Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17821/91

James Kay

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 March 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) . . . . . . . . . . . . . . . . . . . 1-3

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . 1-2

C. The present Report

(paras. 11-15) . . . . . . . . . . . . . . . . 2-3

II. ESTABLISHMENT OF THE FACTS

(paras. 16-41) . . . . . . . . . . . . . . . . . . . .4-8

A. The particular circumstances of the case

(paras. 16-31) . . . . . . . . . . . . . . . . .4-6

B. Relevant domestic law

(paras. 32-41) . . . . . . . . . . . . . . . . .7-8

III. OPINION OF THE COMMISSION

(paras. 42-68) . . . . . . . . . . . . . . . . . . . 9-13

A. Complaints declared admissible

(para. 42) . . . . . . . . . . . . . . . . . . . .9

B. Points at issue

(para. 43) . . . . . . . . . . . . . . . . . . . .9

C. As regards Article 5 para. 1 of the Convention

(paras. 44-54) . . . . . . . . . . . . . . . . 9-11

CONCLUSION

(para. 55) . . . . . . . . . . . . . . . . . . . 11

D. As regards Article 5 para. 4 of the Convention

(paras. 56-65) . . . . . . . . . . . . . . . .11-13

CONCLUSION

(para. 66) . . . . . . . . . . . . . . . . . . . 13

E. Recapitulation

(paras. 67-68) . . . . . . . . . . . . . . . . . 13

PARTIALLY DISSENTING OPINION OF Mr. TRECHSEL . . . . . . . 14

DISSENTING OPINION OF Mr. SCHERMERS . . . . . . . . . . . . 15

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 16

APPENDIX II : DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . .17-26

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before

the Commission.

A. The application

2. The applicant is a British citizen, born in 1945, and

detained in Broadmoor Special Hospital, Crowthorne, Berkshire

(hereafter referred to as Broadmoor). He was represented before

the Commission by Messrs. Irwin Mitchell & Co., solicitors,

Sheffield.

3. The application is directed against the United Kingdom. The

respondent Government were represented by their Agent,

Mrs. A.F. Glover, Foreign and Commonwealth Office.

4. The case concerns the applicant's recall to Broadmoor,

without prior medical assessment, on termination of a prison

sentence and subsequent delays before the Mental Health Review

Tribunal, which maintained the applicant's detention in hospital.

The applicant invokes Article 5 paras. 1 and 4 of the Convention.

B. The proceedings

5. The application was introduced on 14 December 1990 and

registered on 20 February 1991.

6. On 2 July 1991 the Commission decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of

the application to the respondent Government and to invite the

parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on

31 October 1991. The Commission granted the applicant legal aid

for the representation of his case on 13 December 1991. The

applicant submitted his observations on 31 March 1992, after an

extension of the time-limit fixed for this purpose.

8. On 15 January 1993 the Commission decided to hold a hearing

of the parties. The parties submitted pre-hearing briefs: the

Government on 18 June 1993, the applicant on 23 June 1993. The

hearing was held on 7 July 1993. The Government were represented

by Mrs. A.F. Glover, Agent, Foreign and Commonwealth Office,

Mr. M. Baker, QC, counsel, Dr. P. Mason and Mr. P.W. Otley,

Department of Health, Mr. H. Giles and Mr. N. Jordan, Home

Office, and Dr. D. McGoldrick, Foreign and Commonwealth Office.

The applicant was represented by Mr. O. Thorold, counsel, and

Mr. C. Gillot, solicitor, Messrs. Irwin Mitchell & Co..

9. On 7 July 1993 the Commission declared the application

admissible. The text of the Commission's decision on

admissibility was sent to the parties on 20 July 1993 and they

were invited to submit such further information or observations

on the merits as they wished. The parties did not make any

further submissions.

10. After declaring the case admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, also

placed itself at the disposal of the parties with a view to

securing a friendly settlement. In the light of the parties'

reaction, the Commission now finds that there is no basis on

which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

B. CONFORTI

12. The text of this Report was adopted on 1 March 1994 and is

now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

14. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the

Commission's decision on the admissibility of the application as

Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In November 1970 the applicant killed the 12 year old

daughter of a neighbour. The condition of the child's body

indicated that she had been raped, asphyxiated, cut with a sharp

instrument and bitten.

17. On 5 January 1971 the applicant pleaded guilty at Liverpool

Crown Court to a charge of manslaughter on grounds of diminished

responsibility. This plea was accepted and the applicant was

made the subject of a Hospital Order and a Restriction Order

without limit of time under sections 60 and 65 of the Mental

Health Act 1959 (now replaced by sections 37 and 41 of the Mental

Health Act 1983, hereinafter referred to as the 1983 Act).

Medical evidence before Liverpool Crown Court was that the

applicant was suffering from a psychopathic disorder. In

addition, the Court was aware that the applicant had a number of

previous convictions including three for sexual offences. In

July 1962 the applicant had been convicted of assaulting a girl

under the age of 13 and been fined £15. In December 1963 he had

been convicted of having sexual intercourse with a girl whose age

was between 13 and 15 and he had been conditionally discharged.

Finally, in January 1966 he had been convicted of rape and

sentenced to 3 years' imprisonment.

18. After his conviction the applicant was sent to Broadmoor

where he remained until November 1981 when he was transferred to

Park Lane Hospital.

19. In March 1985 he sought discharge from hospital by means of

an application to a Mental Health Review Tribunal as he was

entitled to do under section 70 of the 1983 Act. The Secretary

of State expressed serious reservations about the medical

evidence presented on the applicant's behalf. The Tribunal

found, however, that there was no evidence that the applicant was

then suffering from any mental disorder. However, it took the

view that it was appropriate for the applicant to remain liable

to be recalled to hospital for further treatment. Therefore the

Tribunal was obliged, under section 73 (2) of the Act, to order

that the applicant be conditionally discharged from hospital.

It made the relevant order on 19 March 1985.

20. The conditions of discharge related to residence, probation

and medical supervision. The applicant left hospital on

9 April 1985. Whilst subject to conditional discharge the

applicant was convicted on 14 April 1986 at Lancaster Crown Court

of two offences, one of assault occasioning actual bodily harm,

the other of unlawful wounding. The offences were committed on

20 and 21 October 1985 respectively and the victims were both

young women.

21. In the absence of a medical recommendation for a hospital

order under section 37 (2) of the 1983 Act, the applicant was not

returned to hospital but was sentenced to 3 years' imprisonment

for each

offence, running consecutively. Leading counsel appearing on

behalf of the applicant gave the following explanation to the

Court for the absence of such a recommendation:

"There is no medical recommendation because as your Honour

will know such a recommendation is only available if there

is treatment available and a place available for treatment

and such treatment is regarded as being likely to be

successful. I have a medical report which indicates that

this man suffers from a severe personality disorder which

is thought to be unbreakable at the moment, although we

know the speed at which medical science advances these

days."

22. While in prison the applicant retained his status as a

person conditionally discharged from hospital. On 30 June 1986

he applied for his case to be considered again by a Mental Health

Review Tribunal. He sought his absolute discharge from hospital

on the basis that he was not suffering from any mental disorder.

The Tribunal, which considered his case on 18 December 1986,

refused to grant an absolute discharge even though there was no

medical evidence before it that the applicant was then suffering

from any psychopathic disorder. The Tribunal refused such a

discharge since it continued to take the view that it was

appropriate for the applicant to remain liable to be recalled to

hospital for further treatment. In the light of the applicant's

imprisonment the Tribunal ordered that the conditions of his

discharge be suspended until the day of his release from prison.

23. In consequence, the applicant would, on the day of his

release from prison, revert to the status of a person

conditionally discharged from hospital. He would, under section

42 (3) of the 1983 Act, be liable to be recalled to hospital by

a warrant issued by the Home Secretary. The applicant

unsuccessfully challenged the 1986 decision of the Tribunal by

way of judicial review.

24. The applicant remained in prison at Albany on the Isle of

Wight. His earliest release date was 24 October 1989. On

4 August 1989 the applicant's solicitor wrote to the Home Office

stating that the applicant was seeking reassurance that the Home

Secretary would not exercise the power of recall. However, on

1 September 1989 the Home Secretary issued a warrant of recall

stating that as soon as the applicant was released from prison

he should be taken to and detained at Broadmoor Special Hospital,

a secure establishment. In a letter addressed to the applicant

at Albany prison dated 1 September 1989 the Home Secretary gave

his reasons for this decision. He said that in the light of the

offences of which the applicant was convicted in April 1986, he

was not satisfied that the applicant no longer presented a

serious risk to public safety.

25. The Secretary of State continued to have grave misgivings

about the applicant's motivation for the 1970 offence. He was

particularly concerned by a report that he had asked Dr. Loucas,

a consultant forensic scientist at Broadmoor, to prepare in

December 1986. Without interviewing the applicant and on the

basis of the case papers, Dr. Loucas wrote that, "All reports

stating 'not psychopathic' appear to be based on the uncritical

acceptance of Mr. Kay's explanations for his offences

(contradictory and deliberately misleading) without reference to

his personal history ...".

26. Section 75 (1) (a) of the 1983 Act obliges the Home

Secretary, when issuing a warrant of recall under section 42 (3),

to refer the case to a Mental Health Review Tribunal. The Home

Secretary advised the applicant that his case would indeed be

referred to such a Tribunal.

27. The applicant promptly sought judicial review of the Home

Secretary's decision in order to quash the Home Secretary's

warrant of recall on the ground that it was issued unlawfully.

28. The applicant's application for judicial review was heard

first by Mr. Justice McCullough, who gave judgment refusing the

applicant relief on 23 October 1989, the day before the applicant

was due to be released from prison. The applicant was

subsequently transferred on 24 October 1989 from Albany prison

to Broadmoor, where he remains in detention. On the same day the

Secretary of State referred the case to a Mental Health Review

Tribunal. The applicant also applied to the Tribunal.

29. The Tribunal was ready to sit on 22 March 1990, but at the

request of the applicant's solicitors the hearing date was

postponed until June 1990. This second hearing date was again

postponed due to a request from the applicant's solicitors. The

Home Secretary obtained a medical report on the applicant after

he was transferred from Albany to Broadmoor. That report was

prepared by a clinical psychiatrist, Dr. Enda Dooley and was

dated 24 November 1989. Dr. Dooley concluded that the applicant

was suffering from a psychopathic disorder.

30. The applicant entered an appeal against the refusal of

relief on judicial review by Mr. Justice McCullough. The Court

of Appeal rejected the appeal on 3 July 1990. Leave to appeal

to the House of Lords was refused by the Court of Appeal. The

applicant was discouraged from applying to the House of Lords for

leave to appeal because of an earlier refusal of such leave in

his first judicial review proceedings. Further he was advised

by counsel that, in the light of the decision of the Court of

Appeal, English courts could provide him with no other remedy.

31. The Mental Health Review Tribunal heard the applicant's case

on 25 and 26 November 1991. No fresh evidence was placed before

the Tribunal on behalf of the applicant, who by then had

withdrawn his application to the Tribunal, leaving the Secretary

of State's referral. He declined to attend the hearing, but was

represented by his solicitor and counsel. The Tribunal directed

that the applicant should not be discharged from hospital

because, following medical evidence submitted by a Dr. Ferris,

it was not satisfied that the applicant "is not suffering from

a continuing psychopathic disorder of such a nature or degree as

to make it appropriate for him to be liable to be detained in

hospital for medical treatment and that there is reason to

believe, taking into account particularly the 1985 assaults, that

it is necessary for the protection of others that he receive such

treatment".

B. Relevant domestic law and practice

Hospital order

32. Section 37 of the Mental Health Act 1983 (the 1983 Act)

empowers a Crown Court to order a person's admission to and

detention in a hospital specified in the order (a hospital

order).

33. The court can only make a hospital order if it is satisfied

on the evidence of two registered medical practitioners that the

offender

is mentally disordered and that -

(a) the disorder is of a nature or degree which makes it

appropriate for him to be detained in a hospital for

medical treatment and, in the case of psychopathic

disorder ... that such treatment is likely to

alleviate or prevent a deterioration of his condition,

and

(b) the court is of the opinion ... that the most suitable

method of disposing of the case is by [a hospital

order].

Restriction order

34. Section 41 of the 1983 Act empowers a Crown Court at the

same time as it makes a hospital order to make a restriction

order without limit of time.

35. A restriction order may be made if it appears to the court,

having regard to the nature of the offence, the antecedents of

the offender and the risk of his committing further offences if

set at large, that it is necessary for the protection of the

public from serious harm to make the order.

Application to the Mental Health Review Tribunal

36. Under section 70 of the 1983 Act a person who is subject to

a hospital order and restriction order ("a restricted patient"),

and who is detained in hospital, can apply to a Mental Health

Review Tribunal after he has been detained for six months. After

he has been detained for twelve months he can re-apply annually.

(Under section 71 of the 1983 Act the Secretary of State may at

any time refer the case of a restricted patient to a Tribunal and

must do so when his case has not been considered by a Tribunal

for three years.)

Absolute discharge

37. Under section 73(1) of the 1983 Act, read with section

72(1), where an application is made to a Tribunal by a restricted

patient who is subject to a restriction order (as opposed to a

restriction direction imposed by the Secretary of State on

transfer of a person from prison to hospital), or where his case

is referred to the Tribunal by the Secretary of State, the

Tribunal is required to direct the absolute discharge of the

patient if satisfied -

(a) (i) that he is not then suffering from mental illness,

psychopathic disorder, severe mental impairment or

mental impairment or from any of those forms of

disorder of a nature or degree which makes it

appropriate for him to be liable to be detained in a

hospital for medical treatment; or

(ii) that it is not necessary for the health or safety

of the patient or for the protection of other persons

that he should receive such treatment; and

(b) that it is not appropriate for the patient to remain

liable to be recalled to hospital for further

treatment.

38. By virtue of section 73(3) of the 1983 Act, where a patient

is absolutely discharged he ceases to be liable to be detained

by virtue of the hospital order and the restriction order ceases

to have effect.

Conditional discharge

39. Under section 73(2) of the 1983 Act, where the Tribunal is

satisfied as to either of the matters referred to in

paragraph (a) above, but not as to the matter referred to in

paragraph (b) above, it is required to direct the conditional

discharge of the patient. By virtue of section 73(4) a patient

who has been conditionally discharged may be recalled by the

Secretary of State under section 42(3) and must comply with the

conditions attached to his discharge. In contrast to the case

of absolute discharge, a conditionally discharged patient does

not cease to be liable to be detained by virtue of the relevant

hospital order.

Secretary of State's power of recall

40. The Secretary of State has power to recall a patient who he

himself has conditionally discharged under section 42(2) of the

1983 Act, or who has been conditionally discharged by a Tribunal

under section 73(2) of the 1983 Act. This power is given by

section 42(3) of the 1983 Act which says :

"The Secretary of State may at any time during the

continuance in force of a restriction order in respect of

a patient who has been conditionally discharged under sub-

section (2) above by warrant recall the patient to such

hospital as may be specified in the warrant."

Referral to a Tribunal

41. Under section 75(1)(a) of the 1983 Act, when a restricted

patient who has been conditionally discharged is subsequently

recalled to hospital, the Secretary of State is required, within

one month of the day on which the patient returns or is returned

to hospital, to refer his case to a Tribunal.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

42. The Commission has declared admissible the applicant's

complaints

- that, by his recall to Broadmoor Special Hospital in

October 1989, he was illegally deprived of his liberty, not

being a person of unsound mind within the meaning of

Article 5 para. 1 (e) (Art. 5-1-e) of the Convention, and

- that the lawfulness of his continued detention in that

hospital was not speedily determined by the competent

judicial authorities.

B. Points at issue

43. The following are the points at issue in the present case:

- whether there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention, and

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention.

C. As regards Article 5 para. 1 (Art. 5-1) of the Convention

44. The relevant parts of Article 5 para. 1 (Art. 5-1) of the

Convention read as follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law:

...

(e) the lawful detention ... of persons of unsound

mind..."

45. The applicant complains of a violation of Article 5 para. 1

(Art. 5-1) of the Convention by virtue of the Secretary of

State's warrant of recall of 1 September 1989. This warrant

authorised the applicant's return to Broadmoor Special Hospital

on 24 October 1989. The applicant claims that he was illegally

deprived of his liberty because the Secretary of State was not

in possession of any evidence at the material time that the

applicant was a person of unsound mind, within the meaning of

Article 5 para. 1 (e) (Art. 5-1-e) of the Convention, or that he

was in need of continued compulsory confinement. He submits

that, on the contrary,the available evidence, in particular the

1985 and 1986 decisions of the Mental Health Review Tribunal,

showed that he was not suffering from any mental disorder.

Furthermore, the Secretary of State had considerable notice that

the applicant was due for release from prison and therefore could

have taken steps to procure up-to-date medical reports

beforehand.

46. The Government contend, inter alia, that the warrant of

recall was in accordance with Article 5 para. 1 (Art. 5-1) of the

Convention, because the applicant was suffering and continues to

suffer from a psychopathic disorder. Moreover, being subject to

a conditional discharge since 1985, the applicant was liable to

recall at any time, even if he had been released from prison.

They affirm that it would have been impossible for a reliable

report to have been made on the applicant's mental health while

he was in prison because the conditions there were inappropriate

and the applicant had previously been uncooperative in the

preparation of such reports.

47. The Commission recalls the minimum conditions attached to

the lawfulness of the detention of a person of unsound mind

within the meaning of Article 5 para. 1 (e) (Art. 5-1-e) of the

Convention (Eur. Court H.R., Winterwerp judgment of 24 October

1979, Series A no. 33, p. 18, para. 39; X. v. the United Kingdom

judgment of 5 November 1981, Series A no. 46, p. 18, para. 40):

- the detention must be effected in accordance with a

procedure prescribed by law, i.e. domestic law;

- except in emergency cases, the individual concerned must be

clearly shown to be of unsound mind, i.e. a true mental

disorder must be established before a competent authority

on the basis of objective medical expertise;

- the mental disorder must be of a kind or degree warranting

compulsory confinement; and

- the validity of continued confinement depends upon the

persistence of such a disorder.

48. The aim of these minimum conditions is to ensure that the

deprivation of liberty is consistent with the general purpose of

Article 5 (Art. 5), namely the protection of individuals from

arbitrariness (Eur. Court H.R., Herczegfalvy judgment of

24 September 1992, Series A no. 244, p. 21, para. 63).

49. As regards the facts of the present case the Commission

notes that the applicant's recall to Broadmoor was in accordance

with the procedures prescribed by domestic law. The applicant

was subject to hospital and restriction orders pursuant to

sections 37 and 41 of the Mental Health Act 1983. In 1985 he was

released on conditional discharge which left him liable to be

recalled to hospital. This situation was merely suspended when

he was serving his prison sentence after assaulting two women.

50. The Commission acknowledges that the Secretary of State was

entitled to be concerned about the protection of the public in

the light of the applicant's history of psychopathy and his

serious criminal record involving extreme violence towards girls

and women. However, this background could not, in the

Commission's view, dispense with the need to obtain up-to-date

medical evidence about the applicant's mental health before

ordering his recall to hospital.

51. The weight of medical evidence at the material time was in

the applicant's favour, for the most recent decision of the

Mental Health Review Tribunal in 1986 had found that there was

no evidence that the applicant was then suffering from any

psychopathic disorder. The Commission cannot accept that a

dissenting report from a Broadmoor doctor prepared in 1986 on the

basis of case papers, without interviewing the applicant himself,

can outweigh that finding or provide a sufficient scientific

basis for the applicant's continued compulsory confinement in

hospital nearly three years later.

52. The Commission cannot accept the Government's contention

that it was impossible to have the applicant assessed while he

was in prison. It is aware that remand prisoners may undergo

psychiatric examination in prison for the purpose of expert

reports to be submitted at trial. It is also aware that any

prisoner showing signs of mental disturbance may receive

psychiatric assessment and treatment whilst remaining in prison

custody. Prison may not be the ideal environment for such

assessments, but some evaluation can be made.

53. The Commission considers that when the Secretary of State

decided to recall the applicant to Broadmoor certain minimum

conditions of lawfulness were not respected. In particular, there

was no up-to-date objective medical expertise showing that the

applicant suffered from a true mental disorder, or that his

previous psychopathic disorder persisted. This disorder was only

confirmed a month after the applicant's recall.

54. In the absence of any emergency in the present case, the

Commission finds no particular circumstances to justify this

omission. Accordingly, the applicant's recall and return to

Broadmoor on 24 October 1989 cannot be qualified as the lawful

detention of a person of unsound mind for the purposes of

Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.

CONCLUSION

55. The Commission concludes, by 16 votes to 1, that in the

present case there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention.

D. As regards Article 5 para. 4 (Art. 5-4) of the Convention

56. Article 5 para. 4 (Art. 5-4) of the Convention provides as

follows:

"Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful."

57. The applicant complains to the Commission of a breach of

Article 5 para. 4 (Art. 5-4) of the Convention and alleges that

the lawfulness of his detention at Broadmoor was not speedily

decided by a court. He submits, inter alia, that the Secretary

of State only has power to refer a case such as his to the Mental

Health Review Tribunal from the day on which the patient returns

to hospital, and no later than one month afterwards. There is

usually then a six months' delay between the Secretary of State's

referral and the Tribunal's hearing.

58. The Government assert that the judicial review proceedings

instituted by the applicant after his recall in large part

satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention. These proceedings, combined with the referral of the

applicant's case to the Mental Health Review Tribunal on the day

of the recall, complied with the requirements of this Convention

provision. A certain lapse of time is necessary to enable an

assessment of the patient to be made by the responsible medical

officers and the Tribunal hearings are usually held within six

months of referral. Whilst the Tribunal decision taken in the

present case was not speedy it could have been taken earlier if

the applicant had pressed the matter and had not himself caused

delays in what was a complex case.

59. The Commission recalls that in the X v. the United Kingdom

case the Court held that the limited judicial control available

in habeas corpus proceedings and before Mental Health Review

Tribunals, which prior to 1983 could not order the discharge of

patients like the applicant, did not adequately ensure the right

guaranteed by Article 5 para. 4 (Art. 5-4) of the Convention

(Eur. Court H.R., X v. the United Kingdom judgment of

5 November 1981, Series A no. 46, pp. 21-26, paras. 48-62).

60. In the present case the applicant did not take habeas corpus

proceedings. He applied for judicial review of the Secretary of

State's decision to recall him to Broadmoor. The Commission is

aware, however, that the remedy of judicial review does not

envisage the taking of medical evidence. Nor does it involve a

determination of whether existing medical evidence is sufficient

to demonstrate that the individual is truly suffering from a

mental disorder at the material time. The Government concede

that this remedy alone would not have satisfied Article 5 para. 4

(Art. 5-4) of the Convention.

61. The Commission notes that Mental Health Review Tribunals

reach their decisions on the basis of independent and objective

medical evidence, which they evaluate themselves. Since the

Mental Health Act 1983 the Tribunals have been vested with the

power to discharge, either conditionally or absolutely, patients

like the applicant if the medical evidence shows that they are

no longer suffering from a mental disorder. In substance,

therefore, the Commission considers that Mental Health Review

Tribunals provide the necessary judicial guarantees of Article 5

para. 4 (Art. 5-4) of the Convention.

62. However, the problem arises in the present case whether the

Mental Health Review Tribunal acted with the speed required by

Article 5 para. 4 (Art. 5-4) of the Convention.

63. The Commission refers to the Court's case-law that periods

of eight weeks to five months in mental health determinations are

difficult to reconcile with the notion of "speedily" in Article 5

para. 4 (Art. 5-4) of the Convention (cf. Eur. Court H.R., E. v.

Norway judgment of 29 August 1990, Series A no. 181-A, p. 27,

para. 64; Van der Leer judgment of 21 February 1990, Series A

no. 170-A, pp. 14-15, paras. 32-36).

64. The Commission notes that it was not contested by the

Government that the Mental Health Review Tribunal frequently

takes up to six months to determine cases like the applicant's.

In the present instance the determination took just over two

years: from 24 October 1989, when the Secretary of State referred

the case, until 26 November 1991, when the Tribunal directed that

the applicant should not be discharged. The first hearing date

proposed by the Tribunal was 22 March 1990, nearly five months

after referral.

65. In the Commission's view the system itself is inherently too

slow. Accordingly, it does not deem relevant the applicant's

subsequent requests for adjournments and, later, his apparent

disinterest. It considers that the absence of any psychiatric

assessment prior to the applicant's recall demontrates a

deficiency in the system, which contributed to the delays before

the Tribunal. In all the circumstances, the Commission is of the

opinion that the proceedings before the Mental Health Review

Tribunal were not conducted "speedily", within the meaning of

Article 5 para. 4 (Art. 5-4) of the Convention.

CONCLUSION

66. The Commission concludes, by 15 votes to 2, that in the

present case there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention.

E. Recapitulation

67. The Commission concludes, by 16 votes to 1, that in the

present case there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention (para. 55 above).

68. The Commission concludes, by 15 votes to 2, that in the

present case there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention (para. 66 above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

PARTIALLY DISSENTING OPINION OF Mr. TRECHSEL

While I fully agree with the majority as far as the

violation of Article 5 para. 1 of the Convention is concerned,

I cannot agree that paragraph 4 of that Article was also

violated.

It is true that, as the Government conceded (paragraph 58

of the Report), the applicant's appeal to the Mental Health

Review Tribunal was not decided "speedily" as required by

Article 5 para. 4 of the Convention. However, it is in my view

obvious that during the later stages of those proceedings, i.e.

after 22 March 1990, the applicant took the initiative to further

delay a decision by repeatedly asking for adjournments of

hearings (para. 29). In view of this attitude I have come to the

conclusion that the applicant is now estopped from complaining

about the length of proceedings under Article 5 para. 4 of the

Convention.

(Or. English)

DISSENTING OPINION OF Mr. SCHERMERS

The main reason why I do not share the opinion of the

majority of the Commission concerns the proof surrounding the

applicant's mental health. It is true that there was no decisive

evidence of psychopatic disorder in 1989, but it is also true

that the applicant had then been in prison for some three years.

He had therefore not lived under normal conditions, which made

the establishment of convincing proof at that time difficult.

Weighing the interests of the applicant against the risks

he posed for society, one must take account of the following

elements :

(1) the prior conduct of the applicant;

(2) the different reports which concluded that he suffered from

a mental disorder, and which at least doubted whether this

disorder was at all curable;

(3) the fact that the applicant was liable to recall at any

time, being subject to a conditional discharge.

In these circumstances and taking account of the discretion

which should be left to the national authorities, I accept that

the detention was lawful under Article 5 para. 1 (e) of the

Convention.

A further medical examination at the time of his release

from the Albany prison could have shown the absence of any

symptoms of psychopatic disorder at that particular moment. It

could not have offered any guarantee that the applicant would not

again commit crimes similar to those which he had committed six

times before. It is significant that in December 1986 the Mental

Health Review Tribunal had refused the applicant's absolute

discharge from hospital because it was considered appropriate to

leave open the possibility of recalling the applicant to hospital

for further treatment if the need were to arise after the

applicant's release from prison. In these circumstances I find

it acceptable that no further medical examination was requested

before the applicant was due for release from prison.

With respect to Article 5 para. 4 I share the opinion

expressed by Mr. Trechsel.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

14 December 1990 Introduction of application

20 February 1991 Registration of application

Examination of admissibility

2 July 1991 Commission decision to communicate the

case to the respondent Government and

to invite the parties to submit

observations on admissibility and

merits

31 October 1991 Government's observations

13 December 1991 Commission's grant of legal aid

31 March 1992 Applicant's observations in reply

15 January 1993 Commission's decision to hold a hearing

7 July 1993 Hearing on admissibility and merits

7 July 1993 Commission's decision to declare

application admissible

Examination of the merits

20 July 1993 Decision on admissibility transmitted

to parties. Invitation to parties to

submit further observations on the

merits

4 December 1993 Commission's consideration of state of

proceedings

1 March 1994 Commission's deliberations on the

merits, final vote and consideration of

text of the Report. Adoption of Report

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KAY v. THE UNITED KINGDOM

KAY v. THE UNITED KINGDOM

LEXI