Mansell v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 32072/96

by Craig Jason MANSELL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 February 1996

by Craig Jason MANSELL against the United Kingdom and registered on

28 June 1996 under file No. 32072/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a 44-year-old British national, represented by

Mr. R. Whitehead, solicitor, of Messrs. Paul Crowley & Co., Liverpool.

A. Particular circumstances of the case

On 17 December 1992 the applicant was convicted at Knutsford

Crown Court on three counts of indecent assault on men. The men

assaulted were aged between 18 and 22 at the time of the assaults.

The applicant had been previously convicted in 1986 for indecent

assault and kidnapping an 18 year old man.

In sentencing the applicant the judge stated that although the

sentence of two and a half years would normally be appropriate for an

act of indecent assault, for reasons of protection of the public, in

his judgment the proper sentence in this case was five years

imprisonment.

The Court of Appeal reviewed the sentence and determined that in

sentencing the applicant for a sentence "longer than normal", the judge

was acting pursuant to Section 2(2)(b) of the Criminal Justice Act

1991 The applicant`s parole "eligibility date" under his five year

sentence was determined to be 15 June 1995.

The Parole Board considered the case on the papers and on

9 August 1995 decided that the applicant was not suitable for parole.

The applicant was interviewed by a member of the Parole Board, who

submitted the applicant`s point of view to the panel, which decided his

case.

The applicant applied for judicial review of the decision of the

Parole Board to the High Court of Justice. He claimed that the decision

of the Parole Board was defective in that he was not afforded an oral

hearing before the Board. On 7 March 1996 the High Court refused the

application finding that the applicant was not sentenced conditionally

and that the rules which apply to the discretionary life sentences do

not apply in the applicant`s case.

The applicant was released from prison on 15 April 1996.

B. Relevant domestic law

Section 2 of the Criminal Justice Act 1991 provides:

"(1) This section applies where a court passes a custodial

sentence other than one fixed by law.

(2) The custodial sentence shall be:

(a) for such term (not exceeding the permitted maximum) as

in the opinion of the court is commensurate with the

seriousness of the offence, or the combination of the

offence and [one or more] offenses associated with it;

or

(b) where the offence is violent or sexual offence for

such longer term (not exceeding the maximum) as in the

opinion of the court is necessary to protect the

public from serious harm from the offender.

(3) Where the court passes a custodial sentence for a term

longer than is commensurate with the seriousness of the

offence,..., the court shall:

(a) state in open court that it is of the opinion that

Subsection (2)(b) above applies...

(b) explain to the offender in open court and in ordinary

language why the sentence is for such a term.

(4) A custodial sentence for an indeterminate period shall be

regarded for the purposes of Subsections (2) and (3) above

as a custodial sentence for a term longer than any actual

term."

COMPLAINTS

The applicant invokes Article 5 para. 4 of the Convention.

He claims that his "longer than normal" sentence should have

attracted a special form of parole review from the moment that he

served the period he would have served under the normal punitive

sentence. This means the sentence he would have received if his

sentence had not been lengthened to protect the public. He claims that

he should have had a review after 15 months in custody to test the

justification of his continued detention. That review should have been

before a panel of the Parole Board operating like a discretionary lifer

panel, i.e. they should have given the applicant an oral hearing and

the Home Secretary should have no power to veto its recommendations.

It is argued that the applicant`s right was violated by the denial of

an oral hearing before the board, by the delay in his first review and

by the Home Secretary`s veto power.

THE LAW

The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention that he should have been entitled to a special review to

decide on the lawfulness of his detention. He considers himself as

being in the same position as the so-called discretionary life

prisoners in that his sentence consisted of a punitive part and a

"preventive part" in which his danger to the public and therefore

lawfulness of detention should be properly reviewed. Consequently only

an oral hearing would ensure that the applicant`s mental state is

fairly assessed.

Article 5 para. 4 (Art. 5-4), 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."

The Commission first recalls that the supervision required by

Article 5 para. 4 (Art. 5-4) is normally incorporated in the decision,

where sentence of imprisonment is pronounced after conviction by a

competent court (Eur. Court HR, De Wilde, Ooms and Versyp v. Belgium

judgment of 18 June 1971, Series A no. 12, p. 40, para. 76). However,

this does not apply to detention subsequent to a sentence or detention

in which new issues might arise, such as the detention of persons of

unsound mind, where the reasons initially warranting detention may

cease to exist. Such is the case for prisoners subject to discretionary

life or indeterminate sentences (Eur. Court HR, Weeks v. the United

Kingdom judgment of 2 March 1987, Series A no. 114, p. 29, para. 58;

Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October

1990, Series A no. 190, p. 30, para. 76; Singh v. the United Kingdom

judgment of 21 February 1996, to be published in Reports 1996).

In the present case, the Commission must determine whether the

applicant was entitled, under Article 5 para. 4 (Art. 5-4) of the

Convention, to a further review of the lawfulness of his detention

after the expiry of the first two and a half years of his sentence.

The sentence imposed on the applicant was a fixed term sentence

of five years. There is no question of the sentence being imposed

because of the presence of factors which "were susceptible to change

with the passage of time, namely mental instability and dangerousness"

(above-mentioned Thynne, Wilson and Gunnell judgment, p. 29, para. 73).

Rather, there was an element of "simple" punishment as well as an

element of deterrence. It is true that the latter part of the sentence

was imposed pursuant to Section 2 of the Criminal Justice Act 1991,

which provides for sentences in the case of violent or sexual offenses

to be longer than "normal" in order to protect the public from serious

harm. Such an "increased" sentence is, however, no more than the usual

exercise by the sentencing court of its ordinary sentencing powers,

even if the "increase" has a statutory basis. In particular, nothing

in the sentencing procedure indicates that the fixed term sentence of

five years imprisonment was anything other than a sentence which was

imposed as punishment for the offenses committed.

It follows that the judicial control required by Article 5

para. 4 (Art. 5-4) of the Convention was incorporated in the original

conviction and sentence, and that Article 5 para. 4 (Art. 5-4) of the

Convention does not apply to the parole proceedings in which the

applicant was denied an oral hearing.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber