THIRD SECTION

DECISION

Application no. 63851/00 by David McDONALD 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 , Sir Nicolas Bratza , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , judges , and Mr V. Berger Section Registrar ,

Having regard to the above application lodged on 3 February 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr David McDonald, is a United Kingdom national, born in 1965 and he is currently in prison in Kent.

A. The circumstances of the case

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

Since the applicant was 12 years of age, he has been convicted of a large number of criminal offences. The more recent and relevant convictions were as follows: In 1986 he was convicted on nine counts of robbery, wounding with intent, grievous bodily harm, criminal damage and aggravated burglary. He was sentenced to nine concurrent sentences amounting to five years’ imprisonment. In 1996 he was convicted of criminal damage and he was sentenced to three months’ imprisonment which ran concurrently with his later sentence of six months’ imprisonment in June 1997 for an offence contrary to the Public Order Act 1986. In 1997 he was convicted on three assault and criminal damage charges and was sentenced to three concurrent sentences amounting to four months’ imprisonment.

On 10 September 1999 he pleaded guilty to two charges of robbery involving a firearm and to one charge of possession of a firearm. He was sentenced pursuant to section 2 of the Crime Sentences Act 1997 to a life sentence with a tariff of three and a half years. The trial judge stated on sentencing that, had he imposed a determinate sentence, it would have been one of four and a half years. On 23 September 1999 the trial judge reduced the tariff to twenty three months.

On 4 October 2000 a single judge of the Court of Appeal refused an extension of time for leave to appeal and also rejected the leave application on its merits as there were no “exceptional circumstances” and the tariff period was not manifestly excessive. On 2 February 2001 the Court of Appeal gave leave to appeal against sentence, in light of the judgment (delivered in November 2000) of the Court of Appeal in Regina v. Offen ([2001] 1 WLR 253).

On 27 March 2001 the full Court of Appeal heard his appeal against sentence and considered itself bound by the judgment of the Court of Appeal in the above-cited Regina v. Offen case . His life sentence was replaced by a determinate sentence of four and a half years, that court considering that the applicant did not present a risk of serious harm to the public which would justify a discretionary life sentence.

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.

COMPLAINTS

The applicant complained under Articles 3 and 5 §§ 1 and 5 of the Convention about section 2 of the Crime (Sentences) Act 1997. He also complained that he has been convicted twice for the same crime and invoked Article 4 of Protocol No. 7 to the Convention.

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 23 December 2001 the applicant stated that he did not wish to proceed with his application and by its letter of 5 February 2002 the Court requested the applicant to confirm his agreement that his case be struck out of its list of cases.

By letters received by the Court on 8 and 14 February 2002 the applicant confirmed that he did not wish to continue with his application. The Court, by its letter dated 19 February 2002, requested the applicant to explain why he wished to withdraw his application. The applicant’s letter of 28 February 2002 indicated that he wished to withdraw his application as he was due to be released shortly and would like to put the matter behind him.

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 and that he is due to be released from prison shortly having served the relevant part of that 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