THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58853/00 by Peter PARTINGTON against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 26 June 2003 as a Chamber composed of

Mr G . Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges ,

and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 5 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, Mr Peter Partington, is a United Kingdom national, who was born in 1965 and living in Oldham. He is represented before the Court by Mr A. M. Kelly, a lawyer practising in Nottingham.

A. The circumstances of the case

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

On 19 January 1993, the applicant was convicted of wounding with intent to cause grievous bodily harm and sentenced to three and a half years’ imprisonment. He had attacked his girl friend following consumption of alcohol.

On 7 January 2000, the applicant pleaded guilty to two counts of wounding with intent to cause grievous bodily harm arising out of an incident when, under the influence of alcohol, he stabbed his 11 year old stepson and brother-in-law with a screwdriver.

The pre-sentence report prepared by the Probation Service observed inter alia that the applicant’s tendency to violence stemmed from his habit of excessive drinking and that he was at high risk of further offending. It also noted his genuine remorse for the offences and his intention to work on his alcohol problem.

The trial judge sentenced the applicant to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 in relation to the wounding convictions. In that regard, the judge stated inter alia :

“... the two offences for which you fall to be sentenced ... are so serious that only custodial sentences can be justified. Indeed ... I am obliged to pass an automatic life sentence of imprisonment upon you in respect of each of these offences, unless I am of the opinion that there are exceptional circumstances relating either to the offences or to you...

I have listened carefully to [the applicant counsel’s] submissions, I have carefully read your wife’s letter and I have read the contents of the pre-sentence report and all the conclusions that I have come to... I am not satisfied that there are any exceptional circumstances which should lead me not to impose an automatic life sentence...”

The judge assessed the applicable determinate sentence (which he would have passed but for section 2) at six years, allowing for the mitigation in the applicant’s case and the time already served, and on that basis fixed a tariff of two years seven months.

The applicant did not apply at that time to appeal against sentence. Following developments in domestic case-law concerning the application of section 2 (see below), the applicant made an application for permission to appeal against sentence to the Court of Appeal.

On 24 September 2002, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected the applicant’s application for leave to appeal and his application to call fresh evidence. It noted that the trial judge had not carried out an assessment of the risk posed by the applicant to the public when imposing the sentence of life imprisonment which had been found to be the proper approach in the subsequent Offen case. It went on to review the case in light of the new authority and taking into account a report by a consultant forensic psychiatrist commissioned by the applicant. Noting however the applicant’s “worrying” history of alcohol abuse and violence with a weapon, it found that the applicant represented a continuing risk to the public and that an automatic life sentence was appropriate in the circumstances of his case.

The applicant’s tariff expired on 7 August 2002. His case was considered by the Parole Board on 26 September 2002 and it directed his release, subject to certain licence conditions, as it considered his detention was no longer necessary to protect the public.

On 15 October 2002, the applicant was released.

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

(b) 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 -

(a) where the person is 21or over, a sentence of imprisonment for life; (b) 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.

(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.”

Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape.

Sections 3 and 4 of the 1997 Act impose mandatory penalties of seven and three years for a third conviction on class A drug trafficking offences and domestic burglaries, respectively. Both sections oblige the court to impose the fixed sentence when the statutory conditions are fulfilled except:

“  where the court is of the opinion that there are specific circumstances which -

(a) relate to any of the offences or to the offender; and

(b) would make the prescribed custodial sentence unjust in all the circumstances.”

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.

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.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that he was arbitrarily and unlawfully deprived of his liberty by the automatic imposition of a sentence of life imprisonment and that there was no enforceable right to compensation as required by Article 5 § 5 of the Convention.

He also invokes Articles 3 and 7 of the Convention together with Article 4 of Protocol No. 7.

THE LAW

The applicant complains of the automatic imposition of a sentence of life imprisonment. The relevant provisions of the Convention provide:

Article 5 §§ 1 and 5

“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;

...

5. 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.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 7 § 1

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

A. The parties’ submissions

The Government submit that the applicant was at all times lawfully detained after conviction by a competent court in accordance with the procedure prescribed by law and that such detention was not arbitrary. The imposition of the life sentence was not arbitrary as it was not automatic – the judge was given a discretion by reference to “exceptional circumstances – and there was evidence before the trial judge and Court of Appeal in the extremely serious facts of the applicant’s case that the applicant did pose a continuing danger to the public justifying an indeterminate life sentence. Following the decision in R. v. Offen , the implications of Article 5 had been taken in account in the interpretation of the relevant legislation and it would have been open to the Court of Appeal in this applicant’s appeal to alter his sentence if it had considered that the trial judge had erred in his approach.

The applicant submits that his detention was arbitrary and unlawful because the trial judge in imposing the automatic life sentence failed to assess whether or not he posed a serious risk to the public or to have regard to the individual circumstances of his case. He considered that there was insufficient material before the judge to determine risk, in particular there was no psychiatric report before the court. The trial judge made no express reference to the pre-sentence report’s finding of risk and in any event that report also referred to the applicant’s intention to tackle his alcohol problem and was showing genuine remorse. Later reports done for the appeal and parole proceedings showed that he was not a risk to the public. There had accordingly been no justification for imposing the life sentences. In his view, the Court of Appeal failed to cure the trial judge’s defective approach as it did not grant permission to appeal for a full appeal hearing nor did it allow for any evidence to be called. Furthermore, even though he has been released, the life licence constitutes a continuing interference with his liberty.

B. The Court’s assessment

1. Article 5 § 1

The Court recalls that in order to comply with Article 5 § 1 of the Convention, the detention in issue must take place “in accordance with a procedure prescribed by law” and be “lawful”. The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness (see, amongst many authorities, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17-18, 19-20, §§ 39 and 45; Bizzotto v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1738, § 31, and Aerts v. Belgium , judgment of 30 July 1998, Reports 1998-V, p. 1961, § 46).

While the applicant contends that his detention was not lawful as the judge did not carry out a risk assessment before imposing a life sentence as laid down in the Offen case, the Court recalls that the ruling by the Court of Appeal was given after the judge sentenced the applicant. It is not persuaded that the clarification and interpretation of section 2 by the Court of Appeal rendered previous sentencing exercises unlawful retrospectively. In any event, the applicant could have raised any issues of unlawfulness by applying for appeal immediately after he was sentenced. He did not do so however until after the Offen case. The Court of Appeal reviewed the case however afresh at that stage and upheld the judge’s decision in light of the Offen criteria. The Court is not satisfied therefore that the applicant’s detention can be regarded as unlawful in domestic terms.

The Court has also considered the argument that the sentence of life imprisonment imposed by the trial judge offended the rule against arbitrariness since it was required by statute regardless of the circumstances of his individual case or the seriousness of his particular offences.

The Court observes that in imposing the life sentence pursuant to section 2 of the 1997 Act the trial judge indicated his view of the seriousness of the offences and that he had taken into account the pre-sentencing report which inter alia noted that the applicant had problems of violence linked to his excessive drinking and posed a high risk of further offending. The Court of Appeal, which reviewed the applicant’s sentence after the case of R. v. Offen had drawn attention to the requirements of the Convention, applied a risk assessment and found that the trial judge had been entitled to impose a life sentence based on the individual facts of his case. While the Court of Appeal dealt with the applicant’s complaints on his permission to appeal application, the Court notes that it held an oral hearing at which the applicant was represented by counsel and that the appeal court had powers, if it considered appropriate, to grant permission to appeal or to call evidence. Its scope of review, and the procedures adopted, were in the circumstances adequate to remedy any shortcoming in the approach adopted by the trial judge in sentencing the applicant.

Furthermore, the Court notes that section 2 of the 1997 Act did not automatically apply a life sentence to a repeat offender and that it was provided that in “exceptional circumstances” a life sentence might not be justified. The Offen case established that such circumstances existed where the offender did not constitute a significant risk to the public. If the Court of Appeal had considered that no such risk was presented in the applicant’s case, it would have had the power to substitute an appropriate sentence of its own.

On the facts of this case therefore, the Court is satisfied that the detention imposed on the applicant pursuant to his conviction cannot be regarded as arbitrary. Nor does any issue arise under Article 5 § 1 concerning his release on licence.  It is not substantiated that the licence conditions imposed on the applicant are of a nature or degree as to disclose a deprivation of liberty within the scope of this provision ( Guzzardi v. Italy, judgment of 6 November 1980,  Series A no. 39, § 92).

Accordingly, there is no appearance of a violation of Article 5 § 1 of the Convention and this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Articles 5 § 5, 3 and 7

Since the Court has found no issue arising above under Article 5 § 1 of the Convention, the applicant cannot complain under Article 5 § 5 of any lack of an enforceable right to compensation for any breach of the provisions of Article 5.

As regards Article 3 of the Convention, the Court has hinted that a life sentence without any possibility of release imposed on a child even for murder could raise problems under Article 3 ( Hussain v. the United Kingdom and Prem Singh v. the United Kingdom, judgments of 21 February 1996, Reports 1996-I, and, more recently, T. v. the United Kingdom and V. v. the United Kingdom [GC], nos. 24724/94 and 24888/94, judgments of 16 December 1999). Indeed it is not excluded that a life sentence imposed on an adult with no possibility of release might also fall within the scope of Article 3 (no. 7994/77, Commission decision of 6 May 1978, Decisions and Reports 14, p. 239, and Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI). However, in this case, the minimum period which the applicant was to serve in prison after sentencing was 2 years and 7 months, and the applicant’s release was in fact directed in September 2002 and he has now been released. In those circumstances, the Court does not consider the applicant can claim that he was deprived of any hope of release and does not find any other basis to conclude that he has been the victim of treatment contrary to Article 3 of the Convention.

Furthermore, concerning the complaint raised by the applicant under Article 7 of the Convention, the Court observes that section 2 of the 1997 Act was in force when the relevant second crime was committed by the applicant and finds no element of retrospective imposition of a heavier penalty involved in this case.

This part of the application therefore discloses no appearance of a violation of the provisions invoked by the applicant and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  Article 4 of Protocol No. 7

As the United Kingdom has not ratified Protocol No. 7, the applicant’s complaints under its provisions must be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the  application inadmissible.

Mark Villiger Georg R ess              Deputy Registrar President