FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1190/04 
by John SPENCE 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 30 November 2004 as a Chamber composed of:

Mr J. Casadevall, President
 Sir Nicolas Bratza
 Mr M. Pellonpää
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 17 December 2003,

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, Mr John Spence, is a United Kingdom national, who was born in 1952 and currently being held in HM Prison Lindholme. He was represented before the Court by Mr M. Ferrer, solicitor and Mr J. Lennon, barrister, practising in Leeds.

A.  The circumstances of the case

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

On 3 September 1976, the applicant was convicted of murder and sentenced to mandatory life imprisonment.  The applicant and two others had tied up an 83 year old woman during the course of a burglary; she had died from strangulation. The offence had taken place some hours after drinking alcohol and he had substantial previous convictions including breach of the peace and assault.

In or about 1979, the applicant was diagnosed as having nervous traits and persecutory delusions, which led him to spending some time in  hospital.

In 1990, the applicant was released on licence. While on release, in July 1993, he was the victim of a serious stabbing incident and then a witness in an attempted murder case. He received death threats and moved from Scotland to England. The applicant stated that this had a significant impact on him; he became depressed and dependent on alcohol and was diagnosed with post-traumatic stress disorder. This led to his admission to hospital. From hospital he was referred to an alcohol treatment unit for further treatment and counselling. He was discharged from the unit in August 1994.

On 2 September 1994, after becoming aware that the applicant had been questioned by the police for three separate offences of suspected robbery, burglary and assault, the Scottish Home and Health Department revoked his licence and recalled him to prison. On 5 September 1994, he returned to prison.

In June 1995, the applicant was convicted of assault occasioning actual bodily harm and affray; he was acquitted of burglary.

In April 1996, the applicant was transferred to a lifer-designated prison in England, his current prison, where he took advantage of course-work, including attending Alcoholics Anonymous meetings.

In April 1997, the Parole Board recommended his release to Addulum Homes, a complex of staffed, probation-approved, hostel-type accommodation. The Secretary of State accepted the recommendation.

On 27 August 1997, the applicant was released on licence on this basis.

On 30 December 1998, the applicant, now living at a hostel in Stockport, was walking with his niece near to the hostel when he met one of the other hostel residents (a registered child abuser). According to the applicant, there was a minor altercation. The other resident reported to hostel staff that the applicant had assaulted him, breaking his dentures, and threatened to kill him. He was told to report the incident to the police, which he duly did and the applicant was arrested and remanded into custody.

On 14 January 1999, the applicant's licence was revoked and he was formally recalled to prison. He denied any wrongdoing and pleaded not guilty when the charges came before the courts. In May 1999, the Crown Prosecution Service dropped the charges.

In June 1999, the applicant was released a third time.

On 25 October 1999, he returned to his hostel inebriated and before he could be interviewed, he left the hostel. The police were informed and the Probation Service recommended immediate recall the same day. It had also been alleged that the applicant had repeatedly breached curfew at the hostel and that there had been an earlier incident in which he had returned drunk to the hostel.

On 31 March 2000, the Parole Board decided not to recommend the applicant's release but did recommend that his next review take place in 12 months' time to permit the development of a realistic release plan and the preparation of a psychiatric report.

On 12 October 2001, the Parole Board considered his case again. It did not recommend release for the following reasons:

"The Panel concluded that there is evidence suggestive of a pattern of difficulty in coping with social stress and difficulty in complying with supervision requirements, together with alcohol abuse which has significance in the light of the circumstances of the index offence. Supervision is necessary both to support him and to manage risk. That he has difficulty in accepting this, as reported in the psychiatric assessment, was of concern to the panel since it reduces the capacity to manage risk, itself heightened by the possibility of disinhibition and poor judgment if he has recourse to alcohol.

There is opinion that the risk of re-offending violently is low. The Panel noted however his reported observation that, in the index offence, he acted without thought and did not foresee the consequences. The same clearly applies to behaviour and interractions, which in recent years has caused concern. Mr  Spence is said to assert that he had no problem with alcohol use and does not envisage getting into trouble when drinking. Though in his representations he states that he sees no problem in reasonable social drinking, he also accepts the psychologist's comments and that he himself could identify nothing putting him at risk of future heavy drinking and that he needs to develop a relapse prevention plan. He himself notes in his representations that he assaulted an ambulance driver, whose role is of course to care for and assist others, when he had been drinking heavily.

Report writers are divided as to his suitability for release. Although the majority of those who make recommendations were in support of release, the panel had considered concern at his previous difficulty in complying with supervision conditions which, in the light of the risk factors described earlier, itself increases the risk. He had previously asserted that he would abstain from alcohol but did not. He now asserts that he will abide by supervisory requirements, but previously has not.

In all the circumstances the panel considers that his ability to comply requires further testing within an open establishment without which it cannot be satisfied that the risk posed is yet compatible with release. In such an environment he will have the opportunity to demonstrate his taking of personal responsibility while complying with imposed requirement and a firm detailed release plan should be drawn up prior to his next review."

It recommended that his next review take place nine months after his arrival.

On 10 May 2002, the applicant was transferred to an open prison. However the Secretary of State did not accept the recommended nine month gap in review, considering in his letter of 17 January 2002, that, for the reasons given by the Parole Board, the applicant required at least two years in open prison in order to be fully tested, assessed and prepared for release. The review process would therefore begin eighteen months after his transfer to open conditions.

On 16 April 2002, the applicant issued judicial review proceedings against the Secretary of State, alleging that the decision was unlawful, inter alia, as a two year delay in review had been applied automatically, without due regard to his individual circumstances and the recommendation of the Parole Board and was too long.

A psychiatric report dated 2 July 2002 prepared following his arrival in the open prison stated inter alia that tests indicated a high probability of an alcohol dependence disorder, that he was likely to have other problems that put him at risk of re-offending and a tendency towards a negative and inappropriate/anti social decision making approach. The doctor expressed concern that his addictive behaviour patterns could prove problematic and recommended that he be referred to alcohol counsellors to formulate a relapse prevention plan. While it was noted that he had successfully completed a number of offending behaviour courses and shown increased awareness in these areas, it was essential that he build on this knowledge and actively applied it to his behaviour. It was recommended that he complete further work in the areas of perspective taking, decision making and coping skills and that his behaviour be carefully monitored in particular relationships with staff and prisoners.

On 11 July 2002, permission to apply for judicial review was granted.

On 17 December 2002, the High Court rejected the applicant's complaints.

On 23 May 2003, the Court of Appeal rejected his appeal. It found that the period of two years imposed by the Secretary of State was reasonable in the circumstances and not a mere mechanical application of policy. The decision about timing of reviews was not one which had to be taken by a court-like body but could be taken by the Secretary of State and was subject to judicial review in which the courts could assess in the particular case whether the requirement of speed in Article 5 § 4 had been complied with. As concerned the complaint about the delay set between reviews, it stated:

"The problem ... is that the EctHR has conspicuously declined to be prescriptive about the length of the detention period which would lead to a violation of Article 5 § 4 in the absence of a review (see Oldham v UK (App No 36273/97) paras 30-37). Strasbourg jurisprudence makes it clear that the question whether such periods comply with the Article 5 § 4 requirement must be determined in the light of the circumstances of each case (Oldham, para. 31) and the evolving Home Office principles... follow the principles set out in that jurisprudence. It is therefore impossible to say on the particular facts of this case that, viewed prospectively, the Home Office's January 2002 decision somehow or other violated Mr Spence's Convention rights ..."

Legal aid for the purpose of petitioning the House of Lords for permission to appeal was refused; the appeal against the refusal was rejected on 8 September 2003.

B.  Relevant domestic law and practice

1.  Life sentences and tariffs

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. At the time of sentence, a “tariff” is imposed which represents the minimum period that the prisoner will have to serve in order to satisfy the requirements of retribution and deterrence. A life prisoner will not be released on licence until after the tariff period has been completed.

2.  Release on licence of mandatory life sentence prisoners

At the relevant time, the Criminal Justice Act 1991 provided in Section 35(2):

“If recommended to do so by the [Parole] Board, the Secretary of State may, 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.”

In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR135; R. v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AllER576).

Following the judgment in Stafford v. the United Kingdom (no. 46295/99, ECHR 2002-IV), the Secretary of State announced in the House of Commons on 17 October 2002 his decision to introduce interim measures applicable to the review and release of mandatory life sentence prisoners applicable to reviews from 1 January 2003. This allows for prisoners, whose tariff had expired, to apply for an oral hearing at which they may have representation, receive full disclosure of material relevant to the question of release and be able to examine and cross-examine witnesses.

“If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation. ...”

If the Parole Board decides not to direct release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State, whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review.

3.  Categorisation of prisoners

The categorisation of prisoners is the function of the Secretary of State. There are four categories of classification of prisoners, namely:

(i)  category A prisoners, whose escape would be highly dangerous to the public or to the police or to the security of the nation;

(ii)  category B prisoners, for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult;

(iii)  category C prisoners, who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt;

(iv)  category D prisoners, who can be trusted in open conditions.

4.  Policy statements and directions by the Secretary of State

On 7 December 1994 the Secretary of State stated:

“In recent years, successive Secretaries of State have recognised that, for the majority of life sentenced prisoners, a period in open prison conditions is generally vital in terms of testing the prisoner's suitability for release and in preparing him for a successful return to the community. It is, therefore, now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress. I intend to continue with this practice and the first Parole Board review will therefore normally serve the purpose of assessing the prisoner for open conditions.”

On 9 July 1998 the Secretary of State stated:

“... the first Parole Board review in the case of a life sentenced prisoner begins three years before the expiry of tariff. The purpose of this review is normally to enable the prisoner to be assessed for, and, where appropriate, transferred to, open conditions (category D) where he or she may be tested in conditions of lower security, fully assessed by staff and prepared for release. A further Parole Board review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence. Where the level of risk is considered to be acceptable, the objective is to release the prisoner on or very shortly after tariff expiry.”

A direction to the Parole Board from the Secretary of State under section 32(6) of the Criminal Justice Act 1991 (which preceded the Crime (Sentences) Act 1997) stated:

“A period in open conditions is essential for most life sentence prisoners (“lifers”). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”

COMPLAINTS

The applicant complained under Article 5 of the Convention

- that the decision of the Secretary of State created a period of detention that was arbitrary and potentially excessive and therefore not lawful under Article 5 § 1, arguing inter alia that judicial control over the question of release should also relate issues inevitably related to release such as timing of reviews and that no court had ordered his detention after the expiry of the nine month delay recommended by the Parole Board;

- that the power of the Secretary of State to set the period of time between Parole Board review breached the applicant's right under Article 5 § 4 to have the lawfulness of his detention decided by a court, arguing that the executive should play no part as to the decision on his release and should not interfere with Parole Board's decisions as to release;

- and that the decision by the Secretary of State to refuse to accept the Parole Board's view on the period between reviews, and impose his own longer, period, violated the applicant's right under Article 5 § 4 to have the lawfulness of his detention reviewed "speedily".

THE LAW

1. The applicant complained about the decision of the Secretary of State to hold the next Parole Board review after a gap of 24 months, invoking Article 5 of the Convention which provides as relevant:

Article 5 § 1 of the Convention:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

...”

Article 5 § 4 of the Convention:

“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.”

a.  Insofar as the applicant complains that the decision imposed a period of "unlawful" detention contrary to Article 5 § 1 of the Convention, the Court recalls that where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law.  This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention.  In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, pp. 850-51, § 50).

The Court recalls that the applicant is detained pursuant to a conviction for murder imposed in 1976. He has been released on licence on a number of occasions and recalled. His most recent recall, which occurred on 25 October 1999, was motivated by his conduct, namely, two incidents when he returned to his probation hostel drunk and by his frequent breach of curfew regulations. It does not appear to be in dispute that this recall, based on fears of unreliability of his conduct against a background of past violent offending linked with alcohol, was linked to the objectives of the sentence imposed on him and that there was, accordingly, a sufficient causal connection between the original conviction and the continued detention (see Weeks v. United Kingdom, judgment of 2 March 1987, Series A no. 114, pp. 25-27, §§ 46-51;  mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 81, ECHR 2002-IV ).

While it is true that the Parole Board, which had the role of assessing his risk to the community in the context of possible release, was of the opinion, in rejecting release following the hearing in October 2001, that the next review could begin nine months after his transfer to open conditions, this was a recommendation only. The Secretary of State declined to follow it, stating that a period of eighteen months should follow before the process begin. It is clear that the Secretary of State was not under any obligation under domestic law to comply with the Parole Board's recommendation. Nor can it be said that as a result the applicant's detention after the expiry of nine months ceased to be lawful detention under domestic law. The applicant's claims under domestic law were rejected in his judicial review proceedings.

As regards the Convention "lawfulness" of the decision to delay reviews beyond the nine months recommended by the Parole Board, the Court observes that Article 5 § 1 does not as such impose any requirement as to the timing of reviews of continued detention.  In the circumstances of this case, this is rather a matter to be examined under Article 5 § 4 of the Convention. 

No other ground of arbitrariness has been identified such as would bring the applicant's detention outside the scope of Article 5 § 1 (a).

b. As regards the applicant's complaints under Article 5 § 4, it has been established in the Stafford case (cited above) that, after the expiry of the tariff period, a mandatory lifer is entitled to a review of the lawfulness of his continued detention by a court like body within reasonable intervals.

The applicant contends that an executive body should not determine what the interval should be and argues that it should be a judicial body.

The Court recalls that the right set out in Article 5 § 4 is a procedural one and it is for the State to ensure that it will be made effective. The State will be responsible if the review proceedings are not decided “speedily”; and, it is likely that if an independent tribunal has recommended a particular timing for the next review of detention which is not followed by the executive, that that will be a matter which the Court will take into account in deciding whether the review was in fact carried out speedily.  Article 5 § 4 does not, however, contain any requirement for the “court” referred to therein itself to have the power to set the timing of subsequent reviews of detention (see Stuart Blackstock v. the United Kingdom, 59512/00, dec. 27.5.04). Accordingly, the involvement of the Secretary of State in this aspect of release procedure does not per se infringe Article 5 § 4.

The Court has examined whether the two year period decided by the Secretary of State conforms with the requirements of Article 5 § 4 in this case. It is well-established that this provision implies not only that the competent courts must reach their decisions “speedily” but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow at “reasonable intervals” (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 24, § 75). The question of whether periods comply with the requirement must – as with the reasonable time stipulation in Article 5 § 3 and Article 6 § 1 – be determined in the light of the circumstances of each case (see Sanchez-Reisse v. Switzerland, judgment of 21 October 1986, Series A no. 107, p. 55, § 55). The Court has therefore refrained from attempting to rule as to the maximum period of time between reviews which should automatically apply to this category of life prisoners as a whole. It notes that the system as applied has a flexibility which must reflect the realities of the situation, namely, that there are significant differences in the personal circumstances of the prisoners under review.

In previous cases, the Convention organs have accepted periods of less than a year between reviews and rejected periods of more than one year. In the case of A.T. v. the United Kingdom, the Commission found that a period of almost two years before a review of the detention of a discretionary life prisoner was not justified, where the DLP had recommended that his case should be reviewed within a year (no. 20448/92, Commission report of 29 November 1995). The Court in the Herczegfalvy case (cited above, pp. 24-25, § 77) found that periods between reviews of fifteen months and two years were not reasonable in the case of a person detained on grounds of mental illness. In Oldham v. the United Kingdom (Section 3), no. 36273/97, judgment of 26 September 2000), and Hirst v. the United Kingdom (Section 3), no. 40787/98, judgment of 24 July 2001) also concerning discretionary life prisoners, the Court found that twenty one month and two year delays between reviews was not reasonable. Conversely, a twenty four month period for a prisoner who had been recently transferred to Category C conditions and with whom ongoing work towards release was in progress was found in one case not to show a failure to apply standards of reasonable expedition (Dancy v. the United Kingdom, 55768/00, (dec.) 21.3.2002).

In the present case, the Court observes that the applicant had demonstrated a pattern of behaviour, linked with alcohol, which continued to give rise to serious concern and that after his transfer to open prison aspects of his conduct requiring further work and close monitoring were identified. In the judicial review proceedings, the domestic courts found that the authorities had not applied a blanket policy of two years but had addressed the individual circumstances of the applicant's case. The Court is satisfied that the question of review and progress towards release in the applicant's case has been approached with flexibility and due regard to his particular problems and potential for progress.

Consequently, the Court does not find any failure on the part of the authorities to comply with the requirements of Article 5 § 4 of the Convention.

c. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Josep Casadevall 
 Registrar President

SPENCE v. THE UNITED KINGDOM DECISION


SPENCE v. THE UNITED KINGDOM DECISION