FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3079/03 by Stephen WIGNALL against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Ms L. Mijović , Mr D. Spielmann , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 19 January 2003 ,

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, Mr Stephen Wignall, is a United Kingdom national, who was born in 1950 and is currently detained in HMP Whatton.

A. The circumstances of the case

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

On 14 November 2000 the applicant pleaded guilty to four offences: two were of indecency with a child, one of abducting a child and one of indecent assault.

On 10 January 2001 he was sentenced to two and half years ' imprisonment for the offence of indecent assault, the sentences for the other offences being of lesser periods of custody all running concurrently. The sentencing judge also imposed an extended-sentence pursuant to section 59 of the Crime and Disorder Act 1998, for a period of 7 years ' extended licence. In his sentencing remarks the judge stated:

“Stephen Wignall , you have pleaded guilty to these 4 offences. They do vary, in my view, in their gravity, the really serious one, of course, is the last one, the indecent assault on young Dillon Cottee .

You say you were totally (inaudible) by alcohol at the time and you couldn ' t remember what you were doing, and, the letter you have written to me shows refreshing honesty. Drink has been your ruination. ... [S] omething has to be done, both to attend your alcoholism and your tendency, which seems to be increasing, to commit offences of this nature.”

On 9 November 2001 the applicant was released from custody on licence, having served half his sentence of two and half years. He was released to Haworth House Probation Hostel where he was under the supervision of Kirsten McCloy , a probation officer.

On 19 January 2002 the applicant was recalled to prison for breach of his licence provisions. The applicant received his recall pack, containing the reasons for his recall, 16 days after his recall. The reasons given were that he had breached his licence conditions by continuing to drink excessively; failing to attend a programme designed to address his behaviour, and by grabbing a female worker ' s arm and pulling her as well as generally making inappropriate comments of a sexual nature. The applicant challenged the bases for his recall stating that they were factually incorrect and instructed solicitors, Messrs Olliers , to represent him at the Parole Board hearing set for 29 July 2002 , some six months after he was re-detained.

From 27 June 2002 to 15 July 2002 the applicant ' s solicitors contacted both the Sentence Enforcement Unit at the Prison Service and the Parole Board asking for disclosure; there was little response.

On 29 July 2002 the applicant ' s oral hearing in front of the Parole Board was deferred at his request because the statement of Anna Javed (the female whose arm the applicant is alleged to have grabbed) had been served on them that morning which not only mentioned a further witness to the assault, Peter Baines , but was also incorrect as to a material fact.

Between 29 July 2002 and 3 September 2002 (the date of the deferred hearing) requests for disclosure continued and, in August, produced the following statements: John Marsden , a probation officer; Barry Holt, a fellow sexual offender who witnessed the inappropriate comments; Pasky Cirono ; Peter Baines; Helen Clayton, the hostel cook and a further statement from Anna Javed . Some of the statements were not signed or dated, and although a further witness Sandra came to light no evidence was forthcoming in response to requests. The applicant ' s solicitors asked that some witnesses be called to give oral evidence, including Sandra; in particular they asked that Barry Holt be called and that they be furnished with a list of his previous convictions. They received no response.

On 3 September 2002 an oral hearing took place in front of a Panel of the Parole Board. Marsden and Javed were present as witnesses with John Dewhirst standing-in for McCloy who was ill. The applicant decided to proceed nonetheless because he had already been detained for nine months.

On 5 September 2002 the Parole Board decided that the applicant should remain in custody. The decision was communicated to the applicant ' s solicitors on 24 September 2002 . The reasons given for the decision were:

“ 2. The panel considered all of the documents before it together with the evidence of the probation hostel manager, Mr John Dewh i rst , the evidence of Ms Anna Javed , Senior Probation Officer, Assistant Probation Hostel Manager Mr Marsden , the submissions by Mr Dickinson on behalf of the Secretary of State. You elected not to give evidence. ...

4. The panel was satisfied on the evidence before it that you have been reluctant or unable to comply fully with the conditions and restrictions placed on you in that, despite a formal warning and a final warning, you continued to drink excessively resulting on occasions in your admission to hospital and you have not complied with your licence conditions to address your alcohol - related offending behaviour.

The panel also accepts on a balance of probabilities that you did make comments of a sexual nature about a female hostel worker and that on 31 December 2001 you did grab the arm of Ann Javed and pulled her towards you in a manner which she reported as feeling like a sexual act to her. The panel regards these actions as highly inappropriate and underline a serious lack of insight and judgment. The panel also noted that you failed to return to your hostel on a number of occasions by the curfew time.

5. The panel had regard to reports of ongoing concerns at your lack of motivation to address your alcohol and sexual - related offending behaviour and also noted the entrenched nature of your alcohol abuse which you yourself are reported to have described as having consumed your life. The panel further noted your description that your abuse of alcohol is the root cause of all your problems including your sexually abusive behaviour. ...

6. It is stated that you were refused admission to an ASRO programme meeting because you arrived in an inebriated state. You yourself accepted that you had been drinking. ...

7. Your index offences, the breaches of your licence, your inability to avoid excessive alcohol consumption when back in the community, the inappropriate sexual comments and grabbing Anna Javed ' s arm, the need for you to start to undertake work on your alcohol and sexual- related offending behaviour all indicate to the panel that you continue to present considerable risk of harm to the public and especially young males and females. ... ”

The applicant ' s solicitors instructed counsel concerning the possibility of seeking judicial review of the decision of the Parole Board. The applicant stated that counsel advised that there was no merit in any claim.

B. Relevant domestic law and practice

1. “ Extended-Sentences ”

Where a defendant falls to be sentenced for a violent or sexual offence the courts have the pow er to impose what is termed an “ extended-sentence ” provided by section 58 of the Crime and Disorder Act 1998 (now re-enacted in identical terms by section 85 of the Powers of the Criminal Courts (Sentencing) Act 2000) which reads (so far as material) as follows:

“58. (1) This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of whi ch is equal to the aggregate of -

(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and

(b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection(1) above.

...

(4) The extension period shall not exceed -

(a) ten years in the case of a sexual offence; and

(b) five years in the case of a violent offence.

(5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.”

Release and recall of prisoners on licence is governed by Part III of the Criminal Justice Act 1991:

– release of prisoners on licence (section 33);

– recall of offenders sentenced to extended-sentences (section 39).

Prisoners, once released on licence, are liable to recall by the Secretary of State, either with a recommendation by the Parole Board or, if it seems expedient in the public interest to recall the prisoner before such a recommendation is practicable, by the Secretary of State alone. The Parole Board and the Secretary of State will normally exercise this power of recall following a recommendation by the Probation Service responsible for the prisoner ' s supervision; it is not necessary for the prisoner to have committed an offence.

Review of the decision to recall is carried out by the Parole Board. Where a prisoner is recalled by the Secretary of State without a recommendation by the Parole Board, the Secretary of State must refer him to the Parole Board. A prisoner serving an extended-sentence has the right to require the Secretary of State to refer his case to the Parole Board upon recall: s. 44A of the Criminal Justice Act (inserted by section 59 of the Crime and Disorder Act 1998). Thenceforth the prisoner is entitled to annual reviews of detention.

2. Nature of Parole Board Hearings

The Parole Board is required to sit in a judicial capacity when hearing representations concerning recall decisions. An extended-sentence prisoner has no right to an oral hearing; the Parole Board retains discretion over the nature of the review they conduct. The common practice is that the representations will be considered on paper except where the Parole Board are of the opinion that there are crucial issues which require an oral hearing. Nevertheless the Prison Service advised the Sentence Advisory Panel that they intended to implement oral hearings in the case of extended-sentence prisoners, bearing in mind that an extended-sentence prisoner who is recalled faces a much longer period in custody than an ordinary determinate sentence prisoner.

3. Case-law on extended - sentences

On 19 December 2003 , in The Queen (on the application of William Sim ) v. The Parole Board and the Secretary of State for the Home Department (2003 EWCA Civ 1845) the Court of Appeal considered the recall of a prisoner who had been sentenced to an extended-sentence and recalled to prison after release on licence due to alleged breaches of his licence and inappropriate conduct involving alcohol. Lord Justice Keene held, firstly, that Article 5 § 4 applied to decisions relative to recall and continued detention:

“36. In short, when an offender is detained during the extension period of a section 85 sentence, such detention must be subject to review by a judicial body. No court has ordered his detention during that period: prima facie the sentencing court took the view that he could be dealt with in the community during that period. ... In cases of extended sentences under section 85, it is the executive which decides upon an offender ' s recall during the extension period, and because that detention has not been ordered by a court it must be supervised by a judicial body. Otherwise there is a danger of an arbitrary decision being made by the executive. As it happens it is so supervised, because section 44A of the 1991 Act so provides through the mechanism of the Parole Board .. .”

Secondly, he found that it was inconsistent with the Convention to place any burden of proof as to lack of dangerousness on the prisoner and held that section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board was obliged to conclude that it was no longer necessary to detain the recalled prisoner unless the Board were positively satisfied that the interests of the public require that he should be confined.

Thirdly, he concluded that the Parole Board was entitled to consider hearsay evidence. While Article 5 case-law referred to the necessity of oral hearings, it did not require that there should as a matter of course be cross-examination of witnesses to establish facts on which the Board relied. Fairness would sometimes require this, however , and the Board had to take account of the extent to which allegations are disputed, and bear in mind the extent to which they have been fully tested in cross-examination, when deciding what weight to give to these factors. In the circumstances of the instant case, he found that the lack of possibility to cross-examine witnesses on certain disputed aspects of the applicant ' s conduct was not unfair where the Board heard the applicant himself and the disputed matters were not key factors in their decision as to the risk which he presented.

4. Human Rights Act 1998

Section 6(1) of the Act provides:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

COMPLAINTS

The applicant complained about his recall to prison and continued detention. He complained in particular that his recall to prison was unfair because the procedure did not allow him the opportunity to challenge effectively the reasons for his recall. He referred inter alia to the fact that not all the witnesses which he requested gave oral evidence and that other witnesses referred to hearsay.

THE LAW

The applicant complains of his recall to prison and the procedure applied to his recall and his continued detention.

The Court has examined these complaints under Article 5 §§ 1 and 4 of the Convention which provide as relevant:

Article 5 § 1 of the Convention:

“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;

... ”

Article 5 § 4 of the Convention:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he did not bring proceedings before the courts claiming a breach of his rights under the Human Rights Act 1998. The case of Sim (see Relevant Domestic Law and Practice above ) showed that a prisoner was able to raise similar issues, partly successfully, in such proceedings , including issues of fairness or relating to the cross-examination of witnesses.

The applicant stated that his counsel had advised that there were no merits to support any proceedings in the High Court and considered that proceedings would not have served any point.

The Court reiterates 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. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the 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, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).

The Court emphasises that the application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment, § 69, and the Aksoy judgment, §§ 53 and 54).

In the present case, the Court observes that the applicant ' s recall and the Parole Board review of his recall took place after the entry into force of the Human Rights Act 1998. This provided him with the possibility of raising complaints under the Convention before the domestic courts, including any issues as to whether his recall and continued detention complied with Article 5 § 1 of the Convention as showing the necessary causal link with the objectives of the original sentence and any issues as to whether the procedure was fair, in particular giving him a sufficient opportunity to know the case against him, to make representations or to examine or cross-examine witnesses. That the domestic courts will give effective examination to such complaints is shown, inter alia , by the Sim case (cited above), where a prisoner, serving a similar extended sentence and recalled on licence, was successful in obtaining a ruling that the legislation should be interpreted as requiring the Parole Board to be satisfied that continued detention, rather than release, was justified. While it is true that the Court of Appeal in that case considered that the Parole Board was able to take into account hearsay evidence, namely without hearing the source of the evidence concerned, it did emphasise that principles of fairness applied and that it would depend on the circumstances of the case. It would therefore have been open to the applicant to argue that in his own situation the admission of hearsay evidence and the failure to call particular witnesses for examination and cross-examination was unfair.

The Court recalls that the applicant ' s solicitors instructed counsel concerning possible court proceedings who advised, in the words of the applicant, that there was no merit. However, the fact that this appears to indicate that counsel found no convincing grounds for taking a claim in his particular case does not detract from the general effectiveness of the available court remedies and does not exempt the applicant from the requirement to put the substance of his Convention complaints before the appropriate domestic bodies before coming to Strasbourg .

The Court concludes that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and that his application must, therefore, be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Matti Pellonpää Registrar President