European Court of Human Rights



The European Commission of Human Rights sitting in private on 3 March

1986 the following members being present:

 

              MM. C. A. NØRGAARD, President

                  G. SPERDUTI

                  J. A. FROWEIN

                  G. JÖRUNDSSON

                  G. TENEKIDES

                  S. TRECHSEL

                  B. KIERNAN

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  G. BATLINER

             Mrs.  G. H. THUNE

             Sir  Basil HALL

 

              Mr.  H. C. KRÜGER Secretary to the Commission

 

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

 

Having regard to the application introduced on 3 May 1985 by

P.H. against the United Kingdom and registered on 23 July 1985 under

file N° 11653/85;

 

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

 

Having deliberated;

 

Decides as follows:

 

THE FACTS

 

The applicant, Mr. P.H., is a citizen of the United Kingdom,

born in 1954, and at present detained in HM Prison, Featherstone,

United Kingdom.  He is represented in the proceedings before the

Commission by Messrs. Birnberg & Company, Solicitors, and

Mr. Edward Fitzgerald, Barrister-at-law, of counsel.

 

In 1969 the applicant was sentenced to life imprisonment for the

murder of a jeweller in the course of an armed robbery.

 

The sentence of life imprisonment is a mandatory sentence for murder

in the United Kingdom.  Under Section 1(2) of the Murder (Abolition of

Death Penalty) Act 1965 a judge, when sentencing an offender convicted

of murder to life imprisonment, can make a recommendation as to the

minimum period that prisoner should serve in custody.  The

recommendation is directed to the Home Secretary who has the final

decision as to whether or not to release a prisoner sentenced to life

imprisonment.  No such minimum recommendation was made under this

provision in the applicant's case.

 

In December 1982 the applicant was transferred from a closed prison to

Sudbury Open Prison.  A life sentence prisoner is not moved to an open

prison until he is no longer considered to be dangerous. No such

decision to transfer to open conditions is taken without the positive

approval of the Home Secretary, the Parole Board, and without

consulting the trial judge, if available, and the Lord Chief Justice.

Such a transfer is understood to be on the basis that the prisoner

would  be released provided he had a satisfactory release plan and

that within a period of up to two years he had exhibited no untoward

behaviour.

 

After one year in open prison he was told by the Governor that he

would be strongly recommended for parole.  He believed that he would

be shortly transferred to a hostel and eventually released on licence

by early 1985.  On 11 October 1983 the applicant was suddenly

transferred back to a closed prison (Winson Green Prison, Birmingham).

He was told that there was no question of any allegation of

misbehaviour on his part playing a part in this decision.

 

On the same day the Secretary of State for the Home Department

announced a new parole policy in a speech to the Conservative Party

Conference.  This policy was further elaborated in a statement to the

House of Commons on 13 November 1983.  He stated that he was attentive

to

 

"growing public criticism of the gap between the length of sentence

passed and length of the sentence actually served ...  That gap can

endanger public confidence in our criminal justice system.  People

want to know with some certainty what a sentence that has been passed

actually means in practice."

 

He indicated that he intended to exercise his discretion so that

murderers of police or prison officers, terrorist murders, sexual or

sadistic murderers of children and murders by firearms in the course

of robbery can normally expect to serve at least 20 years in custody.

The policy is intended to exclude release on parole for those who have

committed any of the aforementioned types of murder unless there are

"wholly exceptional circumstances".

 

The Secretary of State explained that, immediately prior to the

introduction of the policy, a few life sentence prisoners had been

returned from open to closed prisons.  Their release in the near

future would not have accorded with his view of the gravity of their

offences.

 

The applicant, together with other prisoners, introduced proceedings

for judicial review of the Home Secretary's decision.  He claimed that

the policy was contrary to the object and purpose of the parole system

under the Criminal Justice Act 1967 since it fettered the discretion

conferred on the Parole Board and the Home Secretary, thereby

preventing a proper consideration of individual cases on their merits.

He also alleged a breach of Art. 7 of the European Convention on Human

Rights (art. 7), claiming that the effect of the policy was to

introduce a retrospective punishment by providing that a minimum

period of custody would be served when no such minimum period had been

recommended by the trial judge under the 1965 Act.

 

His application was rejected by the High Court on 13 April 1984.  An

appeal to the Court of Appeal was also dismissed on 6 July 1983 as was

a further appeal to the House of Lords on 15 November 1984.

 

Lord Scarman, delivering the judgment of the House of Lords, upheld

the lawfulness of the new policy as follows:

 

"The question, therefore, is simply did the new policy constite a

refusal to consider the cases of prisoners within the specified

classes?  The answer is clearly "no". Consideration of a case is not

excluded by a policy which provides that exceptional circumstances or

compelling reasons must be shown because of the weight to be attached

to the nature of the offence, the length of the sentence and the

factors of deterrence, retribution, public confidence, all of which it

was the duty of the Secretary of State to consider.  And the Secretary

of State accepted the invitation of the board to continue to refer to

the board all cases of eligible prisoners notwithstanding the adoption

of the new policy."

 

As regards the submission that the new policy operated as a punishment

or penalty, Lord Scarman stated:

 

"...  The sentence of the court is in law the punishment.  The

disappointment of the expectation which prisoners may have that under

the parole system they will not have to serve the whole of a sentence

in prison may be distressing but is not a punishment or penalty which

goes beyond the sentence of the court.  Thus one is thrown back to the

question of the lawfulness of the policy to be followed in the

consideration of their cases.  If the policy be lawful, the

disappointment of the expectation can be no ground for judicial

review:  if it be unlawful, the prisoner's case for relief does not

depend upon a description of his disappointment as a punishment."

 

The applicant's case has subsequently been reviewed by the Parole

Board in accordance with the new policy.  He has received a covering

letter informing him that he would have to serve at least 15 years'

imprisonment.  He has also written to the Home Secretary submitting

that his case be treated as "exceptional" because of his defeated

expectations.  This petition has met with no success.

 

The procedure which will now apply to the review of the applicant's

case for release on parole is as follows:-

 

-       His case will next be referred to the Parole Board at a date

which the Home Secretary considers appropriate from the point of view

of retribution and deterrence.  In determining this date the Home

Secretary will principally have regard to his 20 year minimum rule,

although he will also consult the judiciary;

 

-       The Home Secretary's agreement to continue to refer to the

Parole Board all cases that were previously referred to it is on

condition that the Parole Board take account of the new parole policy.

 

COMPLAINTS AND SUBMISSIONS

 

Article 7 (art. 7)

 

The applicant complains that the effect of the Home Secretary's policy

constitutes a breach of Art. 7 of the Convention (art. 7) since it

serves to impose on him a penalty that is harsher than that originally

imposed on him at the time of sentence, and applicable at the time of

his crime.

 

He makes the following submissions:

 

-       That the drastic restriction of the eligibility of prisoners

for release in a way not contemplated by the legislation renders the

penalty more severe than at the time of its imposition.

 

-       His sentence must be seen as premissed upon the parole

machinery set up under the Criminal Justice Act 1967.  Under this

system his sentence provided for earlier release at such time as

accorded with the views of both Parole Boad and the Home Secretary.

 

Moreover, at the time of his life sentence it was contemplated that

his case would be reviewed in the light of various mitigating factors

such as age, the lack of premeditation, capacity for reform and other

factors concerning the offence.  The effect of the policy of a minimum

20-year sentence is to render the sentence more harsh than that

originally imposed.

 

-       The trial judge could have made a minimum recommendation under

Section 1(2) of the Murder (Abolition of death penlty) Act 1965.

Where there was no such recommendation, a prisoner was entitled to

assume that his case would not be decided by reference to a fixed term

of years.  The effect of the Home Secretary's 20-year minimum rule is

the same as if the trial judge had recommended a minimum sentence.

 

Finally, he refers to the decision of the U.S. Supreme Court in

Marrero v.  Warden of Louisberg Penitentiary (1974) 417 U.S. 653 where

it was decided that the introduction of new legislation withdrawing

parole eligibity constituted the imposition of an additional penal

sanction.

 

Article 5, para. 4 (art. 5-4)

 

It is submitted that the continued detention of a prisoner without the

possibility or availabality of parole may, after the lapse of a

considerable length of time, give rise to an issue as to whether the

continued detention of the prisoners is justified under Art. 5,

para. 1, sub-para. a of the Convention (art. 5-1-a).  Accordingly

there must be provision for review of the continued lawfulness

of the applicant's detention by a court.

 

Since the Parole Board does not conform to the necessary requirements

of a "court" for the purposes of Art. 5, para. 4 (art. 5-4),

the applicant has been denied the right to have the lawfulness of his

continued detention reviewed as provided for in Art. 5, para. 4

(art. 5-4).

 

Article 3 (art. 3)

 

The applicant submits that on the particular facts of his case the

unexpected reversal of his legitimate expectations of release

constitutes a breach of Art. 3 (art. 3) since it amounts to inhuman

and degrading treatment or punishment.

 

THE LAW

 

1.      The applicant complains that a sudden change in parole policy

in the United Kingdom effectively increased his sentence from that

applicable at the time his offence was committed and from that imposed

at his trial.  He submits that the change in policy whereby he will

only become eligible for release on parole after having served

20 years of his sentence of imprisonment raises issues under Arts. 7,

5, para. 4, and 3 of the Convention (art. 7, art. 5-4, art. 3).

 

As regards Article 7 (art. 7)

 

2.      Art. 7 (art. 7) provides as follows:

 

1.      No one shall be held guilty of any criminal offence

on account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed.  Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed.

 

2.      This Article (art. 7) shall not prejudice the trial and

punishment of any person for any act or omission which, at

the time when it was committed, was criminal according to

the general principles of law recognised by civilised

nations.

 

3.      The Commission recalls that the applicant was sentenced to

life imprisonment in 1973 for committing a murder in the course of a

robbery.  It is clear that the penalty for this offence at the time it

was committed was life imprisonment and thus no issue under Art. 7

(art. 7) arises in this respect.

 

4.      Furthermore, in the opinion of the Commission, the "penalty"

for purposes of Art. 7, para. 1 (art. 7-1), must be considered to be

that of life imprisonment.  Nevertheless it is true that as a result

of the change in parole policy the applicant will not become eligible

for release on parole until he has served 20 years' imprisonment.

Although this may give rise to the result that his imprisonment is

effectively harsher than if he had been eligible for release on parole

at an earlier stage, such matters relate to the execution of the

sentence as opposed to the "penalty" which remains that of life

imprisonment.  Accordingly, it cannot be said that the "penalty"

imposed is a heavier one than that imposed by the trial judge.

 

As regards Art. 5, para. 4 (art. 5-4),

 

5.      The applicant complains that he is unable to have the

lawfulness of his continued detention reviewed by a court as required

by Art. 5, para. 4 (art. 5-4).

 

6.      This provision provides as follows:

 

"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."

 

7.      However, the Commission recalls that where a person is

detained following conviction by a competent court the supervision of

the lawfulness of his detention under Art. 5, para. 4 (art. 5-4)

is incorporated at the outset in his criminal trial and the appeal

from it.  The Commission does not consider, therefore, that the

applicant can derive from Art. 5, para. 4 of the Convention (art. 5-4)

a right to judicial review of his sentence in the light of a change in

parole policy which does not alter the legal basis of his detention

(see Eur. Court H.R., Vagrancy Case, judgment of 18.6.71, para. 76;

also Dec. No. 9089/80, D.R. 24 pp. 227-231).

 

As regards Article 3 (art. 3)

 

8.      Finally, the applicant complains that the unexpected reversal

of his expectations of release constitutes inhuman and degrading

treatment or punishment in breach of Art. 3 (art. 3).

 

9.      Art. 3 (art. 3) states:

 

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

 

10.     The Commission has held that the notion of inhuman treatment

includes at least such treatment as deliberately causes severe

suffering, whether mental or physical, and that an individual's

treatment may be said to be degrading if it grossly humiliates him

before others or drives him to act against his own will or conscience

(See Ireland v. the United Kingdom, Comm. Rep. 25.1.76, Yearbook 19

pp. 745 and 752).

 

11.      However, the European Court of Human Rights has stressed that

"ill-treatment must attain a minimum level of severity if it is to

fall within the scope of Art. 3 (art. 3).  The assessment of this

minimum is, in the nature of things, relative.  It depends on all the

circumstances of the case, such as the duration of the treatment, its

physical or mental effects and, in some cases, the sex, age and state

of health of the victim".  (Eur. Court H.R., Ireland v. the United

Kingdom, 18.1.78, para. 162).

 

12.      The Commission recalls that the applicant was detained in an

open prison at the time of the change in parole policy and enjoyed a

reasonable prospect of release on parole within a period of two years.

It has no doubt that his recall to a closed prison and the sudden

change of parole policy and consequent frustration of his expectations

of release must have caused him real distress.

 

13.      However, in the opinion of the Commission, the weight to be

attached in penal policy to such factors as retribution and deterrence

and the determination of the public interest are matters which fall

within the wide discretion of the competent authorities.  In addition,

the Commission has previously found that Art. 3 (art. 3) cannot be

read as requiring that an individual serving a sentence of life

imprisonment must have that sentence reconsidered by a national

authority, judicial or administrative, with a view to its remission or

termination (Dec. No. 7994/77, 6.5.78, D.R. 14 p. 240).  Finally, in

the circumstances of the present case, the Commission notes that the

applicant's case will in any event continue to be referred for

consideration to the Parole Board, albeit within the context of the

new parole policy.

 

14.      Against this background, the Commission does not consider

that the change in parole policy falls into a category of treatment

which could constitute a breach of Art. 3 (art. 3) as that provision

has been understood by the Commission and Court.

 

15.      Accordingly, the Commission considers that the application

must, as a whole, be rejected as manifestly ill-founded within the

meaning of Art. 27, para. 2, of the Convention (art. 27-2).

 

For these reasons, the Commission

 

DECLARES THE APPLICATION INADMISSIBLE

 

Secretary to the Commission         President of the Commission

 

(H. C. KRÜGER)                       (C. A. NØRGAARD)