FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (Fourth Section) , sitting on 18 March 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’ B oyle , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Robert Hill, is a United Kingdom national, born in 1959 and currently serving a sentence of life imprisonment at HM Prison Doncaster.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , 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.

1. Parole review

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 did not receive notification of the parole decision until sometime after 13 September 2001. The applicant wanted to seek judicial review of the decision, and made attempts to find a solicitor to act on his behalf. In or around December 2001 the applicant was transferred to HM Prison Dartmoor. There he was unable to find a solicitor who was prepared to act on his behalf. In or around October 2002 the applicant was transferred to HM Prison Doncaster.

2. Other matters

The applicant is a Protestant Christian. While at HM Prison Wymott he was prevented from possessing and distributing certain leaflets on the basis that they were ‘offensive to Roman Catholics’. The leaflets in question included one entitled ‘Are Roman Catholics Christians?’. The applicant issued several complaints via the internal request/complaint procedure and appealed to the Area Manager, claiming that the prison had unlawfully interfered with his right to free religious expression. The Area Manager confirmed on 26 April 2001 that he supported the Governor’s decision to confiscate the leaflets.

The applicant owned a typewriter while at HM Prison Wymott . When he was transferred to HM Prison Manchester in June 2001 it was not accepted as part of his property. After his transfer to HM Prison Dartmoor the applicant issued a request/complaint form asking for the typewriter to be returned to him. The reply dated 21 March 2002 stated that the typewriter had been a loan from the Chaplaincy at HM Prison Wymott , and that it was missing. The applicant appealed to the Area Manager, who by his reply on 21 May 2002 stated:

“It has been confirmed that the typewriter you received at Wymott was given to you by the Chaplaincy and recorded on your property card. However, after you transferred to Manchester in June 2001, the typewriter was handed in separately as part of your property, but staff refused to accept it. This is due to Manchester operating a different system to Wymott in relation to it’s (sic) facilities list, which governs the property that prisoners are allowed to have, hence their refusal to accept the item.

There is no further action to take, other than to suggest that you contact the Education Department at Dartmoor.”

The applicant has made an allegation of theft to the police against the Prison Service.

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

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 his parole decision, 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 makes complaints about other aspects of his detention in prison. He complains that he has unfairly been denied ‘Category D’ status; that transfers between establishments have interfered with his family life; that the excessive length of his detention amounts to inhuman treatment, and that he has been the victim of two assaults by a prison officer which amount to inhuman treatment; about the confiscation of certain leaflets disclosing a violation of his right to “freedom of religious expression”; under Article 1 of Protocol No. 1 that the Prison Service has unlawfully deprived him of his property by refusing to return his typewriter; and under Article 13 of the Convention that his lack of access to a lawyer has prevented him from seeking judicial review regarding any of his complaints, and deprived him of  his right to an effective remedy.

THE LAW

1. The applicant complains about the review procedures concerning his continued detention. 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.”

The Court, recalling the recent judgment in Stafford v. the United Kingdom (no. 46295/99, 28 May 2002), considers that similar issues arise in the present case. It decides to adjourn further examination of this part of the application pending its notification to the respondent Government for their written observations on its admissibility and merits.

2. The Court has considered the applicant’s complaints concerning other aspects of his detention and rejects them for the reasons set out below.

Insofar as the applicant complains about being refused “Category D” status, the Court notes that there is no right under the Convention to be held in a particular security category and that the applicant has not indicated in what way his categorisation in his case breaches any of the rights guaranteed under  the Convention. Insofar as he complains that the transfers between prisons interferes with his right to respect for family life under Article 8 of the Convention, the Court recalls that there is no right under the Convention to be detained in a particular establishment and that transfers do not per se disclose any interference with any protected right. It is not apparent that the transfers complained of have prevented him from enjoying facilities for family visits, for example.

As regards the applicant’s complaint about the length of his detention, the Court’s 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 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 12 years and after expiry of his tariff, his continued detention is 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 also invokes Article 3 in relation to alleged assaults by a prison officer, the applicant has not issued civil proceedings for assault against the prison officer. Domestic remedies have therefore not been exhausted as required by Article 35 § 1 of the Convention.

As regards the applicant’s complaints about the confiscation of his leaflets under Articles 9 and/or 10 of the Convention, which protect the right to freedom of conscience and religion and freedom of expression respectively, the Court observes that the applicant did not seek judicial review of the Area Manager’s decision dated 26 April 2001 and therefore has not exhausted available domestic remedies. Similarly, the applicant has not taken civil proceedings against the Prison Service concerning his complaint, raised under Article 1 of Protocol No. 1, about their alleged loss or conversion of his typewriter. While the applicant refers to difficulties in finding a lawyer to take his case, this is not a ground sufficient to exempt him from the requirement to exhaust domestic remedies imposed by Article 35 § 1 of the Convention.

Finally, concerning the applicant’s complaint about the lack of an available remedy for his various grievances, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). The Court has found above that all of the applicant’s complaints except for the complaint under Article 5 are inadmissible because of non-exhaustion of domestic remedies or because they are manifestly ill-founded. For similar reasons the applicant does not have an “arguable claim” under any of the complaints except for the complaint under Article 5. No separate issue arises under Article 13 in respect of the Article 5 complaint.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies or as manifestly ill-founded pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the lack of proper review of the applicant’s continued detention after expiry of his tariff;

Declares the remainder of the application inadmissible.

Michael O’B oyle Matti Pellonp ää Registrar President