Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12118/86

by Peter WEBSTER

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

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 7 December 1985

by Peter WEBSTER against the United Kingdom and registered on

17 April 1986 under file N° 12118/86;

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 is a citizen of the United States of America,

born in 1945, who at the time of lodging his application was detained

in H.M. Prison Maidstone, Kent. He was apparently released and

deported to France in February 1986.

The applicant served a five year prison sentence during which

he was refused parole, in August 1985. The applicant lodged a

petition of complaint to the Home Secretary against this refusal, in

which petition he relied on his deteriorating physical health and the

fact that arrangements could easily be made for him to rejoin his

family in France on his deportation from the United Kingdom. He also

made allegations of discrimination in respect of the grant of parole

to foreign prisoners when deportation is not contested. In respect of

his latter allegations he was apparently allowed access to certain

prison records at Maidstone prison, which records he claims

substantiate his complaint.

The Home Secretary replied to the applicant's petition on

3 December 1985 informing him as follows:

"No person is excluded from parole consideration and early

release on licence by his race or nationality. These are

not factors determining a man's suitability for release

on licence ....

You are advised that as each case is considered on its

individual merits you will not find it helpful to compare

your case with that of another prisoner ....

The Secretary of State is satisfied that you have received

the appropriate medical care treatment and advice throughout

your sentence, and understands that there has been little

change in your general physical condition. He also understands

that you declined a transfer to Wormwood Scrubs where there

were physiotherapy facilities not available at Maidstone.

I am afraid that medical circumstances alone cannot determine

a parole decision."

The Secretary of State therefore refused to order a further

review of the applicant's requests for parole.

Pursuant to a request for information from the Rapporteur as

to the parole opportunities of foreign prisoners (Rule 40 para. 1 of

the Commission's Rules of Procedure), the Government provided the

following information:

"There is a local Review Committee for every prisoner which, by

virtue of the Local Review Committee Rules 1967 (S.I. 1967/1462),

is charged with the responsibility of reviewing the case of all

prisoners who are eligible for release on licence under section

60 of the Criminal Justice Act 1967. That section provides that

the Home Secretary cannot release any prisoner on licence unless

recommended to do so by the Parole Board or, in certain classes

of cases agreed with the Parole Board, by the prison's Local

Review Committee."

All Local Review Committee members and all members of the

Parole Board are given the following note following their appointment:

"PAROLE AND DEPORTATION

Note by the Home Office

All prisoners, whatever their nationality, who are serving

determinate sentences of more than about ten and a half months'

imprisonment are eligible for parole consideration after they

have served one-third of the sentence or six months from the date

of sentencing whichever expires the later.

The general policy on parole and deportation is that prisoners

should not have their chances of parole reduced because they are

liable for deportation and may have no realistic plans for

release in this country. Where it is evident during the review,

therefore, that deportation is a possibility (e.g. where a

prisoner has been recommended for deportation by the court) no

account should be taken of the possibility of deportation when a

prisoner's suitability for release on licence is being

considered. Each case should be assessed on its individual merits

against the general criteria for parole selection but, in those

cases where (due to the liability for deportation) no realistic

plans for release in this country are available, consideration

should proceed as if, in effect, the release plans were

satisfactory.

The Home Secretary has a dual responsibility for both parole and

deportation but it is not until a favourable recommendation has

been made and accepted that final consideration can be given to

any further action which might be appropriate under the

Immigration Act 1971. Because of this, it is not the usual

practice to advise a prisoner of the outcome of a parole review

until the question of possible deportation has been examined.

Generally speaking a prisoner will not be released on licence

until the decision has been made as to whether he or she is to be

removed from the country but, in some cases, it may be considered

acceptable to allow parole to proceed although the decision on

deportation has not been reached. Where a prisoner is not to be

removed from the country at the time of release on licence, it

will be necessary to establish and approve release plans before a

release date can be agreed. Contrary to the advice given in

paragraph 402 of the Local Review Committee Notes for Guidance,

it will not be necessary for the LRC to reconvene to consider the

suitability of release plans obtained by the Parole Unit. Such

consideration will be undertaken at the Home Office - in

consultation, as appropriate with the Parole Board - in order to

reduce the delay in completing the review. Those prisoners who

are released on licence before deportation consideration has been

concluded are advised prior to release that their release on

licence will not affect their liability to be deported.

In those cases where the Home Secretary considers a prisoner

should not be released on licence pending the outcome of

deportation proceedings but eventually decides that deportation

is the proper course, a deportation order is made and put into

effect on the day on which that person would otherwise have been

released on parole. There is no need for release plans to be

obtained in these cases. If, on the other hand, a potential

deportee whose parole had been considered without a release plan

appeals successfully against deportation, release on licence in

this country will proceed only when a suitable release plan has

been constructed and approved by the Home Office in consultation,

as appropriate, with the Parole Board."

The applicant commented that this note fails to specify

whether or not in practice prospective deportees do receive a

similar rate of parole, compared with United Kingdom nationals. He

contends that the statistics which he collected "strongly indicate

that they do not, i.e. that foreign nationals are discriminated

against in the application of parole law under which prisoners are

deprived of liberty. Administrative details, such as the order in

which parole and deportation decisions are generally taken (mentioned

in the Home Office Note) constitute no justification whatever for the

unequal and discriminatory application of law."

COMPLAINTS

The applicant complains, on behalf of himself and other

prisoners who are not United Kingdom citizens and who have or had

deportation recommendations as part of their sentence, that foreign

prisoners are discriminated against by the Home Office Parole Board.

He claims that statistically the rate of parole is far less for

foreign prisoners, but that there is no justification in law for such

a practice. The applicant contends that he has been a victim of a

violation of Article 5 of the Convention, read in conjunction with

Article 14.

THE LAW

The applicant has alleged that the Home Office operates a

discriminatory parole policy against prisoners who are not United

Kingdom citizens. He claims to have been a victim of that policy, not

having been granted parole, unlike other prisoners of United Kingdom

citizenship at Maidstone Prison. He also brings his case on behalf of

other foreign prisoners who were in a similar position to himself.

According to the information submitted by the Government, a

prisoner's nationality is of no relevance in the considerations of the

parole authorities.

The Commission has examined the applicant's claim in so far as

he may have been personally affected. The Commission cannot examine his

abstract complaint on behalf of prisoners who are also not United

Kingdom citizens.

The Commission notes that the applicant was detained in

accordance with a procedure prescribed by law after conviction by a competent

court, pursuant to Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.

According to that conviction the applicant could have been expected to serve

his full five year sentence. The Commission considers, nevertheless, that if a

prison pre-release scheme were operated in a discriminatory manner, an issue

could arise under Article 5 of the Convention, read in conjunction with Article

14 (Art. 5+14). Article 14 (Art. 14) guarantees freedom from discrimination in

the securement of Convention rights such as the right to liberty and security

of person laid down in Article 5 (Art. 5).

The Commission finds, however, that the applicant's claim of

discrimination against foreign prisoners in respect of parole is

unsubstantiated. The statistics that the applicant has provided as

regards the prison where he was detained do not adequately reflect the

personal circumstances of the prisoners concerned, which circumstances

are essential in determining a grant of parole. Moreover the

Government's instructions to the parole authorities show clearly that

a prisoner's nationality is not to be taken into consideration when

reviewing his suitability for such release on licence.

In these circumstances the Commission concludes that the

application is 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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WEBSTER v. THE UNITED KINGDOM

WEBSTER v. THE UNITED KINGDOM

LEXI