FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6234/06 by John Iain KING against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 March 2007 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , Mrs P. Hirvelä , judges , and Mrs F. Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 7 February 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen born in 1967 and currently serving a life sentence in HM Prison Shotts , Lanarkshire. He is represented by Robertson and Ross, solicitors practising in Paisley . The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a British citizen born in 1967 and currently serving a life sentence in HM Prison Shotts , Lanarkshire. He is represented by Robertson and Ross, solicitors practising in Paisley .

On 7 March 1997, the applicant was convicted of murder and received a mandatory life sentence. The trial judge made no indication as to the length of sentence to be served.

On 23 April 1997, the applicant lodged a note of appeal against conviction.

On 5 November 1997, the trial judge lodged his report on the case.

On 14 January 1998, the applicant was granted interim liberation pending determination of his appeal against conviction.

On 17 January 1998, the trial judge lodged an amended report.

On 16 December 1998, the applicant lodged amended grounds of appeal against conviction.

On 19 February 1999, the High Court of Justiciary ( Appeal Court ) allowed fresh grounds of appeal to be lodged.

On 9 March 1999, the applicant ’ s appeal was rejected by the High Court and a warrant granted for his apprehension.

By letter of 10 January 2001, the Justice Department of the Scottish Executive informed the applicant of proposed changes in the law affecting life prisoners (Convention Rights (Compliance) Bill).

In April 2001, the applicant was designated as a Category C prisoner.

On 29 May 2001, the preliminary review committee (PRC) indicated to the applicant, by means of a recommendation to the Scottish Ministers, that he would receive his first formal review by the Parole Board after he had served eight years. While noting the vicious nature of the offence, in which the victim had suffered so many injuries that the trial judge had commented that they could not be catalogued in his report, the PRC gave weight to the applicant ’ s excellent conduct and industry in prison, with only one minor misconduct report.

By letter dated 24 August 2001, the Parole & Life Sentence Review Division of the Justice Department, Scottish Executive, informed the applicant that they accepted this recommendation but warned him that this decision would have no effect after the entry into force of certain provisions of the Convention Rights (Compliance) (Scotland) Act 2001 ( “ the 2001 Act ” ) on 8 October 2001 when the law governing the release of adult mandatory life prisoners would be brought into line with discretionary life prisoners and those convicted of murder under the age of 18. The 2001 Act required the punishment part of life sentences to be fixed by a court and hearings to be held in respect of existing life prisoners.

On 2 November 2001, the Scottish Ministers referred the applicant ’ s case to the High Court for a hearing under paragraph 12 of the Schedule to the 2001 Act.

On 16 April 2002, the judge of the High Court of Justiciary who had conducted the applicant ’ s trial held a punishment part hearing in respect of the applicant. He ordered that thirteen years be served before release on licence. At that time, it was the opinion of the High Court of Justiciary that no account could be taken of circumstances following conviction of an existing life prisoner e.g. his behaviour after conviction or the existence of a date previously intimated as a date for first formal review by the Parole Board.

On 30 April 2002, the applicant lodged a note of appeal on the ground that the punishment part was excessive.

On 14 March 2003, Lord Hardie refused the appeal on first sift.

On 20 June 2003, the High Court, at second sift, refused the appeal.

The applicant had also applied to the Scottish Criminal Cases Review Commission (“SCCRC”) for review of his sentence as well as his conviction. This was refused on 31 March 2003.

On 18 March 2004, the Privy Council delivered judgment in Flynn v. HM Advocate (2004 SC (PC) 1 ) and remitted it for decision by the High Court, finding that the provisions of the 2001 Act were compatible with Convention rights and that events after the date of the original conviction and sentence could be taken into account in a punishment part hearing of an existing life prisoner. In dismissing the appellants ’ Convention complaints, Lord Rodger of Earlsferry rejected the argument that the appellants ’ rights to a fair trial within a reasonable time had been violated due to the opening up of the case and amendment of sentence many years later. He stated:

“ This is a highly artificial argument since the original proceedings were completed within a reasonable time for the purposes of Article 6(1). Since then, in Convention rights ’ terms, the appellants ’ position has been governed by Article 5(1)(a) and (4). In any event it is now accepted that in terms of Article 6(1) the determination of the period to be served by the appellants as a punishment should have been made by the judge as part of the trial and not by the Scottish Ministers. The legislation and the punishment part hearings under paragraph 13 are designed to cure this violation. Since the punishment part proceedings themselves have not violated the reasonable time guarantee in Article 6(1), there is no basis for holding that, overall, that guarantee had been breached in these cases. ”

On 23 March 2004, the applicant applied to the SCCRC for review of his sentence, inter alia , claiming that he had been told by the prison authorities that his case would be reviewed earlier. The SCCRC identified that the applicant ’ s case might be affected by the Flynn decision and decided to await the outcome.

On 14 October 2004, the case of Flynn was decided by a bench of five judges (2005 JC 271).

In December 2004, the SCCRC decided to refer the applicant ’ s case to the High Court on the basis that the decision of 16 April 2002 did not take into account events after conviction. The f ormal decision was issued on 14 January 2005.

On 21 March 2005, the applicant was granted an extension of time to lodge a note of appeal.

On 19 April 2005, the applicant lodged grounds of appeal.

In September 2005, the Scottish Executive issued its report about the applicant ’ s response to custody and his legitimate expectation under previous release arrangements.

By decision of 21 September 2005, the High Court reduced the punishment part to ten years.

The applicant ’ s punishment part would, accordingly, expire on 7 March 2007.

COMPLAINTS

The applicant complained under Article 6 that the 2001 Act sentencing procedure violated his right to a trial within a reasonable time.

He also complained under Article 7 of the Convention that he had been made subject to a heavier penalty by the court in that prior to the 2001 Act he had had a legitimate expectation that his case would be reviewed after eight years.

He complained under Article 14 of the Convention in conjunction with Articles 5 and 6 that under the 2001 Act a prisoner with a release date could waive the right to an order but that it was mandatory for life prisoners, even those such as himself, who had received a preliminary review committee date.

THE LAW

A. Article 6 § 1 of the Convention

The applicant complained that the punishment part of his sentence was decided long after his original conviction and sentence, invoking Article 6 § 1 of the Convention which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

1. The Government ’ s preliminary objection

The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In the present case the applicant had failed to bring any proceedings to challenge the time taken in the original proceedings, and he had not raised delay in the punishment part appeal. They referred to a precedent where the appellate court found a breach of Article 6 on length and granted, by way of remedy, a reduction of six months in the punishment part previously imposed by the High Court ( Gillespie v. HM Advocate 2003 SLT 210). It was not necessary to demonstrate that such an appeal would have succeeded. The courts should have been given the opportunity of ruling on the complaint now raised by the applicant.

The applicant submitted that the argument on the merits made by him on unreasonable delay had been examined and rejected by the Privy Council in the Flynn case (cited above), referring in particular to the reasoning of Lord Rodger of Earlsferry that the original proceedings and punishment part proceedings were to be considered separately and as such did not violate the reasonable time guarantee. It therefore followed that the ruling of the Privy Council that there was no merit in the point was binding on the High Court and there was no realistic prospect of being able to argue the point with any hope of success.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. While this means that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, it is not required that recourse should be had to remedies which would be inadequate or ineffective ( e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey , no. 21987/93, §§ 51-52, ECHR 1996-VI).

In the present case, the Court notes that the applicant complains about the length of proceedings taken overall to reach a final decision on his sentence. It is not apparent that he had any grievance at the stages of trial and initial sentencing and the Court does not consider that any non-exhaustion point arises due to the lack of any complaint at that time. As regards the alleged failure to raise delay in the punishment part proceedings in the High Court, it is true that the applicant made no complaint on this point when the High Court first reconsidered the appropriate punishment part applicable to his sentence. However, by the time the High Court came to look at the matter for a second time, the Privy Council had issued its decision in Flynn (cited above) which in unequivocal terms rejected the argument that length issues arose per se where a punishment part hearing took place some time after the original trial and sentence. The Court accordingly does not find that the applicant failed to make use of an available or effective remedy in omitting to ventilate his length issues during the punishment part proceedings. This part of the application cannot, therefore, be rejected for non-exhaustion of domestic remedies and the preliminary objection is rejected.

2. The substance of the complaint

a. The parties ’ submissions

The Government considered that the applicant ’ s complaints were effectively that the 2001 Act, in permitting the re-opening of proceedings, were contrary to Article 6, which argument was rejected by the Privy Council in Flynn (cited above). They noted that the applicant did not complain about delay in his original trial and appeal and considered that he was not in a state of uncertainty in regard to his sentence. As found by the appeal court in Flynn in 2003, the period in which no proceedings were pending was not relevant for Article 6 ( e.g. I.J.L. and Others. v. the United Kingdom , nos. 29522/95, 30056/96 and 30574/96, § 130 , ECHR 2000 ‑ IX ). Further it had been considered necessary to have a judicial determination of the punishment part to comply with Strasbourg jurisprudence.

The Government argued that the only relevant periods to take into account were, firstly, from the reference to the High Court on 2 November 2001 until the notification of the dismissal of his appeal on 26 June 2003 and, secondly, from 14 January 2005 when the applicant lodged grounds of appeal until the decision of the High Court on 21 September 2005. Between these periods the applicant ’ s case was not before the High Court in any substantive form. These two periods did not disclose any unreasonable delay. The issues raised were of legal complexity, reflected by the Flynn case, and there were exceptional pressures on the authorities flowing from the legislation introduced to protect Article 6 rights, sparking some 140 appeals. Any suspension of proceedings to take into account the Flynn case did not cause the applicant any prejudice but was in fact to his advantage.

The applicant submitted that there had been unreasonable delay contrary to Article 6 § 1 of the Convention purely because of the compulsory setting of the punishment part by the 2001 Act. The application had no possibility of waiving the procedure, which was obligatory. The applicant argued that a person accused of a criminal offence had a right to a trial within a reasonable time and the imposition of sentence was part of the trial. Accordingly, in his view, sentence should be imposed within a reasonable time. The fixing of the punishment part was legally indistinguishable from the imposition of sentence and therefore the punishment part in the applicant ’ s case should have been fixed within a reasonable time. Consequently, extending the trial of the applicant to the end of the punishment part process extended his trial beyond a reasonable time.

The applicant further submitted, having regard to the relevant criteria, that his case was not complex and that there was nothing in his conduct which caused delay. The delay flowed from the decision of the legislature to impose on the applicant a mandatory hearing, and the compulsory setting of a punishment part, under the Act. The applicant had no choice but to make himself subject to this State intervention. The applicant noted that when the original sentence was imposed on him in March 1997, the then Strasbourg jurisprudence did not require that the setting of the period to be served by an adult mandatory life prisoner should be done by a judicial authority. Yet, by the intervention of the 2001 Act the compulsory re-opening of the proceedings meant that there had in fact been no completion of the original proceedings in 1997. He pointed out that the punishment part was imposed on him in April 2002, some five years after his original trial.

b. The Court ’ s assessment

The Court recalls that Article 6 § 1 of the Convention requires that criminal charges against an applicant be determined within a reasonable time. This procedure encompasses not only conviction but sentencing ( Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, pp. 34-35, §§ 76-77) and, as pointed out by the applicant, the fixing of the punishment part of a mandatory life sentence is akin to a sentencing procedure and also falls within the scope of Article 6 § 1 of the Convention ( Stafford v. the United Kingdom [GC], no. 46295/99, § 87, ECHR 2002-IV, § 87).

In the present case, the applicant was tried for an offence and sentenced to life imprisonment in 1997. The punishment part of that sentence was not, finally, determined by a judicial body until 21 September 2005, some eight years later. However, the Court is not persuaded that the proceedings can be regarded as having been pending throughout this period. It would note that the original trial and appeal were concluded by 9 March 1999. In domestic terms, no further issues lay to be determined by the courts at that stage. While it is true that subsequent cases of this Court established that the fixing of the punishment part of the sentence should have been carried out by a judicial body and not the executive, this does not mean that the original proceedings against the applicant were somehow resurrected or that they had been in some kind of limbo. Further, if the applicant had wished to complain under Article 6 § 1 that his sentence had not in fact been properly determined by a court, he would have had to do so within six months of the relevant final decision in that regard – no continuing situation of breach would have been disclosed. The Court would however comment that bearing in mind the importance of the issue to the applicant, who was nearing a possible release date, and the date on which he had originally been sentenced by the court, special considerations of expedition applied.

In light of the above, the Court considers that while the punishment part proceedings operated to re-open issues of the applicant ’ s sentence and thus revived the applicability of Article 6 § 1 of the Convention, the period relevant for the purposes of assessing the reasonableness of time taken ran from the moment of re-opening ( IJL, GMR and AKP v. the United Kingdom , cited above). There was no retrospective effect. It notes that the first re-opening concerning the punishment part took from 2 November 2001 when his case was referred to the High Court until the rejection of his appeal on 14 March 2003 – a period of some 16 months for two instances – and the second re-opening took from the referral of his case to the court by the SCCRC on 14 January 2005 until the final d ecision by the High Court on 21 September 2005 – a period of some eight months. As regards both periods, the Court finds no appearance of unreasonable delay, even taking into account a need for expedition.

On conclusion, the Court rejects the applicant ’ s argument that the subsequent imposition by the legislature of a procedure for the judicial fixing of the punishment part of his sentence in itself, or by its application in the particular case, gave rise to any appearance of a breach of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The applicant ’ s remaining complaints

The applicant also complained about the procedure under Article 7 (prohibition on the retrospective imposition of a heavier penalty) and under Article 14 (prohibition of discrimination in the enjoyment of Convention rights).

Insofar as the applicant complains under Article 7 that the courts imposed a longer punishment part than the executive did, the Court notes that at the time at which the applicant ’ s offence was committed the maximum sentence of life was applicable: it cannot, therefore, be said, that the High Court retrospectively increased this sentence.

Insofar as the applicant complains under Article 14 of the Convention that he was discriminated against in that prisoners who had obtained a release date could waive the re-opening of the punishment part, the Court considers th at prisoners who have been approved for release and in preparation for an expected release date cannot be regarded as in a comparable situation to prisoners who have only been told when they will first become eligible for release on parole and that any difference in treatment may also be regarded as having objective and reasonable justification, given the very strong expectations of release enjoyed by the former prisoners and their families (see concerning general principles , inter alia , Camp and Bourimi v. the Netherlands , no. 28369/95, § 37, ECHR 2000-X ) . It may also be noted that the Flynn case (cited above) allowed considerations of expectations of release to be taken into account in the assessment of the punishment part, thus giving due and proportionate regard to the applicant ’ s interests in the circumstances.

It follows that this part of the application is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Conclusion

Having regard to the above considerations, the Court finds that the application as a whole is manifestly ill-founded and that Article 29 § 3 of the Convention should no longer be applied to the case.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fato ş Aracı Josep Casadevall Deputy Registrar President