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THIRD
SECTION
DECISION
AS TO
THE ADMISSIBILITY OF
Application no. 44071/98
by Robert KERR
against the
United Kingdom
The European Court of Human Rights (Third
Section) sitting on
7 December 1999 as a
Chamber composed of
Mr J.-P. Costa,
President,
Sir
Nicolas Bratza,
Mr L. Loucaides,
Mr
W. Fuhrmann
,
Mr K. Jungwiert,
Mr K. Traja,
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 1 October 1998 by Robert
Kerr against the United Kingdom and registered on 26 October 1998 under file no.
44071/98;
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 an Irish national, born in 1956 and living
in
Belfast ,
Northern Ireland
.
He is represented before the Court by Ms Angela Ritchie, a
solicitor practising in
Belfast
with the firm Madden and Finucane.
The facts of the case, as submitted by the applicant, may be summarised
as follows.
A.
Particular circumstances of the case
On
31 May 1979 the
applicant was convicted at Belfast Crown Court of two murders and associated
offences. The court sentenced him to two life sentences in respect of the
murders and to determinate prison terms of twenty years for attempted murder and
five years for membership of a proscribed organisation.
In September 1983 he escaped from prison. He was later
recaptured and in April 1988 was convicted of forty offences in connection with
his escape. He received sentences ranging from three to seven years’
imprisonment, which the court ordered should run consecutively with the
determinate sentences but concurrently with the life sentence.
On 18 September 1995 the applicant was released on licence
pursuant to the powers granted to the Secretary of State under section 23(1) of
the Prison (Northern Ireland) Act 1953 (“the 1953 Act”). The applicant signed a
document of release which contained the following note:
“A person serving a sentence of life imprisonment who is
released on licence is liable under the provisions of section 23 of the Prison (
Northern Ireland
) Act 1953 to be recalled to prison at any time by order of
the Secretary of State.”
On
7 November 1996 the
applicant was arrested at his home. He was charged on
14 November 1996 with
conspiracy to collect and record information likely to be useful to terrorists
and the possession of such information, contrary to section 33 of the
Northern Ireland
(Emergency Provisions) Act 1996. He was remanded in custody.
On
21 November 1996 the
Secretary of State made an order under section 23(2) of the 1953 Act revoking
the applicant’s licence and recalling him to prison. In a letter dated
21 November 1996 the
Prison Service informed the applicant that his licence had been revoked by the
Secretary of State:
“… following careful consideration of all available
information about your case, including the original offence for which you
received two life sentences and information regarding the circumstances of your
recent arrest and subsequent committal to prison on
14 November 1996 charged
with terrorist-related offences. [The Secretary of State] has decided on grounds
of risk and public interest that it would be inappropriate for you to retain
your status as a life licensee.”
The applicant was also informed that he could make
representations to the Secretary of State by way of petition. As was regular
practice at the time, the applicant was not afforded the opportunity to make
such representations before the licence was revoked; nor was he provided with
any documents about the matters considered by the Secretary of State when
deciding to make the order.
By petition dated 28 February 1997 addressed to the Secretary
of State the applicant stated that he had not been found guilty of any offence
and had not been given an opportunity to refute any allegation made against him.
He requested an explanation for the revocation of his licence.
On
17 April 1997 the
applicant’s solicitors wrote to the Secretary of State requesting detailed
reasons as to why the licence had been revoked and “for further proposals now in
place to review our client’s life licence.” In a further letter dated
22 April 1997 the
applicant’s solicitors asked for particulars about the information on which the
Secretary of State had acted and details of the “public interest” which formed a
ground for his revocation. Although an acknowledgement was sent, it does not
appear that a detailed reply was furnished before the applicant commenced
judicial review proceedings on
9 May 1997 .
On
30 July 1997 the
prosecution dropped the charges against the applicant. The matter of the
revocation of the applicant’s licence was then referred back to the Secretary of
State for reconsideration. In a letter dated
31 July 1997 the Prison
Service informed the applicant that the charges against him had been withdrawn
and that the Secretary of State would again consider his case “in the light of
all information available.” The applicant was invited to make any written
representations which he might wish the Secretary of State to consider before
deciding on his suitability for release on life licence.
In a letter dated
5 August 1997 the
applicant’s solicitors wrote to the Secretary of State in the following terms:
“Our client instructs us to request copies of all material
upon which the Secretary of State will rely, in order to make effective
representations in respect of his release. Our client instructs us that he will
submit a petition as to why he should be released, however, we are instructed
that any representations he can make at this stage will inevitably be limited in
the absence of any knowledge of the concerns the Secretary of State may have in
relation to our client’s release.”
The applicant submitted a petition dated
5 August 1997 to the
Secretary of State, complaining of the procedure which had been adopted in the
revocation of his licence and asking that the licence be reinstated as soon as
possible. On
21 August 1997 the
Secretary of State determined to release the applicant again on licence, and he
was in fact released on that date.
By letter dated 18 August 1997 certain materials were
disclosed to the applicant’s solicitors, including materials considered by the
Secretary of State when revoking the licence on 21 November 1996, as well as
materials considered by the Secretary of State in August 1997 before deciding to
release the applicant. Certain documents or parts of documents were withheld
from disclosure on the ground of public interest immunity.
On
9 May 1997 the applicant
initiated judicial review proceedings to quash the decision of the Secretary of
State to revoke his licence and to obtain a declaration that the revocation was
unlawful. Following his release on licence on
21 August 1997 , the
applicant amended his statement of claim in order to limit the relief sought to
a declaration that the revocation was unlawful. He argued,
inter alia, that he should have been
given an opportunity to make representations before the licence was revoked and
been provided with the reasons for its revocation.
On
1 April 1998 the Lord
Chief Justice, Lord Carswell, gave judgment on the application. Having reviewed
domestic case-law he concluded:
“It is now clear from the authorities that fairness requires
as a general rule that (a) a prisoner whose licence is revoked must receive at
some stage an opportunity to make representations about the revocation and (b)
in order to do so effectively he must be made aware of the reasons for the
revocation if he does not already know them… We do not consider, however, that
it is possible to lay down general rules about the stage at which the
opportunity to make representations must be afforded or about the extent of any
exception to the obligation to give reasons based upon the protection of sources
of information who might be put in danger. In our view these are matters in
respect of which much may turn upon the circumstances of the individual case and
it would not be useful to prescribe procedures in any greater degree of detail.
Nor can we say with sufficient precision on the facts before
us whether the applicant was prejudiced in the present case by the procedure
adopted to an extent sufficient to make that procedure unlawful. He had the
opportunity immediately after his licence was revoked to make representations by
petition, but did not avail himself of this until over two months had passed,
and then only to complain that he had not been told why his licence had been
revoked. Nor did he at any time make any representations about the substance of
the case, the validity of the Secretary of State’s decision to revoke the
licence and the grounds for doing so…”
The Lord Chief Justice stated with regard to the above that
it would not be appropriate in the circumstances to make a declaration about the
lawfulness of the revocation of the applicant’s licence.
According to the applicant, he did not apply for leave to
appeal against the decision since it represented a correct statement of domestic
law and any appeal would have had no reasonable prospects of success.
COMPLAINTS
The applicant complains under Articles 5, 6, 8, 13 and 14 of
the Convention.
He submits as regards Article 5 that his deprivation of
liberty did not come within any of the cases defined in Article 5 § 1 (a)-(f)
and was not in accordance with a procedure prescribed by law. Furthermore, in
breach of Article 5 § 2 of the Convention, he was not informed promptly or at
all of the reasons for his continued detention. He also maintains that, in
breach of Article 5 § 4, domestic law did not entitle him to take proceedings by
which the lawfulness of his detention could be decided speedily or at all by a
court. He submits in addition that he did not have an enforceable right to
compensation in breach of Article 5 § 5.
Relying on Article 6 § 1 of the Convention, the applicant
maintains that he was denied a fair hearing in respect of the revocation and
continuance of his licence.
The applicant states that the facts of his case disclose a
breach of his right to respect for his family life and his home as guaranteed
under Article 8 of the Convention.
With reference to Article 14 of the Convention, he asserts
that life prisoners in
Northern Ireland
are less favourably treated than their counterparts in the
rest of the
United Kingdom
who enjoy basic procedural rights under section 39 of the
Criminal Justice Act 1991. On that account the applicant claims to be the victim
of discrimination.
The applicant contends that he has no effective remedy in
respect of the breaches complained of and invokes Article 13 of the Convention
in this connection.
THE LAW
1.
The applicant maintains that his detention following the revocation of
his licence amounted to a breach of Article 5 of the Convention, which provides
in relevant part:
“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; ...
(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal authority on reasonable
suspicion of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge
against him. ...
4. 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.
5. Everyone who has been the victim of arrest or detention
in contravention of the provisions of this article shall have an enforceable
right to compensation.”
The Court observes that the applicant received,
inter alia, mandatory life sentences
in 1979 following his conviction on murder charges. In 1995 he was released on
licence, being subject to recall at any time in accordance with the terms of
section 23(1) of the Prison (
Northern Ireland
) Act 1953. The Secretary of State revoked the licence on
21 November 1996 in the
exercise of the discretion conferred on him by that Act. In the Court’s opinion,
the applicant’s detention thereafter was based on the mandatory life sentences
which continued to remain in force. Furthermore, and having regard to the fact
that the applicant was arrested and charged on suspicion of involvement in
terrorist offences, it cannot be argued that there was a break in the chain of
causation between the objective of the original life sentence and the purpose of
the recall (see the Weeks v. the United Kingdom judgment of 2 March 1987, Series
A no. 114, p. 27, § 51).
In Convention terms, the applicant was lawfully detained
after conviction by a competent court within the meaning of Article 5 § 1 (a).
His complaint to the contrary is therefore inadmissible as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
The Court further observes that in its Wynne v. the United
Kingdom judgment of 18 July 1994 (Series A no. 294) the applicant in that case
submitted that Article 5 § 4 of the Convention applied to mandatory life
sentences in the same way as it applied to discretionary sentences. In support
of his contention, Mr Wynne invoked the Court’s Thynne, Wilson and Gunnell v.
the
United Kingdom
judgement of
25 October 1990 (Series
A no. 190-A). The Court rejected that submission. In its view, the fact remained
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. The essential difference between the two
types of life sentence led the Court to confirm that, as regards mandatory life
sentences, the guarantee of Article 5 § 4 was satisfied by the original trial
and conferred no additional right to challenge the lawfulness of continuing
detention or re-detention following revocation of a life licence (see the
above-mentioned Wynne judgment, pp. 14-15, §§ 35-36).
For the above reason the Court is not required to pronounce
on the adequacy of the review undertaken in the instant case. It finds that the
applicant’s complaint is inadmissible as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
The applicant further avers that, although arrested on
suspicion of involvement in terrorist offences, the charges against him were
later dropped and he was subsequently re-released on licence on
21 August 1997 . In the
Court’s opinion these factors do not lend support to the applicant’s argument
that there was no effective review from the standpoint of Article 5 § 4 of the
lawfulness of his detention following the revocation of his licence. The Court
reiterates that the requirements of Article 5 § 4 were satisfied in the
applicant’s case by the original trial procedure.
The Court is not persuaded either by the applicant’s
assertion that he was not informed promptly or at all of the reasons for his
re-detention following the revocation of the life licence. It considers that it must have been clear to the
applicant from the terms of the Secretary of State’s letter of
21 November 1996 that
the licence had been withdrawn on account of the fact that he was facing
terrorist-related charges. In any event, the reasons for the revocation of the
licence and subsequent detention were incorporated in the original conviction.
The Court further notes that the applicant signed a document at the time of his
release on licence on
18 September 1995
acknowledging that he remained liable to recall. For these reasons it is not
open to the applicant to complain about the insufficiency of the reasons for his
recall and continued detention.
Having regard to the conclusion that the applicant cannot
claim to be the victim of detention in contravention of Article 5 of the
Convention, the Court must equally conclude that the applicant cannot raise a
complaint under Article 5 § 5 of the Convention.
For the above reasons the Court finds that the applicant’s
complaints under Article 5 of the Convention are manifestly ill-founded and thus
inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.
2.
The applicant states with respect to the revocation of his life licence
that he was denied a fair procedure in breach of Article 6 of the Convention,
which provides as relevant:
“1. In the determination of ... of any criminal charge ...,
everyone is entitled to a fair hearing...”
The Court observes that the revocation of the life licence
did not involve the determination of a criminal charge against the applicant.
The complaint under this head is therefore inadmissible
ratione materiae and must be rejected
under Article 35 §§ 3 and 4 of the Convention.
3.
The applicant further complains that the revocation of the life licence
and his continued detention violated his right to respect for his family life
and home under Article 8 § 1 of the Convention, which provides as relevant:
“Everyone has the right to respect for his ... family life,
... home...”
The Court considers that any
inference with the rights invoked by the applicant are the natural consequence
of his deprivation of liberty following the revocation of his life licence,
which deprivation has been found to be compatible with the requirements of
Article 5 of the Convention. The applicant’s complaint is accordingly manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention and must be
rejected under Article 35 § 4 thereof.
4.
The applicant also complains that he is the victim of unlawful
discrimination since life prisoners in the rest of the
United Kingdom
are accorded greater procedural protection with respect to
the revocation of their life licences than is the case with such prisoners in
Northern Ireland
. The applicant relies on Article 14 of the Convention, which
provides:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.”
The Court observes that in so far
as there exists a difference in the treatment of life prisoners released on
licence in the two jurisdictions with respect to the rights accompanying their
recall to prison, this difference is based on considerations of geographical
location and not on personal characteristics of the type referred to in Article
14 of the Convention. Such a difference does not amount to discriminatory
treatment within the meaning of that Article. For this reason the applicant’s
complaint under this head is manifestly ill-founded under Article 35 § 3 of the
Convention and must be rejected under Article 35 § 4 thereof.
5.
The applicant finally complains that he was denied an effective remedy in
respect of the above complaints, in breach of Article 13 of the Convention which
states:
“Everyone whose rights and freedoms as set forth in this
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 Court recalls that Article 13 of the Convention cannot
reasonably be interpreted so as to require a remedy in domestic law in respect
of any supposed grievance under the Convention that an individual may have, no
matter how unmeritorious his complaint may be: the grievance must be an arguable
one in terms of the Convention (see the Boyle and Rice v. the United Kingdom
judgment of 27 April 1988, Series A no. 131, p. 23, § 52). Having regard to its
conclusions on the applicant’s complaints under Articles 5, 6, 8 and 14 of the
Convention, the Court finds that the complaint under this head must also be
considered manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention and thus inadmissible under Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
DECLARES THE
APPLICATION INADMISSIBLE.
S. Dollé
J.-P.Costa
Registrar President
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