sentence expressly in order to

punish the applicant and to deter others from emulating his offences.

It is therefore submitted that the requirements of Article 5

para. 4 were satisfied by the applicant's trial and subsequent appeal.

Article 5 para. 5 of the Convention

WILSON and WEEKS

The Government submit that Article 5 para. 5 is intended to

confer an enforceable right to compensation only in cases where there

has been a contravention of the provisions of paras. 1 - 4 by reason

of the fact that the arrest or detention is not lawful within the

meaning of those paragraphs. Such an interpretation not only accords

more closely with the intention of the drafters of the Convention but

reconciles the provisions of paras. 4 and 5 of Article 5. It follows

that in the Wilson case Article 5 para. 5 does not come into play

since the arrest and detention was lawful.

In the case of Weeks, the Government note that the complaint

appears to relate to the application of Article 5 para. 5 in relation

to the breach of Article 5 para. 4 which was found by the Court to

have taken place in respect of his earlier application. The

applicant did not make any complaint under Article 5 para. 5 in this

earlier application. Moreover, the question of damages for breach of

Article 5 para. 4 under Article 50 of the Convention is pending before

the Court. It is clear from the case-law that the Court will take

into consideration under Article 50 the rule of substance contained in

Article 5 para. 5. In these circumstances, the Government submit that

it is neither necessary nor appropriate for the Commission to consider

the application of Article 5 para. 5 in relation to the breach of

Article 5 para. 4 found by the Court.

The applicants

Article 5 para. 1 (a) of the Convention

WEEKS

The applicant submits that the only proper interpretation of

the judgment of the Court in respect of this provision is that no

violation was established because the Court had found that there was

evidence upon which the Home Secretary could conclude that the

applicant was a danger to the public and himself. The causal link

between the original conviction and re-detention was created by the

test of dangerousness.

The applicant points out that after his release on licence in

1982 there was a period of unstable behaviour which resulted in a

number of minor criminal convictions for which he received modest

penalties. However, neither the Parole Board nor the courts nor the

Home Secretary considered these matters to be sufficiently grave to

re-detain the applicant in 1983. They cannot be relied upon by the

Government now as a justification for his deprivation of liberty in

April 1985.

The applicant was re-detained in April 1985 by way of a

punishment for failing to comply with the conditions of his licence.

It is significant that the Government made no attempt to seek the

extradition of the applicant from France on the grounds that he was a

dangerous offender who was unlawfully at large.

With respect to the Government's argument that the power to

re-detain is essential to ensure compliance with licence obligations

the applicant states that this is tantamount to an argument based on

Article 5 para. 1 (b) of the Convention. However, the Commission has

specifically held in the case of Eggs v. Switzerland (No. 7341/78,

Comm. Report 4.3.78, D.R. 15 p. 35) that deprivation of liberty to

compel fulfilment of an obligation is only permissible where that

obligation is specific and concrete. In the present case the penal

sanction was applied as punishment for past behaviour and was not

intended to secure the fulfilment of a legal obligation. The Home

Secretary was not simply executing the judgment of the original

sentencing court but was imposing his own disciplinary sanction for

failing to obey the conditions he had imposed. The true reason

underlying his recall was not because of perceived dangerousness but

to punish the applicant and in so doing discourage other licencees

from breaching the conditions of their licence. The amount of time

actually served by the applicant after recall (five months and

seventeen days) was the equivalent, with remission, of a sentence of

over eight months' imprisonment. This is a penalty which can only be

imposed in England by the Circuit judges in the Crown Court for

serious offences.

It is accordingly submitted that the applicant's detention was

not lawful within the meaning of this provision.

Article 5 para. 4 of the Convention

General

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The applicants submit that the basic flaw in the Government's

argument is to treat discretionary life sentences as belonging to the

same category as mandatory life sentences. Following this approach,

the Government submit that the applicants Thynne, Wilson and Gunnell

have been punished because of the gravity of the offence. However, it

is clear that the discretionary life sentence falls to be

distinguished from a mandatory life sentence.

Firstly it is clearly established in United Kingdom law that a

disretionary life sentence is imposed not only because the offence is

a grave one, but because the accused is regarded as mentally unstable

and dangerous (e.g. Picker (1970) 54 Cr. App. R 330; Wilkinson (1983)

5 Cr. App. R (S) 105; Headly (1979), 1 Cr. App. R (S) 159). For

example, the Court of Appeal in the case of Picker stated as follows

in relation to the discretionary life sentence in general:

"Where the nature of the offence and the make-up of the

offender are of such a nature that the public requires

protection for a considerable period of time ... it is right

for the judge to impose a life sentence ... but where no

such conditions exist it is quite clear that a judge should

not pass the difficult matter of sentencing and the length

of detention to others" (p. 332).

Second, the discretionary life sentence is preferred to a fixed-term

sentence only when punishment is not the sole objective and it is

necessary to authorise detention by the executive beyond the period

that would have been merited as punishment in order to protect the

public.

Third, in the recent decision of the Divisional Court (R v. Secretary of

State for the Home Department, ex parte Handscombe & Others (1988) 86

Cr. App. R. 59) the Court recognised that every discretionary life

sentence contains within it an authority to detain a prisoner for the

purposes of punishment for no longer than he would have served if he

had been sentenced to a fixed-term sentence as punishment for his

offence rather than an indeterminate sentence because of his

dangerousness. It further contains an additional authority to detain

the prisoner beyond this tariff or punitive period if he continues to

remain a danger to the public. In his judgment, Lord Justice Watkins

indicated that the rationale of the discretionary life sentence leads

to the conclusion that the punitive part of the sentence is completed

at a particular point in time. He stated:

"On the other hand, the tariff in the discretionary life

sentence is the appropriate fixed-term sentence in the

absence of a mental element, the existence of which led to

the life sentence."

The Handscombe judgment recognises that after the completion

of the punitive period, dangerousness becomes the sole justification

for further detention.

It follows from the above analysis that prisoners like Thynne,

Wilson and Gunnell reached a point where they had completed the tariff

period of their sentences. At that point they could only be detained

further if they were still considered to be dangerous. From that

point on they were in precisely the same position as the applicants in

the Van Droogenbroeck and Weeks cases (loc. cit.). Justification for

any recall and continued detention depends entirely on the continued

presence of a propensity to dangerous behaviour which is susceptible

to change with time.

The applicants point out that an offender sentenced to a

fixed-term sentence has the benefit of one-third remission of sentence

for good behaviour. They also submit an affidavit (29 July 1988) from

a recognised expert in sentencing (Dr. D. A. Thomas, author of

Principles of Sentencing, 1979, Heinemann) who has studied extensively

the practice of the Court of Appeal in this area. He states with

reference to the practice of the Court of Appeal in sentencing matters

that there is an upper limit of 10 years for offences of buggery

against minors, in the absence of mental instability. He further

states that the upper limit for the worst type of rape, where

punishment is the sole object, is 18 years.

THYNNE

The applicant points out that the sentence of life

imprisonment for rape is not a common one. Between 1977 and 1986

criminal statistics for England and Wales show that 3,765 men were

convicted of rape, of whom only 85 were sentenced to life

imprisonment. As was indicated by Dr. Thomas, it is almost always for

reasons of personality disorder that a life sentence is imposed and

rarely, if ever, as pure punishment. Under current practice in

England, the period of detention which has to be served for the

purposes of retribution and deterrence in an indeterminate sentence

can be estimated from the date of the first parole review plus three

years. In the applicant's case this would mean that a period of

punishment would have been recommended by the trial judge and the Lord

Chief Justice of 9 years' imprisonment to represent retribution.

In 1980 all the medical experts had agreed that the applicant

was not suffering from any mental illness and that no medical or

psychiatric treatment was available to him. The applicant had various

reviews by the Local Review Committee and the Parole Board between

September 1981 and July 1987. No reasons were given to him for the

recommendations which were that he remain in custody and he was not

allowed to see the reports on which these recommendations were based.

A further review is scheduled for May 1989 which means that,

effectively, the earliest hope of a date of release is 1992, by which

time he will have served 17 years' imprisonment for these offences: 9

years for punishment and 8 years for potential risk.

Against this background, it is submitted that there has been a

breach of Article 5 para. 4 of the Convention in the applicant's case,

because of the lack of periodic review of lawfulness, for the same

reasons as in the Weeks case. Although the facts of the applicant's

case differ from the Weeks case the reasons on which their sentences

were based are, in principle, the same. Each was given a life

sentence not necessarily because of the gravity of the crime but

because their psychological condition warranted supervision. Hospitals

were not available at the time and therefore life sentences were

imposed so that they could be detained for the purposes of social

protection and monitored for the rest of their lives either in

detention or on a life licence. These considerations are reflected in

the reasons given for the sentence by the Recorder and in the Court of

Appeal.

Although there was undoubtedly an element of punishment in the

applicant's sentence it was not the overriding factor in the

imposition of the sentence. The difference between Weeks and the

present case is one of degree with the applicant's sentence containing

a greater element of punishment. However, once the retributive period

had ended the sole basis for continuing detention is as a security

measure in the interests of public safety.

WILSON

The applicant submits that his own life sentence was not

imposed because of the gravity of the offence he had committed. His

offence would only have justified a long fixed term sentence which

would undoubtedly have allowed for his release within ten years as

noted by Dr. Thomas. He is still detained after 15 years. The

additional factors justifying the imposition of the life sentence were

his mental affliction and the need to protect the public. Thus the

trial judge made specific reference to the fact that the punishment of

moral guilt was not his purpose so much as the protection of the

public. He also indicated that an indeterminate sentence allowed for

the applicant's release by the executive at an earlier stage than if a

fixed term sentence had been imposed.

The applicant states that the Government's submission that his

sentence was imposed because of the seriousness of the offence is

wholly inconsisent with the principles governing the imposition of

discretionary life sentences in sexual cases in general and buggery in

particular. The Court of Appeal has consistently held that a life

sentence can only be imposed in cases of buggery if the person is

mentally unstable. He refers to the cases of Simpson (1981) 3 Cr.

App. R(S) 345 and Johanssen (1977) 65 Cr. App. R 101 and the

affidavit submitted by Dr. Thomas. The applicant concludes that his

case also falls into a special category which attracts the safeguards

of Article 5 para. 4 of the Convention.

WEEKS

The applicant submits that his inability to challenge the

circumstances of the revocation of his licence did not materially

differ from the situation in 1977 which the Court found to violate

Article 5 para. 4. The applicant spent 170 days in Winchester prison

which is the equivalent, with remission, of a sentence of 8 months'

imprisonment. This is a sentence which the courts can only impose for

more serious offences.

He contends that the Government have conceded that there was a

violation of Article 5 para. 4 in respect of the applicant's

re-detention in April 1985. He maintains, however, that he has served

longer in prison than he would have done if the Article 5 para. 4

guarantees had been in force. If a domestic court with competent

jurisdiction had considered the justification for his re-detention in

the light of the criteria laid down by the original sentencing court,

it would have found it inadequate.

While it is true that the applicant can no longer be recalled

to prison, the Commission must have regard to the situation prevailing

in April 1985. If the applicant was detained in breach of the

provisions of Article 5 para. 4 he was wrongly detained and he

should be compensated.

GUNNELL

The applicant accepts that his offences were of a serious

nature which might have attracted a fixed-term punishment of up to 18

years (cf. affidavit of Dr. Thomas). However, he had a long history

of detention in mental hospitals as a mental defective and as someone

diagnosed by at least two doctors as suffering from psychopathy. As

such he satisfied the extra condition of mental instability which

justified the imposition of a life sentence rather than a long

fixed-term sentence. He submits that the judge could not lawfully

have imposed, nor could the Court of Appeal have upheld, a life

sentence if this additional feature had not been present. He refers

to the following statement of the Court of Appeal in the case of

Headley (1979) 1 Cr. App. R (S) 158:

"The sentence of life imprisonment is inappropriate, even for

grave sexual ofences, where there is no evidence that the

offender is in need of treatment or is likely to be a danger

to society in the future."

The applicant states that the Court of Appeal made it clear

when it described him as a dangerous psychopath that protection of the

public was the real determinant of the choice of the life sentence.

Moreover, the Court justified the choice of a life sentence because it

was not satisfied that an indefinite hospital order would provide for

the protection of the public as well as a life sentence.

When the applicant was released on licence in March 1982 he

had served 17 years in custody - the equivalent of a fixed term of 25

years. At that stage his release must have been approved by the Lord

Chief Justice and the trial judge after the process of statutory

consultation required by Section 61 (2). They must have approved it

on the basis that the applicant had served the tariff period necessary

for punishment. Thereafter it cannot be said, as the Government

maintain, that the applicant's recall can be justified on the grounds

of retribution. In this post-tariff stage, the sole question, as the

Divisional Court in Handscombe establishes, is the applicant's

continuing dangerousness to the public.

The applicant notes that he was recalled on the basis of

police allegations but was never given an opportunity to test those

allegations by cross-examination or by giving evidence himself.

Article 5 para. 5

WILSON and WEEKS

The applicant Wilson submits that since there is no right to

enforceable compensation under United Kingdom law in respect of his

complaints there is also a breach of Article 5 para. 5 of the

Convention.

The applicant Weeks complains that he has been denied an

enforceable right to compensation in respect of the foregoing breaches

of Article 5. He points out that there is no statutory scheme in the

United Kingdom for compensating persons wrongfully detained and that

the Divisional Court has refused to give any effect to the judgment

of the European Court of Human Rights. Under an ex gratia scheme, the

Home Secretary will compensate an individual inter alia in compliance

with the United Kingdom's international obligations. The Home

Secretary under this scheme has decided to give effect to Article 14

(6) of the United Nations Covenant on Civil and Political Rights but

not to Article 5 para. 5 of the Convention.

He submits that the possibility that compensation might be

ordered by the court under Article 50 is no substitute for a

substantive right to compensation under the domestic law where

long-established criteria as to quantum of damages are liable to

result in a more equitable remedy. The object of compensation is to

remedy material loss as well as to compensate for the suffering

necessarily caused by excessive imprisonment or the loss of

opportunity to end imprisonment. It is submitted that the failure to

provide an enforceable right has caused the applicant extra expense

and material suffering and constitutes a breach of Article 5 para. 5

of the Convention.

THE LAW

The first applicant (Thynne) complains of the absence of any

procedure under the law of the United Kingdom 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.

The second applicant (Wilson) also complains that he was

unable to have the lawfulness of his continued detention determined at

reasonable intervals by a court and, further, that he was unable to

challenge the lawfulness of his re-detention before a court as

required by Article 5 para. 4 (Art. 5-4) of the Convention. He

further complains under Article 5 para. 5 (Art. 5-5) of the Convention

that he has no enforceable right to compensation under the law of the

United Kingdom in respect of his complaints.

The third applicant (Weeks) complains that his re-detention in

1985 was in breach of Article 5 para. 1 (Art. 5-1) of the Convention

since there existed no sufficient causal connection between his

original conviction in 1966 and the decision to re-detain him for

breach of a condition of his licence. He further alleges a breach of

Article 5 para. 4 (Art. 5-4) in that he was unable to take proceedings

to challenge the lawfulness of his detention. Finally, he alleges a

breach of Article 5 para. 5 (Art. 5-5) on the ground that he has no

enforceable right to compensation under United Kingdom law. In

particular, he complains that he was unable to obtain compensation

before the courts of the United Kingdom on the basis of the judgment

of the European Court of Human Rights that there was a breach of

Article 5 para. 4 (Art. 5-4) of the Convention in his case.

The fourth applicant (Gunnell) complains under Article 5 para.

4 (Art. 5-4) that he was unable to challenge before a court the

lawfulness of his recall on 19 February 1983.

All four applicants emphasise that they were given a

discretionary life sentence as compared with a fixed-term sentence

because it was considered necessary to protect the public. They

contend that such a sentence falls into the special category of

sentences recognised by the European Court of Human Rights in the

Weeks case (Eur. Court H.R., judgment of 2 March 1987, Series A no.

114) attracting the safeguards of Article 5 para. 4 (Art. 5-4) of the

Convention.

The relevant parts of Article 5 (Art. 5) of the Convention

read 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;

...

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 refer to the decision of the European Court of

Human Rights in the Weeks case (loc. cit.). The Court held that in

cases of life sentences falling into a special category, a prisoner

was entitled to apply to a court-like body to have the lawfulness of

his detention following recall and of continuing detention reviewed.

The Government however contend that the facts of the cases

Thynne, Wilson and Gunnell place them in a wholly different category

from that of the first Weeks case. It is clear from the court

decisions that the life sentences imposed in these cases involved

punishment as a significant element and that the gravity of the

offence was a continuing and unchanging reason for the applicants'

re-detention after release or, as in the case of Thynne, his continued

detention.

The Government therefore submit that it follows from the

case-law of the Commission and Court that the requirement of Article 5

para. 4 (Art. 5-4) is incorporated in the decision of the trial court

and any subsequent appeal against its decision.

As regards the present application brought by Weeks the

Government submit that life prisoners who are released on licence,

are, as an important condition of the licence, subject to supervision

by a probation officer. Such monitoring is only possible if the

licencee maintains regular contact with the probation officer. It

follows that the applicant's re-arrest in May 1985 is consistent with

the objectives of the sentencing court which were that the applicant

should be subject to continuing supervision even after release from

prison. It was thus in conformity with Article 5 para. 1 (Art. 5-1)

of the Convention.

As regards the applicant Weeks's complaint under Article 5

para. 4 (Art. 5-4) , the Government observe that the circumstances of

his recall in 1985 were wholly different from those in 1977. It is

submitted that recall for a breach of a licence condition, as opposed

to determination by the Secretary of State that he was a danger to the

public does not place him in a special category so as to attract the

safeguards of Article 5 para. 4 (Art. 5-4) of the Convention.

Finally, with regard to the complaints made under Article 5

para. 5 (Art. 5-5) in the cases of Wilson and Weeks, the Government

contend that no right to compensation arises under this provision

where the detention is lawful within the meaning of Article 5 para. 1

(Art. 5-1) of the Convention.

The Commission considers, in the light of the parties'

submissions, that the applications raise complex issues of law and

fact under the Convention, the determination of which should depend on

an examination of their merits. It follows that they cannot be

rejected as 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 ADMISSIBLE

without prejudging the merits of the case.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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THYNNE, WILSON, WEEKS AND GUNNEL v. THE UNITED KINGDOM

THYNNE, WILSON, WEEKS AND GUNNEL v. THE UNITED KINGDOM

LEXI