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Cite as: [2007] ECHR 244

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6239/06
by Stephen McILVANNY
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 March 2007 as a Chamber composed of:

Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mrs F. Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 7 February 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

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.

A. The circumstances of the case

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.

COMPLAINTS

The applicant complained under Article 7 of the Convention that he had been made subject to a heavier penalty by the court in that prior to the 2001 Act he had had a legitimate expectation that his case would be reviewed after eight years.

He complained under Article 6 that in re-opening his sentence his right to a trial within a reasonable time had been violated.

He complained under Article 14 of the Convention in conjunction with Articles 5 and 6 that under paragraph 12 of the 2001 Act a prisoner with a release date could waive the right to an order but that it was mandatory for life prisoners, even those such as him who had received a preliminary review committee date.

THE LAW

A. Article 6 § 1 of the Convention

The applicant complained that the punishment part of his sentence was decided long after his original conviction and sentence, invoking Article 6 § 1 of the Convention which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

1. The Government’s preliminary objection

The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. In the present case the applicant had failed to bring any proceedings to challenge the time taken in the original proceedings, and he had not raised delay in the punishment part appeal. They referred to a precedent where the appellate court found a breach of Article 6 on length and granted, by way of remedy, a reduction of six months in the punishment part previously imposed by the High Court (Gillespie v. HM Advocate 2003 SLT 210). It was not necessary to demonstrate that such an appeal would have succeeded. The courts should have been given the opportunity of ruling on the complaint now raised by the applicant.

The applicant submitted that the argument on the merits made by him on unreasonable delay had been examined and rejected by the Privy Council in the Flynn case (cited above), referring in particular to the reasoning of Lord Rodger of Earlsferry that the original proceedings and punishment part proceedings were to be considered separately and as such did not violate the reasonable time guarantee. It therefore followed that the ruling of the Privy Council that there was no merit in the point was binding on the High Court and there was no realistic prospect of his being able to argue the point with any hope of success.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. While this means that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, it is not required that recourse should be had to remedies which would be inadequate or ineffective (e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI).

In the present case, the Court notes that the applicant complains about the length of proceedings taken overall to reach a final decision on his sentence. It is not apparent that he had any grievance at the stages of trial and initial sentencing and the Court does not consider that any non-exhaustion point arises due to the lack of any complaint at that time. As regards the alleged failure to raise delay in the punishment part proceedings in the High Court, it is true that the applicant made no complaint on this point when the High Court first reconsidered the appropriate punishment part applicable to his sentence. However, by the time the High Court came to look at the matter for a second time, the Privy Council had issued its decision in Flynn (cited above) which in unequivocal terms rejected the argument that length issues arose per se where a punishment part hearing took place some time after the original trial and sentence. The Court accordingly does not find that the applicant failed to make use of an available or effective remedy in omitting to ventilate his length issues during the punishment part proceedings. This part of the application cannot, therefore, be rejected for non-exhaustion of domestic remedies and the preliminary objection is rejected.

2. The substance of the complaint

a. The parties’ submissions

The Government considered that the applicant’s complaints were effectively that the 2001 Act, in permitting the re-opening of proceedings, were contrary to Article 6, which argument was rejected by the Privy Council in Flynn (cited above). They noted that the applicant did not complain about delay in his original trial and appeal and considered that he was not in a state of uncertainty in regard to his sentence. As found by the appeal court in Flynn in 2003, the period in which no proceedings were pending was not relevant for Article 6 (e.g. I.J.L. and Others. v. the United Kingdom, nos. 29522/95, 30056/96 and 30574/96, § 130, ECHR 2000 IX). Further it had been considered necessary to have a judicial determination of the punishment part to comply with Strasbourg jurisprudence.

They argued that the only relevant periods to be taken into account were, firstly, from the reference to the High Court by the Scottish Ministers, which took place in the applicant’s case on 2 November 2001 and ended with the notification of the setting of the punishment part on 30 September 2002 and, secondly, the period from 31 July 2003 when the applicant lodged grounds of appeal against that punishment part and the decision of the High Court on 10 August 2005. Between these periods the applicant’s case was not before the High Court in any substantive form. These two periods did not disclose any unreasonable delay. The issues raised were of legal complexity, reflected by the procedure adopted in the Flynn case, and there were exceptional pressures on the authorities flowing from the introduction of new legislation introduced to protect Article 6 rights, with some 140 appeals generated. Any suspension of proceedings to take into account the Flynn case was entirely appropriate as the applicant’s case might have been affected and it allowed the appeal court to take into account additional post-conviction material which was in his favour. They also pointed out that he delayed lodging his appeal against the punishment part for some ten and a half months after the hearing which did not suggest that he was concerned about any lapse of time. Although one paragraph in his devolution minute of 18 August 2003 raised the question of delay, that minute was not insisted upon when the appeal was heard on 10 August 2005.

The applicant submitted that there had been unreasonable delay contrary to Article 6 § 1 of the Convention purely because of the compulsory setting of the punishment part by the 2001 Act. The applicant had no possibility of waiving the procedure, which was obligatory. He argued that a person accused of a criminal offence had a right to a trial within a reasonable time and the imposition of sentence was part of the trial. Accordingly, in his view, sentence should be imposed within a reasonable time. The fixing of the punishment part was legally indistinguishable from the imposition of sentence and therefore the punishment part in the applicant’s case should have been fixed within a reasonable time. Consequently, extending the trial of the applicant to the end of the punishment part process extended his trial beyond a reasonable time.

The applicant further submitted, having regard to the relevant criteria, that his case was not complex and that there was nothing in his conduct which caused delay. The delay flowed from the decision of the legislature to impose on the applicant a mandatory hearing, and the compulsory setting of a punishment part, under the Act. The applicant had no choice but to make himself subject to this State intervention. The applicant noted that when the original sentence was imposed on him in May 1996, the then Strasbourg jurisprudence did not require that the setting of the period to be served by an adult mandatory life prisoner should be done by a judicial authority. Yet, by the intervention of the 2001 Act the compulsory re-opening of the proceedings meant that there had in fact been no completion of the original proceedings in 1996. He pointed out that the punishment part was imposed on him in September 2002, over six years after his original trial.

b. The Court’s assessment

The Court recalls that Article 6 § 1 of the Convention requires that criminal charges against an applicant be determined within a reasonable time. This procedure encompasses not only conviction but sentencing (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, pp. 34-35, §§ 76-77) and, as pointed out by the applicant, the fixing of the punishment part of a mandatory life sentence is akin to a sentencing procedure and also falls within the scope of Article 6 § 1 of the Convention (Stafford v. the United Kingdom [GC], no. 46295/99, § 87, ECHR 2002-IV, § 87).

In the present case, the applicant was tried for an offence and sentenced to life imprisonment in 1996. The punishment part of that sentence was not, finally, determined by a judicial body until 10 August 2005, some nine years later. However, the Court is not persuaded that the proceedings can be regarded as having been pending throughout this period. It would note that the original trial was concluded by 22 May 1996. In domestic terms, no further issues lay to be determined by the courts at that stage. While it is true that subsequent cases of this Court established that the fixing of the punishment part of the sentence should have been carried out by a judicial body and not the executive, this does not mean that the original proceedings against the applicant were somehow resurrected or that they had been in some kind of limbo. Further, if the applicant had wished to complain under Article 6 § 1 that his sentence had not in fact been properly determined by a court, he would have had to do so within six months of the relevant final decision in that regard – no continuing situation of breach would have been disclosed. The Court would however comment that bearing in mind the importance of the issue to the applicant, who was nearing a possible release date, and the date on which he had originally been sentenced by the trial court, special considerations of expedition applied.

In light of the above, the Court considers that while the punishment part proceedings operated to re-open issues of sentence and thus revived the applicability of Article 6 § 1 of the Convention, the period relevant for the purposes of assessing the reasonableness of time taken ran from the moment of re-opening (IJL, GMR and AKP v. the United Kingdom, cited above). There was no retrospective effect. In this case, the relevant periods to be taken into consideration run from 2 November 2001 (when the applicant’s case was referred to he High Court) to 30 September 2002 (when the High Court fixed the punishment part) and from 31 July 2003 (when the applicant lodged his appeal against the punishment part) to 10 August 2005 when the final decision issued in the High Court – periods of almost eleven months and some two years respectively. As regards the first period, the Court finds no appearance of any delay. As regards the second, the Court notes that while the appeal was pending, issues of potential importance to the applicant’s case were under examination in the Privy Council in the Flynn case. It would appear that it was only after the final decision in the Flynn case that the applicant’s lawyer took steps to enquire about a hearing date in the applicant’s own case. In the circumstances, the Court does not find that it was inappropriate or unreasonable that the applicant’s appeal was not proceeded with during that relatively short overlapping period. It notes that, once the Flynn decision had been issued, it was necessary to obtain information about the applicant’s conduct and expectations of release from the prison authorities and that the appeal was heard and decided shortly after that information was received. The Court finds that the time taken overall was not unreasonable.

In conclusion the Court rejects the applicant’s argument that the subsequent imposition by the legislature of a procedure for the judicial fixing of the punishment part of his sentence in itself, or by its application in the particular case, gave rise to any appearance of a breach of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded as a whole pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The applicant’s remaining complaints

The applicant also complained about the procedure under Article 7 (prohibition on the retrospective imposition of a heavier penalty) and under Article 14 (prohibition of discrimination in the enjoyment of Convention rights).

Insofar as the applicant complains under Article 7 that the courts imposed a longer punishment part than the executive did, the Court notes that at the time at which the applicant’s offence was committed the maximum sentence of life was applicable: it cannot, therefore, be said, that the High Court retrospectively increased this sentence.

Insofar as the applicant complains under Article 14 of the Convention that he was discriminated against in that prisoners who had obtained a release date could waive the re-opening of the punishment part, the Court considers that prisoners who have been approved for release and in preparation for an expected release date cannot be regarded as in a comparable situation to prisoners who have only been told when they will first become eligible for release on parole and that any difference in treatment may also be regarded as having objective and reasonable justification, given the very strong expectations of release enjoyed by the former prisoners and their families (see concerning general principles, inter alia, Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X ). It may also be noted that the Flynn case (cited above) allowed considerations of expectations of release to be taken into account in the assessment of the punishment part, thus giving due and proportionate regard to the applicant’s interests in the circumstances.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Conclusion

Having regard to the above considerations, the application as a whole should be declared inadmissible and that Article 29 § 3 of the Convention should no longer be applied to the case.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Josep Casadevall
Deputy Registrar President