THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36273/97 by Eric OLDHAM against the United Kingdom

The European Court of Human Rights ( Third Section ), sitting on 7 March 2000 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 July 1996 and registered on 12 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a British citizen born in 1948 and resident in Heywood , Lancashire. He is represented before the Court by Atter MacKenzie , solicitors practising in Evesham, England.

A. Particular circumstances of the case

In April 1970, the applicant, aged 21, was convicted of manslaughter on the grounds of diminished responsibility. During the course of a burglary and while under the influence of alcohol, the applicant killed a woman whom he knew well by beating her round the head using multiple blows. He had been out drinking with the woman earlier the same evening. Medical evidence adduced at the trial showed the applicant suffered from a mental abnormality induced by alcohol. He was sentenced to life imprisonment. He did not appeal.

On 13 February 1981, the applicant was released on life licence. In December 1993, he was recalled to prison after a conviction for handling a stolen credit card.

In February 1984, the applicant was released on life licence. In December 1984, his licence was revoked after the applicant’s second wife reported that he had threatened to kill her while under the influence of alcohol.

In 1989, following the recommendation of the Parole Board, the applicant was transferred to open prison conditions to work towards his release in the near future. On a number of occasions, the applicant failed to return to the prison at the correct time. As a result, the Secretary of State cancelled the provisional release date.

On 27 July 1993, the applicant was released on life licence a third time, subject to the conditions that, inter alia , he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem.

On 17 October 1994, the applicant was convicted of theft from a shop and conditionally discharged for two years.

On 9 November 1995, the police were, according to the Government, called to the home of the applicant’s new partner, M. who is deaf and mute. M. had told the police that she was in fear of the applicant. On arrival of the police and the probation officer, M said that she no longer wished to make a complaint. According to the applicant, he called the police to his home and it was because she was unsure about living with him.

On 1 July 1996, the police were called to M.’s flat. According to the Government, they were called by M.’s daughter while the applicant states that it was a neighbour. The applicant had been involved in a heated argument with M. M. told the police that the applicant had hit her. She was taken to hospital where she received treatment for injuries to her face and back. The Government state that she told the hospital staff that they had been caused by the applicant. The applicant states that M. did not make such a statement to the hospital and that it was the police who told the hospital staff that he had caused the injuries. On 2 July 1996, M., accompanied by her daughter, attended the local probation service office where her injuries were noted. M’s daughter told the probation officer that M. had told her that the applicant had caused the injuries. The applicant denies that M. made such a statement.

On 2 July 1996, in the Rochdale magistrates’ court, the applicant pleaded guilty to breach of the peace and was bound over to keep the peace for 12 months in the sum of £100.

In his report of 2 July 1996, the applicant’s probation officer stated that M. had told the police officer who attended the incident that she was reluctant to pursue the matter formally against the applicant as she was in “great fear of him” and was concerned for her safety because of his violence. It was further noted that M. had told the applicant’s probation officer that the applicant had drunk eight cans of lager and had kicked her twice in the face and back, causing bruising which was clearly visible to her face. It was stated that:

“ had been supervised closely at this office because there has been continued concern about his potential for violence and particularly with reference to the vulnerability of his partner, . At the time of the previous incident in which was victim the situation was reviewed and left in no doubt that this behaviour was completely unacceptable. A warning letter was issued... Given the previous information and the current situation we would consider that the poses a real risk and would recommend his immediate recall.”

On 2 July 1996, the Secretary of State revoked the applicant’s licence and recalled him to prison. By letter dated 4 July 1996, the Secretary of State indicated that his licence had been revoked on the grounds that he had consumed at least 8 cans of lager and assaulted M., causing her injuries. The applicant was also informed that his case would be referred to the Parole Board under section 32(2) of the Criminal Justice Act (1991).

On 12 July 1996, the Parole Board confirmed the revocation of the applicant’s licence.

In a letter dated 16 September 1996, the probation officer stated that on M.’s visit to his office on 2 July 1996, it was clear that M. was stating that she had been assaulted by the applicant and that she was frightened of him. She alleged that he had been drinking at the time. He also described that pressure had been brought to bear on M. by the applicant who had written to her blaming her for his being in prison and asking her to drop the “charges”. The applicant states that these allegations are untrue.

The applicant made written representations to the Parole Board against his recall, claiming that he had only drunk two pints of bitter and denying striking M. He alleged that M. had hit him in the face and had injured herself while throwing the telephone against the wall while they were struggling over it. The telephone had bounced back off the wall, hitting M. hard in the face and causing her nose to bleed.

On 4 September 1996, M. made a statement to a solicitor, who had attained a Stage 2 British Sign Language qualification. In it, she stated that she had been drinking that day and had been responsible for the argument with the applicant. She also denied that the applicant was responsible for her injuries. These had been caused by the telephone wire getting wrapped around her arm when she was trying to throw the telephone. The telephone had then hit her three times in the face. Her back was injured when she fell back onto a coffee table.

By letters dated 10 and 25 October 1996, the applicant’s solicitor wrote to the Parole Board asking for a qualified sign language interpreter to be available when M. appeared before the Parole Board’s discretionary lifer panel.

On 8 November 1996, the panel met to consider the applicant’s representations against recall. It considered the applicant’s written and oral representations, the views of two probation officer, the oral evidence of M. and the submissions of the applicant’s solicitor and counsel for the Secretary of State.

In her oral evidence, M. gave an account consistent with her statement of 4 September 1996. A prison officer, who was training in sign language, attended the hearing and acted as interpreter for M. The prison officer had attained a stage 1 British Sign Language qualification and was training toward stage 2. The Government state that, before the hearing, the prison governor told the applicant of the proposal to use this prison officer and asked whether he was content with this proposal. The applicant made no objection. The same question was put to the applicant and his solicitor before the hearing began. They both said that they were content for the hearing to proceed. The applicant denies that he or his solicitor were informed of the interpreter before the hearing or that they accepted the use of that person.

The Government state that the interpreter met M. before the hearing so that they could get to know each other and practice communicating. The interpreter was confident that they could understand each other properly. On occasions during the hearing M did use words that the interpreter could not easily translate. Any difficulty was overcome by using pencil and paper to spell individual words. The applicant states that the interpreter only met M. ten minutes before the hearing and it was obvious that she was unable to communicate at the necessary level.

The applicant states that his solicitor made repeated requests for an adjournment so a qualified interpreter could be found. He states that the interpreter was unable to cope and broke down during the proceedings. The chairman however ignored the applicant’s concerns and decided to proceed. The Government dispute that the applicant’s solicitor at any time requested an adjournment on the basis of an inability properly to hear M.’s evidence. The Chairman of the panel (a High Court judge) noted that the applicant’s solicitor asked near the end of M.’s evidence whether the panel understood M.  The Government state that a positive answer was given by the Panel. The Chairman’s notes provided by the Government summarised M.’s evidence as indicating that she stated that she was injured when she hit herself with the telephone and fell over.

In its written decision of 12 November 1996, the Parole Board stated its reasons for rejecting the applicant’s representations:

“In reaching their conclusion that you present a significant danger to the public, and in particular to or any other woman with whom you might form a relationship, the panel took into account the following: -

i. the fact that they were entirely satisfied that the injuries sustained by on 1 July 1996 were inflicted by you in the manner she originally complained of to the police, the hospital, her daughter and the probation service;

ii. the panel rejected as incredible the evidence given to them by you and that the injuries to were self-inflicted by her when she was attempting to damage a telephone.

In those circumstances as was expressly conceded by on your behalf, the panel had no option but to reject your representations against recall.”

The Parole Board also expressed the opinion that, in order to minimise risk, the applicant needed to carry out further work in respect of alcohol, anger and relationships.

By letter of 15 November 1996, the Secretary of  State informed the applicant that such further work should be carried out, and that his next Parole Board review was set for November 1998.

The applicant applied for legal aid to challenge the Parole Board’s decision by judicial review. By letter dated 11 December 1996, legal aid was refused. On appeal, on 12 February 1997, legal aid was granted for the limited purpose of seeking further evidence and counsel’s opinion. On 15 March 1997, counsel advised that an application for judicial review would be unsuccessful. Legal aid was not extended.

On 6 February 1997, the applicant and M. were married in prison.

On 7 December 1998, the applicant had a further hearing before the panel, which recommended his release on licence. It expressed some reservations concerning his vulnerability to alcohol and his tendency to be violent to women whom he knew, but concluded that he had made significant and sufficient progress since his previous review, including completion of courses on Anger Management, Relationships, Alcohol Awareness and Men and Violence.

The Secretary of State accepted the panel’s recommendation and the applicant was released on 17 December 1998.

B. Relevant domestic law and practice

Under section 32(2) of the Criminal Justice Act 1991, the Parole Board has a duty to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. The Parole Board always holds an oral hearing when considering whether to release a discretionary life prisoner, the relevant part of whose sentence has expired (the tariff), or when considering the recall of a discretionary life prisoner whose licence has been revoked.

At the relevant time, the duty to release discretionary life prisoners was dealt with by section 34, which provided that where a discretionary life prisoner had served his tariff and the Board had directed his release, it was the duty of the Secretary of State to release him on licence. Section 34(4) provided:

“The Board shall not give a direction ... unless -

(a) the Secretary of State has referred the prisoner’s case to the Board;

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

Under section 34(5)(b), a discretionary life prisoner could require the Secretary of State to refer his case to the Parole Board two years or more after a previous reference to the Board. This provision has been replaced, and largely reproduced, by section 28(7) of the Crime (Sentences) Act 1997.

When deciding under section 39 that recall should be confirmed, the Parole Board often gives guidance as to the timing of the next review. It normally recommends a further review in two years but an earlier date can be given in an appropriate case, with reasons. Where no guidance is given, the Secretary of State decides the date of the next review. Where after the date is set it becomes clear that the prisoner has made unexpectedly rapid progress, the date of review may be brought forward.

COMPLAINTS

The applicant complains under Article 5 § 4 of the Convention that:

1. he did not receive a fair hearing before the Parole Board on 8 November 1996 since there was no proper interpreter present when M. gave her evidence;

2. the two year delay until his next Parole Board review was unreasonable.

PROCEDURE

The application was introduced on 10 July 1996 and registered on 12 May 1997.

On 22 October 1998 the European Commission of Human Rights decided to communicate the applicant’s complaints to the respondent Government.

The Government’s written observations were submitted on 19 March 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 4 May 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that he did not receive a fair hearing before the panel of the Parole Board on 8 November 1996 due to the failure to provide a properly qualified sign language interpreter and that the delay of over two years before his next review was unreasonable. He invokes Article 5 § 4 of the Convention which 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.”

1. Insofar as the applicant complains that the hearing before the Parole Board panel was unfair, the Government submit that the applicant and his solicitor were informed in advance of the hearing of the proposed sign language interpreter and made no objection, before or during the hearing. They submit that the interpreter was able to communicate adequately with the witness M. and overcame difficulties with particular words by using a paper and pen. They have provided the notes of the chairman of the panel and rely on these as showing that the panel understood M.’s evidence without any difficulty.

The applicant submits that the interpreter provided to communicate with M. was a trainee without the necessary qualifications and did not allow M.’s evidence to be meaningfully conveyed to the panel. He disputes that he or his solicitor were informed in advance about the proposed interpreter and maintains that his solicitor objected frequently during the hearing when the interpreter proved inadequate. He states that the panel rejected his solicitor’s request for an adjournment to obtain a properly qualified interpreter.

The Court recalls that the body empowered with ordering the release of an applicant pursuant to Article 5 § 4 of the Convention should provide procedures which afford proper guarantees that enable the individual to participate fairly and effectively in the proceedings (see, amongst other authorities, Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, p. 45, § 67, and Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 300, § 67).

The Court observes that, where a hearing is held to decide on the issues relating to release, the conditions under which witnesses called by the applicant may be relevant to the fairness of those proceedings. In the present case, the applicant considered that M. was a crucial witness as she was in a position to confirm his representations that he was not a risk to the public as he had not caused her any injuries as alleged by the police, probation service and hospital.

The Court recalls that M. was provided with a trainee sign language interpreter, who had obtained a stage 1 qualification. Whether or not the applicant’s solicitor formally requested an adjournment or objected to the interpreter, it appears from the notes of the chairman of the panel that the applicant’s solicitor raised the question of whether the panel understood M.’s evidence. It is apparent from the context of the decision and the chairman’s notes that the panel considered that they understood what M. wanted to say. Furthermore, the chairman’s notes and the decision indicated M’s evidence had been to the effect that she did not blame the applicant for her injuries and that they had been caused accidentally when she herself had tried to break a telephone. The decision rejecting the applicant’s representations was reached on the ground that the panel did not, however, accept the account of the injuries put forward on behalf of the applicant, and accepted instead the evidence which indicated that he had been responsible.

The Court does not find therefore that there was any misunderstanding or misleading of the panel by the alleged inadequacy of the interpreter. It is satisfied that the substance of M.’s evidence was presented at the hearing. It is not persuaded that the manner of presentation of the evidence unfairly prejudiced the applicant.

The Court concludes that the review provided by the Parole Board satisfied the requirements of Article 5 § 4 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Insofar as the applicant complains of the delay between the Parole Board reviews, the Government submit that a two year interval is reasonable. In this case, they submit that the applicant had to address his problems with alcohol and violence to women before he could be released in the future. A period of two years was necessary for him to attend courses and for changes in his character and behaviour to be properly assessed and reported upon. If at any time it had appeared that he had made unexpectedly rapid progress and that his dangerousness to the public had substantially decreased, his review could have been brought forward.

The applicant rejects the assertion that his past conduct gave any serious grounds for concern. He also points out that he had addressed the alleged areas of concern within a period of eight months following his recall in the courses run by the Manchester Probation Service. There was no reason to delay his review for a further eighteen months.

The Court recalls its previous case-law concerning the requirement that reviews of continued detention must be conducted “speedily”, which imports in a system of automatic reviews that decisions of the courts must follow at reasonable intervals (see, amongst others, Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, pp. 24-25, §§ 75-78).

Having regard to the parties’ submissions, the Court finds that this part of the application raises serious issues of law under the Convention, the determination of which must be reserved to an examination of the merits. It cannot therefore be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint that the delay between reviews by the Parole Board was unreasonable;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President