FOURTH SECTION

DECISION

Application no. 60609/00 by David HAMLETT against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 16 December 2003  as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 12 April 2000,

Having regard to the observations submitted by the respondent Government and the applicant’s failure to make further response,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr David Hamlett, is a United Kingdom national, who was born in 1965 and is currently detained in HM Prison Featherstone, Wolverhampton.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows. In 1983 he was convicted of burglary and theft and a community service order was made. In 1985 he was convicted on two counts of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and with one offence of wounding contrary to section 20 of the 1861 Act. He was sentenced to three concurrent youth custody sentences. In 1991 and 1993 he was convicted of three charges under the Theft Act 1968 for which community service orders were made. He was then convicted in September 1993 of breaching his community service order and fined. In October 1994 he was again convicted under the Theft Act 1968 (nine months’ imprisonment) and in 1998 he was convicted of assault occasioning actual bodily harm contrary to section 47 of the 1961 Act (four months imprisonment).

On 14 December 1999 the applicant was convicted of wounding with intent to do grievous bodily harm, of assault occasioning actual bodily harm (two counts) and of unlawful wounding (two counts). A life sentence was imposed pursuant to section 2 of the Crime (Sentences) Act 1997 (in respect of which a tariff of four years was fixed), together with four other fixed periods of imprisonment (to a maximum of three years’ imprisonment), all sentences to run concurrently.

B. Relevant domestic law and practice

1. The Crime (Sentences) Act 1997 (“the 1997 Act”)

The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows:

“(1) This section applies where –

a person is convicted of a serious offence committed after the commencement of this section; and

at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2) The court shall impose a life sentence, that is to say –

where the person is 21or over, a sentence of imprisonment for life;

where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. ...”

2. Regina v. Offen, Regina v. McGilliard, Regina v. McKeown, Regina v. Okwuegbunam, Regina v. Saunders judgment of the Court of Appeal of 9 November 2000

In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act.

The appellants contended that section 2 was incompatible with, inter alia , Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence. Noting that in the earlier case of Buckland [2000] 1 WLR 1262 an appeal had already been allowed where on the evidence it could be concluded that the defendant did not present a serious and continuing danger to the public such as could justify the imposition of a life sentence, it considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention.

This approach has recently been endorsed by the House of Lords in R. v. Drew [2003] UKHL 25, judgment of 8 May 2003.

COMPLAINTS

The applicant complained under Articles 3, 5 and 7 of the Convention about the life sentence imposed pursuant to section 2 of the Crime (Sentences) Act 1997.

PROCEDURE

On 10 July 2001, the Court decided to invite the Government to submit observations on the admissibility and merits of the applicant’s complaints by 5 October 2001. Between 15 October 2001 and 11 January 2002, the Court granted three consecutive Government requests for extensions of time to research factual and background matters. On 5 February 2002, the Government submitted its observations on admissibility and merits. By letter dated 13 February 2002, the Government’s observations were sent to the applicant, who was requested to submit any observations in reply by 29 March 2002.

On 11 March 2002 and 6 May 2002, the Court agreed to grant the applicant extensions of time to 30 April 2002 and 30 May 2002 respectively. By letter dated 7 June 2002, having received no response, the Court requested him to confirm whether he had any observations to make.

By letter received on 24 June 2002, the applicant informed the Court that he was pursuing a domestic appeal and requested that his case be adjourned pending its outcome. On 7 July 2002, the applicant further informed the Court that the reasons for his adjournment request were not only that he had yet to exhaust domestic remedies, but also that he was awaiting psychiatric reports he wished to put before the Court. By letter dated 9 July 2002, the Government requested that the applicant clarify the position regarding domestic appeals. By letter dated 15 July 2002, the Court requested the applicant to forward all relevant information on his domestic appeal, following which his adjournment request would be considered. By letter dated 23 October 2002, the Court again requested the applicant to provide information as to progress of domestic proceedings no later than 22 November 2002. By letter received on 21 November 2002, the applicant informed the Court that he found it “hard” to submit observations since this would “interfere” with domestic proceedings as yet at a very early stage. He again asserted that the main reason for his adjournment request was a psychiatric report yet outstanding.

By letter dated 25 November 2002, the Court requested the applicant to specify by 20 December 2002 the nature of the proceedings, in particular whether they concerned an application before the Court of Appeal or the Criminal Cases Review Commission. The applicant confirmed by letter received on 20 December 2002 that the domestic proceedings referred to were in the Court of Appeal. By letter of 8 January 2003, the Court requested the applicant to specify by 31 January the stage his appeal had reached, and whether a hearing date had been fixed. On 27 January 2003, the applicant confirmed that no hearing date had yet been fixed. The Court again requested the applicant to confirm the state of domestic proceedings by letters of 7 February and 23 September 2003. No response was received.

By letter dated 6 November 2003, sent by registered post, the Registry informed the applicant that no observations, or request for a further extension in the time-limit, had been received. It warned that in the absence of any response the case might be struck out of the list of cases.

THE LAW

The Court notes that the applicant has failed to respond to the Government’s submissions, the Registry’s request for information or to the warning that the case would be struck out.

The Court considers that in the circumstances the applicant may be regarded as no longer wishing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.

Accordingly, the application should be struck out of the Court’s list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

             Michael O’Boyle Matti PellonpÄÄ Registrar President