THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43478/98 by S.P. against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 18 January 2000 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza, Mr L. Loucaides,

Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 March 1998 by S.P. against the United Kingdom and registered on 16 September 1999 under file no. 43478/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1962 and resident in Tunbridge Wells. He is represented before the Court by Ms Kate Akester of Justice, in London .

A. Particular circumstances of the case

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

The applicant had an extremely difficult childhood. His father disappeared two weeks after his birth, while his stepfather was violent to the applicant’s mother and the children of the family. He and his brother were sent by the local authority to a boarding school to remove them from this disturbed environment.

The applicant was involved in offences of dishonesty. Following convictions for burglary and obtaining property by deception, he was placed under a supervision order in 1976. At this time, he came under the influence of R.D., a disturbed and violent boy of a similar age. It seems that R.D. decided that they should rob his grandmother. R.D. attempted to suffocate his grandmother with a cushion and when this was unsuccessful ordered the applicant to fetch an axe. The applicant admitted that he brought the axe but denied that he participated in the actual violence.

The applicant was arrested for murder on 9 March 1977. He was unable to communicate satisfactorily with his lawyers. He accepted their advice and pleaded guilty to manslaughter (diminished responsibility) on 7 July 1977. His case was adjourned for reports relevant to sentencing. On 29 July 1977 he was sentenced to detention for life under section 53 (2) of the Children and Young Persons Act 1933.

Meanwhile, R.D. was diagnosed as mentally ill. A restriction order was made under sections 60 and 65 of the Mental Health Act 1959. He was sent to Broadmoor Special Hospital .

The applicant was detained in St Charles ’ Youth Treatment Centre until 1982. He was then released on licence and has been living in the community ever since.

Since his release, the applicant has not been arrested or come adversely to the attention of the authorities, save for an incident in 1996 when he broke down the door to his rented flat when he had locked himself out. He has been employed, generally in temporary positions in the catering trade, and has been prevented from working for some periods due to problems with his eyes necessitating surgery.

According to the conditions of his licence, the applicant has been required to see his probation officer once a month, and is subject to the approval of that officer as regards where he lives, the employment which he takes up and whether he can leave the country. His request for this supervision to be terminated by the Home Office was refused on 29 August 1997, despite his probation officer’s opinion that the requirement is unnecessary and counter-rehabilitative.

In or about the beginning of 1999, the applicant became aware that the Home Office issued new guidelines requiring more intensive supervision. He believes that this involves a requirement that his probation officer inform his employer, his benefit agency and the police about the applicant’s status on licence. He believes that the probation officer is also supposed to liaise directly with his sister, as next-of-kin.

On 1 April 1999, the applicant’s representative wrote to the Kent Probation Service, protesting the new guidelines (a copy of which had not been provided though requested), in particular submitting that the requirement for the Probation Officer to liaise with his sister was an unwarranted intrusion in his private life.

On 30 April 1999, the Kent Probation Service replied that they were forwarding the applicant’s letter to the Lifer Review Unit as it raised a number of important issues. The applicant’s probation officer informed him that no action would be taken in his case in relation to the new procedures until the authorities have come to a decision.

B. Relevant domestic law and practice

Detention for life

Section 53(2)-(3) of the Children and Young Persons Act 1933 provides that children between the ages of 10 and 17, where convicted on indictment of, inter alia , any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult.

Release on licence and revocation of licences

Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a "tariff" set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991 Act).

Where the sentence is not fixed by law ( ie . a discretionary life sentence), the 1991 Act provides in section 34 that where a prisoner has served the tariff period and the Parole Board directs his release, the Secretary of State has the duty to release the prisoner on licence. For a life prisoner, the licence is in existence for the rest of his or her life (section 37(3)).

Pursuant to section 39 of the 1991 Act, the Secretary of State can authorise immediate recall if it appears to him that it is in the public interest to recall that person before such a recommendation can be obtained from the Parole Board.

The index for determining whether re-detention is justified is that of dangerousness, meaning a consideration of whether the offender constitutes an unacceptable risk of physical danger to the life or limb of the public (see R v. Secretary of State for the Home Department, ex. parte Prem Singh, unreported, transcript pp. 26F-27B, and the Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, at § 39).

On recall, an offender is entitled to a review before the Parole Board in the form of an oral hearing at which the prisoners are entitled to legal representation and there is provision for the examination and cross-examination of witnesses. Prisoners will also normally receive full disclosure of all material relevant to the question of whether they should be released prior to the hearing (see Parole Board Rules 1992). The Parole Board has the power to direct release.

COMPLAINTS

The applicant invokes Article 8 of the Convention. He complains principally that his licence can never be discharged, although he was released in 1982, at the age of 20, for an offence committed when he was very young. His licence may also be revoked by the Home Secretary at any time on the basis of any concern about his behaviour, even where there is no allegation of an offence. He therefore lives with the fear that people will find out about his background and that they may use it against him in making smears, with the consequence that he will lose his freedom. This has adverse consequences for his state of mind, and his inability to alter the situation is counter-therapeutic and counter-rehabilitative. There is no procedural safeguard in this respect since by the time an oral hearing would be held before a Parole Board the damage would be done. He also complains about the intrusive nature of the new guidelines which require his probation officer to inform any employer, the benefits agency and the police about his licence status and to liaise with his nearest relative, his sister.

The applicant invokes Article 14 of the Convention, concerning the fact that R.D. enjoys a more favourable position, notwithstanding the fact that he played the major role in the offence of murder which was committed, as under the mental health provisions he may receive an absolute discharge and be released without any conditions.

The applicant also invokes Article 13 of the Convention in respect of the lack of an effective remedy concerning his situation.

THE LAW

1 . The applicant complains that he remains subject to a licence although he was released more than 17 years ago. He invokes Article 8 of the Convention which provides as relevant:

“1. Everyone has the right to respect for his private ...life.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant complains that the existence of the licence affects his private life. He refers to the new guidelines whereby his probation officer is allegedly obliged to inform any employer, as well as the benefits agency and the police, about his status on licence and to consult with his nearest relative, his sister. He also refers to the ongoing fear and anxiety which he suffers due to his knowledge that his licence may be revoked without warning and the inability for the licence to be discharged.

The Court notes that the probation service have not implemented the new guidelines in respect of the applicant, following his complaint. In these circumstances, the applicant’s complaints about these guidelines are premature and do not disclose any interference with his right to respect for his private life. Insofar as the applicant complains about the existence of the licence, and its continuing effect on his peace of mind, the Court accepts for the purpose of the present application that this may have an effect on the applicant’s private life. It has therefore examined whether this interference may be justified in terms of the second paragraph of Article 8.

The Court notes that the applicant does not claim that the alleged interference is not “in accordance with the law”. It finds that the licence provisions are adequately provided for in the relevant statutory provisions. It is also satisfied that the licence provisions concerned pursue the purpose of preventing crime and disorder in providing for the ongoing supervision of offenders who have committed serious crimes.

As regards the necessity of the alleged interference, the Court recalls that the applicant was convicted of manslaughter after trial in a criminal court. Notwithstanding the applicant’s arguments concerning his young age at the time of the offence, the Court considers that his release subject to a licence which renders recall a possibility may be regarded as a proportionate measure. It notes in that regard that re-detention is geared to conduct which places the public at serious risk and that any recall would be subject to review by the Parole Board, before which the applicant would have the right to an oral hearing. Though the applicant complains that the Secretary of State has power of emergency recall which could be based on unsubstantiated allegations, the Court finds that this complaint is to some extent hypothetical. In the circumstances of this case, however, there is no indication that the procedures applicable to recall would not furnish him effective procedural protection of his rights, both to respect for private life and his right to liberty.

The applicant has also referred to the fact that the licence is irrevocable and that it has already been in existence for 18 years. Having regard to the nature of the conditions imposed and noting that the applicant has not been subject to any recall, unjustified or otherwise, the Court is not persuaded that the continued existence of the licence thereby has a disproportionate effect on the applicant’s right to respect for private life (see eg . No. 18828/91, dec. 1.7.92, unpublished).

The Court concludes that any alleged interference with the applicant’s private life may be regarded as necessary in a democratic society for the purpose of the prevention of crime and disorder. This part of the application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant has also invoked Article 14 of the Convention, referring to the fact that R.D. who was the principal offender is subject, as a person detained under mental health provisions, to release conditions which include the possibility of an absolute discharge.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The case-law of the Convention organs establishes, however, that it is not every difference in treatment which constitutes discrimination within the meaning of Article 14 of the Convention. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that there is no reasonable or objective justification for this distinction (see eg.the Van der Mussele judgment of 21 November 1983, Series A no. 70, p. 22, § 46; Fredin v Sweden (No. 1) judgment of 18 February 1991, Series A no. 192, p. 19, § 60).

The Court recalls that R.D. was detained under mental health provisions following a diagnosis that he was mentally ill. The applicant was not subject to such a diagnosis and was sentenced pursuant to provisions of criminal justice. The Court considers that persons who are mentally ill and who commit criminal offences while mentally ill attract different considerations with regard to conditions of detention and with regard to the application of the guarantees of Articles 5 and 6 of the Convention, when found to have committed a criminal offence. The applicant cannot therefore claim to be in an analogous position to R.D. as regards the conditions of detention and release.

It follows that the applicant’s complaint fails to disclose any discrimination in the rights guaranteed under the Convention and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicant invokes Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 13 does not, however, require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, § 52).

The Court finds that the applicant cannot be said, in light of its findings above, to have an "arguable claim" of a violation of his Convention rights.

It follows that this complaint must also be dismissed as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President