FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19365/02 by Robert Edward HILL against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 23 September 2003 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 11 March 2002,

Having regard to the partial decision of 18 March 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 Robert Edward Hill, is a United Kingdom national, born in 1959 and currently serving a sentence of life imprisonment at HM Prison Doncaster. He is represented by Mr S. Creighton, a solicitor practising in London.

A. The circumstances of the case

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

The applicant was convicted in or around 1981 for the murder of an acquaintance. He was sentenced to mandatory life imprisonment, and his tariff (the minimum period of imprisonment required to satisfy the requirements of retribution and deterrence) was set at 12 years.

At the time of the applicant’s latest Parole Board review in 2001, he was detained in HM Prison Wymott as a “Category C” prisoner (prisoners being given a security category classification ranging from Category A (highest risk) to Category D (suitable for open conditions)). The Parole Board recommended that the applicant should be transferred to open conditions, and that his detention should be reviewed after two years. By letter dated 6 July 2001 the Secretary of State informed the Prison Service that he did not accept the Parole Board’s recommendation for transfer to open conditions, and that the next review should begin after 12 months. In the letter to the applicant which accompanied the decision it was stated that:

“[t]he Secretary of State attaches particular weight to the psychologist’s report, it has highlighted in some detail, the need for further exploration of your insight into, and responsibility for, the index offence and the apparent lack of empathy towards the victim.”

In June 2001 the applicant was transferred to HM Prison Manchester. He claims that he did not receive notification of the parole decision until sometime after 13 September 2001.  The Government states that a copy of the decision letter was sent to the applicant on 6 July 2001 and a copy to the solicitors then acting for the applicant on 7 August 2001. When the applicant changed his solicitors in September 2001, the authorities sent a copy of the decision to the new solicitors.

The applicant states that he wanted to seek judicial review of the decision, but was unable to find a solicitor who was prepared to act on his behalf. His then solicitors gave advice that judicial review stood little prospect of success as the reports recommending a move to open conditions had been slightly ambiguous, there were a number of very unfavourable reports and the Secretary of State had given extensive reasons for rejecting the recommended move.

B. Relevant domestic law and practice

1. Life sentences and tariffs

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. At the time of sentence, a “tariff” is imposed which represents the minimum period that the prisoner will have to serve in order 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. Release on licence of mandatory life sentence prisoners

At the relevant time, the Criminal Justice Act 1991 provided in Section 35(2):

“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”

On 27 July 1993, the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on licence, the Secretary of State:

“...will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”

In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the tariff (see for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AllER576).

3. Recent developments

Following the judgment in Stafford v. the United Kingdom (no. 46295/99, ECHR 2002-IV), the Secretary of State announced in the House of Commons on 17 October 2002 his decision to introduce interim measures applicable to the review and release of mandatory life sentence prisoners applicable to reviews from 1 January 2003. This allows for prisoners, whose tariff had expired, to apply for an oral hearing at which they may have representation, receive full disclosure of material relevant to the question of release and be able to examine and cross-examine witnesses.

“If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation. ...”

COMPLAINTS

1. The applicant complains that his continued detention is unjust in that:

(a) the length of time he has served is excessive,

(b) he had to wait for over two years for the outcome of the parole review procedure, and

(c) he was not given an opportunity to challenge the psychiatrist’s report which formed the basis of the Secretary of State’s decision.

2. The applicant also complains, in his observations in reply to the Government dated  1 August 2003, that he has no right to compensation for any finding of a breach of Article 5 contrary to Article 5 § 5 of the Convention.

THE LAW

The applicant complains about his continued detention and the review procedure.

Article 5 § 4 of the Convention provides:

“4. 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.”

Article 5 § 5 provides:

“ 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.”

A. Article 35 § 1 of the Convention

The Government submits that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in that he did not apply for judicial review by the High Court of the Secretary of State’s decision, refusing transfer to open conditions, of which he complains. Alternatively, if the final decision of which he complains was the Secretary of State’s decision, this was communicated to him by letter dated 6 July 2001 which was more than six months before he introduced his application to the Court.

The applicant submits that no effective remedy existed for the purposes of Article 35 § 1 as under domestic law there was no arguable ground on which he could take legal proceedings to challenge the fact that he had not been given an oral hearing before a body with the power to order his release. As regards the six month time-limit, the applicant submits that he did not receive the notification sent on 6 July 2001, as shown by the letter from his solicitor to the Prison Service requesting a copy to be sent to them. A letter from his new solicitors dated 21 November 2001 notified the Government that the applicant had not received the decision until mid-September 2001. No response or explanation to that letter was received. He therefore submits that his complaint was accordingly lodged within six months of receipt of notification.

The Court recalls that it has declared inadmissible the applicant’s complaints about the refusal to transfer him to open conditions (no. 19365/02, (dec.) 18 March 2003) on the basis that there was no right under the Convention to be held in a particular security category and that the applicant had not indicated in what way the categorisation in his case breached any of the rights guaranteed under the Convention. In these circumstances the Court does not propose to consider further this aspect of the case. The principal remaining issue arises out of the applicant’s complaints about the review procedure applicable to his continued detention which the Court has interpreted as invoking Article 5 § 4 of the Convention. In view of the state of domestic law at this time, the Court is satisfied that an application for judicial review would not have furnished an effective remedy in respect of the Parole Board procedure used at that time, in particular the Parole Board’s lack of decision-making power and the lack of oral hearing procedure (see, mutatis mutandis , Singh v. the United Kingdom , judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, §§ 66-69).

As regards the six month time-limit imposed by Article 35 § 1 of the Convention, this does not apply to a situation of continuing violation, as is alleged in this case concerning an ongoing inability to obtain a proper review of the lawfulness of his continued detention (see, concerning continuing situations, for example, Malama v. Greece , 1 March 2001, ECHR 2001-II, § 35).  It would be artificial to run the six month period from each decision of the Parole Board in circumstances where it is alleged that such body is incapable of complying with the requirements of Article 5 § 4 of the Convention. On the same basis, the applicant is not barred by Article 35 § 1 from raising a complaint under Article 5 § 5 at this stage about the lack of any enforceable right of compensation for the alleged ongoing breach of Article 5 § 4.

Consequently, the Court rejects the Government’s arguments and finds that the applicant has not failed to comply with Article 35 § 1 of the Convention regarding the remainder of his application.

B. Article 5 §§ 4 and 5 of the Convention

The Government submit that, in so far as Stafford v. United Kingdom (no. 46295/99, 28 May 2002, ECHR 2002-IV) is relevant to the applicant’s complaints, he will have the benefit of the interim arrangements announced by the Secretary of State on 17 October 2002. Further, this case may be distinguished from Stafford in which the Parole Board had recommended the applicant’s release on life licence, whereas no such recommendation had been made in the present applicant’s case.

The applicant submits that since his tariff expired he has not had any proper review of his continued detention, as the Parole Board had no power to order his release and none of his reviews involved an oral hearing. His first oral hearing will take place in November 2003, ten years after the expiry of his tariff. As held in Benjamin and Wilson v. the United Kingdom (no. 28212/95, judgment of 26 September 2002), it is not sufficient either that the Secretary of State agrees to abide by the Parole Board recommendations. Nor does he have any possibility of obtaining compensation for this breach of Article 5 § 4 of the Convention.

Having regard to the applicant’s complaint and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää Registrar President