17 November 2010

FOURTH SECTION
Application no. 17233/08
by Thomas MCCABE
against the United Kingdom
lodged on 28 March 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Thomas McCabe, is a British national who was born in 1964 and lives in Lisburn. He is represented before the Court by Madden & Finucane, a firm of lawyers practising in Belfast.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was born on 29 January 1964 in Northern Ireland, but subsequently moved to England. On 1 February 1990 the applicant, whilst intoxicated, violently assaulted and killed the cousin of his then-girlfriend. He was convicted of murder and sentenced on 29 October 1990 to a mandatory life sentence. The trial judge recommended that the tariff part of the sentence be set at ten years; however, the Lord Chief Justice stated that he took a more severe view and recommended a tariff of eleven years. The Secretary of State for the Home Department set a tariff of eleven years in respect of the offence and the applicant was advised accordingly that his tariff would expire in February 2001.
The applicant was transferred to a prison in Northern Ireland. The transfer was initially temporary but on 21 January 1992, the transfer became permanent and it was agreed that the applicant would serve the remainder of his prison term in Northern Ireland. On 23 January 1992 the applicant signed a document to indicate his agreement that the differences between the English and the Northern Irish penal systems had been explained to him and that he understood that under the Northern Irish system, a review of his life sentence would be carried out after he had served ten years and that a release date might then be set. The Secretary of State notified the relevant authorities in Northern Ireland that the applicant had had an eleven-year tariff set in respect of his life sentence and that the first review of his sentence should take place in February 1998.
The applicant's sentence was first reviewed in Northern Ireland on 11 April 2000, by the Life Sentences Review Board (LSRB). This review was conducted after the applicant had spent approximately ten years in prison, in keeping with the Northern Irish system. The LSRB recommended to the Secretary of State that a provisional release date should be set in respect of the applicant. Such dates were generally set approximately one year after the date of the review. In the intervening period, a prisoner would enter the Pre-Release Scheme (PRS). The Secretary of State agreed to the recommendation of the LSRB on 7 July 2000. The applicant therefore joined the PRS on 17 July 2000.
The PRS normally comprised three “phases.” As part of the first phase, the prisoner would be found work and prepared for the following phases. This phase would normally last only a few weeks. The second phase would generally last thirteen weeks and the prisoner would work at an approved job; stay in the PRS unit of the prison on week-nights; and have weekend paroles during which they would stay in approved hostels. During the third phase, which would last six months, the prisoner would live and work full-time in the community, working in an approved job, whilst reporting to the PRS unit, generally on a fortnightly basis.
On 30 October 2000, whilst the applicant was nearing the completion of phase two of his PRS and on weekend parole, he consumed alcohol during the course of a celebration thrown by his family in Newry. As a result he slept in and missed work the following day. He was telephoned by the prison authorities and advised that he would be collected and returned to prison. The applicant panicked and left the family home. He was unlawfully at large until 12 November 2000 when he handed himself in to the police and was returned to prison.
The applicant was readmitted to the PRS on 19 September 2001 after having completed further offence-focussed work and initiatives designed to help him combat his problem with alcohol. He attended an eight-week residential alcohol course and thereafter was based at the PRS unit.
On 8 October 2001, the Life Sentences (Northern Ireland) Order 2001 (the Order) entered into force. (See Relevant Domestic Law and Practice below).
The applicant entered phase 3 of the PRS on 18 February 2002. He was at first housed in a hostel but was subsequently permitted to move out of the hostel and in with his new girlfriend, “O”, whom he had met on the residential alcohol course. He and O travelled to Newry for the funeral of the applicant's cousin in April 2002. He had previously been absent from his work on 15 and 16 April due to ill health. The applicant consumed alcohol heavily whilst in Newry. He was arrested there by police on 23 April 2002 and returned to prison. By letter dated the following day, he was advised that he was suspended from the PRS for failing to attend work on 17 April 2002; being unlawfully at large from 17-23 April 2002; and failing to notify the PRS unit of his absence from work on 15-16 April 2002.
On 7 June 2002, the applicant's solicitors wrote to the prison service to seek confirmation that the applicant had been removed from the PRS; to request reasons for such a decision; to assert that such removal was unlawful and in breach of the applicant's Article 5 and 6 rights; and to request his restoration to the scheme. They also stated that judicial review proceedings would be initiated if their requests were not met. His solicitors drew the attention of the prison service to the then-recent judgment in Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002‑IV and asserted that no distinction could be drawn between that case and the applicant's in terms of rights under Article 5. The solicitors asserted that the applicant had served the portion of his sentence which related to punishment and could therefore only be kept in prison to prevent danger to society. As his recall to prison was not motivated by any perceived risk to the public or violent offending on the part of the applicant, and had been taken without recourse to judicial authority, it was therefore allegedly unlawful.
The applicant's solicitors also wrote to the Secretary of State on 18 June 2002, contending that since the applicant had already had a tariff set when he was originally sentenced and had now served that tariff period, the Secretary of State had no power to set a tariff in respect of the applicant pursuant to the Order. Furthermore, since the last consideration of the applicant's case by the LSRB had been in April 2000, his case should have been reviewed in April 2002, given that the maximum period between reviews by the LSRB should be two years.
The applicant's solicitors then sought judicial review on his behalf on 3 July 2002, complaining about the failure of the Northern Irish authorities to consider the applicant's English tariff and the failure to administer his sentence on the basis that he had by February 2001 already served the part of his sentence relating to retribution and punishment. It was also claimed that the applicant should have had a hearing before a judicial body competent to determine the issue of risk surrounding the applicant's release; that the Secretary of State's failure to refer his case immediately to the LSRC was unlawful and not within the spirit of Article 5; and that his removal from the PRS and return to prison on 23 April 2002 was unlawful.
The applicant's case was referred to the Lord Chief Justice for a recommendation as to the tariff to be set on 20 January 2003 and on 5 March 2003, the Lord Chief Justice recommended that the applicant's tariff be fixed at eleven years. The applicant was advised of this and asked to make any desired representations to the Secretary of State by 7 April 2003. No representations were made. The applicant's case was formally referred to the LSRC on 3 April 2003.
The applicant's judicial review application was heard by the High Court of Justice, which handed down its decision on 3 July 2003. Regarding the applicant's challenge to his recall to prison on 23 April 2002, the court noted that the applicant's behaviour whilst on the PRS showed a clear pattern whereby he could not be trusted to comply with his conditions. He had been unlawfully at large on a number of occasions and had assaulted a prison officer during his return to prison on 23 April 2002. His reliance upon the case of Stafford (cited above) was found not to be well-founded, since the applicant had not been released on licence like the applicant in Stafford but merely placed on temporary release, which he was aware could and would be revoked if he breached the conditions. The prison authorities were rightly concerned that, given the circumstances of the applicant's offence, his drinking could lead to further violent offences. With regard to the alleged delay in referring the applicant's case to the LSRC, the court found that this had in part been caused by the applicant's judicial review application and by the passage of another case, which challenged the lawfulness of the Order and therefore created some uncertainty until it was resolved, through the Northern Irish court system. As to the applicant's continued detention, this was due to his failure successfully to complete a PRS. The successful completion of the PRS would conclude the penal element of his sentence and lead to consideration of his release. It was noted that a hearing before the LSRC was scheduled for August 2003 and that for the purposes of Article 5 § 4, the LSRC was the competent body to determine the lawfulness of the applicant's detention. The application for judicial review was dismissed.
At the LSRC hearing held on 18 August 2003, the Commissioners declined to order the applicant's release.
The applicant re-entered the PRS in September 2003, but was unlawfully at large again between 27 December 2003 and 18 February 2004. His case came before the LSRC again on 25 November 2004, on which date the hearing was adjourned to March 2005. Again, the LSRC did not direct his release. At a further hearing before the LSRC in October 2006, the applicant's case was adjourned for one year to permit the applicant to be tested in a special PRS.
The applicant appealed to the Court of Appeal against the decision to refuse his application for judicial review. His appeal was dismissed on 24 April 2007. The Court of Appeal agreed with the applicant's contention and disagreed with the High Court, finding that the tariff which had been fixed for him at the time of his sentencing had followed him when he had been transferred to Northern Ireland. It had therefore been a breach of Article 6 § 1 of the Convention to treat the applicant as if there had been no tariff fixed for him. Furthermore, the applicant's case should have been examined by an independent tribunal after the expiry of his tariff in February 2001. The LSRB did not count as such a body, though it had examined the applicant's case with “exemplary care”. The applicant's case had not been examined by an Article 5 § 4-compliant tribunal until April 2003. There had therefore been a breach of Article 5 § 4 which continued between February 2001 and April 2003.
However, the Court of Appeal also found the applicant's argument that the LSRB had been concerned only with the applicant's failure to comply with his conditions and not with the issue of risk to the public to be entirely without merit. The applicant had shown, through the breach of his conditions, that he remained unable to control his alcoholism and as such still constituted a serious risk to the public. The applicant had been lawfully sentenced and lawfully imprisoned, and was lawfully subject to the prison's rules. He had breached a fundamental condition of his temporary release by consuming alcohol, which was itself intrinsically linked to the potential risk posed by the applicant to the public. He had therefore been lawfully arrested and recalled to prison. Had his case been considered by an Article 5 § 4-compliant tribunal in February 2001, it would have reached exactly the same conclusion as had been reached by the LSRB in 2000; namely that the applicant was not yet ready for release. As such, the applicant had sustained no damage as a result of the breaches of his Convention rights identified by the Court of Appeal. Moreover, the declarations sought by the applicant would be valueless and the court declined to make them.
 In an addendum to the judgment, the Court of Appeal rejected the applicant's claim that there had additionally been a breach of Article 5 § 1 of the Convention, holding that the LSRB had examined the applicant's case before the expiry of the tariff period and had taken steps to determine whether he was a danger to the public and that there was no basis for holding that his continued detention was arbitrary. The Court of Appeal further held that, even if there had been a breach of Article 5 § 1, the declarations sought by the applicant would have been rejected on the same grounds as under Article 5 § 4.
The applicant sought permission to appeal to the House of Lords, which was refused by the Court of Appeal on 23 May 2007 and by the Appellate Committee of the House of Lords on 23 October 2007, on the grounds that there was no arguable point of law of public importance involved.
B.	Relevant domestic law and practice
The Life Sentences Review Board
The LSRB, replaced in 2001 by the LSRC, was an administrative body whose membership included the Permanent Under-Secretary of the Northern Ireland Office and other senior Northern Ireland Office officials; a Principal Medical Officer of the Department of Health and Social Services; a Consultant Psychiatrist and the Chief Probation Officer. It provided an advisory function to the Secretary of State for Northern Ireland in respect of life sentence prisoners, their release dates and provisional release dates and other matters pertaining to their sentences. It did not have the power to order the release of a prisoner.
The Life Sentences (Northern Ireland) Order 2001
The Order came into force on 8 October 2001. It established the LSRC, a body made up of Commissioners appointed by the Secretary of State, which is to comprise at least one of each of a registered medical practitioner, a qualified lawyer, a chartered psychologist, a person with knowledge and experience relating to the aftercare and supervision of discharged prisoners and a person who has studied the causes of delinquency or the treatment of offenders.
The Order also imposed upon the Northern Irish courts the duty to fix a “tariff” or minimum period, in respect of all those sentenced to life imprisonment after its coming into force. The tariff is understood to be the period necessary to satisfy the requirements of retribution and deterrence, and once the tariff in respect of a prisoner expired, the Secretary of State was obliged to refer his case to the LSRC. If the LSRC were satisfied that continued imprisonment was no longer necessary for the protection of the public, it was obliged to direct the prisoner's release. It then became the duty of the Secretary of State to release him. The LSRC's powers are therefore more extensive than those of the LSRB, in that the former has the power to order a prisoner's release. A prisoner is entitled to require the Secretary of State to refer his case to the LSRC upon the expiry of his tariff and at two-yearly intervals thereafter.
The Order also provided that, for those sentenced prior to its coming into force and transferred prisoners, a tariff could be set retrospectively and the Order would apply to them mutatis mutandis. The Secretary of State would decide what the tariff in respect of such a prisoner would have been if it had been set by the judge at the time of sentencing on the assumption that the Order had applied at the time.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his detention between February 2001 and August 2003 was not lawful because it was not in compliance with the rule of law. He further complains under Article 5 § 4 that the lawfulness of his detention was not reviewed by a “court” after the expiry of his tariff term in February 2001 until August 2003. He complains under Article 5 § 5 that he was not awarded compensation in respect of the foregoing alleged breaches. Finally, he complains under Article 13 of the Convention that this failure to award compensation meant that an effective remedy was not made available to him.
QUESTIONS TO THE PARTIES
1.  Did the lack of a review by an independent body capable of directing the applicant's release from prison between February 2001 and August 2003 amount to a violation of Article 5 §§ 1 and 4 of the Convention?

2.  Having regard to the finding of the Court of Appeal that the applicant's rights under Article 5 § 4 were violated in the present case but that no damage had been suffered by the applicant since the same result would have been reached even if an independent tribunal satisfying the requirements of that Article had examined the case, can the applicant still claim to be a victim of a violation of that provision?

3. Did the failure to award compensation in respect of the violation of Article 5 § 4 found by the Court of Appeal on 26 April 2007 amount to a violation of Article 5 § 5?