THIRD SECTION

DECISION

Application no. 55198/00 by Barry STARK against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 21 March 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Sir Nicolas Bratza , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 3 November 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Barry Stark, is a United Kingdom national , born in 1964 and he is currently in prison in Brixton, London. He is represented before the Court by Mr Shanahan, a lawyer practising in Cardiff.

A. The circumstances of the case

Since the applicant was 17 years of age, he has been convicted of a large number of criminal offences. The relevant previous conviction was on 20 April 1990 when he was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to two and a half years’ imprisonment.

On 30 October 1998 the applicant was convicted of rape. On 19 November 1998 he was sentenced to life imprisonment pursuant to section 2 of the Crime Sentencing Act 1997. The trial judge stated that, had he been imposing a determinate sentence, he would have imposed a term of six years’ imprisonment of which the applicant would normally serve three years. Since he had already spent five months on remand, his tariff was therefore fixed at two years and seven months.

On 29 July 1999 his renewed leave to appeal against conviction was rejected.

On 13 June 2001 the Criminal Cases Review Commission referred the applicant’s case to the Court of Appeal. On 25 February 2002 that court quashed his life sentence and replaced it with a determinate sentence of six 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) and (2) 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 offences.

(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 complained under Article 3 about his automatic life sentence pursuant to section 2 of the Crime Sentencing Act 1997 and under Article 6 of the Convention that he did not have a fair trial.

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 26 February 2002 the applicant’s representatives informed the Court that the applicant wished to withdraw his application. They referred to the applicant’s previous unsuccessful appeal to the Court of Appeal and informed the Court that he had pursued his application to the Criminal Cases Review Commission consecutively with his application to this Court. That Commission had referred his case to the Court of Appeal, which court had quashed his life sentence and imposed a determinate sentence. The representatives’ letter continued:

“... now that the matter has concluded successfully for Mr Stark clearly there is no further purpose in any appeal to the European Court and we therefore wish to withdraw our application. ... Would you please confirm that out applicant’s application has been marked as withdrawn.”

The Court notes that the applicant does not intend to pursue his application within the meaning of Article 37 § 1(a) of the Convention. It is further 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 George RESS Registrar President