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In the case of Wynne v. the United Kingdom*,
The European Court of Human Rights, sitting, in
accordance with
Article 43 (art. 43) of the Convention for the
Protection of Human
Rights and Fundamental Freedoms ("the
Convention") and the relevant
provisions of the Rules of
Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr B. Walsh,
Mr C. Russo,
Mr A.
Spielmann,
Sir John Freeland,
Mr M.A.
Lopes Rocha,
Mr L. Wildhaber,
and also of Mr
M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy
Registrar,
Having deliberated in private on 24 February
and
22 June 1994,
Delivers the following
judgment, which was adopted on
the last-mentioned
date:
_______________
* Note by the Registrar. The
case is numbered
26/1993/421/500. The first number is the case's
position on
the list of cases referred to the Court in the relevant
year
(second number). The last two numbers indicate the
case's
position on the list of cases referred to the Court since
its
creation and on the list of the corresponding
originating
applications to the
Commission.
_______________
PROCEDURE
1.
The case was referred to the Court by the European
Commission of
Human Rights ("the Commission") on 12 July 1993,
within the
three-month period laid down by Article 32 para. 1
and Article 47
(art. 32-1, art. 47) of the Convention. It
originated in an
application (no. 15484/89) against the United
Kingdom of Great
Britain and Northern Ireland lodged with the
Commission under
Article 25 (art. 25) on 15 June 1989 by a
British citizen, Mr Edward
Wynne.
The Commission's request referred to Articles 44
and 48
(art. 44, art. 48) and to the declaration whereby the
United
Kingdom recognised the compulsory jurisdiction of the
Court
(Article 46) (art. 46). The object of the request was
to
obtain a decision as to whether the facts of the
case
disclosed a breach by the respondent State of its
obligations
under Article 5 para. 4 (art. 5-4) of the
Convention.
2. In response to the enquiry made in accordance
with
Rule 33 para. 3 (d) of the Rules of Court, the
applicant
stated that he wished to take part in the proceedings
and
designated the lawyers who would represent him (Rule
30).
3. The Chamber to be constituted included ex
officio
Sir John Freeland, the elected judge of British
nationality
(Article 43 of the Convention) (art. 43), and Mr R.
Ryssdal,
the President of the Court (Rule 21 para. 3 (b)).
On
25 August 1993, in the presence of the Registrar,
the
President drew by lot the names of the other seven
members,
namely Mr F. Gölcüklü, Mr F. Matscher, Mr
B. Walsh,
Mr C. Russo, Mr A. Spielmann, Mr M.A. Lopes Rocha
and
Mr L. Wildhaber (Article 43 in fine of the Convention
and
Rule 21 para. 4) (art. 43).
4. As President
of the Chamber (Rule 21 para. 5),
Mr Ryssdal, through the Registrar,
consulted the Agent of the
Government of the United Kingdom ("the
Government"), the
applicant's lawyers and the Delegate of the
Commission on the
organisation of the proceedings (Rules 37 para. 1
and 38). In
accordance with the order made in consequence, the
Registrar
received on 29 November 1993 the Government's memorial
and, on
10 and 22 December 1993, the applicant's. On 27 January
1994
the applicant's submissions on Article 50 (art. 50) of
the
Convention were received. The President consented to
the
filing of further written submissions by the applicant
on
23 February 1994 (Rule 37 para. 1, second
sub-paragraph).
5. In accordance with the President's
decision, the
hearing took place in public in the Human Rights
Building,
Strasbourg, on 23 February 1994. The Court had held
a
preparatory meeting beforehand.
There
appeared before the Court:
(a) for the
Government
Mr I. Christie, Foreign and Commonwealth Office,
Agent,
Mr D. Pannick, QC,
Counsel,
Mr H. Carter, Home Office,
Ms J.
Hutcheon, Home Office,
Ms H. Bayne, Home Office,
Advisers;
(b) for the Commission
Mr F.
Martínez, Delegate;
(c)
for the applicant
Mr E. Fitzgerald,
Barrister-at-law,
Mr B. Emmerson, Barrister-at-law,
Counsel,
Mr A. Devine,
Solicitor.
The Court heard addresses by Mr Martinez, Mr
Fitzgerald
and Mr Pannick.
AS TO THE
FACTS
I. The Circumstances of the case
6.
In 1964 the applicant was convicted of the murder of a
woman whom he
had violently assaulted. He was sentenced to a
mandatory term of
life imprisonment. At that time the doctor
who examined him found
no signs of mental illness or
abnormality. In May 1980 he was
released on life licence
after a positive recommendation by the
Parole Board.
7. In June 1981 the applicant killed a 75
year-old woman
who was placing flowers on a family grave in a
London
cemetery. He cut her throat with a knife. In December
1981
he pleaded not guilty to murder, but guilty to manslaughter
on
the ground of diminished responsibility. This plea
was
accepted by the court and in January 1982 a
discretionary
sentence of life imprisonment was imposed (see
paragraph 12
below). The trial judge considered that a life
sentence was
appropriate in view of the extreme danger to the public
which
the applicant represented. The court, at the same
time,
revoked his life licence under section 62 (7) of the
Criminal
Justice Act 1967 ("the 1967 Act"; see paragraphs 14
and
15 below). The applicant claims that he was informed in
1983
by prison officers at H.M. Prison Wormwood Scrubs that he
was
subject to the regime for discretionary life
sentences.
8. In December 1985 the applicant was transferred
to the
hospital wing of Parkhurst Prison. Since then he has
been
transferred to Gartree Prison where he is held as
a
"Category A" (high security) prisoner.
9. The
applicant was considered for parole by the Parole
Board in January
1989. The Board recommended that his case be
referred again to the
local review committee in 1994. By
letter dated 14 August 1989 to
the applicant's Member of
Parliament, the Home Office gave the
following information:
"In accordance with paragraph 4
[of section 61
of the 1967 Act], the trial judge and Lord
Chief
Justice were consulted in September 1987.
In
the light of their views, it was decided that
[the applicant's] case should be referred to the
local review
committee, as the first stage in a
formal review by the
Parole Board, in June 1988.
The local review committee
considered the case
at that time [June 1988] and the Parole
Board
considered it in January 1989. The Board
did
not feel able to recommend [the applicant's]
release and recommended instead that it should
be referred to
the local review committee (as
the first stage in a further
formal review) in
January 1994. This recommendation was
accepted
and [the applicant] was informed
accordingly.
He should have been told in February, but
owing
to an oversight at Gartree I am afraid that
he
was not informed until last month. You will
appreciate that I cannot forecast what the
outcome of the
next review will be or say when
[the applicant] might be
released. When the
Parole Board consider [the applicant's]
case in
1994 the tariff will have been satisfied and
the
question of risk will be the overriding
consideration. Indeed, the Parole Board will
have borne the
question of risk in mind in
making their recommendation as to
the date of
the next review. As you know, the safety of
the
public is paramount and no life sentence
prisoner will be released if the assessment of
risk is
unsatisfactory, no matter how long he
has been
detained."
10. He subsequently learned that the "tariff"
period fixed
by the trial judge in respect of his second offence
expired in
June 1991 (see paragraph 17 below as regards the
"tariff"
period).
11. In a Home Office memorandum
dated 5 June 1992 the
applicant was informed that the "tariff" in
respect of his
conviction in 1964 had now been served and that his
continued
detention was based on the risk he
represented.
II. Relevant domestic law and
practice
A. Life sentences
12. Murder
carries a mandatory sentence of life
imprisonment under the Murder
(Abolition of Death Penalty)
Act 1965. A person convicted of
manslaughter may be sentenced
to life imprisonment at the discretion
of the trial judge.
Such a discretionary life sentence of
imprisonment may also be
passed in certain other cases where the
offence is grave and
where there are exceptional circumstances which
demonstrate
that the offender is a danger to the public and that it
is not
possible to say when that danger will subside (see, in
this
connection, the Thynne, Wilson and Gunnell v. the
United
Kingdom judgment of 25 October 1990, Series A no.
190-A,
pp. 19-20, paras. 50-53).
B. Release on
licence and revocation of a licence
13. Under section 61 of
the 1967 Act the Secretary of State
may release on licence a person
sentenced to life imprisonment
only if recommended to do so by the
Parole Board, and after
consultation with the Lord Chief Justice of
England and the
trial judge if available. By virtue of section 62
(1) the
Secretary of State may revoke the licence of a person
whose
recall to prison is recommended by the Parole
Board.
14. Under section 62 (7) of the 1967 Act, if a
person
subject to a licence is convicted on indictment of an
offence,
the trial court may, whether or not it passes any
other
sentence on him, revoke the licence.
15.
The effect of revocation of a licence, whether by the
Secretary of
State or by a court, is that the person is liable
to be detained in
pursuance of his sentence (section 62 (9) of
the 1967
Act).
16. It is the duty of the Parole Board to advise
the
Secretary of State with respect to, inter alia, the release
on
licence under section 61, and the recall under section 62,
of
persons whose cases have been referred to the Board by
the
Secretary of State (section 59 of the 1967 Act; see also
the
above-mentioned Thynne, Wilson and Gunnell
judgment,
pp. 21-22, paras. 57-58).
C.
Procedures for review of life sentences
17. Prior to 1992, in
respect of both mandatory and
discretionary life sentences, the
Secretary of State would
receive the views of the judiciary (the
trial judge and the
Lord Chief Justice) on the period deemed
necessary to satisfy
the requirements of retribution and deterrence
("the tariff
period") and of the Parole Board on the question of
risk. The
Secretary of State would decide when, if at all, it
was
appropriate to release the prisoner on life
licence.
He accepted the views of the judiciary,
in
discretionary life sentence cases, as to the length of
the
tariff period. However, in mandatory life sentence cases
he
formed his own judgment on that question, taking into
account
the views of the judiciary (for the distinction
between
discretionary and mandatory life sentences, see
the
above-mentioned Thynne, Wilson and Gunnell
judgment,
pp. 19-20, paras. 50-53).
18. Following
the judgment of the European Court in the
case of Thynne, Wilson and
Gunnell (loc. cit.) changes to the
procedures for the release of
discretionary life prisoners
were introduced by the Criminal Justice
Act 1991 ("the 1991
Act"). Parliament decided, however, not to
extend these
changes to mandatory life sentences. Under section 34
of this
Act discretionary life prisoners are now informed by the
trial
judge, in open court, of the tariff period appropriate for
the
offence. After the expiry of that period, the prisoner has
a
right to be released on life licence if and when the
Parole
Board decides that it is safe to do so. They are entitled
to
appear before the Board in person, to see all the
reports
placed before it, and to call witnesses and submit
documentary
evidence. When the Board decides that a prisoner should
be
released the Secretary of State is under a duty to do
so
(section 34 (3) of the 1991 Act).
Section
34 (7) (a) of the 1991 Act specifically
excludes from eligibility
for review under the new procedures
a discretionary life prisoner
who is also serving a mandatory
life sentence.
19.
In the debate in the House of Commons on 16 July 1991
concerning
this legislation, the Minister of State for the
Home Department made
the following statement concerning the
differences between mandatory
and discretionary life
sentences:
"Mandatory
life sentence cases ... raise quite
different issues and the
Government do not agree that
it is appropriate to extend a
similar procedure to
these cases. In a discretionary case,
the decision on
release is based purely on whether the
offender
continues to be a risk to the public. The
presumption
is that once the period that is appropriate
to
punishment has passed, the prisoner should be
released
if it is safe to do so.
The
nature of the mandatory sentence is different. The
element
of risk is not the decisive factor in handing
down a life
sentence. According to the judicial
process, the offender
has committed a crime of such
gravity that he forfeits his
liberty to the State for
the rest of his days. If necessary,
he can be detained
for life without the necessity for a
subsequent
judicial intervention.
The
presumption is, therefore, that the offender should
remain in
custody until and unless the Home Secretary
concludes that
the public interest would be better
served by the prisoner's
release than by his continued
detention. In exercising his
continued discretion in
this respect, the Home Secretary must
take account not
just of the question of risk, but of how
society as a
whole would view the prisoner's release at
that
juncture. The Home Secretary takes account of
the
judicial recommendation, but the final decision
is
his."
20. In relation to mandatory life
prisoners, the Secretary
of State continues to decide the length of
the tariff after
considering advice from the judiciary and any
representations
which the prisoner wishes to make. After the expiry
of that
period, he has power to release the prisoner on life
licence
if recommended to do so by the Parole Board. The decision
on
whether to release is for him alone.
21. 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".
22. In
determining the principles of fairness that apply to
the procedures
governing 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" (R. v. Parole Board, ex parte
Bradley (Divisional
Court) [1991] 1 Weekly Law Reports 135; R. v.
Parole Board,
ex parte Wilson (Court of Appeal) [1992] 2 All England
Reports
576; R. v. Secretary of State for the Home
Department,
ex parte Cox (judgment of the Divisional Court
of
4 September 1992); R. v. Parole Board, ex parte Creamer
and
Scholey (judgment of the Divisional Court of
21
October 1992)).
23. In R. v. Secretary of State for the Home
Department, ex
parte Doody [1993] 3 All England Reports 92, the
House of
Lords observed that, in contrast with the position as
regards
discretionary life sentences, the theory and the practice
in
respect of mandatory life sentences were out of
tune.
In his speech, with which the other Law Lords
agreed,
Lord Mustill explained that the policy whereby murder
was
treated as an offence so grave that the proper penal
element
of the sentence was detention for life was inconsistent
with
the practice adopted by successive Secretaries of State that
a
mandatory life sentence included a "tariff" period to
reflect
the requirements of retribution and deterrence. A
mandatory
life prisoner knew that once he had served the penal
element
of his sentence the penal consequences of his crime had
been
exhausted.
Nevertheless, the Secretary
of State was not obliged to
adopt the judicial view of the "tariff"
period and it was he
who was entrusted with the task of deciding on
the prisoner's
release. He was entitled to depart from the judge's
advice
and to have regard to broader considerations of a
public
character than those which applied to an ordinary
sentencing
function. He added (loc. cit., p. 105):
"The discretionary and mandatory life sentences, having
in
the past grown apart, may now be converging.
Nevertheless, on
the statutory framework, the
underlying theory and the
current practice there
remains a substantial gap between
them. It may be - I
express no opinion - that the time is
approaching when
the effect of the two types of life sentence
should be
further assimilated. But this is a task
for
Parliament, and I think it quite impossible for
the
courts to introduce a fundamental change in
the
relationship between the convicted murderer and
the
State, through the medium of judicial
review."
Lord Mustill considered that, having regard to
the
rights which discretionary prisoners had, the Secretary
of
State was required to comply with the following
requirements
of procedural fairness when fixing the penal element in
a
mandatory life sentence: the Secretary of State must
inform
such a prisoner of the judicial advice on the length of
the
"tariff", and give him the opportunity to make
written
representations on that subject before he decides on
the
appropriate term of years. If the Secretary of State
departs
from the judicial advice, he must give reasons for doing
so.
PROCEEDINGS BEFORE THE COMMISSION
24. The
applicant lodged his application (15484/89) on
15 June
1989.
He complained under Article 5 para. 4 (art. 5-4) of
the
Convention that he was unable to have the continued
lawfulness
of his detention reviewed by a tribunal.
He also complained about a number of other matters,
including an
alleged assault by prison staff in June 1985 and
his transfer from
hospital to prison subsequent to
December 1985. He further claimed
that he had been prevented
from defending himself and had no
domestic remedies available
to him in respect of his various
complaints. In these
connections he relied on Articles 6, 8, 10 and
13 (art. 6,
art. 8, art. 10, art. 13) of the Convention and Article
1 of
Protocol No. 1 (P1-1).
25. On 15 October
1992 the Commission declared the
applicant's complaint admissible in
so far as it raised issues
under Article 5 para. 4 (art. 5-4) of the
Convention. The
remainder of the application was declared
inadmissible.
In its report of 4 May 1993 drawn up under
Article 31
(art. 31), the Commission expressed the opinion that
there had
been no violation of Article 5 para. 4 (art.
5-4)
(ten votes to five). The full text of the
Commission's
opinion and of the dissenting opinion contained in the
report
are reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar.
For practical reasons this annex
will appear only with the printed
version of the judgment
(volume 294-A of Series A of the
Publications of the Court),
but a copy of the Commission's report is
obtainable from
the
registry.
_______________
AS TO THE
LAW
26. The applicant alleged a breach of Article 5 para.
4
(art. 5-4) which provides:
"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."
27. The applicant maintained that he was now
detained
primarily under the authority of the discretionary
sentence;
that in any event Article 5 para. 4 (art. 5-4) applied in
the
same manner to mandatory life sentences as it did
to
discretionary sentences; and, further, that he ought,
at
least, to be able to have reviewed the lawfulness of
his
continued detention under the discretionary
sentence.
The Court has examined each of these claims in
turn.
A. The legal basis for the applicant's
detention
28. The applicant submitted in the first place that
it is
the discretionary life sentence which has become the real
and
effective basis for his detention since his conviction
in
1982. It was this sentence, imposed on him because of
his
dangerousness, which was intended by the trial judge to be
the
primary authority for this detention from then on. While
he
did not suggest that the mandatory sentence had
disappeared,
the judicial objective served by both the mandatory and
the
discretionary sentences had become a preventive one
following
his second conviction. The revocation of the mandatory
life
licence was thus, in reality, the logical corollary of
the
discretionary sentence.
In the
alternative, he maintained that the judicial
finding in 1982 that he
was suffering from a long-standing
mental disorder broke the chain
of causation between the
original mandatory life sentence and his
subsequent
re-detention under that sentence. His legal status
was
altered to that of someone who was not fully responsible
for
his actions who needed to be left in preventive
detention.
He was - he claimed - thus entitled under
Article 5
para. 4 (art. 5-4) to have the lawfulness of his
continued
detention determined by a court.
29.
For both the Government and the Commission the
mandatory life
sentence continued to be operative following
the revocation of his
life licence.
30. The Court notes that the applicant received
a mandatory
life sentence in 1964 and was released on life licence
in
1980. This, however, was revoked by the trial judge in
1982
following the applicant's conviction for manslaughter. As
a
result his detention thereafter was based on both
the
mandatory sentence, which remained in force, and the
new
discretionary life sentence (see paragraphs 6, 7
and
15 above). The fact that he committed a further offence
in
1981 and was judged to be suffering from a mental disorder
at
that time in no way affected under English law the
continued
validity of the original sentence or its reactivation on
his
recall. It merely provided a supplementary legal basis
for
his detention.
B. Entitlement to review of
the lawfulness of detention
under the mandatory life
sentence
31. The applicant further submitted that Article 5
para. 4
(art. 5-4) applied to mandatory life sentences in the same
way
as it applied to discretionary life sentences. He
maintained
that the distinction made by the Court in the case of
Thynne,
Wilson and Gunnell v. the United Kingdom (loc. cit., pp.
27
and 29, paras. 70, 73-74) between these two types of
life
sentence was no longer valid since it was based on the
false
assumption that a mandatory sentence had as its object
the
punishment of a murderer for life. In fact the
mandatory
sentence had not been interpreted in this way by
Parliament,
the courts, the Parole Board or by successive
Home
Secretaries. Indeed recent court decisions have described
the
mandatory sentence as composed, like the discretionary
life
sentence, of a period of punishment (the "tariff") to
reflect
the requirements of retribution and deterrence as well as
a
period of preventive detention, following the expiry of
the
"tariff" period. Furthermore, the procedures that
have
developed to review the mandatory sentence have been
founded
on the understanding that when the requirements of
punishment
have been satisfied the only justification for
continued
detention is dangerousness. In particular, there is
a
presumption that at this point the prisoner will be
released
unless he is a danger to the public.
Accordingly, he submitted, it follows from the very
nature of the
mandatory life sentence that the applicant is
entitled to invoke the
same protection afforded under
Article 5 para. 4 (art. 5-4) to
discretionary life prisoners
in the post-tariff stage, namely a
review by a court of his
continued
dangerousness.
32. The Government, with whom the Commission
agreed,
contended that a mandatory life sentence was imposed
as
punishment for the gravity of the offence of murder,
as
perceived by Parliament. By contrast, a discretionary
life
sentence was imposed because of the judicial assessment of
the
offender as mentally unstable or dangerous, conditions
which
may change over time. They rejected the applicant's
thesis
that the mandatory sentence was handed down in part
for
reasons of security and risk, pointing out that a trial
judge
was obliged under English law to sentence a murderer to
life
imprisonment even if he was satisfied that the murderer
posed
no danger as, for example, in the case of "mercy
killing".
Parliament had considered that such a grave crime deserved
to
be punished by life imprisonment and had removed
all
discretion as to sentencing from the trial court.
The
sentencing of a murderer could thus not be characterised as
a
decision of the court to confine a dangerous offender
unless
and until he was safe to be released. Moreover, it was
a
matter for the Secretary of State to decide if and when
a
murderer should be released on licence having regard to
the
public interest, in the light of stated criteria which
govern
the exercise of this discretion (see paragraphs 19
and
21 above).
In sum, the requirements of
Article 5 para. 4
(art. 5-4) were satisfied by the original trial
procedure.
33. The Court recalls its judgment in Thynne,
Wilson and
Gunnell (loc. cit.) where it held that discretionary
life
prisoners were entitled under Article 5 para. 4 (art. 5-4)
to
take proceedings to have the lawfulness of their
continued
detention decided by a court at reasonable intervals and
to
have the lawfulness of any re-detention determined by a
court.
This view was taken because of the very nature of
the
discretionary life sentence which, unlike the
mandatory
sentence, was imposed not because of the inherent gravity
of
the offence but because of the presence of factors which
were
susceptible to change with the passage of time, namely
mental
instability and dangerousness. A clear distinction was
drawn
between the discretionary life sentence which was
considered
to have a protective purpose and a mandatory life
sentence
which was viewed as essentially punitive in nature
(ibid.,
pp. 27 and 29, paras. 70, 73-74).
34. The
applicant is now asking the Court to reconsider its
characterisation
of the mandatory sentence in Thynne, Wilson
and Gunnell on the
grounds inter alia that recent English
judicial pronouncements have
tended to assimilate both types
of life
sentence.
35. The Court notes judicial comments to the effect
that
the theory and practice of the mandatory sentence are out
of
tune and that, for purposes of procedures designed to
consider
the release of the mandatory prisoner as well as the
standards
of fairness applicable to such procedures, the
mandatory
sentence should also be seen as containing both a punitive
and
a preventive element (see paragraphs 22-23
above).
However, the fact remains that the mandatory
sentence
belongs to a different category from the
discretionary
sentence in the sense that it is imposed automatically
as the
punishment for the offence of murder irrespective
of
considerations pertaining to the dangerousness of the
offender
(see paragraph 12 above). That mandatory life prisoners
do
not actually spend the rest of their lives in prison and
that
a notional tariff period is also established in such
cases
- facts of which the Court was fully aware in Thynne,
Wilson
and Gunnell (loc. cit., p. 29, para. 74), - does not
alter
this essential distinction between the two types of
life
sentence.
As observed by the House of
Lords in R. v. Secretary of
State, ex parte Doody, while the two
types of life sentence
may now be converging there remains
nonetheless, on the
statutory framework, the underlying theory and
the current
practice, a substantial gap between them (see paragraph
23
above). This is borne out by the very facts inter alia
relied
on by the applicant to support his case, namely that
in
mandatory life sentences the release of the prisoner
is
entirely a matter within the discretion of the Secretary
of
State who is not bound by the judicial recommendation as
to
the length of the tariff period and who is free under
English
law to have regard to other criteria than
dangerousness,
following the expiry of the "tariff" period, in
deciding
whether the prisoner should be released (see paragraphs 19,
21
and 23 above). It is further reflected in the decision
of
Parliament to limit the application of the new procedures
in
the 1991 Act to discretionary life sentences only, even
in
cases like the present where the prisoner is serving both
a
mandatory and a discretionary life sentence (see paragraph
18
above).
36. Against the above background, the
Court sees no cogent
reasons to depart from the finding in the
Thynne, Wilson and
Gunnell case that, as regards mandatory life
sentences, the
guarantee of Article 5 para. 4 (art. 5-4) was
satisfied by the
original trial and appeal proceedings and confers
no
additional right to challenge the lawfulness of
continuing
detention or re-detention following revocation of the
life
licence (see, mutatis mutandis, the Cossey v. the
United
Kingdom judgment of 27 September 1990, Series A no.
184,
p. 14, para. 35). Accordingly, in the circumstances of
the
present case, there are no new issues of lawfulness
which
entitle the applicant to a review of his continued
detention
under the original mandatory life
sentence.
C. Entitlement to review of the lawfulness of
detention
under the discretionary life
sentence
37. The applicant has, however, also contended that
at the
very least Article 5 para. 4 (art. 5-4) confers on him
the
right to challenge the lawfulness of his detention on
the
basis of the discretionary life sentence.
38.
The Court does not accept this claim. A review of the
lawfulness of
the applicant's detention following his
conviction for manslaughter
(see paragraph 7 above) would be
devoid of purpose since he is also
serving a mandatory life
sentence for murder at the same time and
enjoys no possibility
of release until the Secretary of State
considers that it is
in the public interest to do so (see, mutatis
mutandis, the
Fox, Campbell and Hartley v. the United Kingdom
judgment of
30 August 1990, Series A no. 182, p. 31, para. 73,
and
paragraphs 19, 21 and 23 above).
D.
Conclusion
39. In conclusion, there has been no violation
of
Article 5 para. 4 (art. 5-4).
FOR THESE REASONS,
THE COURT UNANIMOUSLY
Holds that there has been no
violation of Article 5
para. 4 (art.
5-4).
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting
Registrar
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