THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59512/00 by Stuart BLACKSTOCK against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 27 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto ,

Sir Nicolas Bratza , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve, judges ,

and  Mr   M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 17 April 2000,

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, Stuart Blackstock, is a United Kingdom national, who was born in 1954 and lives in Bedford, England. He was represented before the Court by Mr S. Creighton, a lawyer practising in London. The respondent Government were represented by their agent, Ms E. Willmott.

A. The circumstances of the case

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

On 5 June 1981 the applicant was convicted of wounding (the deliberate shooting of a police officer) with intent to resist arrest, for which he was sentenced to life imprisonment. He was also sentenced to concurrent sentences of 15 years for attempted robbery and firearms offences. His tariff was set at 17 years.

On 8 June 1998, upon the expiry of his tariff, the applicant's detention was reviewed by a “Discretionary Lifer Panel” (“DLP”) of the Parole Board. At the time of his review, the applicant was a 'category B' prisoner (prisoners being given a security classification ranging from category A (most serious) to category D). Life prisoners are normally expected to pass through each of the categories prior to release. While he would therefore ordinarily have been expected to progress to a category C prison before being considered suitable for transfer to a category D (“open”) prison, the applicant applied to be transferred directly to an open prison. His legal representative at the review hearing made it clear that he was seeking a transfer only, not release on licence.

Among the material which the DLP had before it were two reports (from Mr Cochrane, the prison probation officer, and Dr Williams, a psychiatrist commissioned on behalf of the applicant) which recommended a transfer of the applicant to a category D prison. Those reports stated that the applicant needed to be tested with a view to preparing him and considering him for release on licence; and that such testing could not take place in a category C prison and needed to take place in category D conditions. They were of the view that the risk to the safety of the public of a transfer to category D was acceptable. The third report in front of the DLP from Dr Narayana, a visiting consultant psychiatrist, was unfavourable to the applicant and neither recommended transferring him to category D nor directing his release. Mr Cochrane and Dr Williams gave oral evidence to the DLP. Dr Narayana did not. The conclusions of the latter were criticised by Dr Williams as being unsupported by evidence or reasoning.

The DLP did not recommend that the applicant should be released. However, it recommended that he should be transferred from a category B to a category D prison. Were that recommendation not to be accepted by the Secretary of State, the DLP recommended an early review after 12 months (i.e. in June 1999).

The decision letter of the DLP to the applicant of 10 June 1998 stated, in relevant part:

“1. The Crime (Sentences) Act 1997 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board who considered your case on 8 June 1998 were not so satisfied and therefore have not directed your release at this stage. This decision is binding upon the Secretary of State.

...

3. In reaching their decision that you are not yet suitable for release on licence, the panel took particular account of the contents of the reports which were before them, most of which did not recommend release and concluded that you remain a risk, at least until further work has been done on social skills and enhanced thinking. The panel noted the fact that your representative expressly stated that she did not ask for a recommendation for release at this stage.

4. The panel recommended to the Secretary of State that you should be transferred to a category D prison. They made this recommendation on the basis of the opinions expressed by Mr Cochrane and Dr Tegwyn Williams that while recognising the progress which you have made, and improved behaviour and attitude, further work remains to be done, but that this could more appropriately be carried out in open conditions, which would give an opportunity to test out your commitment in less structured conditions which are closer to the community. The panel concluded, on the basis of the opinions of these witnesses, that the risk of a transfer to category D conditions would be acceptable.

5. The panel preferred the evidence and report of Dr Tegwyn Williams to the report of Dr Narayana. The panel felt that Dr Narayana's conclusions (upon which the Secretary of State relied) were not supported by evidence or by any reasoning which preceded them.

6. The panel made no recommendation to the Secretary of State with regard to an early review. However, in the event of the Secretary of State not accepting the panel's recommendation for transfer to category D conditions, the panel would recommend an early review in 12 months time, and would hope that consideration would be given to a transfer to less secure conditions meanwhile.

7. The decision not [to] release you is binding upon the Secretary of State but it is for him to decide whether to accept the recommendation to transfer to category D conditions.”

On 29 September 1998 the Secretary of State rejected the Parole Board's recommendation that the applicant should be transferred to a category D prison. He directed that the applicant should be moved to a category C prison. The reasons for his decision were set out as follows in a memorandum of 29 September 1998:

“The Secretary of State has carefully considered all the papers which were prepared for your recent Parole Board review, including the reports from staff at both Full Sutton and Nottingham, your own and your solicitor's representations and the recommendation of the Parole Board. He is not prepared to accept the Parole Board's recommendation for your transfer to open conditions for the reasons set out below.

The Secretary of State notes the recommendations made by the Board and by report writers, the majority of whom support a progressive move. He notes in particular, your willingness to co-operate with offence-related treatment work and the progress you have made as a result, your improved behaviour and the remorse you have shown. However, he is concerned by references to your tendency, on occasions, to be aggressive, unwilling or unable to consider fully the likely consequences of your actions or behaviour or see how others perceive your behaviour.

In considering the Parole Board's recommendation for your transfer to open conditions, which is generally a time of final testing in more normal conditions as a prelude to release, the Secretary of State needs to be satisfied that you have made sufficient progress towards tackling your behavioural problems so as to minimise the risk of your reoffending, or risk to the public while in open conditions or when release takes place.

The Secretary of State notes that you have not been tested in category C conditions. Life sentenced prisoners are normally required to spend a period in the lower security conditions of a category C prison to enable them to adjust to, and experience, a less secure environment before eventually progressing to open conditions. He considers this to be all the more important in your case in view of the very long period you have spent in maximum security conditions, much of which has been spent in segregation units, and notes that you are still held in category B conditions.

He also considers that, although you have attended offending behaviour courses, and appear to have benefited from them, that work needs to be reinforced and tested in the lower security environment of category C conditions before consideration is given to your transfer to open conditions. In particular, further offence-related work needs to be tackled, together with continuing work to develop more mature, reflective styles of thinking and behaving and enhanced interpersonal skills.

You will therefore be transferred to a suitable category C establishment. However, in the light of the positive reports from staff at both Full Sutton and Nottingham, your next review will begin 12 months thereafter.”

The applicant was moved to a category C prison on 1 April 1999.

On 3 November 1999 the applicant's application for judicial review of the Secretary of State's decision not to reclassify him from a category B to a category D prisoner was dismissed by the High Court. This was on the basis that there had not been any procedural irregularity in the decision-making process. During the course of his judgment, Mr Justice Jowitt said the following:

“It is clear that the decision which the Secretary of State had to make in this case was an important one. It was important because such a decision has a potential to affect the release date of a prisoner in that delay in transfer to category D has the potential to delay of release on parole.”

Mr Justice Jowitt also made, inter alia , the following observations:

(a) there had not been any finding by the DLP that there would be a regression in the behaviour or the attitude of the applicant were he to be placed in a category C prison;

(b) the DLP had taken “an unusual course” in recommending that the applicant should be transferred from a category B to a category D prison, as, ordinarily, a life prisoner would pass through the categories from which he had started, therefore going through category C into category D;

(c) counsel for the applicant had not suggested that the decision of the Secretary of State not to accede to the recommendation of the DLP was open to attack other than on procedural grounds.

The applicant did not seek leave to appeal and was advised that he did not have any right of appeal against the judgment of the High Court.

The applicant's subsequent review by the DLP took place on 25 April 2000, over 12 months after his arrival in category C conditions and over 22 months after his previous review in June 1998. On that occasion, the DLP decided not to direct his release, but recommended that he should be transferred to open conditions. Its decision letter to the applicant of 2 May 2000 stated, inter alia , as follows:

“5. Until your arrival at Wayland you had been in conditions of greater security. During your year at Wayland the panel accepts that you have continued to make progress and your behaviour has been good. You have done all that has been required by your sentence plan and you have made sufficient progress towards tackling your offending behaviour to justify your move to open conditions. So far as risk is concerned, however, you have experienced testing only in closed conditions.

6. Having regard to your serious offending, your behaviour in prison up to May 1994 and the fact that you have never been tested in open conditions, the panel considers that your risk is not as yet sufficiently reduced to justify your immediate release.

7. ... Most report writers recommended you for open conditions but not for release. Until you have been tested in open conditions the panel cannot be satisfied that your risk is sufficiently reduced for your release.

8. Furthermore your release plan was not realistic or reasonable...

9. Your move to open conditions is needed primarily to test further your motivation to remain of good behaviour and your ability to cope with stress and frustration and to enable you to be gradually reintroduced to life in the community outside prison. ... In view of the fact that in June 1998 you were recommended as suitable for release and your progress since then, the panel recommended that you should move to open conditions at the earliest opportunity. Although several report writers recommended a review after 12 months from your arrival in open conditions the panel considered that this period was probably insufficient to enable you to complete the testing which you need and therefore made no recommendation for an early review.”

The recommendation that the applicant be moved to open conditions was accepted by the Secretary of State on 24 July 2000.

At the applicant's subsequent review on 30 April 2002, the DLP was satisfied that it was no longer necessary for the protection of public that he be detained and therefore directed his release from prison.

B. Relevant domestic law and practice

1. Life sentences and tariffs

A person convicted of certain serious offences may be sentenced to life imprisonment at the discretion of the trial judge. At the time of sentence, a “tariff” is imposed which represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. A life prisoner will not be released on licence until after the tariff period has been completed.

2. The role of the Parole Board

Pursuant to section 28 of the Crime (Sentences) Act 1997, after the tariff has expired, a discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.

The Parole Board further has power, should it choose not to direct the release of a prisoner, to make recommendations to the Secretary of State concerning the detained person's future progress.

Following a review, a discretionary life prisoner has a statutory right to have his case reviewed again by the Parole Board two years after the previous review.

If the Parole Board decides not to order release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State, whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review.

3. Categorisation of prisoners

The categorisation of prisoners is the function of the Secretary of State. There are four categories of classification of prisoners, namely:

(i) category A prisoners, whose escape would be highly dangerous to the public or to the police or to the security of the nation;

(ii) category B prisoners, for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult;

(iii) category C prisoners, who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt;

(iv) category D prisoners, who can be trusted in open conditions.

4. Policy statements and directions by the Secretary of State

On 7 December 1994 the Secretary of State stated:

“In recent years, successive Secretaries of State have recognised that, for the majority of life sentenced prisoners, a period in open prison conditions is generally vital in terms of testing the prisoner's suitability for release and in preparing him for a successful return to the community. It is, therefore, now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress. I intend to continue with this practice and the first Parole Board review will therefore normally serve the purpose of assessing the prisoner for open conditions.”

On 9 July 1998 the Secretary of State stated:

“...the first Parole Board review in the case of a life sentenced prisoner begins three years before the expiry of tariff. The purpose of this review is normally to enable the prisoner to be assessed for, and, where appropriate, transferred to, open conditions (category D) where he or she may be tested in conditions of lower security, fully assessed by staff and prepared for release. A further Parole Board review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence. Where the level of risk is considered to be acceptable, the objective is to release the prisoner on or very shortly after tariff expiry.”

A direction to the Parole Board from the Secretary of State under section 32(6) of the Criminal Justice Act 1991 (which preceded the Crime (Sentences) Act 1997) stated:

“A period in open conditions is essential for most life sentence prisoners (“lifers”). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”

5. The Human Rights Act 1998

On 2 October 2000, the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be invoked in domestic proceedings in the United Kingdom.

6. Relevant domestic case-law concerning whether decisions of the Secretary of State not to accept recommendation of a transfer to open conditions (Category D) violated Article 5 § 4 of the Convention

In R (on the application of Keith Burgess) v. Secretary of State for the Home Department (3 November 2000, unreported), the Divisional Court considered a challenge to the decision of the Secretary of State on 29 September 1999 not to accept the recommendation of the Parole Board that a discretionary life prisoner, who had served the tariff part of his sentence, should be reclassified from category C to category D.

The applicant's counsel in Burgess argued that the decision by the Secretary of State to veto the Parole Board's recommendation for transfer to open conditions was tantamount to a decision that release would be postponed further than the Parole Board had envisaged. This was because, in reality, developments in domestic law and policy had made it clear that transfer to open conditions for a period of testing was generally a necessary preliminary to release. It was argued that the decision of the Secretary of State resulted in the applicant's detention being further prolonged. That decision therefore effectively undermined the protection of Article 5 § 4 of the Convention, which required the judicial supervision of the length of post-tariff detention. The applicant's counsel accepted that, although release from open conditions was the norm, there were exceptional cases in which a prisoner could be released from closed conditions.

The Divisional Court referred to several cases while considering the applicant's arguments. It quoted the following passage from the judgment of Lord Justice Buxton in R v. Secretary of State for the Home Department Ex parte Gunn (unreported, 14 July 2000, Court of Appeal):

“... reliance is placed on article 5(4) of the European Convention on Human Rights. This complaint is, I have to say, misconceived in a number of ways. It is absolutely essential to appreciate that the regime created by Article 5 is to do with detention. It is not to do with how persons are treated while they were detained or where they are placed within the prison system. Other parts of the Convention, none of which are suggested to have been infringed in this case, deal with those matters. That being so, there is no obvious way in which Article 5 has any connection with the decision which is at the moment complained of as to whether this man should be in closed or open conditions.”

The Divisional Court also considered the case of R v. Secretary of State for the Home Department, ex parte Phillip Sarsfield (unreported, 21 September 2000, Queen's Bench Division). The facts of that case arose out of the refusal of the Secretary of State to accept the recommendation of the Parole Board, in June 1998, to transfer a category C discretionary life prisoner to an open prison. While the applicant's challenge to the decision of the Secretary of State on procedural grounds was dismissed, Mr Justice Richards also stated as follows in relation to the Convention issues:

“... Article 5(4) of the European Convention ... is not concerned with questions of where a prisoner is held or in what conditions he is held: it is concerned with the question whether he may be held at all or should be released.”

The Divisional Court proceeded to consider the relevant Convention case-law, quoting from K.M. v. the United Kingdom , no. 28376/95, Commission decision of 3 December 1996, unreported, and from Ashingdane v. the United Kingdom , judgment of 28 May 1985, Series A no. 93).

Having considered the above case-law, Lord Justice Rose concluded as follows:

“... it seems to me that the judgments of [Lord Justice] Buxton and [Mr Justice] Richards, although not binding on this court, are powerfully persuasive for the reasons given primarily by [Lord Justice] Buxton. Their persuasiveness is enhanced because, as it seems to me, those judgments chime harmoniously with what has emerged from Strasbourg. There is not only the Commission decision [ K.M. v. the United Kingdom ], crushingly unanimous, as to the inadmissibility of the complaint (though Mr Fitzgerald, in his reply, drew attention to the comparative lack of weight which is to be attached to a Commission decision when set against a decision of the European Court), but there is also the decision of the court itself in Ashingdane. That decision, as it seems to me, having regard to the issues which were before the court on that occasion, and having regard in particular to Ashingdane's complaint, identical to that in the present case, that his release was being retarded, determines the failure of Mr Fitzgerald's first submission. Article 5(4) does not, as it seems to me, preclude the Secretary of State from taking a different view than the DLP of the Parole Board as to whether or not the applicant should be moved to open conditions.”

Mr Justice Elias agreed with the judgment of Lord Justice Rose and made the following further observations in relation to Article 5 § 4 of the Convention:

“65. ... There is no doubt in my mind that the decision by the Secretary of State was determining where and in what conditions the applicant should be detained. He was not deciding whether the defendant should be detained at all. That was plainly a matter for the Parole Board, acting through the DLP. The DLP had exercised its judgment on that matter, and all who gave evidence to the DLP agreed that it was necessary to keep the applicant in detention.

66. Mr Fitzgerald QC says that although not in form a decision about detention, in reality it was such a decision because it directly affects the period of detention. This is because it is the general practice for the DLP not to agree to the release of the prisoner until he has spent a period of time in open conditions. Accordingly, says Mr Fitzgerald, it means that the applicant is likely to remain in prison for a longer period than he would have done had the view of the DLP been accepted by the Secretary of State.

67. He submitted that, in effect, the recommendation of the DLP was in essence a conditional deferred date for release, deferred until the next assessment date, and conditional on the applicant behaving satisfactorily during the period when he would be in open conditions.

68. Mr Fitzgerald put the point in an alternative way by submitting that the DLP was, in effect, determining that the applicant should be tested in open conditions and that the decision of the Secretary of State was frustrating that decision of the DLP.

69. I do not accept Mr Fitzgerald's argument. I accept that the decision of the Secretary of State may well have an adverse effect on the applicant. Plainly, it will make it more difficult for him to persuade the DLP on the next assessment that he should be released than it would have done if the DLP's recommendations had been followed. But that, in my judgment, is not a decision which constitutes a deprivation of his liberty or an unlawful detention. It does not prevent him from being periodically considered by the DLP as to whether his continued detention is lawful, nor does it affect the criteria which is to be adopted by the DLP when making that determination.

70. The fact that the decision may have an impact on the period of detention does not, in my judgment, attract the protection of Article 5(4). A decision taken in the perceived public interest which may have an effect on the period of detention is not a decision to detain. Nor in my judgement can it be said that because it may change the facts as they will appear before the DLP on a subsequent assessment, that that can possibly bring the particular decision within the terms of Article 5(4).

71. Moreover, as Mr Fitzgerald frankly accepted, logically it is difficult to see why, if he is right, Article 5(4) merely applies to a refusal to re-categorise from category C to category D. When the Secretary of State refuses to transfer someone from category A to B, or from category B to C, then, as Mr Fitzgerald accepted, that in practice might equally have an adverse affect on the timing of the ultimate release date.

72. Mr Fitzgerald sought to meet this particular point by submitting that the re-categorisation from C to D was in a different category because at that stage there was a specific period of time which one could perceive and identify as the likely period which the applicant would remain in prison, subject to good behaviour. I do not find this a convincing reason for distinguishing between this particular refusal and the other refusals to re-categorise that I have mentioned.

73. I should be very surprised indeed if Article 5(4) was intended to have the effect of requiring judicial control over all the stages of classification of discretionary life prisoners. Accordingly, independently of the authorities to which my Lord Rose LJ has referred, in my judgment, on principle, I do not see how Article 5(4) would apply to the particular decision in this case.

74. The authorities very strongly confirm the conclusion that I have indicated, and indeed, as Mr Sales pointed out, the Ashingdane case is in some sense a stronger case than this, because it was recognised in that case by the Secretary of State that the detained patient had suffered significantly as a result of the inability to transfer him from Broadmoor to a less rigorous detention environment.

75. Mr Fitzgerald sought to distinguish that case by saying that the question of the timing of release was not critical to the decision of the European Court of Human Rights in that case. It is true that it was not a matter that was focused upon specifically in the reasoning of the court, but it is plain that it was a significant feature in the case which was put before the court by the applicant, and I cannot think but that the court must have had it firmly in mind.”

COMPLAINTS

The applicant complained under Article 5 § 4 of the Convention that, following the review of his detention by the DLP in June 1998:

(i) an independent tribunal did not have a binding power to direct the movement of the applicant to an open prison as part of his staged release from prison custody;

(ii) an independent tribunal did not have a directive power to fix the timing between reviews of detention, thereby ensuring that regular and speedy reviews took place;

(iii) the period of time that elapsed before his next review 22 months later did not comply with the requirement that his detention should have been reviewed “speedily”.

The applicant further sought compensation pursuant to Article 5 § 5 of the Convention in relation to the above complaints and complained, under Article 13 of the Convention, that he did not have any effective domestic remedy in respect of the above complaints.

THE LAW

The applicant complained under Article 5 § 4 of the Convention that the DLP could neither order his transfer to an open prison nor fix the date for his subsequent review of detention, following the recommendations which it made at his review in June 1998; and about the fact that a period of over 22 months elapsed between his reviews of detention in June 1998 and April 2000. Article 5 § 4 of the Convention reads as follows:

“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 applicant sought compensation for the above alleged violations of Article 5 § 4 under Article 5 § 5 of the Convention, which reads as follows:

“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 applicant also complained that he did not have any effective domestic remedy in relation to his Convention complaints. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The lack of power of the DLP to direct that the applicant should be transferred to an open prison following his review in June 1998

1. The parties' submissions

(a) The Government

The Government submitted that this complaint was directed to the conditions in which he was detained. The decision of the Secretary of State not to follow the recommendation of the Parole Board to transfer the applicant to an open prison following his review in June 1998 was not a decision which determined the lawfulness of the applicant's detention within the meaning of Article 5 § 4. It referred inter alia to the Commission decision in K.M. v. the United Kingdom (no. 28376/95, decision of 3 December 1996) rejecting as inadmissible a similar complaint and to the Court's judgment in Ashingdane v. the United Kingdom (judgment of 28 May 1985, Series A, no. 93) in which the Court stated that Article 5 § 4 did not guarantee a right to judicial control of the legality of all aspects or details of the detention in question.

The Government pointed out that the lawfulness of the detention of the applicant remained exclusively a matter for the Parole Board; and that the Secretary of State, when he declined to follow its advice, was not determining the lawfulness of detention. The applicant had not yet satisfied the Parole Board that it would have been safe to release him on licence.

The Government further submitted that, while ministerial statements had made it clear that most life sentence prisoners would be released from open conditions, that was not necessarily appropriate for all such prisoners, each case was considered on its merits and release could be and was made from closed conditions where appropriate. In the case of discretionary life prisoners, the Parole Board had the ultimate decision as to whether to order release. The Government denied that the domestic case-law made it clear that all life sentence prisoners would be required to spend a period of time in an open prison as part of their preparation for release. They emphasised that to have so decided would have been an improper fetter on the statutory power of the Parole Board to order the release of a discretionary life prisoner when he no longer represented a risk to the public.

The Government pointed out that the effect of the applicant's argument under this head was that the categorisation of all prisoners at all stages of their sentence should fall within the ambit of Article 5 § 4, on the basis that their categorisation might have an impact on their eventual release on licence.

(b) The applicant

The applicant accepted that the Parole Board constituted a “court” within the meaning of Article 5 § 4 of the Convention, which had the power to direct the release of a prisoner. However, he submitted that the Parole Board was, in reality, required by the Secretary of State only to direct release once a prisoner had spent a period of time in an open prison. Yet the Parole Board did not have any power to direct the movement of the applicant to an open prison. That power lay solely with the Secretary of State. The Government could therefore frustrate the requirements of Article 5 § 4 simply by rejecting the Parole Board's recommendation, thereby making release impossible to achieve. He referred to the 1998 decision of the Parole Board in his case to argue that the recommendation for a transfer to open conditions meant that the DLP considered that he was coming close to release and wished to gather information on which to base its release decision. However, the Secretary of State, in refusing to accept the recommendation to transfer to open conditions, had the power to prevent the DLP from being in a position to recommend release.

The applicant emphasised that, in the overwhelming majority of cases, a life sentence prisoner had to spend a period in open conditions before that prisoner had any chance of release; and that the policy of requiring a period to be spent in open conditions had been expressly approved in domestic case-law. He argued that the transfer to open conditions therefore was not a matter which related merely to the secure containment of a prisoner, but fulfilled a special role in determining that his prospects of regaining liberty. While there remained the theoretical possibility of a life sentenced prisoner being released directly from closed conditions, he emphasised that that was extremely unlikely to happen other than in cases where a life sentenced prisoner had a very short tariff.

The applicant argued that Ashingdane was distinguishable in that the applicant in that case was a mental patient who had argued that he should have been transferred to conditions conducive to his recovery, that there was no requirement to spend a period in the therapeutic conditions requested before release would be considered and that no tariff period had been set. He relied upon Johnson v. the United Kingdom , (24 October 1997, Reports of Judgments and Decisions 1997-VII), to submit that practical arrangements relating to release from detention could fall within the scope of Article 5, in particular where the tribunal empowered to order release was in practice prevented from securing the individual's release.

The applicant submitted that his case did not require the categorisation of all prisoners to fall within the ambit of Article 5 § 4, as prisoners serving a determinate sentence were subject to an entirely different release scheme. His argument simply required a small alteration to be made to the pre-existing scheme of Parole Board reviews of life sentenced prisoners.

2. The Court's assessment

(a) General principles

Any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Wassink v. the Netherlands , judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24).

Article 5 § 4 provides a crucial guarantee against the arbitrariness of detention, providing for detained persons to obtain a review by a court of the lawfulness of their detention both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter (see, inter alia , Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, § 123, and Varbanov v. Bulgaria , no. 31365/96, ECHR 2000-X, § 58).

While the “court” referred to in this provision does not necessarily have to be a court of law of the classic kind integrated within the judicial machinery of the country, it does denote bodies which exhibit the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and of the parties (see De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, pp. 41-42, §§ 76 and 86; X v. the United Kingdom, judgment of 5 November 1981, Series A no. 46, p. 23, § 53, and Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 30, § 61).

In addition, as the text makes clear, the body in question must have not merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see the above-mentioned Weeks judgment, loc. cit ., Singh v. the United Kingdom, judgment of 21 February 1996, Reports 1996-I, § 66; D.N. v. Switzerland , [GC], no. 27154/95, ECHR 2001-III, § 39).

Article 5 § 4 does not guarantee a right to judicial control of the legality of all aspects or details of the detention (see the above-cited Ashingdane v. the United Kingdom judgment, § 52; and the Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, p. 26, § 49).

In the case of the continuing detention of a person sentenced to a discretionary life sentence in the United Kingdom, Article 5 § 4 requires the possibility of a review of the lawfulness of the detention once the tariff part of the sentence has been served (see Thynne, Wilson and Gunnell v. the United Kingdom , judgment of 25 October 1990, Series A no. 190-A).

(b) Application to the present case

The wording of Article 5 § 4 is clear: a person in detention is 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”. In the present case, a review of the detention of the applicant was carried out by the DLP, which it is not disputed constituted a “court” for the purposes of Article 5 § 4. The DLP specifically considered whether the applicant should be released from custody. It decided that the detention of the applicant was lawful and that he should not be released. As such, the applicant continued to be detained in prison only after a review of the lawfulness of his detention in June 1998 and the requirements of Article 5 § 4 were thereby fulfilled.

It is, of course, correct that, after having concluded that the applicant should not be released, the DLP proceeded to make a recommendation that he should be transferred from a category B to a category D prison and that the Secretary of State decided not to follow that recommendation. However, the Secretary of State, when declining to follow that recommendation, was not determining the lawfulness of the detention of the applicant. The guarantees of Article 5 § 4 did not, therefore, apply to that decision of the Secretary of State.

The above conclusions are supported by the previous case-law of the Convention organs, in particular the above-cited K.M. v. the United Kingdom and the Ashingdane case, in which the Court held that there had not been any violation of Article 5 § 4 in circumstances in which the applicant did not challenge the legal basis for his detention or seek release from the reality of detention. The Court came to that conclusion notwithstanding its acceptance that Mr Ashingdane's transfer to Oakwood (which had been delayed as a result of actions for which the State was responsible) “had a proximate connection with a possible recovery of liberty, in that, in the circumstances, it constituted an unavoidable staging post on the road to any eventual discharge into the community” and having noted the applicant's contention that his continued detention in Broadmoor had “retarded his eventual release into the community”. The Court concluded that Article 5 § 4 did not guarantee a right to judicial control of the legality of all aspects or details of the detention. It could not apply to a claimed entitlement to detention in the more “appropriate” conditions of a different category of psychiatric hospital.

Noting in particular that in June 1998 the applicant in the present case did not challenge the legal basis for his detention, nor did he seek release from detention, the Court agrees with the Government that, for the purposes of the conclusion to be drawn under Article 5 § 4, there is no material distinction between the present case and Ashingdane . It follows that the Court does not accept the applicant's arguments that that case should be distinguished. Nor does it see any reason to reconsider the conclusions reached in the Convention case-law referred to.

The Court has carefully considered the arguments of the applicant to support his contention that his move to an open prison was so intimately connected with his release that the categorisation decision in his case fell within the scope of, and violated, Article 5 § 4.

Having had regard to the ministerial statements and domestic case-law relied upon by the applicant, the Court notes that while it is clear that most discretionary life prisoners will be released from open conditions, the Parole Board remains exclusively responsible for the decision as to whether or not to order the release of such a prisoner once the tariff period has expired and has the power to do so, in the exercise of its discretion, when that prisoner is being detained in closed conditions.

The Court has not been persuaded that the categorisation of the applicant was a matter which affected the lawfulness of his detention. It regards that decision, involving as it did a consideration of whether the applicant should be kept in open or closed conditions, as one which related to the conditions in which he was to be detained.

In addition, the Court does not accept the analogy that the applicant attempts to draw by reference to the above-cited Johnson v. the United Kingdom judgment in the current context. In that case, the independent tribunal had ordered the applicant's conditional release from a mental hospital. It was the fact that the conditions of the release could not be met which led to the indefinite deferral of the release of the applicant. In the present case, the Court cannot equate the recommendation of the DLP to transfer the applicant to category D conditions with a decision that the applicant should be conditionally released from prison.

The Court accepts that the decision of the Secretary of State not to transfer the applicant to category D conditions following his review in June 1998 had the potential to delay the date of his release on licence. Whether, on the facts of this case, it actually did so is a matter of speculation. In any event, that decision did not determine the lawfulness of the applicant's detention. That factor had been determined by the Parole Board.

Furthermore, the Court does not find that the fact that the decision of the Secretary of State had the potential to affect the release date of the applicant constituted arbitrariness, within the meaning of Article 5 of the Convention, in the circumstances of the present case. The Court recalls that the recommendation of the DLP in June 1998 was that the further work that remained to be done on the applicant could “more appropriately” be carried out in open conditions; that the Secretary of State set out clear reasons for rejecting the recommendation of the DLP to transfer the applicant to a category D prison in a memorandum of 29 September 1998; that Mr Justice Jowitt noted in the applicant's judicial review proceedings that the DLP had taken “an unusual course” in recommending that the applicant should be transferred from a category B to a category D prison as, ordinarily, a life prisoner would be expected to pass through the categories from which he had started, therefore going through category C into category D; and that the challenge made to the decision of the Secretary of State in the applicant's domestic proceedings was on procedural grounds: it does not appear to have been alleged that the decision was irrational.

For the above reasons, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

B. The lack of power of an independent tribunal to direct the timing of the applicant's review of detention subsequent to that in June 1998

1. The parties' submissions

(a) The Government

The Government submitted that the absence of any power of the Parole Board to direct the timing of the applicant's reviews of detention did not violate Article 5 § 4 because domestic law drew a distinction between the respective roles of the Parole Board and the Secretary of State; the Parole Board had power to direct a discretionary life prisoner's release; the right to have the lawfulness of the detention decided speedily by a court was a procedural right which existed independently of the power of the Parole Board to order release; and the Secretary of State was bound by the procedural right to ensure that the lawfulness of a discretionary life prisoner's detention was subject to periodic review: the safeguard for any such prisoner was to be found in that procedural right rather than in any power given to the Parole Board to control the timing of reviews.

(b) The applicant

The applicant argued that the Parole Board's decision that his next review should take place 12 months later amounted to a decision that his continued detention was authorised for a period of 12 months only. The Parole Board could not be sure that the criteria for the lawfulness of continuing detention would be fulfilled after that date.

As the lawfulness of detention had to be decided “speedily” by an independent tribunal, the applicant submitted that Article 5 § 4 required an independent domestic mechanism to be in place to decide what constituted a speedy review in each case. It was improper for a member of the executive to be able to override that determination and thereby prolong the detention for longer than authorised by the independent tribunal.

The applicant submitted that the availability of judicial review proceedings was insufficient as the violation of Article 5 § 4 stemmed from the Secretary of State possessing a power to overrule the recommendation of the Parole Board which he ought not to have had. In addition, as a matter of practice, judicial review proceedings took a number of months.

2. The Court's assessment

The right set out in Article 5 § 4 is a procedural one and it is for the State to ensure that it will be made effective. The State will be responsible if the review proceedings are not decided “speedily”; and, it is likely that if an independent tribunal has recommended a particular timing for the next review of detention which is not followed by the executive, that that will be a matter which the Court will take into account in deciding whether the review was in fact carried out speedily.

Article 5 § 4 does not, however, contain any requirement for the “court” referred to therein itself to have the power to set the timing of subsequent reviews of detention. As such, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

C. The period between the reviews of the applicant's detention of over 22 months from 8 June 1998 to 25 April 2000

1. The parties' submissions

(a) The Government

The Government referred to previous case-law of the Convention organs setting out that the term “speedily” in Article 5 § 4 had to be determined in the light of the circumstances of the individual case. They submitted that the relevant circumstances in the present case were the seriousness of the applicant's offending, including the offences for which he was convicted, his past criminal history for offences of robbery and the possession of a firearm and his offences of arson and attempted arson which he had committed whilst in prison; the applicant's prison history until 1994, with demonstrations of anti-authoritarian behaviour that had resulted in threats to and assaults upon prison staff; and the need, in the light of the foregoing, to provide sufficient time to enable the applicant to complete the testing which was necessary in his case to ensure that he would remain of good behaviour.

The Government asserted that it was important to distinguish between Parole Board Reviews and Discretionary Lifer Panel Hearings. The applicant's case had been considered by the Parole Board on three occasions. The Discretionary Lifer Panel Hearings took place in June 1998 and April 2000. The Parole Board Review, which culminated in the hearing of 25 April 2000, began in December 1999. The hearing took place some 12 months after the applicant's arrival in category C conditions.

The Government argued that it was significant that the Parole Board did not recommend the applicant's release, nor an early review of his detention, after its review of his case in April 2000. The Government referred to the decision letter of the Parole Board of 2 May 2000 in this context.

(b) The applicant

The applicant pointed out that the DLP was part of the Parole Board and stated that he therefore did not understand the rationale for the Government distinguishing between DLP hearings and the Parole Board review. He submitted that the fact that the second review started one year after his arrival in category C conditions was immaterial. The relevant period for the purposes of Article 5 § 4 was between concluded reviews, i.e. 22 months. He further contended that the fact that the Parole Board did not recommend his release, nor an early review of his detention, in April 2000 was irrelevant to the question of whether the 22 month period between the 1998 and 2000 reviews complied with Article 5 § 4.

The applicant submitted that, on the facts of his case, the lawfulness of the 22 month period had to be considered in the light of the fact that the Parole Board had recommended an earlier review. He submitted that he had made considerable recent progress in prison and that the work which he had to do between reviews did not require a two-year period; that his life sentence had originally been imposed on the grounds of a diagnosis of a psychiatric condition which was no longer extant; and that an independent body had recommended a review after 12 months and the Secretary of State's reasons for departing therefrom were unconvincing: the nature of his index offences and prison history were of little, if any, relevance as the interval between reviews had to be based on the prisoner's current pace of progress; and the Government had given no reasons for its assessment that the relevant work would take two years to complete, which went directly against the assessment of the Parole Board.

2. The Court's assessment

The Court considers that the complaint of the applicant under this head raises serious issues under Article 5 § 4 of the Convention which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaint under this head inadmissible has been established.

D. Article 5 § 5

1. The parties' submissions

(a) The Government

The Government submitted, by reference to the domestic case of R v. Governor of Brockhill Prison, ex parte Evans No. 2 [2001] 2 Appeal Cases 19 (House of Lords), that had the applicant been unlawfully detained he would have been entitled to commence proceedings for false imprisonment. As they considered that he had not been unlawfully detained, no question of compensation arose.

(b) The applicant

The applicant submitted that he would have been unable to argue that the breach of the procedural obligations of Article 5 § 4 rendered his imprisonment unlawful, since he was lawfully detained under domestic law until such time as the Parole Board directed his release. He also pointed out that the Human Rights Act 1998 was not in force at the time of the alleged violations and that he did not, therefore, have any domestic right to compensation under Article 5 § 5.

2. The Court's assessment

In the light of its having declared the above complaint about the 22 month period between reviews to be admissible, the Court considers that the complaint of the applicant under Article 5 § 5 raises serious issues which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaint under Article 5 § 5 inadmissible has been established.

E. Article 13

The Court notes that the applicant has not made further submissions in relation to the complaint under Article 13 of the Convention since raising it for the first and only time in correspondence at the time at which the application was introduced.

In any event, Article 5 is the lex specialis in respect of the applicant's complaints (see, for example, Brannigan and McBride v. the United Kingdom , judgment of 26 May 1993, Series A, no. 258-B, § 76). As such, Article 13 is inapplicable to his case and it follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints under Article 5 §§ 4 and 5 of the Convention that the reviews of his detention were not carried out “speedily” between June 1998 and April 2000 ;

Declares the remainder of the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President