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echr-test.en
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echr-test.en
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PROCEDURE
The case was referred to the Court on 23 January 1995 by the European Commission of Human Rights ( " the Commission " ) and on 26 January 1995 by the Government of the United Kingdom of Great Britain and Northern Ireland ( " the Government " ) , within the three-month period laid down by Article 32 para . 1 and Article 47 ( art . 32-1 , art . 47 ) of the Convention .
It originated in an application ( no . 19380 / 92 ) against the United Kingdom lodged with the Commission under Article 25 ( art . 25 ) on 20 September 1991 by a British national , Mr Stephen Andrew Benham .
The Commission 's request referred to Articles 44 and 48 ( art . 44 , art . 48 ) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court ( Article 46 ) ( art . 46 ) ; the Government 's application referred to Article 48 ( art . 48 ) .
The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5 and 6 ( art . 5 , art . 6 ) of the Convention .
In response to the enquiry made in accordance with Rule 33 para . 3 ( d ) of Rules of Court A , the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him ( Rule 30 ) .
The Chamber to be constituted included ex officio Sir John Freeland , the elected judge of British nationality ( Article 43 of the Convention ) ( art . 43 ) , and Mr R. Bernhardt , the Vice-President of the Court ( Rule 21 para . 4 ( b ) ) .
On 5 May 1995 , in the presence of the Registrar , the President of the Court , Mr R. Ryssdal , drew by lot the names of the other seven members , namely Mr Thór Vilhjálmsson , Mr B. Walsh , Mr R. Macdonald , Mr I. Foighel , Mr L. Wildhaber , Mr G. Mifsud Bonnici and Mr D. Gotchev ( Article 43 in fine of the Convention and Rule 21 para . 5 ) ( art . 43 ) .
The President of the Chamber ( Rule 21 para . 6 ) , Mr Bernhardt , through the Registrar , consulted the Agent of the Government , the applicant 's lawyer and the Delegate of the Commission on the organisation of the proceedings ( Rules 37 para . 1 and 38 ) .
Pursuant to the order made in consequence , the Registrar received the Government 's memorial on 27 July 1995 and the applicant 's memorial on 7 August 1995 .
In accordance with the President 's decision , the hearing took place in public in the Human Rights Building , Strasbourg , on 22 November 1995 .
The Court had held a preparatory meeting beforehand .
There appeared before the Court :
( a ) for the Government
Mr M. Eaton , Deputy Legal Adviser ,
Foreign and Commonwealth Office , Agent ,
Mr D. Pannick QC ,
Mr P. Duffy , Counsel ,
Mr M. Collon , Lord Chancellor 's Department , Adviser ;
( b ) for the Commission
Mrs J. Liddy , Delegate ;
( c ) for the applicant
Mr B. Emmerson
Professor A. Bradley , Counsel ,
Mr J. WadhamAdviser .
The Court heard addresses by Mrs Liddy , Mr Emmerson and Mr Pannick .
Following deliberations on 23 November 1995 the Chamber decided to relinquish jurisdiction forthwith in favour of a Grand Chamber ( Rule 51 para . 1 ) .
The Grand Chamber to be constituted included ex officio Mr Ryssdal , President of the Court , Mr Bernhardt , Vice-President of the Court , and the other members and substitute judges ( namely , Mr B. Repik , Mr F. Gölcüklü , Mr R. Pekkanen and Mr K. Jungwiert ) of the Chamber which had relinquished jurisdiction ( Rule 51 para . 2 ( a ) and ( b ) ) .
On 5 December 1995 , in the presence of the Registrar , the President drew by lot the names of the seven additional judges called on to complete the Grand Chamber , namely Mr F. Matscher , Mr J. De Meyer , Mrs E. Palm , Mr A.N. Loizou , Mr A.B. Baka , Mr M.A. Lopes Rocha and Mr P. Jambrek ( Rule 51 para . 2 ( c ) ) .
Having taken note of the opinions of the Agent of the Government , the Delegate of the Commission and the applicant , the Grand Chamber decided on 26 January 1996 that it was not necessary to hold a further hearing following the relinquishment of jurisdiction by the Chamber ( Rule 38 , taken together with Rule 51 para . 6 ) .
AS TO THE FACTS
I. CIRCUMSTANCES OF THE CASE
On 1 April 1990 Mr Benham became liable to pay a community charge of £ 325 .
Since he did not pay it , on 21 August 1990 the Poole Magistrates ' Court ordered the issue of a liability order , entitling Poole Borough Council ( " the charging authority " ) to commence enforcement proceedings against him ( see paragraph 19 below , Regulations 29 and 39 ( 1 ) ) .
Mr Benham did not pay the amount owed , and bailiffs visited his parents ' house ( where he was living ) , but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt .
Under Regulation 41 of the Community Charge ( Administration and Enforcement ) Regulations 1989 ( " the Regulations " : see paragraph 19 below ) , if a person is found to have insufficient goods on which to levy outstanding community charge the charging authority may apply to a magistrates ' court for an order committing him to prison .
On such an application being made , the court must inquire in the presence of the debtor as to his present means and also whether his failure to pay which led to the liability order being made was due to wilful refusal or culpable neglect .
The charging authority applied for such an order , and on 25 March 1991 Mr Benham appeared at the Poole Magistrates ' Court for the inquiry required by the Regulations .
He was not assisted or represented by a lawyer , although he was eligible for " Green Form " legal advice and assistance before the hearing ( see paragraph 29 below ) , and the magistrates could have made an order for Assistance by Way of Representation ( " ABWOR " ) if they had thought it necessary ( see paragraph 30 below ) .
The magistrates found that Mr Benham , who had 9 " O " level General Certificates of Secondary Education , had started a Government Employment Training Scheme in September 1989 , but had left it in March 1990 and had not worked since .
He had applied for income support , but had been turned down because it is not payable to those who are voluntarily unemployed , and he had no personal assets or income .
On the basis of this evidence , the magistrates concluded that his failure to pay the community charge was due to his culpable neglect , " as he clearly had the potential to earn money to discharge his obligation to pay " .
Accordingly , they decided that he ought to be sent to prison for thirty days unless he paid what was owing .
Mr Benham was taken to Dorchester prison on the same day .
On 27 March 1991 a solicitor went on the record as representing Mr Benham and lodged a notice of appeal by way of case stated ( see paragraph 21 below ) and an application for bail pending appeal ( see paragraph 22 below ) .
Legal aid was obtained for the appeal , but not for the bail application , because it is not available for such proceedings .
In the event , the solicitor appeared without payment before the magistrates on 28 March 1991 to apply for bail , but he was unsuccessful .
On 4 April 1991 Mr Benham 's solicitor lodged an application for leave to apply for judicial review and for bail in the High Court .
He was obliged to ask for judicial review , despite the fact that he had already lodged an appeal by way of case stated , because otherwise he could not have applied for bail in the High Court until the magistrates had stated a case ( see paragraph 22 below ) .
Bail was granted on 5 April 1991 and Mr Benham was thus released from prison , having served eleven days .
The Divisional Court heard the appeal by way of case stated and the application for judicial review together on 7 and 8 October 1991 ( Regina v. Poole Magistrates , ex parte Benham , 8 October 1991 , unreported ) .
Mr Benham was represented and legally aided .
The court noted that it had been necessary to apply for judicial review in order to get bail , but that the case stated procedure was more appropriate .
Accordingly no order was made on the judicial review application .
Mr Justice Potts in the Divisional Court held that the magistrates had been mistaken in concluding that Mr Benham 's failure to pay the community charge had been due to culpable neglect :
" In my view this finding was wrong on the evidence available to the justices .
In certain circumstances a failure on the part of the debtor to work and put himself in funds to pay the community charge might constitute culpable neglect .
In my judgment , however , before such a finding could be sustained , at the very least there would have to be clear evidence that gainful employment , for which he was fit , was on offer to the debtor and that he had rejected or refused that offer .
There was no such evidence in this case .
In my judgment , the justices ' finding of culpable neglect cannot be sustained on the evidence adduced before them . "
In the circumstances it was incumbent upon them to consider the alternatives to immediate detention provided for by the Regulations : they could have suspended the term of imprisonment subject to such conditions as they thought fit , or refused to issue a warrant , since the local authority could have renewed their application at a later date if Mr Benham 's circumstances had changed ( see paragraph 19 below ) .
The case was brought before the Court on 13 July 1989 by the European Commission of Human Rights ( " the Commission " ) and on 8 September 1989 by the Government of the Kingdom of Sweden ( " the Government " ) , within the period of three months laid down by Article 32 para . 1 and Article 47 ( art . 32-1 , art . 47 ) of the Convention .
The case originated in an application ( no . 11581 / 85 ) against Sweden lodged with the Commission under Article 25 ( art . 25 ) by Dr Peter Darby , a Finnish citizen , on 20 November 1984 .
The Commission ’ s request referred to Articles 44 and 48 ( art . 44 , art . 48 ) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court ( Article 46 ) ( art . 46 ) .
The purpose of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 9 and 14 of the Convention , Article 14 being taken together with Article 9 ( art . 14 + 9 ) and with Article 1 of Protocol No. 1 ( art . 14 + P1-1 ) .
In response to the enquiry made in accordance with Rule 33 para . 3 ( d ) of the Rules of Court , the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him ( Rule 30 ) .
The Chamber to be constituted included ex officio Mrs E. Palm , the elected judge of Swedish nationality ( Article 43 of the Convention ) ( art . 43 ) , and Mr R. Ryssdal , the President of the Court ( Rule 21 para . 3 ( b ) ) .
On 25 August 1989 the President of the Court drew by lot , in the presence of the Registrar , the names of the other five members namely , Mr L.-E. Pettiti , Mr C. Russo , Mr A. Spielmann , Mr N. Valticos and Mr I. Foighel ( Article 43 in fine of the Convention and Rule 21 para . 4 ) ( art . 43 ) .
Mr Ryssdal assumed the office of President of the Chamber ( Rule 21 para . 5 ) and , through the Registrar , consulted the Agent of the Government , the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure ( Rule 37 para . 1 ) .
He also granted a request from the applicant for legal aid ( Rule 4 of the Addendum to the Rules of Court ) .
Thereafter , in accordance with the President ’ s Order , the Registrar received the applicant ’ s and the Government ’ s memorials on 28 February and 6 March 1990 respectively ; in a letter of 6 April 1990 the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing .
Having consulted , through the Registrar , those who would be appearing before the Court , the President directed on 16 January 1990 that the oral proceedings should open on 22 May 1990 ( Rule 38 ) .
The hearing took place in public in the Human Rights Building , Strasbourg , on the appointed day .
The Court had held a preparatory meeting beforehand .
There appeared before the Court :
- for the Government
Mr H. Corell , Ambassador ,
Under-Secretary for Legal and Consular Affairs ,
Agent ,
Mrs C. Westerling , Legal Adviser ,
Ministry of Finance ,
Mr C.-H. Ehrencrona , Legal Adviser ,
Ministry for Foreign Affairs , Advisers ;
- for the Commission
Mr J. A. Frowein , Delegate ;
- for the applicant
Mr C. Palme , advokat , Counsel .
The Court heard addresses by Mr Corell for the Government , by Mr Frowein for the Commission and by Mr Palme for the applicant , as well as their replies to its questions .
The applicant also made a short statement .
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. General background
The applicant , Dr Peter Darby , is a Finnish citizen of British origin , born in 1926 .
In 1977 he was employed as a doctor by the Swedish State Railways in Gävle , Sweden .
He rented a flat in the town , but spent the weekends with his family on the island of Lemland in the neutral and demilitarised Finnish archipelago of Åland at the southern end of the Gulf of Bothnia .
From the end of 1981 he worked as a doctor in the public health service in another Swedish town , Norrtälje .
Since August 1986 he has been working in Åland .
During the period when the applicant was working in Sweden his income from the above-mentioned posts was , in accordance with the convention between Sweden and Finland for the avoidance of double taxation ( see paragraph 18 below ) , liable to Swedish tax .
The applicant was allowed deductions for the cost of maintaining two homes as well as for travel expenses to and from Åland .
As he was considered not to be permanently resident in Sweden , he was , until 1979 , taxed in the so-called Common District ( gemensamma distriktet ) and he paid only a reduced municipal tax ( see paragraph 19 below ) .
On 1 January 1979 the law was amended , with the result that the applicant was no longer taxed in the Common District but in the municipality where he stayed , i.e. in Gävle ( see paragraph 20 below ) .
The deductions which had previously been allowed were no longer permitted and he now had to pay the full municipal tax , including a special tax to the Lutheran Church of Sweden ( " the church tax " - see paragraphs 21-23 below ) .
He was informed by the tax authorities that he could not claim any reduction of the church tax unless he was formally registered as resident in Sweden ( see paragraph 22 below ) .
B. Dr Darby ’ s appeal against the decision to tax him as a resident
Dr Darby appealed to the Joint Municipal Tax Court ( mellankommunala skatterätten ) against the decision to treat him for tax purposes as having been resident in Gävle in 1979 .
He claimed that he should still be taxed in the Common District as he was not living in Sweden .
In a judgment of 25 February 1982 the court dismissed the appeal .
In the meantime , on 19 February 1982 , the applicant had obtained a decision from the National Tax Board ( riksskatteverket ) to the effect that if he travelled daily from Åland to his work in Sweden he would not be regarded as a resident for the purposes of section 68 of the Municipal Tax Act 1928 ( kommunalskattelagen - see paragraph 20 below ) and would thus be taxed in the Common District .
However , he found daily commuting to Gävleimpossible , and in 1982 he accordingly took on less responsible work with lower pay in Norrtälje , to which he could just manage to commute from Lemland .
As a result he was again taxed in the Common District and was not liable to the church tax .
An appeal by Dr Darby to the Administrative Court of Appeal ( kammarrätten ) of Sundsvall against the Joint Municipal Tax Court ’ s judgment was dismissed in a judgment of 22 October 1982 and on 15 October 1984 the Supreme Administrative Court ( regeringsrätten ) refused an application by him for leave to appeal .
C. Dr Darby ’ s complaints regarding the obligation to pay full church tax
In addition to the above-mentioned proceedings , the applicant submitted an appeal to the County Administrative Court ( länsrätten ) of Gävleborg County against the order to pay full church tax on his 1979 income , on the ground that he was neither a member of the Church of Sweden , nor a Swedish citizen nor resident in Sweden .
In a judgment of 19 May 1981 the court dismissed the appeal , holding that the Tax ( Reduction of Dissenters ’ Liability ) Act ( lag 1951 : 691 om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan , " the Dissenters Tax Act " - see paragraph 22 below ) did not apply to the applicant .
Dr Darby appealed to the Administrative Court of Appeal of Sundsvall , which in a judgment of 22 October 1982 confirmed the judgment of the lower court .
His application for leave to appeal was refused by the Supreme Administrative Court on 9 October 1984 .
The applicant also lodged a complaint with the Parliamentary Ombudsman ( justitieombudsmannen ) concerning his obligation to pay tax for the religious activities of the Swedish Church .
In his decision of 16 April 1982 the Ombudsman noted that the requirement in the Dissenters Tax Act that a person be formally registered as resident in Sweden ( mantalsskriven , as defined in the Ordinance on the keeping of population records , folkbokföringsförordningen ) in order to be able to apply for exemption from the church tax had been questioned on several occasions by various bodies , including Parliament .
Although the problem raised by the applicant was a limited one , the Ombudsman concluded that it showed up an inconsistency in the tax legislation for which there was no objective justification and that it was understandable if this inconsistency caused irritation .
In a letter of the same day to the Government , he proposed that the registration requirement should be abolished .
As a result of this proposal the Dissenters Tax Act was subsequently amended accordingly ( see paragraph 23 below ) .
D. The church tax paid by the applicant
Dr Darby paid church tax in the amount of 1,336 Swedish kronor for the tax year 1979 , 1,717 kronor for 1980 and 1,325 kronor for 1981 .
The case originated in an application ( no . 44362 / 04 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by two British nationals , Kirk and Lorraine Dickson , husband and wife ( “ the applicants ” ) , on 23 November 2004 .
The applicants , who were granted legal aid , were represented by Mr E. Abrahamson , a solicitor practising in Liverpool .
The United Kingdom Government ( “ the Government ” ) were represented by their Agent , Mr J. Grainger , of the Foreign and Commonwealth Office .
On 8 March 2005 the Court decided to communicate the application to the Government and
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1972 and 1958 respectively .
The first applicant is in prison and the second applicant lives in Hull .
In 1994 the first applicant was convicted of murder ( kicking a drunken man to death ) and sentenced to life imprisonment with a tariff of fifteen years .
His earliest expected release date is 2009 .
He has no children .
In 1999 he met the second applicant , while she was also imprisoned , through a prison pen-pal network .
She has since been released .
In 2001 the applicants married .
The second applicant already had three children from other relationships .
Since the applicants wished to have a child , in October 2001 the first applicant applied for facilities for artificial insemination .
In December 2002 the second applicant joined this application .
They relied on the length of their relationship and the fact that , given the first applicant ’ s earliest release date and the second applicant ’ s age , it was unlikely that they would be able to have a child together without the use of artificial insemination facilities .
In a letter dated 28 May 2003 the Secretary of State refused their application .
He first set out his general policy ( “ the Policy ” ) :
“ Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances .
In reaching decisions particular attention is given to the following general considerations :
– whether the provision of artificial insemination facilities is the only means by which conception is likely to occur
– whether the prisoner ’ s expected day of release is neither so near that delay would not be excessive nor so distant that he / she would be unable to assume the responsibilities of a parent
– whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination
– whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner ’ s release
– whether there is any evidence to suggest that the couple ’ s domestic circumstances and the arrangements for the welfare of the child are satisfactory , including the length of time for which the child might expect to be without a father or mother
– whether having regard to the prisoner ’ s history , antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case . ”
He then gave his reasons for refusal in the present case :
“ Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small .
The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially .
However , he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life .
Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived .
In addition , there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived .
It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years .
The Minister notes the violent circumstances of the crime for which you were sentenced to life imprisonment and it is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison . ”
The applicants sought leave to apply for judicial review of the Secretary of State ’ s decision .
On 29 July 2003 the High Court refused leave on the papers .
The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing .
On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies ( application no . 34127 / 03 ) .
The applicants then applied to the Court of Appeal for leave to appeal .
On 30 September 2004 their application was unanimously rejected by the Court of Appeal .
Auld LJ relied in principle on the judgment of the Court of Appeal in R ( Mellor ) v. Secretary of State for the Home Department [ 2001 ] 3 WLR 533 .
He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case .
Auld LJ relied on the conclusion of Lord Phillips , Master of the Rolls , in the Mellor case ( see paragraphs 23-26 below ) and commented :
“ ... Lord Phillips clearly had in mind , and he set it out in the course of his judgment , the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life , including the protection of health or morals and the protection of the rights and freedom of others .
It seems to me that concern , not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside , and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved , are highly relevant circumstances for the purposes of Article 8.2 ...
Accordingly , in my view , it is not open to [ the applicants ] to seek to re-open the validity of the Secretary of State ’ s policy which this court has held in Mellor is rational and otherwise lawful .
As Lord Phillips made clear in his judgment in that case , although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether , the finishing point is whether there are exceptional circumstances for not applying the policy ... ”
He then noted that on occasions the Secretary of State had “ dis-applied ” the Policy when the circumstances had merited it : he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances .
Auld LJ then applied the Policy to the present case :
“ To the extent that [ the applicants have ] suggested that [ the ] Secretary of State has irrationally misapplied his own policy to the circumstances , or has otherwise acted disproportionately in applying it , I would reject the suggestion .
There is no basis for saying that the Secretary of State ’ s approach can be equated , as [ the applicants ] suggested , with the extinction of a fundamental right .
It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided , an exercise of discretion and proportionality in respect of which , in my view , the Secretary of State cannot be faulted on the circumstances as presented to him . ”
The other judges also relied on the judgment in Mellor .
The case was referred to the Court by the European Commission of Human Rights ( " the Commission " ) on 11 September 1992 , within the three-month period laid down by Article 32 para . 1 and Article 47 ( art . 32-1 , art . 47 ) of the Convention .
It originated in an application ( no . 15058 / 89 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 ( art . 25 ) on 2 December 1988 by a British citizen , Dr Royce Darnell .
The Commission ’ s request referred to Articles 44 and 48 ( art . 44 , art . 48 ) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court ( Article 46 ) ( art . 46 ) .
The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para . 1 ( art . 6-1 ) of the Convention .
In response to the enquiry made in accordance with Rule 33 para . 3 ( d ) of the Rules of Court , the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him ( Rule 30 ) .
The Chamber to be constituted included ex officio Sir John Freeland , the elected judge of British nationality ( Article 43 of the Convention ) ( art . 43 ) , and Mr R. Ryssdal , the President of the Court ( Rule 21 para . 3 ( b ) ) .
On 26 September 1992 , in the presence of the Registrar , the President drew by lot the names of the other seven members , namely Mr Thór Vilhjálmsson , Mr B. Walsh , Mr C. Russo , Mr S.K. Martens , Mrs E. Palm , Mr A.N. Loizou and Mr A.B. Baka ( Article 43 in fine of the Convention and Rule 21 para . 4 ) ( art . 43 ) .
Subsequently Mr N. Valticos , substitute judge , replaced Mr Thór Vilhjálmsson , who was unable to take part in the further consideration of the case ( Rules 22 para . 1 and 24 para . 1 ) .
Mr Ryssdal assumed the office of President of the Chamber ( Rule 21 para . 5 ) and , through the Registrar , consulted the Agent of the Government of the United Kingdom ( " the Government " ) , the applicant ’ s lawyer and the Delegate of the Commission on the organisation of the proceedings ( Rules 37 para . 1 and 38 ) .
In accordance with the order made in consequence , the Registrar received on 29 January 1993 the applicant ’ s memorial and , on 1 February , the Government ’ s .
On 15 April 1993 he was informed by the Commission ’ s secretariat that the Delegate would submit his observations at the hearing .
In accordance with the President ’ s decision , the hearing took place in public in the Human Rights Building , Strasbourg , on 20 April 1993 . The Court had held a preparatory meeting beforehand .
There appeared before the Court :
- for the Government
Mrs A. Glover , Legal Counsellor ,
Foreign and Commonwealth Office , Agent ,
Mr M. Baker , Q.C. , Counsel ,
Mr G. Berry , Department of Health ,
Mr M. Evans , Department of Health ,
Mr J. Evans , Trent Regional Health Authority , Advisers ;
- for the Commission
Mr L. Loucaides , Delegate ;
- for the applicant
Ms F. Hampson , senior lecturer in law
at the University of Essex , Counsel .
The Court heard addresses by Mr Baker for the Government , by Mr Loucaides for the Commission and by Ms Hampson for the applicant , as well as replies to its questions .
AS TO THE FACTS
The applicant , Dr Royce Darnell , who was born in 1929 , has been unemployed since the Trent Regional Health Authority ( " the RHA " ) terminated his employment as a consultant microbiologist and Director of the Public Health Laboratory in Derby .
This case concerns the length of time that proceedings relating to this dismissal have taken .
Following administrative changes in the National Health Service in 1977 , management problems arose in many regions including the Trent RHA .
As a result of differences over staff appointment procedures , in October 1979 a local grievance procedure was initiated against Dr Darnell before the Area Health Authority ( " the AHA " ) by the Association of Scientific , Technical and Managerial Staffs .
Although Dr Darnell was considered by the British Medical Association ’ s legal department to have been acting within the terms of the Government ’ s guidelines in Health Service Circular ( IS ) 16 , the AHA endorsed the new appointments procedure .
Following further disagreement , a formal complaint was made in December 1980 by the AHA to the Trent RHA alleging non-compliance with laboratory staff appointment procedures .
Dr Darnell was informed by letter of 19 March 1981 that a sub-committee had been set up to deal with the AHA ’ s formal complaint .
After various investigations had been carried out , a disciplinary procedure under circular HM ( 61 ) 112 was instituted against Dr Darnell by the Trent RHA .
By letter of 25 June 1982 he was suspended from duty pending the outcome .
After attempts to settle the case had failed , a panel of inquiry sat for thirty-two days between June and August 1983 .
It reported in December that the applicant was at fault in certain respects .
A sub-committee subsequently appointed by the Trent RHA recommended that Dr Darnell ’ s employment as a consultant microbiologist be terminated .
Accordingly , by letter of 16 May 1984 from the Trent RHA , the applicant was dismissed on three months ’ notice with effect from 19 August 1984 .
The applicant appealed to the Secretary of State against his dismissal on 23 May 1984 .
A professional committee was appointed in accordance with paragraph 190 of the Terms and Conditions of Service of Hospital Medical and Dental Staff .
The paragraph 190 procedure has since been replaced by a new procedure which incorporates time-limits into the various stages of an appeal to the Secretary of State against dismissal .
After holding a hearing on 14 May 1985 , the professional committee reported to the Secretary of State who , in September 1985 , sought further information .
The Secretary of State directed the RHA to offer Dr Darnell a new post in the region without managerial responsibility .
In reaching this decision the Secretary of State had noted that the professional committee had been very critical of the handling of the case .
The RHA challenged this direction .
The applicant was informed by the Department of Health and Social Security ( " the DHSS " ) that in view of the unavailability of alternative employment , the case had been remitted to the Secretary of State who , not being bound by the professional committee ’ s recommendation to allow the appeal , had decided that the termination of Dr Darnell ’ s services in accordance with the paragraph 190 procedure should be confirmed .
By judicial review proceedings commenced in the High Court on 24 April 1986 , the applicant challenged the fairness of the procedure leading to the Secretary of State ’ s decision .
The High Court granted a declaration that this decision was invalid and indicated that the Secretary of State should reconsider the matter .
The Secretary of State did not appeal .
On 25 October 1986 the applicant informed the DHSS that he now sought a further paragraph 190 hearing .
An exchange of correspondence took place .
The DHSS attempted to convoke an ad hoc committee meeting , but this was cancelled as the applicant refused to accept such a compromise .
On 29 February 1988 , having proceeded on the basis of the written material which included further written submissions , the Secretary of State decided to confirm the applicant ’ s dismissal .
Accordingly , by letter of 18 March 1988 , the DHSS informed the applicant that , on the basis of the professional committee ’ s report of 25 July 1985 and the written submissions made by Dr Darnell and the Trent RHA , re-employment was not a possibility and termination of his services was effective from the date of that letter .
The applicant ’ s application for judicial review of the validity of the Secretary of State ’ s direction was dismissed on 3 November 1988 .
In the meantime , the applicant had also sought reinstatement , re-engagement and damages for dismissal by proceedings in the Industrial Tribunal .
Two applications had been made to the Tribunal , the first on 10 August 1984 following his dismissal in May of that year and the second in May 1986 following the Secretary of State ’ s initial rejection of his appeal against dismissal .
These proceedings had been stayed from time to time at the applicant ’ s request , pending the results of the appeal to the Secretary of State and the judicial review proceedings .
In November 1988 , the second Industrial Tribunal application was revived and the first was subsequently withdrawn .
A pre-hearing assessment took place on 6 February 1989 in which the Tribunal determined that a hearing could take place with no cost consequences to the applicant .
In its reserved decision of 23 February 1990 , the Tribunal held that the dismissal of the applicant was not unfair .
It had not been persuaded that the applicant had in any way been prejudiced by the time which had elapsed until a decision was finally reached . He had been paid his salary in full until March 1988 .
The applicant ’ s appeal to the Employment Appeal Tribunal was dismissed on 8 April 1993 .
In June 1988 a separate action in the High Court claiming damages for the applicant ’ s suspension from work in June 1982 pending the outcome of the disciplinary procedure was struck out as it disclosed no reasonable cause of action .
An appeal against the striking out was dismissed in 1990 .
PROCEDURE
The case originated in an application ( no . 57592 / 08 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by a British national , Mr Arthur Hutchinson ( “ the applicant ” ) , on 10 November 2008 .
The applicant , who had been granted legal aid , was represented by Kyles Legal Practice , North Shields .
The United Kingdom Government ( “ the Government ” ) were represented by their Agent , Mr P. McKell of the Foreign and Commonwealth Office .
The applicant alleged in particular that his whole life sentence gave rise to a violation of Article 3 of the Convention .
The application was allocated to the Fourth Section of the Court ( Rule 52 § 1 of the Rules of Court ) .
The Chamber also held , by six votes to one , that there had been no violation of Article 3 .
A dissenting opinion of Judge Kalaydjieva was appended to the judgment .
On 1 June 2015 , pursuant to a request by the applicant dated 5 March 2015 , the Panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention .
The composition of the Grand Chamber was determined according to the provisions of Article 26 § § 4 and 5 of the Convention and Rule 24 of the Rules of Court .
The applicant and the Government each filed written observations ( Rule 59 § 1 of the Rules of Court ) on the merits .
In addition , third-party comments were received from the European Prison Litigation Network ( the “ EPLN ” ) , which had been granted leave to intervene in the written procedure ( Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court ) .
The Government replied to these comments in the course of their oral submissions at the hearing ( Rule 44 § 6 of the Rules of Court ) .
A hearing took place in public in the Human Rights Building , Strasbourg , on 21 October 2015 ( Rule 59 § 3 of the Rules of Court ) .
There appeared before the Court :
( a ) for the Government
Mr P. McKell , Agent ,
Mr J. Wright QC , Attorney-General ,
Mr J. Eadie QC , Counsel ,
Ms A. Foulds ,
Ms C. Gaskell ,
Mr J. Gerard ,
Ms J. Earl , Advisers ;
( b ) for the applicant
Mr J. Bennathan QC ,
Ms K. Thorne , Counsel ,
Mr J. Turner , Adviser .
The Court heard addresses by Mr Wright and Mr Bennathan , and their answers to questions put by the Court .
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1941 and is detained in Her Majesty ’ s Prison Durham .
In October 1983 , the applicant broke into a family home , where he stabbed to death a man , his wife and their adult son ; he then repeatedly raped their 18 year ‑ old daughter , having first dragged her past her father ’ s body .
He was arrested several weeks later and charged with these offences .
At trial he pleaded not guilty , denying the killings and claiming that the sexual intercourse had been consensual .
On 14 September 1984 , he was convicted of three counts of murder , rape , and aggravated burglary .
The trial judge sentenced the applicant to a term of life imprisonment and , in accordance with the rules on sentencing then in force , recommended a minimum period ( tariff ) of 18 years to the Secretary of State for the Home Office .
When asked to give his opinion again on 12 January 1988 , the judge wrote that “ for the requirements of retribution and general deterrence this is genuinely a life case ” .
On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “ I do not think that this man should ever be released , quite apart from the risk which would be involved ” .
On 16 December 1994 , the Secretary of State informed the applicant that he had decided to impose a whole life term .
Following the entry into force of the Criminal Justice Act 2003 , the applicant applied to the High Court for a review of his sentence , arguing that he should receive the 18-year tariff mentioned at his trial .
On 16 May 2008 , the High Court gave its judgment .
It found that the seriousness of the offences alone was such that the starting point was a whole life order and number of very serious aggravating factors were present , while there were no mitigating factors .
On 6 October 2008 , the Court of Appeal dismissed the applicant ’ s appeal .
PROCEDURE
The case originated in an application ( no . 8866 / 04 ) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by a United Kingdom national , Mr Yassar Hussain ( “ the applicant ” ) , on 1 March 2004 .
The applicant was represented by Mr M. Bromley of Lichfield Reynolds in Stoke-on-Trent .
The United Kingdom Government ( “ the Government ” ) were represented by their Agent , Mr J. Grainger , of the Foreign and Commonwealth Office .
On 16 February 2005 the Court decided to communicate the application to the Government .
Under the provisions of Article 29 § 3 of the Convention , it decided to examine the merits of the application at the same time as its admissibility .
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1981 and lives in Stoke-on-Trent .
The applicant was arrested on 14 May 2002 on suspicion of having intimidated witnesses .
In an identity parade held the same afternoon , he was positively identified by one of the two witnesses .
The applicant states that this witness accepted in her original statement of evidence to the police that she was a heroin user and an inherently unreliable witness .
The applicant was subsequently charged with five counts of doing acts tending and intended to pervert the course of public justice .
The applicant pleaded not guilty on 2 August 2002 and the trial was adjourned to the Stoke-on-Trent Crown Court on 7 October 2002 .
On that date no judge was available and the trial was moved to 3 February 2003 .
On the second day of the trial the witness who had identified the applicant did not attend and the trial had to be aborted .
At the re-listed trial on 15 September 2003 , Counsel for the Crown addressed the court in the following terms :
“ When this matter was listed for trial in February , [ L. ] attended on the first day .
She wasn 't called to give evidence and didn 't come back on the second day .
Certainly , that caused some concern .
I think it is fair to say , at different stages of the entire case , she has blown slightly hot and cold .
[ L. ] indicated to the police when they contacted her recently and , in fact , again yesterday , that she was reluctant to give evidence .
She has attended court today and with my learned friend 's permission , I have had the chance to sit down and have a chat to her .
Your Honour , the reality is that she does not want to give evidence .
She has personal reasons I don 't propose to divulge in open court .
She has formed a new relationship .
She has moved on .
She is trying very hard to put the events of this entire case behind her .
She has satisfied the police who spoke to her yesterday and satisfied those who instruct me that no threats have been made toward her in relation to today 's proceedings .
She insists that there has been no contact from [ the applicant ] or others acting on his behalf .
We don 't feel that , due to the nature of this allegation , she ought to be compelled to give evidence in this case .
Your Honour , there has been a very full discussion and the view we have taken is that without her evidence , plainly , we can 't proceed .
I offer no evidence .
Verdicts must follow . ”
The applicant was duly acquitted .
On his counsel 's application for a defendant 's costs order , the judge refused to make an order and stated :
“ That order will be refused .
There is clear evidence on the court papers .
The Crown have taken the view that they are not going to compel this witness although there is compelling evidence in respect of those matters .
It is a discretion which I am afraid I am not going to exercise in your favour . ”
The applicant 's attempted appeal was dismissed on 14 November 2003 as “ to be appealable as a sentence , the order must be contingent upon conviction .
As the defendant 's costs order only arises when a prosecution is unsuccessful , it cannot be a sentence and cannot be appealed at the Court of Appeal Criminal Division ” .