THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48015/99 by Ronald EASTERBROOK 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 13 April 1999,

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 Ronald Easterbrook, is a United Kingdom national, who was born in 1931 and is currently serving a prison sentence in HM Prison Highdown, Surrey. He was represented before the Court by Mr S. Creighton, a lawyer practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows. On 30 November 1988, the applicant was convicted at the Central Criminal Court in London for robbery, wounding with intent, possessing firearms with intent to endanger life and possessing ammunition with intent to endanger life. The offences arose out of a single robbery which occurred on 23 November 1987 at a shop in Woolwich. One of the applicant’s associates entered the shop snatched a Securicor bag containing 10,400 pounds sterling and held a loaded revolver to the head of a member of the shop’s staff. The applicant, armed with a loaded revolver, kept watch outside, ready, on his own admission, to use the weapon against any person who might intervene. During a changeover of cars in their flight from the crime, the applicant and his associates were intercepted by the police, who surrounded the robbers and told them to lay down their arms. The applicant fired six shots in the direction of two officers, wounding one of them in the leg. The police returned fire and one of the applicant’s associates was killed. The applicant received a superficial wound to his shoulder. He was arrested and immediately detained. The applicant was subsequently tried and chose not be represented at his trial. He was sentenced to life imprisonment. In sentencing him, the judge made reference to his long, violent criminal record and the dangerous nature of his character. In June 1990 the Court of Appeal refused the applicant’s renewed application for  leave to appeal against conviction, leave having already been refused by a single judge. The Court of Appeal also rejected the applicant’s appeal against sentence. At this hearing the applicant was again not represented, having rejected the counsel assigned to him by the court. On 9 December 1992 a certificate was issued on behalf of the Secretary of State, stating that the provisions of the Criminal Justice Act 1991 for certifying the tariffs of discretionary life sentence prisoners would not apply to the applicant. The applicant’s release from prison would therefore be at the Home Secretary’s discretion, following a favourable recommendation from the Parole Board and after consultation with the Lord Chief Justice and trial judge, if available. The certificate stated that it was Home Office policy that no life sentence prisoner should be detained more that 17 years without a review by the Parole Board. The first review of the applicant’s case by the Parole Board would be in November 2004. The applicant has no record of receiving this document. On 27 July 1995 the Prison Service informed the applicant that, following a judgment of the House of Lords, the Secretary of State would now be setting a specific tariff which would be disclosed to the applicant, along with the judicial recommendations and any reasons for any departure from them. The judicial recommendations - that in the applicant’s case “‘life’ should mean ‘life’” – were disclosed to the applicant and he was invited to make representations. On 5 February 1998 the Home Secretary agreed to certify that the applicant should be subject to the arrangements for the release of discretionary life prisoners, despite having previously qualified the applicant as someone serving a mandatory life sentence. The decision of 5 February 1998 also set the tariff of the applicant’s sentence at 16 years, expiring on 24 November 2003. The applicant’s solicitors made written submissions as to the appropriate length of the tariff and submitted that the applicant should be entitled to an oral hearing before the Lord Chief Justice. The applicant’s solicitors were informed by a letter of 13 August 1998 that the Lord Chief Justice had revised his opinion and that he recommended a tariff of 12-13 years, but that no oral hearing would be allowed. On 27 November 1998 the Prison Service informed the applicant’s solicitor that the Home Secretary had decided on a tariff of 12.5 years, to expire in May 2000. On 8 January 1999, the applicant made an application for judicial review of the Home Secretary’s decision of 27 November 1998. The application was dismissed on 11 February 1999. A renewed application was dismissed on 22 March 1999. After the tariff expired in May 2000, the applicant became eligible for Parole Board review procedures. He has stated however that he has decided not to participate in the procedures due to his continuing belief that the Government have breached his human rights and still refuses to acknowledge those breaches.

B. Relevant domestic law and practice

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, rape or robbery) 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.

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, R. v. Secretary of State for the Home Department, ex parte V. and T. , [1998] Appeal Cases 407, at pp. 492G-493A).

Pursuant to section 34 of the Criminal Justice Act 1991, 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, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). 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).

Release on licence of life sentence prisoners

The Criminal Justice Act 1991 provided in section 35(2) as regarded mandatory life prisoners :

“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.”

This was in contrast to the position for discretionary life prisoners, where the Parole Board was given the power of decision. Pursuant to the reforms introduced at this time, these prisoners were also given the opportunity of an oral hearing.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about his tariff as set by the Home Secretary and the fact that he was not allowed an oral hearing to determine its length. He further complained that the failure to set the tariff until 1998 was in breach of the reasonable time requirement under Article 6 § 1. The applicant also invoked  Article 5 § 4 of the Convention, complaining that he was unable to have the lawfulness of his detention reviewed.

THE LAW

The applicant complained about the procedure by which his tariff was fixed and the lack of review of his continued detention, invoking Articles 6 § 1 and 5 § 4 of the Convention.

Article 6 § 1 provides as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

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.”

Submissions of the Government

The Government accepted that the late setting of the applicant’s tariff was a violation of Article 6 in relation to the very long delay in setting his tariff in a manner compliant with Article 6. They submitted however that the delay had not affected the applicant’s eventual release date as he was unlikely to be released for some time because of the risk which he presents to the public. In any event, the tariff had been fixed by the Secretary of State in accordance with the judicial view. They submitted that as the applicant’s tariff had expired it was no longer relevant to have an oral hearing in regard to the tariff and pointed out that he was now able to have a review of his continued detention by an independent and impartial tribunal, namely the Parole Board, which had the power to direct his release. They considered however that as the applicant had declined to co-operate with Parole Board review arrangements, the application should be struck out under Article 37 of the Convention.

Submissions of the applicant

The applicant noted that the Government had not commented on the applicant’s complaints concerning the role of the Secretary of State and the lack of review of his detention. The applicant submitted that it was contrary to Article 6 § 1 for the decision to set the tariff to be set by the executive in an administrative procedure and not by the judiciary. The decision by the tribunal for the purpose of this provision should be legally binding rather than purely advisory. The procedure was also fundamentally flawed as it failed to provide for a public hearing. It was irrelevant to that failure that his tariff had now expired. The applicant also submitted that delay in fixing the tariff prevented him from being able to bring proceedings by which the lawfulness of his continued detention could be reviewed by a court. No mechanism for review was available in the absence of a specified tariff period. The fact that he was not presently co-operating with the Parole Board procedure did not alter the fact that his Convention rights had been breached during the prior period.

The Court’s assessment

The Court observes that the applicant was convicted in 1988 and his tariff set some ten years later in 1998. It is not persuaded that his failure to co-operate in the Parole Board reviews for which he became eligible in May 2000 affects his victim status relating to the tariff-fixing procedure. Nor does it provide any basis for finding pursuant to Article 37 of the Convention that he no longer intends to pursue his application, that the matter has been resolved or that it is no longer justified in continuing the examination of the application. Having regard to the applicant’s complaints and the Government’s concession above, the Court considers that serious issues 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.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President