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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25895/94

Dennis Gordon Tomsett

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 21 May 1997)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1

PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .5

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mr. Dennis Gordon Tomsett against

the United Kingdom on 30 September 1994. It was registered on

9 December 1994 under file No. 25895/94.

2. The applicant was represented by Ms. E. Needham, solicitor, of

Messrs. Galbraith Branley, London.

3. The Government of the United Kingdom were represented by their

Agent, Mr. M. Eaton, of the Foreign and Commonwealth Office, London.

4. On 4 September 1996 the Commission (First Chamber) declared

inadmissible the applicant's complaint concerning the absence of a

tribunal with power to release him. It declared admissible the

remainder of the application. The Commission then proceeded to carry

out its task under Article 28 para. 1 of the Convention which provides

as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

5. The applicant complains under Article 5 of the Convention that

he was deprived of any appropriate review of the length of his

detention until 14 June 1994, when a Discretionary Lifer Panel of the

Parole Board ("DLP") heard and released him.

6. The Commission (First Chamber) found that the parties had reached

a friendly settlement of the case and on 21 May 1997 it adopted this

Report, which, in accordance with Article 28 para. 2 of the Convention,

is confined to a brief statement of the facts and of the solution

reached.

7. The following members were present when the Report was adopted:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

PART I

STATEMENT OF THE FACTS

8. The applicant is a British citizen born in 1924. He lives in

St. Andrew's hospital, Northampton.

9. The applicant was sentenced to a discretionary life sentence and

concurrent shorter periods on 11 October 1963 for buggery and causing

grievous bodily harm to a 14-year old boy. He was transferred to a

special hospital under Sections 72 and 74 of the Mental Health Act 1959

(subsequently Sections 47 and 49 of the Mental Health Act 1983) in

1965, and was detained in various mental hospitals until his formal

release in 1994.

10. The "tariff" in the applicant's case, that is the period which

represented the punishment aspect of his case, expired in 1973.

11. In 1989 the applicant was seen talking to a boy of about

11 outside the hospital gate.

12. In 1990 a Mental Health Review Tribunal found that the applicant

was not suffering from mental disorder of a nature or degree to make

it appropriate for him to be liable to be detained in a hospital for

treatment, but the Home Office did not authorise his conditional

discharge.

13. In 1991 the Parole Board asked for a firm hostel-based plan to

be formulated, and for his case to be referred back to them thereafter,

but no hostel became available.

14. On 31 May 1993 the Home Office stated in reply to a letter of

29 March 1993 from the applicant's solicitors that, because he had been

transferred to a special hospital under the mental health legislation,

his detention and release were governed by the 1983 Act. The Home

Office considered that a transferred prisoner was:

"only entitled to be treated as a prisoner where the 1983

Act says that he may be, eg under Section 50(i)(b) which

allows the Home Secretary to exercise any power of release

on licence which would have been available had the

transferred prisoner been in prison....Section 34 of the

[Criminal Justice Act 1991], containing the provisions for

review and release by the Parole Board of discretionary

life prisoners [do not] automatically appl[y] in the case

of a prisoner transferred to special hospital."

15. The Home Office continued that the Secretary of State had powers

to release where he agreed with the opinion of the authorities which

reviewed continuing detention. On return to prison, Section 34 would

generally apply again.

16. On 24 September 1993 the applicant's solicitors applied for

judicial review of the letter of 31 May 1993. On 15 October 1993 the

Secretary of State referred the case to a DLP, and on 22 October 1993

the High Court made a declaration that the Secretary of State's policy

not to certify discretionary life prisoners under paragraph 9 of

Schedule 12 to the Criminal Justice Act 1991 on the ground that they

had been transferred to hospital under the Mental Health Act 1983 was

unlawful.

17. On 28 March 1994 a Mental Health Review Tribunal again found that

the applicant did not suffer psychopathic disorder of such a degree as

to require his continued treatment in hospital. It found that, if

subject to a restriction order, he would be entitled to be

conditionally discharged, and recommended that, if he was not to be

discharged, he should be detained in hospital. In concluding that he

ought to be entitled to a conditional discharge, it considered that

such discharge should be deferred until the following conditions were

met:

1. That the applicant reside at a staffed residential home;

2. That he remain under the supervision of a psychiatrist;

3. That he remain under the supervision of a social worker or

probation officer; and

4. That he remain liable to recall to hospital.

18. The applicant was not discharged.

19. The applicant was heard by the DLP on 14 June 1994. The panel

considered that it was no longer necessary for the protection of the

public that the applicant be confined, and it directed his release on

a life licence. One of the conditions of the licence was that the

applicant was to continue to reside at St. Andrew's Hospital and

another was that he should not reside in the same household as any

child under 16 years of age.

PART II

SOLUTION REACHED

20. Following the decision on the admissibility of the application,

the Commission (First Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

21. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

22. On 10 and 11 April 1997 the Government and the applicant's

representative respectively informed the Commission that they had

reached agreement for settlement of the case at £1500 plus the

applicant's reasonable costs.

23. At its session on 21 May 1997, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

24. For these reasons, the Commission adopted the present Report.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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TOMSETT v. THE UNITED KINGDOM

TOMSETT v. THE UNITED KINGDOM

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