THIRD SECTION

DECISION

Application no. 46084/99 by Joseph James SMITH against the United Kingdom

The European Court of Human Rights ( Third Section) , sitting on 12 December 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr P. KÅ«ris ,

Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 16 November 1998 and registered on 10 February 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen, born in 1961 and living in Ipswich. He is represented before the Court by Ms Marilyn Kidd , a solicitor working for Justice, London.

A. The circumstances of the case

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

On 14 February 1979, the applicant, then seventeen years old, was convicted of murder and sentenced to detention during Her Majesty’s Pleasure.

On 9 September 1997, the applicant’s case was reviewed by the Parole Board, which at that time had only the power to recommend release under the Criminal Justice Act 1991. Under that Act, the decision whether to release or not lay with the Secretary of State.

On 1 October 1997, when the Crime (Sentences) Act 1997 came into force, the Board was given the power to direct release and the Secretary of State was bound to comply with the direction.

On 27 April 1998, the Prison Service informed his solicitors that the panel which had sat on 9 September 1997 had considered the case at the beginning of April 1998, that the panel on 9 September 1997 had recommended release, that the April 1998 panel had upheld that recommendation and the Prison Service would now send the case for decision by the Secretary of State.

On 8 September 1998, the applicant’s solicitors were informed that the applicant was to be transferred to a Category D prison. They received no news about the applicant’s release. They had contacted the Prison Service several times, submitting that the applicant’s case should be considered under the 1997 Act provisions. The Prison Service however took the view that his case fell under the 1991 Act provisions.

On 10 September 1998, the applicant’s solicitors received from the Prison Service a copy of the Secretary of State’s decision dated 11 August 1998. This referred to his assessment that the applicant should be tested in open prison conditions before release.

On 15 September 1998, having taken counsel’s advice, the applicant’s solicitors wrote to the Prison Service, stating that when the case had been sent back to the Parole Board in April 1998, this reference must have been under the provisions of the 1997 Act. At that stage therefore the Board which considered the case in September 1997 was functus officio . In those circumstances, the Secretary of State had no power to reject the Parole Board’s direction of release in April 1998 and the applicant’s continued detention was unlawful. They stated that if the confirmation that the direction was to be implemented was not received within seven days, they would commence judicial review proceedings.

By notification of 25 September 1998, the Prison Service informed the applicant that in the light of representations from his solicitors it had been decided to release him on life licence.

The applicant was released on 1 October 1998.

COMPLAINTS

The applicant originally complained that he was unlawfully detained in prison from April 1998 until 1 October 1998. Following the implementation of the Crime (Sentences) Act 1997 the decision of the Parole Board which considered the case in April 1998 should have been disclosed to the applicant within seven days, and the Secretary of State should have complied with the direction for immediate release. As a result of his failure to do so, the applicant alleged that there had been violations of Article 5 §§ 1, 4 and 5 of the Convention.

PROCEDURE

On 30 May 2000, the Court invited the Government to make written observations on the application.

Following the Government’s letter of 31 August 2000 informing the Court that they were negotiating a settlement with the applicant, the President granted a prolongation by one month of the time-limit fixed for submission of the Government’s observations on the admissibility and merits of the application.

On 27 September 2000, the Government informed the Court that the principal terms of the settlement had been agreed. The time-limit for submission of observations was suspended pending the parties’ further negotiations.

By letter of 21 November 2000, the Government confirmed the final settlement of the applicant’s complaints for the amount of 6,577 pounds sterling (GBP), providing a copy of the applicant’s acceptance of their offer.

THE LAW

The Court notes that the applicant has agreed to settle his case on the basis of an ex gratia payment of GBP 6,577. In these circumstances, it finds that the applicant no longer intends to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. It is satisfied that respect for human rights does not require the continued examination of the application (Article 37 § 1 in fine of the Convention).

Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

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

S. Dollé J.-P. Costa Registrar President