Lexploria

The European Commission of Human Rights sitting in private on

6 May 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 31 May 1985 by

S.B. against the United Kingdom and registered on

1 July 1985 under file No. 11616/85;

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 United Kingdom citizen born in Glasgow in 1954. At

the time of lodging his application with the Commission he was

detained at Frankland Prison in Durham. He is represented before the

Commission by Messrs. George E. Baker & Co., Solicitors, Guildford.

The facts, as submitted by the applicant's representatives, may be

summarised as follows:

On 5 June 1981 the applicant was convicted of wounding a police

officer with intent to resist arrest. He was sentenced to life

imprisonment, with concurrent terms of 15 and 5 years for connected

offences. The question of a minimum term of imprisonment did not

arise, as a recommendation that a prisoner serve a specific term may

only be made when a life sentence is mandatory. The judge did,

however, explain the reasons for an indeterminate (life) sentence as

follows:

"The only question I have really to decide in your case is whether I

pass a determinate sentence or an indeterminate one. I am satisfied

you are a dangerous and at the moment an evil man. A medical report

before me says that you suffer from a "severe personality disorder"

and on the evidence before me, I cannot say when, if ever, it would be

safe to release you, and therefore I must pass a sentence upon you

which will both punish you and ensure that you will not be released

for so long as you remain a danger to the public. I therefore propose

to pass a sentence of life imprisonment. That means you will not be

released for as long as you remain dangerous and if and when you are

released you will be liable for recall."

On 28 March 1984 the applicant was convicted for offences committed

while he was in prison, and sentenced to a period of three years'

imprisonment, to run concurrently with the life sentence.

In the normal course of events, the applicant's case would have been

put before the Parole Board, a statutory body created by the Criminal

Justice Act 1967 for the purposes of advising the Secretary of State

on matters connected with prisoners' release on licence ("parole"),

for the Board's consideration. The Board itself is advised by local

review committees, whose constitution is governed by statutory

instrument providing inter alia for an opportunity for prisoners'

representations to be considered.

The Secretary of State for the Home Department (the "Home Secretary")

has power to release on parole prisoners serving life sentences on the

recommendation of the Parole Board, after consultation with the Lord

Chief Justice and the trial judge (if available). In United Kingdom

law the decision whether to release a prisoner on parole is,

therefore, an administrative decision of the Secretary of State. The

lawfulness of such a decision may be challenged by way of judicial

review. A licence once granted, remains in force for the rest of the

prisoner's life. It may be subject to conditions and the prisoner may

be recalled at any time.

On 11 October 1983 the Home Secretary announced a new parole policy in

a speech to the Conservative Party Conference. The policy was further

elaborated in a statement to the House of Commons on 13 November 1983.

He stated that he was attentive to

"growing public criticism of the gap between the length of

sentence passed and length of the sentence actually served

... I have therefore decided to use my discretion to

ensure that prisoners serving sentences of over five years

for offences of violence ... will be granted parole only

when release under supervision for a few months before the

end of a sentence is likely to reduce the long-term risk to

the public, or in circumstances which are genuinely

exceptional ..."

Referring to certain categories of murderers, he intended to exercise

his discretion so that such persons could normally expect to serve at

least twenty years in custody. No express reference was made to

prisoners serving life sentences for crimes other than specific

categories of murders.

As a result of a petition to the Home Secretary, the applicant

received a memorandum dated 3 December 1984 which reads as follows:

"Full consideration has been given to your case and it has been

decided that the first formal review in respect of the offence for

which you received your life sentence would have been set at the

17 year point (ie. February 1998) but that, taking into account the

offences committed in prison for which you received a further

custodial sentence, the Secretary of State has decided that the review

shall be deferred for 2 years (ie. two-thirds of 3 years) and that,

accordingly, your case will be referred to the local review committee

when you have been detained for 19 years (ie. in February 2000)."

In the light of the decision of the House of Lords in the case of

Findlay v. Secretary of State ([1984] 3 All ER 801), the applicant

was advised by his solicitors not to apply for judicial review of the

Home Secretary's decision not to consider him for release on parole

before February 2000.

In the case of Findlay, Lord Scarman, giving the judgment of the House

of Lords, upheld the lawfulness of the new policy as follows:

"The question, therefore, is simply: did the new policy constitute a

refusal to consider the cases of prisoners within the specified

classes? The answer is clearly "no". Consideration of a case is not

excluded by a policy which provides that exceptional circumstances or

compelling reasons must be shown because of the weight to be attached

to the nature of the offence, the length of the sentence and the

factors of deterrence, retribution, public confidence, all of which it

was the duty of the Secretary of State to consider. And the Secretary

of State accepted the invitation of the board to continue to refer to

the board all cases of eligible prisoners notwithstanding the adoption

of the new policy."

As regards the submission that the new policy operated as a punishment

or penalty, Lord Scarman stated:

"... The sentence of the court is in law the punishment. The

disappointment of the expectation which prisoners may have that under

the parole system they will not have to serve the whole of a sentence

in prison may be distressing but is not a punishment or penalty which

goes beyond the sentence of the court. Thus one is thrown back to the

question of the lawfulness of the policy to be followed in the

consideration of their cases. If the policy be lawful, the

disappointment of the expectation can be no ground for judicial

review: if it be unlawful, the prisoner's case for relief does not

depend upon a description of his disappointment as a punishment."

COMPLAINTS

The applicant complains that the refusal to consider him for parole

before February 2000 constitutes a violation of Article 3 of the

Convention (Art. 3).

He also states that his civil rights as a citizen have been affected

by the decision and that the decision was not taken by a body

providing the guarantees contained in Article 6 para. 1 of the

Convention (Art. 6-1). He further alleges that the Secretary of

State's claim constitutes a re-trial of his original offence and that

that re-trial did not take place in accordance with the guarantees for

criminal trials required by Article 6 paras. 1, 2 and 3 of the

Convention (Art. 6-1, art. 6-2, art. 6-3).

The applicant asserts that there may have been a violation of

Article 7 of the Convention (Art. 7) as he does not know on what basis

the "penalty" of, effectively, a minimum sentence of 19 years was

imposed.

The applicant complains that the decision of the Secretary of State is

a violation of Article 8 of the Convention (Art. 8) because the

applicant now has no hope of being able to restore himself to private

family life and his home, and that the interference cannot be

justified on any of the grounds set out in Article 8 para. 2 of the

Convention (Art. 8-2).

Finally, the applicant complains of a violation of Article 13 of the

Convention (Art. 13) in that he cannot complain before a national

authority of the frustration of his legitimate expectations. He

states that the principle of legitimate expectation is enshrined in

the Convention. In particular, he states that the words of the trial

judge in sentencing him show an express intention to keep open the

possibility of an early release, thereby making the expectation still

more reasonable than it would have been had the applicant been relying

on the "automatic" consideration of his case for parole after a short

number of years.

THE LAW

1. The applicant alleges a violation of Article 3 of the Convention

(Art. 3) which provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

He claims that the decision of the Home Secretary not to have his case

substantively considered for parole until February 2000 constitutes

"inhuman or degrading treatment or punishment" within the meaning of

that Article (Art. 3).

The Commission notes that in the applicant's case there is not the

slightest indication that the applicant would soon have been granted

parole and, indeed, he was sentenced in 1984 to a further period of

imprisonment for offences committed whilst in prison. It cannot

therefore be said that he had any reasonable expectation of being

released on parole in the near future.

Recalling that treatment must attain a particular level before

punishment can be classified as "inhuman" within the meaning of

Article 3 of the Convention (Art. 3) (Eur. Court H.R., Tyrer case,

judgment of 25.4.1978 para. 29), and that "in order for a punishment

to be 'degrading' ... the humiliation or debasement involved must

attain a particular level ..." (ibid., para. 30), the Commission

considers that the applicant's allegation of a violation of Article 3

of the Convention (Art. 3) has not been substantiated in any way.

It follows that this part of the application must be rejected as being

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

Convention (Art. 27-2).

2. The applicant claims that the decision of the Home Secretary

not to consider his release for parole until February 2000 affects his

civil rights as a citizen without a court hearing as provided for by

Article 6 para. 1 of the Convention (Art. 6-1).

The Commission considers that the issue which falls to be discussed in

this context is whether the refusal to consider the applicant for

parole can be regarded as a determination of the applicant's civil

rights and obligations.

The Commission recalls that the grant or refusal of parole does not,

itself, constitute a determination of civil rights (Application

No. 9089/80, reported as to part in D.R. 24 pp. 227-231). It follows

that the refusal to consider the applicant for parole can also not

constitute a determination of civil rights which calls for the

guarantees contained in Article 6 para. 1 (Art. 6-1).

This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

3. The applicant alleges a violation of Article 7 (Art. 7) in

that the decision of the Home Secretary not to consider him for parole

until February 2000, a denial of the express wish of the trial judge

and of the ability of the trial judge to sentence, may constitute a

denial of Article 7 (Art. 7) in that the applicant did not know the

"charges" on which the offence rests.

Article 7 (Art. 7) provides as follows:

1. No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal offence

under national or international law at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was

applicable at the time the criminal offence was committed.

2. This Article (Art. 7) shall not prejudice the trial and

punishment of any person for any act or omission which, at the time

when it was committed, was criminal according to the general

principles of law recognised by civilised nations.

The Commission recalls that the applicant was sentenced to life

imprisonment in 1981 for wounding a police officer with intent to

resist arrest with further, determinate sentences for connected

offences. It is clear that the penalty of life imprisonment was

available to the justiciary at the time the offence was committed and

thus no issue arises under Article 7 (Art. 7) in this respect.

Furthermore, in the opinion of the Commission, the "penalty" for the

purposes of Article 7 para. 1 (Art. 7-1), must be considered to be

that of life imprisonment. Nevertheless it is true that as a result

of the change in parole policy the applicant will not become eligible

for release on parole until February 2000. Although this may give

rise to the result that his imprisonment is effectively harsher than

if he had been eligible for release on parole at an earlier stage,

such matters relate to the execution of the sentence as opposed to the

"penalty", which remains that of life imprisonment. Accordingly, it

cannot be said that the "penalty" imposed is a heavier one than that

imposed by the trial judge and the case cannot be considered to fall

under Article 7 (Art. 7).

The applicant's complaint in this respect is therefore incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

4. The applicant alleges that the effective imposition on him of

a fresh sanction, namely a minimum sentence of a total of 19 years,

constitutes punishment for a criminal offence, and that accordingly

the guarantees provided by Article 6 paras. 1, 2 and 3 (Art. 6-1,

art. 6-2, art. 6-3) should be respected.

The Commission has already found (see para. 3 above) that it does not

consider that the exercise of the Home Secretary's discretion in

connection with parole in the applicant's case involved the imposition

of a criminal sanction. It follows that there can therefore be no

question of criminal proceedings for the purposes of Article 6

(Art. 6).

The applicant's complaints under Article 6 paras. 1, 2 and 3

(Art. 6-1, art. 6-2, art. 6-3) are therefore incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

5. The applicant alleges a violation of Article 8 of the

Convention (Art. 8) in that he has no hope of being able to restore

himself to private and family life and to his home.

As the Commission has found that the exercise of the Home Secretary's

discretion did not involve a fresh criminal "penalty", it follows that

any interference with the applicant's rights under Article 8 para. 1

(Art. 8-1) which may have taken place can be justified by virtue of

the original life sentence imposed on the applicant which was clearly

in accordance with the law and necessary in a democratic society for

the prevention of disorder or crime.

This part of the application must therefore be rejected as being

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

Convention (Art. 27-2).

6. The applicant alleges a violation of Article 13 of the

Convention (Art. 13).

The Commission notes in this respect that it has found that the

exercise of the Home Secretary's discretion in creating a policy to

deal with the issue of parole in certain serious cases is compatible

with the substantive provisions of the Convention. The Commission

recalls that in such a situation, the requirements of Article 13

(Art. 13) are satisfied if there exists domestic machinery whereby the

individual can secure compliance with the relevant laws (see, e.g.,

Eur. Court H.R. James Case, Judgment of 21.2.86 para. 86). Effective

remedies in this sense were available to the applicant in that he

could have, as did Findlay & Others, challenged the lawfulness of the

Home Secretary's policy before the domestic courts by way of judicial

review. Article 13 of the Convention (Art. 13) does not require a

remedy which gives an outcome in the individual's favour.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 of the Convention

(Art. 27-2).

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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B. v. THE UNITED KINGDOM

B. v. THE UNITED KINGDOM