CASE OF OLDHAM v. THE UNITED KINGDOM
Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. In April 1970 the applicant, then aged 21, was convicted of manslaughter, qualified as such on the grounds of diminished responsibility, and sentenced to life imprisonment. Medical evidence adduced at the trial showed that the applicant suffered from a mental abnormality induced by alcohol. 9. On 27 July 1993 the applicant was released on life licence for the third time subject to the condition, amongst others, that he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem. He had been recalled to prison twice previously and had since been transferred to open prison conditions in 1989. 10. On 1 July 1996 the police were called to the home of the applicant's partner, M., who is a deaf mute. She was taken to hospital where she received treatment for injuries to her face and back. 11. On 2 July 1996 the Secretary of State revoked the applicant's licence and recalled him to prison. By a letter dated 4 July 1996, the Secretary of State indicated that the licence was revoked on the grounds that the applicant had caused M.'s injuries after drinking at least eight cans of lager. This was so stated in the report by the applicant's probation officer who had met with M. on 2 July 1996. The case was referred to the Parole Board which confirmed the revocation of the applicant's licence on 12 July 1996. 12. On 8 November 1996 the Parole Board's Discretionary Lifer Panel (“the DLP”), chaired by a High Court judge, met to consider the applicant's representations against recall. It considered the applicant's written and oral representations, the views of two probation officers, the oral evidence of M. and the submissions of the applicant's solicitor and counsel for the Secretary of State. In her oral evidence M. gave evidence to the effect that it had been she and not the applicant who had been responsible for her injuries. A prison officer, who had attained a stage 1 British Sign Language qualification and was training towards stage 2, attended the hearing and acted as interpreter for M. 13. In its written decision of 12 November 1996 the DLP stated, in its reasons for rejecting the applicant's representations, that it had accepted the evidence which indicated that the applicant had been responsible for M.'s injuries, rather than the account put forward on behalf of the applicant. It expressed the opinion that, in order to minimise the risk posed by the applicant to members of the public, the applicant needed to carry out further work in respect of alcohol, anger and relationships. This was communicated to the applicant in a letter dated 15 November 1996 by the Secretary of State, who informed the applicant that his next Parole Board review was set for November 1998. 14. The applicant and M. married in prison on 6 February 1997. 15. The applicant applied for legal aid to challenge the DLP's decision by judicial review. On appeal, legal aid was granted for the limited purpose of seeking further evidence and counsel's opinion. On 15 March 1997, counsel advised that an application for judicial review would be unsuccessful and legal aid was not extended. 16. While in prison, the applicant attended courses in anger management, relationships, alcohol awareness and men and violence run by the Manchester Probation Service. These had been completed within eight months of his recall. 17. On 7 December 1998 the applicant had a further hearing before the DLP. Despite expressing some reservations, the DLP concluded that the applicant had made significant and sufficient progress since his previous review and recommended to the Secretary of State that he be released on licence. The applicant was released on 17 December 1998. 18. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty's pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. (The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”) from 1 October 1997.) 19. Section 39 of the 1991 Act allowed the Secretary of State to revoke a discretionary life prisoner's licence where it appeared to be expedient in the public interest to recall him to prison. Once recalled, the prisoner had to be informed of the reasons for his recall and could make representations in writing. 20. According to section 32(2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners. The Parole Board's chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the DLP. The DLP always held an oral hearing when considering whether to release a discretionary life prisoner whose tariff had expired or whether to recall a discretionary life prisoner whose licence had been revoked. It was the duty of the Secretary of State to release the prisoner if the DLP directed his release. 21. According to the Parole Board Rules 1992, which came into force on 1 October 1992, a prisoner was entitled, among other things, to an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. 22. When deciding under section 39 that recall should be confirmed, the DLP often gave guidance as to the timing of the next review. It normally recommended a further review in two years but an earlier date could be given in appropriate cases, with reasons. Where no guidance was given, the Secretary of State decided the date of the next review. Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date, the date of the review could be brought forward. A discretionary life prisoner may request the Secretary of State to refer his case to the Parole Board after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34(5)(b) of the 1991 Act, now section 28(7)(b) of the 1997 Act).