FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75362/01 by Egon VON BÃœLOW against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 May 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 24 July 2001,

Having regard to the partial decision of 2 July 2002,

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 Egon Von Bülow, is a United Kingdom national, who was born in 1946 and is currently serving a sentence of life imprisonment at HM Prison Erlestoke.

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 1975 for the murder of a policeman and attempted murder of two other policemen arising out of an incident in the early hours of 6 July 1974 when, on being stopped by the police, he had pulled out a pistol and shot all three officers. He was sentenced to mandatory life imprisonment for the murder and to two concurrent terms of fifteen years imprisonment for the attempted murders.

After his trial, the trial judge recommended that he serve a tariff (minimum period of detention representing the elements of retribution and deterrence) of 20 years. The Lord Chief Justice agreed. The Secretary of State did not set a tariff.

By letter dated 25 July 2000, the applicant was informed that the Secretary of State had given fresh consideration to the tariff in his case. The letter stated that the Secretary of State had decided to set the tariff at 23 years and that, as this period had expired, the tariff was no longer a factor in the applicant’s continued detention.

By letter dated 27 March 2001, the applicant was informed that the Parole Board had not recommended his release or transfer to an open prison. It recommended that the next formal review should begin in twelve months time. Though some improvement had been observed, it was noted that the reports on the applicant agreed that he still had some way to go before a move to open conditions could be contemplated. As his progress in a category C prison had been encouraging however, his next review was set for March 2002.

B. Relevant domestic law and practice

(a) 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 (e.g. 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.

(b) 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 Secretary of State 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 ( R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407).

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 expiry of the tariff, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order 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 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).

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

COMPLAINT

The applicant complained under Article 5 § 4 of the Convention about the lack of a proper review of the lawfulness of his continued detention since the expiry of his tariff.

THE LAW

The applicant complained under Article 5 § 4 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 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 relied on the Court’s judgment in Stafford v. the United Kingdom (no. 46295/99, 28 May 2002), 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.

The Government accepted that following the expiry of the applicant’s tariff, the lawfulness of his detention was not reviewed by a judicial body which had the power to order his release, as required by 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