AS TO THE ADMISSIBILITY OF
by Vincent LYNCH
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 April 2006,
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 applicant, Mr Vincent Lynch, is a Jamaican national who was born in Jamaica in 1963 and is currently serving a life sentence at HMP Full Sutton, York. He was represented before the Court by Ms Y. Aslan, a lawyer practising in Manchester.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was convicted on 13 March 1998 of murdering a man in a night club in Birmingham the previous July. He was also convicted of robbery and possession of a firearm with intent. The trial judge sentenced him to life imprisonment for the murder, with a recommended minimum term of 17 years. For the two other offences he was sentenced to terms of imprisonment of 15 years and 7 years respectively, to run concurrently. The Lord Chief Justice subsequently recommended a minimum term (“tariff”) of 17-18 years. In February 1999, the Secretary of State notified a tariff of 20 years to the applicant.
Subsequent to the enactment of the Criminal Justice Act 2003, the applicant applied to the High Court in February 2004 for the setting of a tariff in accordance with paragraph 3 of Schedule 22 of the Act (see under “Relevant domestic law” below). On 6 May 2004, his solicitors submitted representations for a reduction of three years in the applicant’s tariff. On 30 June 2004, the Crown Prosecution Service (CPS) was requested to seek the views of the victim’s family on the applicant’s request for a review of his tariff. The CPS being unable to assist, it was decided in September 2004 to enlist the help of Victim Liaison Officers in the Probation Service to contact the families of victims. On 11 March 2005, the Victim Liaison Officer for the West Midlands indicated that the victim’s family had not responded to the request for their views on the matter.
During 2004, the case of R(Hammond) v. Home Secretary was under consideration by the Divisional Court, which was asked to rule on whether the relevant provisions of Schedule 22 were to be construed as allowing for an oral hearing. In its decision of 25 November 2004, the Divisional Court ruled that an oral hearing was permissible in appropriate circumstances. This ruling was subsequently confirmed by the House of Lords. According to the Government, it was not considered appropriate to process any applications for review under Schedule 22 until the question of oral hearings had been dealt with. Once the Divisional Court had determined the issue, all prisoners in the High Court’s database received a letter inviting their views on the need for an oral hearing in their case. Such a letter was sent to the applicant on 6 December 2004, eliciting a reply on 6 January 2005.
The procedure therefore only began to operate in early 2005, at which point, according to the Government, there were more than 1,100 cases pending. This number included applications from prisoners whose tariff had been set by the Home Secretary, and from prisoners in respect of whom no tariff had yet been set.
In November 2006, the Courts Service, in answer to a letter from the applicant’s solicitor enquiring about the delay in dealing with his case, apologised for the situation and explained that in view of the great number of such applications pending before the High Court, priority was being given to cases in which the tariff would expire in 2010.
On 1 August 2008, the High Court (Mr Justice Grigson) rejected the applicant’s application. He concluded that the minimum period of 20 years notified by the Secretary of State could not be said to be manifestly excessive and so would not be reduced, apart from the period the applicant had spent in custody on remand (7 months and 15 days).
B. Relevant domestic law
Following the Court’s judgment in the case of Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002 IV, Parliament adopted the Criminal Justice Act 2003. Schedule 22 of the Act sets out a procedure whereby a prisoner who received a mandatory life sentence before the date the Act entered into force (18 December 2003) and who was notified by the Secretary of State of the minimum term to be served may apply to the High Court for a review of that tariff. The relevant provisions read as follows:
Mandatory Life Sentences: Transitional Cases
Existing prisoners notified by Secretary of State
2 Paragraph 3 applies in relation to any existing prisoner who, in respect of any mandatory life sentence, has before the commencement date been notified in writing by the Secretary of State (otherwise than in a notice that is expressed to be provisional) either—
(a) of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, or
(b) that the Secretary of State does not intend that the prisoner should ever be released on licence.
3 (1) On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either—
(a) order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or
(b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender.
(2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term.
(3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date).
(4) In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified.
4 (1) In dealing with an application under paragraph 3, the High Court must have regard to—
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it,
(b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and
(c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given.
(2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to—
(a) the general principles set out in Schedule 21, and
(b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence.
(3) In this paragraph “the notified minimum term” has the same meaning as in paragraph 3.
Proceedings in High Court
11 (1) An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing.
(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.
The applicant complained under Article 6 of the Convention that the criminal proceedings against him had not been completed within a reasonable time.
He also complained under Article 5 §§ 4 and 5, Article 7 § 1 and Article 13.
A. Article 6 § 1 of the Convention
The applicant contended that there had been excessive delay in the determination of the criminal charge against him. He invoked 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 failed to try any domestic remedy for his complaint of delay. It had been open to him to seek judicial review, relying on the reasonable time requirement in Article 6. Since the responsible Minister – the Secretary of State for Constitutional Affairs – was bound by the Human Rights Act not to act incompatibly with the applicant’s Convention rights, there was no reason why the applicant should not have brought judicial review proceedings. The Government were aware of at least one case in which a prisoner had applied to the Administrative Court in England for judicial review concerning the period of time taken for his case to be considered under Schedule 22. While that application had been dismissed on its facts, there had been no suggestion that the Administrative Court lacked jurisdiction to deal with the matter.
The applicant stated that his previous solicitors had advised him that the availability of judicial review in his case was unlikely, and so he believed that the only remaining recourse was to the European Court of Human Rights.
The Court considers that it is not necessary to establish whether, as the Government maintained, an effective domestic remedy was available to the applicant since it finds this complaint inadmissible for the reasons set out below.
2. The substance of the complaint
a. The parties’ submissions
The Government first argued that the correct starting point for calculating the relevant period of time in this case was the date on which the applicant had applied to the High Court in 2004. The original proceedings against the applicant had been completed in July 1999 when the tariff was fixed by the Home Secretary. At that point in time, and until he applied to the High Court under Schedule 22, there was no uncertainty about the applicant’s legal position or fate. The fact that a new procedure was introduced allowing prisoners serving mandatory life sentences to have the question of their tariff considered judicially did not resurrect the original proceedings against them.
Having regard to the criteria set out in the Court’s case law, the Government accepted that the case was not unduly complex, and that the applicant’s conduct had not contributed to the delay. As for the conduct of the authorities, the Government submitted that the introduction of the new procedure rapidly led to a very large backlog of cases before the High Court. This was an exceptional situation, and the response of the competent authorities had been fair and rational. Applications from prisoners whose tariffs were due to expire soon had been accorded priority over those where the earliest possible date of release was still many years away. The applicant fell into the latter category, as his original tariff was not due to expire until 2017. Even supposing that, as he requested in his application to the High Court, the tariff were reduced by 3 years, it would still have meant that he faced the certainty of at least ten more years’ imprisonment at the time of making his Schedule 22 application.
The applicant submitted that the requirement of concluding criminal proceedings within a reasonable time applied to all stages of the procedure, including, as in this case, the subsequent reconsideration of the original tariff. He further contended that the Government should have foreseen the volume of work that the Schedule 22 procedure would entail and allocated more resources to deal with it.
b. The Court’s assessment
The Court recalls that Article 6 § 1 of the Convention requires that criminal charges against a person be determined within a reasonable time. The period governed by this obligation covers the whole of the proceedings in issue, including appeal proceedings (Eckle v. Germany, 15 July 1982, § 76, Series A no. 51). In the event of conviction, the criminal charge is not determined until the sentence has been definitively fixed (ibid. § 77). The Court has already established that the fixing of the tariff is akin to a sentencing procedure and so falls within the scope of Article 6 § 1 of the Convention (Stafford v. the United Kingdom [GC], no. 46295/99, § 87, ECHR 2002 IV). The United Kingdom had no obligation under the Convention to take any steps in respect of prisoners who, on the date of the Stafford judgment, already had definitive sentences. Nevertheless, in view of the nature of the procedure introduced by Schedule 22, it comes within the scope of Article 6 § 1 and so is subject to the requirement of completion within a reasonable time.
As regards the relevant period of time, the Court refers to its decision in the case King v. the United Kingdom, no. 6234/06, of 6 March 2007. There, considering an analogous procedure under Scots law, the Court held that the judicial reconsideration of the punishment part of a life sentence some years after the original proceedings did not mean that those proceedings had remained pending throughout that time. Such a procedure did not have the effect of resurrecting the original proceedings. Accordingly, the relevant period in the present case for assessing the reasonableness of the time taken runs from the date on which the applicant applied to the High Court (February 2004) to the date on which that Court gave its decision (1 August 2008), that is to say a period of 4 years and 6 months.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006 VII). As the Government have accepted, the applicant’s case before the High Court was not especially complex. Nor was the applicant responsible for any of the delay.
Regarding what was at stake for the applicant, the Court observes that at the time he made his request under Schedule 22 it was clear beyond any doubt that the applicant would have to spend many more years in prison (see a contrario the situation of the applicant in King). He had been convicted of murder and had been given a mandatory life sentence. While the delay he experienced was considerable, the applicant cannot claim to have been left in a state of uncertainty, or to have suffered prejudice “to such an extent as to impose on the court concerned a duty to deal with the case [...] as a matter of very great urgency” (Gast and Popp v. Germany, no. 29357/95, § 80, ECHR 2000 II). This present case is therefore to be clearly distinguished from the more typical length of proceedings cases decided by the Court in which the delays occurred at earlier stages of the criminal process, when the issue of guilt had yet to be determined or the sentence finally set.
The Government have explained that a backlog of cases built up quickly after the relevant provisions of the Criminal Justice Act took effect in December 2003. The Hammond case caused a delay of about one year before the procedure began to operate, at which point there were more than 1,100 cases to deal with, with hundreds more prisoners applying after the applicant. The Court would emphasise that the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 § 1 including that of trial within a "reasonable time" (Buchholz v. Germany, 6 May 1981, § 51, Series A no. 42). It has recognised that “a temporary backlog of business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind” (Kępa v. Poland (dec.), no. 43978/98, 30 September 2003). However, as it has stated in another case, “if a state of affairs of this kind is prolonged and becomes a matter of structural organisation, such methods are no longer sufficient and the State will not be able to postpone further the adoption of effective measures” (Zimmermann and Steiner v. Switzerland, 13 July 1983, § 29, Series A no. 66).
The Court considers that the backlog of cases described by the Government was, by definition, temporary in that the Schedule 22 procedure concerned a closed category of prisoners. The policy adopted by the competent authorities of giving priority to prisoners approaching the end of their tariff was clearly justified. The Court takes note of information published by the Courts Service in the United Kingdom showing that in the period 2005-2007 approximately 1,000 cases were decided under the Schedule 22 procedure, with another 220 in 2008, indicating that real, continuous efforts were made to deal with the backlog.
In the light of these considerations, the Court finds no appearance of a violation of the applicant’s rights under Article 6 § 1.
It follows that this part of the application is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. The applicant’s remaining complaints
The applicant complained under Article 5 § 4 that the United Kingdom authorities were circumventing the Court’s Stafford judgment by extending the tariffs set by the judiciary. Under Article 5 § 5 he complained that no compensation was available in domestic law for violations of the other paragraphs of that Article. Invoking Article 7 § 1, the applicant complained that the Home Secretary increased the tariff suggested by the trial judge. Lastly, the applicant complained that no remedy was available to him in respect of these complaints.
Having regard to all the material in its possession, the Court considers that these complaints, to the extent that they are within its competence, do not disclose any appearance of a violation of the applicant’s Convention rights.
It follows that this part of the application as well is manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Lech Garlicki
Deputy Registrar President