MCCABE v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Thomas McCabe, is a British national who was born in 1964 and lives in Lisburn. He was represented before the Court by Madden & Finucane, a firm of lawyers practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan, Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was born in Northern Ireland, but subsequently moved to England. He became an alcoholic and was convicted of a number of violent offences. On 1 February 1990 he was arrested and charged with the murder of an 18 year old youth, his partner’s cousin. On 29 October 1990 at the Central Criminal Court in London he pleaded guilty to the offence of murder and was sentenced to imprisonment for life. On the same date the trial judge, who described the offence as a “sudden unpremeditated attack in a moment of drunken and unreasoned jealousy upon a complete stranger”, expressed the view that the length of detention necessary to meet the requirements of retribution and general deterrence was 10 years. On 4 November 1990 the Lord Chief Justice of England and Wales expressed the view that he took a slightly more severe view of the case and recommended “that 11 years would be the appropriate minimum” (hereafter referred to as the “tariff”). The Home Secretary duly fixed the tariff at 11 years and the applicant was informed of this. 4. On 21 January 1992 an order pursuant to section 26(1) of the Criminal Justice Act 1961 was made, transferring the applicant to Northern Ireland to serve the remainder of his sentence. The effect of such an order for a life prisoner was that his release would be regulated by the law and practice of Northern Ireland relating to life sentence prisoners. Under the Northern Irish system at that time, the Life Sentence Review Board, an administrative body whose membership included the Permanent Under-Secretary of the Northern Ireland Office and other senior Northern Ireland officials, advised the Home Secretary as to when a life prisoner should be released on licence, but had no power to order release. The Board would generally carry out a review after the prisoner had served three, then six, then ten years in custody, and thereafter at intervals fixed by the Board. This was set out in an explanatory memorandum provided to the applicant. On 23 January 1992 he signed a transfer document agreeing to the transfer to Northern Ireland and acknowledging that the differences between the England and Northern Ireland Prison Systems had been explained to him. 5. On 17 October 1991 the Northern Ireland Prison Authorities were informed by their English counterparts that a tariff of 11 years had been set in respect of the applicant and that a first review should take place in approximately February 1998. In accordance with the Northern Irish procedure, however, the Life Sentence Review Board considered the applicant’s case on 11 April 2000. The result of that review was communicated to the applicant by letter dated 21 April 2000. This stated, inter alia, that the Board had decided that “the appropriate retributive period in this instance would fall at around 11 years in line with the tariff set by the Home Office”. The Board considered that alcohol, drugs and relationships with women were risk factors for the applicant and that a controlled and structured pre-release programme and supervision in the community would be necessary. On that basis the Board recommended that the applicant’s case be referred for consultation with the judiciary with a view to his release on life licence after expiry of the 11-year period. It considered that the combined consultation and anticipated pre-release phase of around a year would be sufficient to test whether or not the applicant was a suitable candidate for release on licence. 6. On 7 July 2000 the applicant was informed by letter, that on 17 July 2000 he would join the Pre-Release Scheme. He was reminded that the setting of a provisional release date did not automatically mean that release on licence would follow. He was further informed that his release was subject to his continued good behaviour and to suitable resettlement arrangements being made. Phase One of the Pre-Release Scheme began immediately. On 31 July 2000 the applicant commenced Phase Two. This involved working at approved jobs and staying in the Pre-Release Unit hostel, with extended paroles at weekends. 7. On 30 October 2000 the applicant was due to commence Phase Three. On that date he failed to attend at an alcohol management programme or to report to work. As a result he was posted as unlawfully at large and remained so for 13 days. He was returned to the prison on 12 November 2000 and formally suspended from the Pre-Release Scheme. On 29 December 2000 the Lifer Management Unit wrote to the applicant confirming that he had been suspended from the Pre-Release Scheme. On 6 September 2001 the decision was taken to restore him to the Pre-Release Scheme, on the condition that he complete an intensive alcohol management programme. The applicant completed the residential course and moved through Phase Two of the Pre-Release Scheme. On 18 February 2002 he commenced Phase Three. On 15 April 2002 he failed to report for work and on 17 April 2002 he was posted unlawfully at large. He was arrested by the police in Newry in an intoxicated state and returned to the prison on 23 April 2002. 8. On 24 April 2002 the applicant was informed by letter that he was formally suspended from the Pre-Release Scheme. He was invited to make written representations to the multi-disciplinary team which would decide whether he should be readmitted to the Scheme. On 7 June 2002 the applicant’s solicitors wrote to the Lifer Management Unit, stating inter alia: “‘Our client was admitted to the Pre-Release Scheme by the Secretary of State acting through a lawfully constituted body, namely the Life Sentence Review Board. While our client has not yet received a tariff under the provisions of the Life Sentence Order it is clear that the punishment element of our client’s sentence has been served. To suggest otherwise would be contrary to the findings of the LSRB who found him suitable for the scheme in both June 2000 and September 2001. Our client was therefore clearly serving that part of his sentence which relates to the prevention of risk and his perceived dangerousness to, society. To our knowledge it has not been alleged that our client has committed any crime whatsoever. We are instructed that the sole reason for his arrest on 23 April was the request by the prison service. This is further supported by the fact that our client has not been charged with any criminal offence and has not been questioned by police in relation to any offence whatsoever. Furthermore we would contend that for any decision to be taken to revoke our client’s status on the Pre-Release Scheme that any such allegations or offences would have to create a belief that our client was at risk of committing a further violent offence. We contend that any such belief is simply untenable in these circumstances. We would contend that to recall our client to HMP Maghaberry without recourse to a judicial authority is therefore unlawful and in breach of our client’s Article 5 and 6 rights as protected under the European Convention of Human Rights.” 9. The Lifer Management Unit replied on 11 July 2002 as follows: “Mr McCabe’s continued suspension from the pre-release scheme is primarily because of his risk of violent offending. The key factors in this assessment are: 1. Alcohol was a significant factor in Mr McCabe’s index offence. In spite of the best efforts of the staff at Carlisle House, Mr McCabe admits to drinking alcohol and to being drunk since his completion of the alcohol programme. Indeed, Mr McCabe now admits to drinking alcohol prior to his suspension from the pre-release scheme on 30 October 2000, during his subsequent period unlawfully at large, prior to his second suspension from the pre-release scheme on 23 April 2002 and during his most recent period unlawfully at large. 2. Mr McCabe had been posted unlawfully at large by the NI Prison Service on 23 April 2002. However, Mr McCabe came to the attention of [the police] because of the disturbance he was causing in the street. 3. Mr McCabe was in an intoxicated state when arrested by Police in Newry on 23 April 2002. Upon his return to HMP Maghaberry he became abusive to Prison Staff during a cell search and was later found guilty of assaulting a Prison Officer. He was awarded two days cellular confinement for this incident, which involved him in pushing his fist into an Officer’s face. 4. Mr McCabe’s behaviour during periods of temporary release clearly shows a pattern where he can not be trusted to comply with the terms and conditions of his release. He has now been found guilty of being unlawfully at large on four occasions as set out below. ... These failures, coupled with his alcohol problem, not reporting for work and not attending alcohol management sessions in October 2000, raise serious questions about Mr McCabe’s ability to comply with the elements of risk management designed to prevent further violent offences. ... Further consideration is required regarding how best to address the risk factors in this case and the investigation into the circumstances surrounding Mr McCabe’s suspension from the pre-release scheme is also still ongoing. In these circumstances, and for all the concerns listed above regarding Mr McCabe’s potential for relapse and violence, Mr McCabe will remain suspended from the pre-release scheme.” 10. On 3 July 2002 the applicant lodged an application for judicial review of the decision to return him to prison. He claimed that his recall to prison and detention from 23 April 2002 was unreasonable, arbitrary and in breach of Article 5 of the Convention, since the tariff set in his case by the Home Secretary had expired in February 2001. The applicant contended that he should only have been detained after that date if there were a risk that he would commit violent offences if released, and that the events which led to his recall involved breach of the conditions of the Pre-Release Scheme, but not violent offending. In addition, he contended that, having served the penal element of his offence, he was entitled to challenge the lawfulness of his continued detention but had been afforded no such opportunity. 11. On 8 October 2001 the Life Sentences (Northern Ireland) Order 2001 (“the Life Sentences Order”) came into effect, changing the system for the release of life sentence prisoners in Northern Ireland. In the case of a prisoner sentenced to imprisonment for life, the trial judge was henceforth required to fix the minimum term the prisoner should serve in order to satisfy the requirements of retribution and deterrence. When the prisoner had served this tariff, the Secretary of State was required to refer his case to the Life Sentence Review Commissioners, a new body created under the Order, which would consider whether it was necessary that the prisoner should be confined further for the protection of the public from serious harm and which was obliged and empowered to order his release if it did not consider further detention necessary. A prisoner was entitled to review by the Life Sentences Review Commission on expiry of the tariff and at two-yearly intervals thereafter. Article 10 of the Life Sentences Order applied the release provisions to life prisoners transferred to Northern Ireland. Article 11 provided that, for existing life prisoners, the tariff would be set by the Secretary of State following a recommendation of the Lord Chief Justice. On 5 November 2002 the Court of Appeal decided that the Lord Chief Justice’s recommendation was binding on the Secretary of State (Re Colin King [2002] NICA 48). 12. On 20 November 2001, in accordance with the provisions of the Life Sentences Order, the applicant was informed that his case would soon be referred to the Lord Chief Justice for him to decide what tariff to recommend to the Secretary of State. The applicant was given the opportunity to submit representations, which he declined. 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 given a further opportunity to make any representations, which he again declined. His case was referred to the Life Sentences Review Commission on 3 April 2003. 13. The applicant’s judicial review application was heard by the High Court, which delivered judgment on 3 July 2003. The court rejected the applicant’s submission that his case was analogous to that of Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002IV, where a mandatory life prisoner had completed the tariff part of his sentence and was released on licence, subsequently to be recalled to prison following the commission of an offence unrelated to the index offence of murder. In the applicant’s case, once he had been transferred to Northern Ireland, he became subject to the release provisions for mandatory life prisoners which applied in that jurisdiction. He had not been released on licence under section 23 of the Prison (Northern Ireland) Act 1953, nor was he scheduled for such release. According to the decision of the Life Sentences Review Board, the pre-licence part of the applicant’s sentence would not be completed until he had successfully passed through a Pre-Release Scheme. As part of that Scheme, he had been allowed out of prison on a temporary basis, subject to conditions, which he understood. The prison authorities were rightly concerned about the applicant’s breach of his temporary release conditions, in particular his drinking. As regards the alleged violation of Article 5 § 4, the judge noted that at all stages the applicant would have been able to establish the lawfulness of his detention through judicial review proceedings or an application for habeas corpus, although the chances of success in relation to a prisoner lawfully detained following conviction were limited. The Life Sentences Order had introduced a determinate element to the sentences of life prisoners in Northern Ireland, following the expiry of which they would only be lawfully detained if this was necessary to protect the public. The procedure under the Order had been slightly delayed because of the need to determine the legal issues raised by the Colin King case, but the applicant’s tariff had now been considered by the Lord Chief Justice and his file had been referred to the Life Sentence Review Commission. The applicant had not established that his detention was unlawful or arbitrary nor that he had been denied an opportunity to challenge its lawfulness. The application for judicial review was therefore dismissed. 14. At the Life Sentence Review Commission hearing on 18 August 2003, the Commissioners found that the applicant remained a risk to the public because of his tendency to react to stress by abusing alcohol. They declined to order his release and recommended that he should continue with the therapy he was receiving in prison. The applicant re-entered the Pre-Release Scheme in September 2003, but was unlawfully at large again between 27 December 2003 and 18 February 2004. His case came before the Life Sentence Review Commission again on 25 November 2004, on which date the hearing was adjourned to March 2005 in order to obtain psychiatric evidence. Again, the Commission did not direct his release, but recommended that he complete a cognitive self-change programme. At a further hearing in October 2006 the applicant’s case was adjourned for one year to permit him to be tested in a Pre-Release Scheme which commenced in November 2006. 15. The applicant appealed to the Court of Appeal of Northern Ireland against the judgment of the High Court. His appeal was dismissed on 24 April 2007. The Court of Appeal held that, in the light of recent domestic case-law and the Stafford judgment (cited above), the fixing of the applicant’s tariff by the Home Secretary in 1990 or 1991 had been a sentencing exercise rather than an administrative act. When the applicant was transferred to Northern Ireland, therefore, he came as a prisoner sentenced to a mandatory life sentence with a tariff of 11 years. At the expiry of this tariff, the applicant became entitled to a review of the need to continue detaining him on grounds of dangerousness by a tribunal compliant with Article 5 § 4 of the Convention. However, such a review did not take place until April 2003, when a review was carried out by the Life Sentence Review Commission. There had, therefore, been a violation of Article 5 § 4. Nonetheless, the Court of Appeal underlined that although the Life Sentence Review Board had not had the power to order release, as required by Article 5 § 4, it had considered the applicant’s case from April 2000 until the coming into force of the 2001 Order with exemplary care. The applicant was an alcoholic who, at the age of 26, had murdered a young man in a violent attack motivated by jealousy which was without foundation. Despite all the efforts made to keep him off alcohol and to provide him with a release date he had been unable to control his alcoholism. Inevitably, the Board, and subsequently the Life Sentence Review Commission, had been unable to release him on licence since he remained a serious risk to the public. If an independent tribunal had examined his case in February 2001, it would have been bound to reach the same conclusion, namely to require the applicant to complete a Pre-Release Scheme, which he had not been able successfully to complete to date. The applicant had, therefore, suffered no damage as a result of the breach of Article 5 § 4 of the Convention. Furthermore, there had been no breach of Article 5 § 1 as a result of an independent review immediately following the expiry of the tariff, because the detention continued to be justified under the terms of the mandatory life sentence and the delay in fixing the tariff in Northern Ireland and carrying out an independent review was not 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. 16. 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.