MC ILVANNY v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant is a British citizen born in 1972 and currently serving a life sentence in HM Prison Dumfries. He is represented by Robertson and Ross, solicitors practising in Paisley. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 May 1996 the applicant was convicted of murder, committed on 31 January 1996. He received a mandatory life sentence. The trial judge made no indication as to the length of sentence to be served. In January 2001, the Justice Department of the Scottish Executive informed prisoners such as the applicant of proposed changes in the law affecting life prisoners (Convention Rights (Compliance) Bill). On 8 October 2001, certain provisions of the Convention Rights (Compliance) (Scotland) Act 2001 (“the 2001 Act”) came into force bringing the law governing the release of adult mandatory life prisoners into line with discretionary life prisoners and those convicted of murder under the age of 18. The 2001 Act required the punishment part of life sentences to be fixed by a court and hearings to be held in respect of existing life prisoners. On 2 November 2001, the Scottish Ministers referred the applicant’s case to the High Court of Justiciary for a hearing under paragraph 12 of the Schedule to the 2001 Act. On 18 April 2002, the preliminary review committee (PRC) indicated, by means of a recommendation to the Scottish Ministers, that he would receive his first formal review by the Parole Board after he had served nine years. While noting the savageness of the offence and numerous misconduct reports, the PRC also took into account his recent improvement in response in prison. On 30 August 2002, the applicant applied for an extension of time to lodge a note of appeal against sentence, claiming that the judge ought to have backdated his sentence to the date when he was fully committed. On 30 September 2002, High Court of Justiciary held a punishment part hearing in respect of the applicant. Lord Drummond Young ordered that twelve years be served before release on licence. At that time it was the opinion of the High Court that no account could be taken of circumstances following the conviction of an existing life prisoner, such as good conduct in prison or the existence of a date previously intimated as a date for first formal review of his case by the Parole Board. The applicant appealed this decision, inter alia, claiming that he had been told in prison that his case would be reviewed from the nine-year point. On 4 October 2002 and 18 November 2002 the court granted the applicant an extension of the time-limit for lodging a note of appeal. On 22 November 2002, the applicant lodged his note of appeal. On 4 June 2003 the case of Flynn v. HMA 2003 JC 153 was decided in the High Court of Justiciary. On 5 June 2003, the court granted leave to appeal to the Privy Council in that case, which inter alia raised issues as to length of proceedings under Article 6 of the Convention where a punishment part hearing was held some time after the original trial proceedings. On 20 June 2003, the High Court held a hearing on the applicant’s sentence. It upheld his appeal and backdated his sentence to 2 February 1996. On 31 July 2003, the applicant lodged an extension of time request to lodge a note of appeal against the setting of the punishment part of his sentence on 30 September 2002. On 5 August 2003, the court granted the extension. On 10 August 2003, the applicant lodged his appeal against the punishment part, with grounds of appeal. On 18 August 2003, the applicant lodged a devolution minute, raising various issues of legislative competence and Convention rights. In October 2003, Lord Drummond Young issued his report to the appellate court. On 13 November 2003, at first sift, the court refused leave to appeal. On 13 January 2004, at second sift, the court granted leave. On 18 March 2004, the Privy Council delivered judgment in Flynn v. HM Advocate (2004 SC (PC)1 and remitted it for decision by the High Court, finding that the provisions of the 2001 Act were compatible with Convention rights and that events after the date of the original conviction and sentence could be taken into account in a punishment part hearing of an existing life prisoner. In dismissing the appellants’ Convention complaints, Lord Rodger of Earlsferry rejected the argument that the appellants’ rights to a fair trial within a reasonable time had been violated due to the opening up of the case and the amendment of sentence many years later. He stated: “This is a highly artificial argument since the original proceedings were completed within a reasonable time for the purposes of Article 6(1). Since then, in Convention rights’ terms, the appellants’ position has been governed by Article 5(1)(a) and (4). In any event it is now accepted that in terms of Article 6(1) the determination of the period to be served by the appellants as a punishment should have been made by the judge as part of the trial and not by the Scottish Ministers. The legislation and the punishment part hearings under paragraph 13 are designed to cure this violation. Since the punishment part proceedings themselves have not violated the reasonable time guarantee in Article 6(1), there is no basis for holding that, overall, that guarantee had been breached in these cases.” By letters dated 6 November and 31 December 2004 and 11 April 2005, the applicant’s solicitor wrote to the court inquiring about the hearing date for the appeal. In summer 2005, the Scottish Executive lodged its report about the applicant’s conduct in prison and any expectations under previous release arrangements. By decision of 10 August 2005, the High Court noted the horrific nature of the crime (his victim was stabbed 62 times) and his record in prison of 85 misconduct reports (including 13 positive drugs tests). It concluded that he was not a person appropriately directing himself in relation to arrangements for his release and that there was no basis for making any discount on the 12-year period. On 1 February 2008, the applicant’s punishment part of his sentence will expire.