THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45657/99 by Michael John FREEMAN against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 14 December 1999 as a Chamber composed of

Mr P. KÅ«ris, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr W. Fuhrmann, Mr M. Ugrekhelidze, 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 27 November 1998 by Michael John Freeman against the United Kingdom and registered on 25 January 1999 under file no. 45657/99;

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 national, born in 1939 and living in London, England. He is represented by Mr S. Creighton , a lawyer working with Bhatt Murphy, a firm of solicitors based 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 has been involved in the manufacture and distribution of erotic films since the 1960s. On 8 December 1969 the applicant was convicted of murdering one of his employees and sentenced to life imprisonment.

The applicant was released on licence on 24 May 1979.

In 1982 the applicant was convicted on charges of conspiracy to publish obscene articles, procuring women to become prostitutes, procuring acts of gross indecency between men in public and possession of cannabis. He received a prison sentence. The Secretary of State, on the recommendation of the Parole Board, revoked the applicant’s licence with effect from 31 August 1983.

The applicant was released on licence on 7 May 1986.

In February 1987 the applicant was bound over for one year following an altercation with another man in a London bookshop.

In January 1989 the applicant was charged with theft, possessing an offensive weapon, threatening behaviour and possession of cannabis. The first two charges were dropped. On 28 March 1989 the applicant was cautioned for disturbing the peace and on 17 April 1989 it was alleged that he had been seen standing on a mound overlooking a police office in a London park making provocative gestures while a woman filmed the scene from behind bushes.

The applicant absconded to the Netherlands before his trial on the threatening behaviour and possession charges.

On 14 July 1989 the applicant’s licence was again revoked. The Dutch authorities subsequently refused the request of the authorities of the respondent State that the applicant be returned to the United Kingdom, being of the opinion that the charges he faced in the English courts were not sufficiently serious to justify this.

On 26 September 1994 the applicant was deported to the United Kingdom following a renewed request to the Dutch authorities based on different grounds. On his arrival in the United Kingdom the applicant was informed that the charges brought against him in 1989 had been dismissed.

The revocation of the applicant’s life licence was confirmed by the Parole Board on 28 April 1995. On 17 July 1996 the Parole Board refused to recommend that the applicant be released or moved to open conditions on the grounds, inter alia , that he had committed a particularly brutal murder and although released twice on licence he had shown a marked disregard of his licence obligations.

The applicant sought to challenge the Parole Board’s decision by way of judicial review. The legal challenge was settled before a full hearing could take place on the judicial review application and in view of the Parole Board’s undertaking to reconsider the applicant’s case. Following the applicant’s complaint to the Prison Ombudsman about the delay in setting down a date for reconsideration of his application for release, the Parole Board recommended on 9 April 1997 the applicant’s immediate release from prison without his having to spend a period of time in open conditions. In reaching its recommendation, the Parole Board noted, inter alia , that reports on the applicant were positive and that it trusted that the applicant would remain firm in his resolution that “he can be in the film business and stay within the law...”

On 8 December 1997 the Secretary of State informed the applicant that he had decided to accept the Parole Board’s recommendation. However, he considered that:

“[the applicant] should spend six months in open conditions before ... release where any outstanding work on [his] offending behaviour, including [his] attitude to pornography and drugs, can be carried out and, in light of [his] previous failure to comply with the conditions of [his] life licence, [his] future trustworthiness can be tested.”

The applicant’s solicitors made representations to the Secretary of State in respect of this decision. In a letter dated 9 January 1998, the Secretary of State replied to these representations stating that:

“[the applicant’s] behaviour in absconding to Amsterdam in 1989 demonstrates his untrustworthiness and raises serious concerns about the likelihood of his abiding by the conditions of his life licence and probation service in the future. This aspect, together with his attitude to drugs (a feature of the index offence and the incident in Battersea Park in 1989 when he was charged with the possession of cannabis) and pornography, need to be tested in the more relaxed conditions of an open prison.”

For these reasons the Secretary of State affirmed that he was not prepared to alter his decision not to order the applicant’s release until he had satisfactorily completed a six-month stay in open conditions.

The applicant challenged the Secretary of State’s decisions of 8 December 1997 and 9 January 1998 by way of judicial review proceedings.

In a judgment handed down on 5 June 1998 Mr Justice Turner quashed the impugned decisions and ordered that the applicant’s case be given urgent reconsideration by the Secretary of State. The judge held that:

“The question remains, however, whether the reasons advanced in setting a period of six months as one in which the question of the applicant’s ‘trustworthiness’ could effectively be tested requires the most anxious scrutiny. The reasons are tenuous in nature and capable of producing the appearance that the applicant is to be sentenced again for his conduct in breaching the terms of his previous life sentences when he has already been punished for those breaches by the period which he has served in custody since 1989. Any such reason would have to be condemned as unfair if not irrational, as being incapable of supporting the decision. As a ‘reason’ it may also fail, because it is quite unrealistic to suppose that the extra period of six months could have made the difference between the applicant being considered trustworthy as opposed to his present, and supposed, state of not being ‘trustworthy’. It is trite law in the field of reasons that for such to be impervious to judicial interference they must be ‘proper, sufficient and intelligible’. In my judgment, the reasons advanced in support of the decision to require that the applicant, which must be regarded as a further six months, as a minimum, fail the tests of propriety (in the sense of fairness) and intelligibility. They also fail to satisfy the test of particularity why the decision of the Parole Board which was reached after a prolonged and careful investigation, was not accepted.”

In correspondence following the judgment, the Secretary of State expressed his disagreement with the court’s judgment but nevertheless put in place arrangements for the applicant to be released immediately. The applicant was released on 29 June 1998.

B. Relevant domestic law

1. Life sentences

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965.

2. Release on licence of prisoners serving mandatory life sentences

Section 35 of the Criminal Justice Act 1991 (reproduced in section 29 of the Crime (Sentences) Act 1997) provides that the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice, together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.

The power to release under section 35(2) of the 1991 Act cannot be exercised unless the Secretary of State has first referred the case to the Parole Board for its advice (section 35(3)). According to section 32(6) the Secretary of State may give the Parole Board directions as to the matters to be taken into account in discharging its functions.

On 30 March 1993 the Home Secretary gave directions to the Parole Board concerning the release of mandatory life sentence prisoners. In those directions the Home Secretary stated that the final decision on the release of a mandatory life prisoner rests with him and that the decision may be taken on grounds that go beyond the risk posed by the prisoner.

On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State:

“will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”

On 7 December 1994 the Secretary of State issued a statement in which he made clear that in the normal course of events a period in open conditions is vital in terms of testing the prisoner’s suitability for release and in preparing him for a successful return to the community. He declared that it is therefore normally the practice to require a prisoner to spend a period in open conditions before release.

COMPLAINTS

The applicant complains that he was denied an effective remedy in breach of Article 13 of the Convention. He asserts in this respect that although the judicial review proceedings ultimately led to the quashing of the Secretary of State’s decision in 1998, the domestic court’s conclusion on this matter intervened some four years after the charges brought against him had been dropped.

Again with reference to Article 13 the applicant complains that he has no entitlement under domestic law to compensation even though the Secretary of State’s decision was quashed on account of its illegality.

The applicant further complains under Article 10 of the Convention. He states that one of the key reasons why his release was refused was because of a fear that he might return to making pornographic films, an activity which is not illegal in the respondent State. In the applicant’s opinion the Secretary of State’s decision amounted to an interference with his right to freedom of expression which could not be justified under the provisions of paragraph 2 of that Article.

The applicant also invokes Article 6 of the Convention. He argues that although the criminal charges laid against him in December 1989 were dropped, they nevertheless formed the basis of the original decision to uphold the revocation of his life licence in September 1994 as well as of the initial refusal of the Parole Board to authorise his release in 1996 and the Home Secretary’s decision to refuse release in 1997.

The applicant finally alleges that the Parole Board recommended his release after consideration of his promise not to return to film-making. He states that the fact that he can be recalled to prison if he makes erotic films, even if no criminal prosecution is taken, amounts to a breach of Articles 6 and 10 of the Convention.

THE LAW

1 . The applicant states that he was denied an effective remedy in respect of the parole proceedings, in breach of Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in [the] 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.”

The applicant stresses that the decision to release him on licence was taken four years after the dismissal of the charges which had been brought against him in 1989. Furthermore, he was not entitled under domestic law to compensation for the period he spent in prison between the date of the Parole Board’s recommendation that he be released and the decision of the High Court quashing the Secretary of State’s rejection of that recommendation. The applicant draws attention to the fact that damages are only payable where there is a breach of a statutory provision which renders a period of imprisonment unlawful and not in cases where a refusal to release a prisoner is within the discretion of the Secretary of State.

The Court observes that the applicant was convicted of murder in 1969 and received a mandatory life sentence. It recalls in this respect that, as regards mandatory life sentences, the guarantee of Article 5 § 4 of the Convention is satisfied by the original trial and, as appropriate, appeal proceedings and confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of a life licence (see the Wynne v. the United Kingdom judgment of 18 July 1994, Series A no. 294-A, pp. 14-15, § 35). The applicant is aware of the Court’s standpoint on this issue. For that reason he prefers to base his case on Article 13 of the Convention.

However the invocation of Article 13 pre-supposes the existence of an arguable claim that the applicant’s rights under the Convention have been violated (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no.131, p.23, § 52). It is to be noted that the lawfulness of the applicant’s continued detention, including the period subsequent to the Parole Board’s recommendation that he be released, cannot be impugned from the angle of Article 5 of the Convention for the reasons stated above. It must be concluded therefore that the applicant is unable to make out an arguable claim that his Convention rights have been violated either with respect to the adequacy of the review of his detention following his return to the United Kingdom or to the absence of compensation. The Court would also observe that the judicial review proceedings did not amount to a finding that the applicant’s detention was unlawful under domestic law. The High Court’s ruling of 5 June 1998 was limited to a finding that the Secretary of State had not provided adequate reasons for deferring the applicant’s release and that his case should be reconsidered.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant maintains that the conditions attaching to his release on licence amount to an interference with his right to freedom of expression, in violation of Article 10 of the Convention which provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The applicant states that in refusing to release him on licence the Secretary of State was motivated, inter alia , by the concern that he might return to the making of pornographic films. He further contends that he is at continued risk of being returned to prison should he do so in the future, even if he is not prosecuted under the obscenity legislation. In the applicant’s submission his recall to prison in these circumstances would result in the denial of the procedural safeguards guaranteed by Article 6 of the Convention. The applicant draws attention to the fact that a leading film critic in the United Kingdom provided expert evidence in the High Court proceedings to the effect that he is a film maker of considerable artistic merit.

The Court considers that the applicant has not substantiated that the terms of his re ‑ release on licence amount to an interference with his right to freedom of expression through the medium of erotic films. It cannot speculate as to whether he would be recalled to prison simply on account of his film-making as opposed to acts of deviant behaviour arising out of his involvement in the pornography industry which are incompatible with the terms of his licence. It further notes that any concerns which the Secretary of State may have had in respect of the applicant’s attitude to pornography were linked to a perceived risk that he might become involved in related criminal activity. The Court also notes that the applicant acknowledged these risks by demonstrating to the Parole Board his commitment to stay within the law while continuing to engage in the film industry.

For these reasons the Court finds that the applicant’s complaints under this head are inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicant finally submits that he was denied a fair hearing in the parole proceedings in violation of Article 6 of the Convention, which provides in relevant part:

“In the determination of ... any criminal charge ..., everyone is entitled to a fair and public hearing...”

In the applicant’s submission, the parole proceedings amounted to a determination of the criminal charges which had been laid against him in 1989 but which were later dismissed. At no stage was he permitted an oral hearing at which witnesses could be called and cross-examined, even though the dismissed charges were the main reason for the refusal to release him on licence. The High Court proceedings could not be said to have satisfied these requirements since that court never considered the facts underlying his arrest in 1989 nor the merits of his defence to the charges.

The Court rejects the applicant’s submissions. At no stage did the Parole Board or the Secretary of State pronounce on the question of the applicant’s guilt in connection with the 1989 charges or in any other way attribute responsibility to him for the events giving rise to the charges. Following the applicant’s arrest in September 1994, the Parole Board and the Secretary of State were thereafter concerned about the applicant’s suitability for recall, his re-release on licence or deferred release on licence. The procedures followed by the Parole Board and the Secretary of State in making their assessments were such that they did not attract the applicability of Article 6 under its criminal head and on that account the applicant’s complaint is inadmissible ratione materiae .

The Court would also note that since the applicant had been initially released on mandatory life licence conditions it was appropriate for the authorities to have regard in their assessment to erratic behaviour, such as that which gave rise to the 1989 charges. In any event it would appear from the case file that the applicant’s solicitor submitted detailed representations to the Parole Board prior to its decision of 17 July 1996 in which he set out the applicant’s own account of the circumstances surrounding his arrest and charge in 1989. There is nothing to suggest that these representations were not given due consideration. It is also to be observed that the Parole Board in its decisions of 28 April 1995 and 17 July 1996 and the Secretary of State in his decisions of 8 December 1997 and 9 January 1998 placed emphasis on the fact that by absconding to the Netherlands the applicant had breached the conditions of his licence, thus calling into question his trustworthiness. This aspect of the applicant’s behaviour weighed more heavily in the negative decisions taken on his requests to be released than did the issue of the dismissed charges.

For these reasons the Court finds that this complaint is inadmissible ratione materiae and must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé P. Kūris Registrar President