DISSENTING OPINION OF MM. S. TRECHSEL, E. BUSUTTIL,

      MRS. G.H. THUNE, SIR BASIL HALL AND MR. B. MARXER

     We regret that we are unable to agree with the opinion of the

majority of the Commission that in this case there has been no

violation of Article 5 para. 4 of the Convention.

     The present applicant has been sentenced to a term  of

discretionary life imprisonment.  The majority of the Commission

however base their conclusion on the fact that the applicant continues

also to be subject to a term of mandatory life imprisonment, following

the revocation of his licence in  1982.

     We note that the Court in the cases of Weeks and Thynne, Wilson

and Gunnell (loc. cit.) drew a distinction between mandatory and

discretionary life sentences on the basis that the first category was

based on the gravity of the offence committed rather than other special

factors, namely, the special character of the discretionary life

sentences, which it found had developed as a measure to deal with

mentally unstable and dangerous offenders. It appears however that

following the decision in the Handscomb case (see paras. 34-37)

mandatory life sentences were treated in the same way as the special

category of discretionary sentences in that both sentences were divided

into two distinct parts - the "tariff" part serving the purpose of

deterrence and retribution and the remainder in which  the

consideration of risk to the public was the crucial factor.

     While the Government contend that an additional factor, namely,

the consideration of the maintenance of public confidence in the

criminal justice system, is operative in mandatory cases, we note that

in the 1987 policy statement (para. 37 above) this was relevant to the

stage of deciding as to the appropriate length of the tariff and was

not stated to be a factor which could require the continued detention

of a person who had served his tariff and was no longer considered a

risk. We further have doubts as to whether the criterion of maintaining

public confidence is not merely a restatement of the risk principle.

     We finds it unnecessary however to decide in the present case

whether a mandatory life sentence can legitimately be distinguished

from discretionary life sentences for the purposes of

Article 5 para. 4. The present applicant is held under a discretionary

life sentence which was imposed on him because of the existence of

special factors of mental instability and dangerousness. This

intervening event has, in our view, broken the causal link between the

original mandatory life sentence and his continued detention. The

punitive or "tariff" part of both sentences has expired. We have found

nothing in the Government's submissions to indicate that, contrary to

the information given to the applicant by the Home Office, his

continued detention is not based on the risk which he continues to

represent. Since this is a factor which is subject to change, the

applicant is entitled under the provisions of Article 5 para. 4 to

judicial control of the continued justification of his detention.

     The majority draw attention to the result that a mandatory life

prisoner who commits an offence attracting an additional discretionary

life sentence would appear to benefit therefrom. We would merely reply

that it would be for the domestic courts to determine whether the

subsequent offence disclosed the special factors of mental instability

which would warrant the imposition of a discretionary life sentence.

     As regards whether the available remedies satisfy the

requirements of Article 5 para. 4, we recall that since the expiry of

his tariff the applicant has been subject to the same regime which was

under consideration in the Weeks and Thynne, Wilson and Gunnell cases

(loc. cit.: see paras. 43-45 above). While the powers and procedures

of the Parole Board have changed with the implementation of new

legislation, these changes are not in issue in the present case.

     Consequently, in light of the above case-law, we conclude that,

under the then prevailing legislation, the applicant was not able to

have the lawfulness of his continued detention reviewed at reasonable

intervals by a body satisfying the requirements of Article 5 para. 4

of the Convention. There has therefore been a violation of this

provision.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date           Item

________________________________________________________________

15.06.89       Introduction of the application

13.09.89       Registration of the application

Examination of admissibility

02.03.91       Commission's decision to invite the parties to submit

               observations on the admissibility and merits

10.07.91       Government's observations

01.10.91       Commission's decision to refer the case to a Chamber

08.04.92       Commission's grant of legal aid

11.05.92       Applicant's observations

12.5.92        Chamber's decision to relinquish jurisdiction to the

               Plenary

19.05.92       Commission's decision to invite the parties to an oral

               hearing

15.10.92       Hearing on admissibility and merits

15.10.92       Commission's decision to declare the application

               partly admissible, partly inadmissible.

Examination of the merits

15.10.92       Commission's deliberations on the merits

23.10.92       Applicant's submissions

18.03.93       Applicant's further submissions

13.02.93       Commission's consideration of the state of proceedings

04.05.93       Commission's deliberations on the merits, final votes

               and adoption of the Report