THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67385/01 by Edward WYNNE against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 22 May 2003 as a Chamber composed of

Mr G. Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 19 December 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 Edward Wynne, is a United Kingdom national, who was born in 1939 and is currently detained in HM Prison Full Sutton. He is represented before the Court by Ms A. Bromley, a lawyer practising in Nottingham, and Mr A. Masters, a barrister practising in London.

A. The circumstances of the case

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

In 1964, the applicant was convicted of the murder of a woman whom he had violently assaulted. He was sentenced to a mandatory term of life imprisonment. In May 1980 (or November 1979, according to the applicant’s submissions), he was released on life licence after a positive recommendation from the Parole Board.

In June 1981, the applicant killed a 75 year old woman. On trial for murder, his plea of manslaughter on grounds of diminished responsibility was accepted by the court and in January 1982 a discretionary sentence of life imprisonment was imposed by the judge having regard to the extreme danger to the public which the applicant posed. At the same time, the court revoked his life licence concerning his earlier sentence of mandatory life imprisonment.

In December 1985, the applicant was transferred to the hospital wing of Parkhurst prison. Since then, he has been transferred into ordinary prison locations as a “Category A” (high security) prisoner.

The applicant learned that his “tariff” period fixed by the trial judge on the manslaughter offence expired in June 1991. He was informed by a Home Office Memorandum of 5 June 1992 that his continued detention was based on the risk he represented.

The applicant’s security status has been reviewed by the Category A Board, most recently in 1999, 2001 and March 2002 and on each occasion it decided that he should remain a Category A Standard Escape Risk, considering that he constituted a high level of potential danger. These decisions were taken on the basis of reports prepared on the applicant and representations made on his behalf.

According to the applicant’s submissions, his only Parole Board review took place in 1999, when, without holding an oral hearing, the Board declined to recommend release or transfer to open conditions. According to the Government’s submissions, the Parole Board considered the applicant’s case in September 1994 and January 1997. In 1994, it concluded that his behaviour was aggressive and intimidatory and that he represented a high risk to the public. On 10 January 1997, it concluded that he remained far too great a risk to warrant transfer to open conditions. Of the reports before the Parole Board, none recommended early release or early transfer to open conditions.

B. Relevant domestic law and practice

1. Life sentences

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (for example, manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside.

2. Tariffs

Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T. , [1998] Appeal Cases 407, at pp. 492G-493A).

Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the 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.

A different regime, however, applies under the 1991 Act to persons detained during Her Majesty’s pleasure or serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view ( R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard’s, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).

3. 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 life 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 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 WLR 135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AER 576).

In R. v. Secretary of State for the Home Department, ex parte Doody ([1993] 3 AER 92), the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and practice in respect of mandatory life sentences were out of tune. In his speech, with which the other judges agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “tariff” period to reflect the requirements of retribution and deterrence. He added:

“The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and current practice, there remains a substantial gap between them. It may be - I express no opinion - that the time is approaching when the effect of the two types of sentence may be further assimilated. But this is a task of Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review.”

On 10 November 1997, the Secretary of State made the following Parliamentary statement, inter alia :

“I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.”

4. Transfer to open conditions before release

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.”

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention about his continued detention beyond the expiry of his tariff in June 1991. He also complained that his continued detention has not been reviewed by a judicial body that complies with the requirements of Article 5 § 4. He also invoked Article 5 § 5.

The applicant complained that his continued detention violates Article 3 of the Convention. He also appears to raise new complaints in his written observations that he has been subjected to “mental and physical torture” in prison, and that he was assaulted by a nurse while detained in hospital.

The applicant also complained that his continued detention constitutes a heavier penalty than the one that was applicable at the time of the offence, contrary to Article 7 of the Convention.

THE LAW

1. The applicant complained under Articles 5 §§ 4 and 5 of the Convention about his continued detention following the expiry of his tariff.

Article 5 § 4 provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedigs 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.”

The Government accepted that in Stafford v. the United Kingdom (no. 46295/99, 28 May 2002, ECHR 2002-IV) the Court found a violation of Article 5 § 4 on the basis that the applicant’s continued detention under a mandatory sentence of life imprisonment for murder was not reviewed by a body with a power to release or with a procedure containing the necessary judicial safeguards. They submitted, however, that the applicant’s case could be distinguished on the grounds that Stafford had been detained on the basis of the risk of further non-violent offending, while the applicant’s continued detention was justified on the basis of the risk of danger to the public. Further, the Parole Board had recommended Stafford’s release, whereas it has not recommended the release of the applicant nor his transfer to open conditions. The Government submitted that the applicant had not been unlawfully detained, and therefore no question of compensation arose.

The applicant relied on the Court’s judgment in Stafford v. the United Kingdom and submitted that his continued detention was not reviewed by a body with a power to release or with a procedure containing the necessary safeguards, including, for example, the possibility of an oral hearing. He had further been denied an enforceable right to compensation as provided by Article 5 § 5 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. This part of 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.

2. The applicant further argued that the system of review by the Category A Board violated Article 5 § 4 of the Convention because, while the Parole Board could recommend transfer to open conditions (“Category D” status), it had no power to order the downgrading of a prisoner’s security category within closed conditions. He argued, therefore, that the Category A Board’s decision to maintain his Category A status was effectively blocking his release by the Parole Board, though the Category A Board clearly did not satisfy the requirements of Article 5 § 4.

The Court recalls that the classification of prisoners from A to D relates to security considerations and affects the conditions and location of detention of prisoners. In the applicant’s case, he has been found to disclose a risk of danger to the public necessitating the highest categorisation. While the Court does not doubt that the issue of security classification considered by the Category A Board overlaps with questions of risk and dangerousness which are considered by the Parole Board in the context of release, it does not find any indication that the decisions on classification have impinged on the reviews carried out by the Parole Board in the applicant’s case or, as alleged by the applicant, blocked progress towards release. The Parole Board has continued to find that the applicant presents a serious risk to the public and has made no recommendations concerning his transfer to open conditions or concerning the possibility of release. The Court does not find therefore that the applicant has substantiated that the Parole Board’s inability to recommend transfer between different levels of closed prison has had any effect on the conduct of reviews or decisions about his continued detention.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained that his detention after the expiry of his tariff in June 1991 violated Article 5 § 1 of the Convention, which provides as relevant:

“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 ...”

The Government submitted that the applicant was lawfully detained following two convictions for very serious violent offending and that he continued to be detained as a mandatory life prisoner. Though his case had been reviewed by the Parole Board, it was not satisfied that the risk to the public in relation to his dangerousness had been reduced to an acceptable level and so he continued to be detained due to the serious risk that he posed to the public.

The applicant argued that his tariff had expired in 1991 and that since then he had not been given a proper review of the lawfulness of his continued detention. The recent domestic and Court decisions showed that as a mandatory life prisoner he should have been treated the same way as discretionary life prisoner during the preceding ten years. The prospect of receiving an oral hearing in the future could not redress the unlawfulness of the detention since 1991.

The Court notes that the applicant is detained pursuant to his conviction for murder imposed in 1964 and his conviction for manslaughter in 1982. His tariff for both offences (namely the element fixed for punishment and deterrence) has in effect expired and he continues to be detained on grounds of risk and dangerousness. There is in the circumstances a clear causal connection between the original offences and his continued detention (for example, Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 23, § 42, and Stafford , cited above, §§ 81-82). The applicant’s complaints concerning the adequacy of the review procedures after the expiry of his tariff fall rather to be considered under Article 5 § 4 of the Convention (see above).

Consequently, the applicant’s detention continues to be justified under Article 5 § 1(a) and this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant also complained that his continued detention violated Article 3 of the Convention, which provides:

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

The applicant submitted that his continued detention in circumstances where he could not have proper reviews of the lawfulness of his detention could properly be described as inhuman and degrading.

The Government accepted that conditions of a person’s detention might raise issues under Article 3, but submitted that the circumstances in which the applicant is detained were not inhuman or degrading, and his suitability for release had been considered by the Parole Board on a number of occasions, and therefore no such issues arose in his case.

The Court recalls that its case-law has suggested 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 (DR) 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 in 1982 was 10 years and after expiry of his tariff, his continued detention has been subject to review by the Parole Board and Secretary of State. In those circumstances, the Court does not consider the applicant can claim that he has been deprived of any hope of release and it finds no issue arising under Article 3 in this regard.

Insofar as the applicant complains about “mental and physical torture” in prison, and about an occasion on which he was assaulted by a nurse, the complaints are unsubstantiated. In any event, he has not issued civil proceedings for assault against the prison authorities or the nurse. Domestic remedies have therefore not been exhausted as required by Article 35 § 1 of the Convention.

This part of the application must therefore be rejected as manifestly ill-founded, or for non-compliance with the requirement to exhaust domestic remedies, pursuant to Article 35 §§ 3 and 4 of the Convention.

5. The applicant lastly complained that his continued detention constituted a violation of Article 7 of the Convention, which provides as relevant:

“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.

...”

The Court notes that it is not disputed by the applicant that he was given one sentence of life imprisonment for murder in 1964, and another for manslaughter in 1982, and that those sentences were applicable at the time the offences were committed. The Court considers, therefore, that no issue arises under Article 7, and the complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the availability of a review by a judicial body of the lawfulness of his continued detention and of an enforceable right to compensation ;

Declares the remainder of the application inadmissible.

Vincent Berger Georg R ess Registrar President