THIRD SECTION

DECISION

Application no. 63591/00 by Brendan MURPHY against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 26 September 2002 as a Chamber composed of

Mr G. Ress , President , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. KÅ«ris , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 24 July 2000,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Brendan Murphy, is a United Kingdom national who was born in 1966 and is currently in prison in HMP Kingston.

A. The circumstances of the case

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

In July 1997 the applicant was convicted of armed robbery and was sentenced to three years’ imprisonment.

On 3 February 2000 he was again convicted of armed robbery and was given a life sentence pursuant to section 2 of the Crime (Sentences) Act 1997. The trial judge fixed the tariff at four years’ imprisonment.

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), (2) and (3) 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 an offence under section 18 of the Offences Against the Person Act 1861 and robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of the Firearms Act 1968.

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 ([2001] 1 WLR 253)

The judgment in this case was delivered by the Court of Appeal on 9 November 2000. The appellants had 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 in the past 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. If, however, the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section, that section would no longer operate arbitrarily. 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 would accord, not only with parliamentary intent, but with the provisions of the Convention.

COMPLAINT

The applicant complains under Articles 3 and 7 of the Convention about the life sentence that was imposed on him pursuant to section 2 of the Crime (Sentences) Act 1997.

THE LAW

On 10 July 2001 the Court decided to invite the Government to submit observations on the admissibility and merits of the applicant’s complaints about section 2 of the 1997 Act under Article 5 §§ 1 and 5 of the Convention. By letter dated 5 February 2002 the Government’s observations in the case were submitted.

By letter dated 15 March 2002 the applicant informed the Court, via a copy of a letter of 12 March 2002 from his solicitors to him, that he had been accorded leave by the Court of Appeal to appeal to that court against his sentence and that the appeal hearing would be listed in due course. By letter dated 25 March 2002 the Court responded, informing the applicant that he could await the outcome of the appeal procedure prior to submitting his observations in reply to those of the Government.

The Court then received a letter from the applicant on 6 June 2002 in which he stated that he would like to withdraw his application. He explained that he no longer wished to pursue his Convention application as he had been successful before the Court of Appeal. By letter dated 10 June 2002 the Court requested the applicant to furnish a copy of the relevant Court of Appeal judgment , on receipt of which it would consider striking the case out of its list of cases.

By letter dated 19 June 2002 the applicant’s solicitors furnished a copy of the form of order of the Court of Appeal dated 23 May 2002 which document confirmed that the applicant’s life sentence had been quashed and replaced with a determinate sentence of eight years. His solicitors also confirmed that the applicant no longer wished to pursue his application to this Court and that the application could therefore be struck out.

The Court notes that the Court of Appeal has now replaced the life sentence imposed on the applicant pursuant to section 2 of the 1997 Act with a determinate sentence. It further notes that the applicant does not therefore intend to pursue his application within the meaning of Article 37 § 1(a) of the Convention. The Court is also satisfied that the applicant’s request to withdraw is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine ). Accordingly, the case should be struck out of the Court’s list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Georg ress Registrar President