Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 15058/89

Royce DARNELL

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 13 May 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 17) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings

(paras. 6 - 12). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 13 - 17) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 48). . . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 49 - 59). . . . . . . . . . . . . . . . . . . . . . . 7

A. Complaint declared admissible

(para. 49) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Point at issue

(para. 50) . . . . . . . . . . . . . . . . . . . . . . . 7

C. The alleged violation of Article 6 para. 1

of the Convention

(paras. 51 - 59) . . . . . . . . . . . . . . . . . . . . 7

a) Applicability (para. 51). . . . . . . . . . . . . . . 7

b) Relevant period (paras. 52 - 53). . . . . . . . . . . 7

c) Compliance with Article 6 para. 1

(paras. 54 - 58). . . . . . . . . . . . . . . . . . . 8

Conclusion (para. 59) . . . . . . . . . . . . . . . . . . . . 8

Concurring opinion by Sir Basil HALL. . . . . . . . . . . . . . . . 9

APPENDIX I: History of proceedings before the

Commission . . . . . . . . . . . . . . . . . . . .10

APPENDIX II: Decision on the admissibility of the

application. . . . . . . . . . . . . . . . . . . .11

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, Dr. Royce Darnell, is a British citizen born in

1929 who lives in Derby. He is represented by Ms. Françoise J. Hampson,

a senior lecturer in law at the University of Essex.

3 The application is directed against the United Kingdom. The

respondent Government are represented by their Agent, Mr. N.D. Parker,

Foreign and Commonwealth Office.

4 The application concerns the proceedings relating to the

applicant's dismissal as a consultant microbiologist in a public health

laboratory.

5 With regard to the length of these proceedings the applicant

alleges a violation of Article 6 para. 1 of the Convention.

B. The proceedings

6 The application was introduced on 2 December 1988 and registered

on 29 May 1989. On 11 October 1989 the Commission decided to give

notice of the application to the respondent Government and to invite

them to submit observations on its admissibility and merits.

7 The Government's observations were submitted on 24 May 1990 after

three extensions of the time-limit. The applicant's observations in

reply were submitted on 20 July 1990 after one extension of the

time-limit.

8 On 7 September 1990, the Commission decided to grant the

applicant legal aid.

9 On 7 December 1990, the Commission decided to invite the parties

to an oral hearing and to refer the case to the First Chamber.

10 At the hearing on 10 April 1991, the Government were represented

by their Agent, Mr. N.D. Parker, Mr. M. Baker Q.C., Counsel,

Mr. G. Berry and Mr. M. Evans of the Department of Health and

Mr. J.D. Evans of the Trent Regional Health Authority, as advisers; the

applicant, who was present, was represented by Ms. F.J. Hampson.

11 Following the hearing the Commission declared the application

admissible in respect of the complaint relating to the length of the

proceedings, and inadmissible in respect of the remainder.

12 After declaring the case admissible the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. Active consultations with the parties took

place between 11 July 1991 and 2 January 1992. In the light of the

parties' reaction, the Commission now finds that there is no basis upon

which such a settlement can be effected.

C. The present Report

13 The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present :

MM. F. ERMACORA, Acting President of First Chamber

E. BUSUTTIL

J.C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

B. MARXER.

14 The text of this Report was adopted on 13 May 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

15 The purpose of the Report, pursuant to Article 31 para. 1 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.

16 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.

17 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

18 The case concerns the applicant's dismissal as a microbiologist

in a public health laboratory, following disciplinary proceedings.

19 In 1975, the applicant became acting director of the Public

Health Laboratory in Derby and consultant microbiologist to Trent

Regional Health Authority (hereafter R.H.A.). Differences arose

between the applicant and the Principal Medical Scientific Officer and

in October 1979 the Association of Scientific, Technical and Managerial

Staff (A.S.T.M.S.) initiated a grievance procedure before the Area

Health Authority (A.H.A.) concerning the dispute. On 15 December 1980,

the A.H.A. held a meeting at which it resolved to make a formal

complaint to the R.H.A. alleging the applicant's non-compliance with

staff appointment procedure.

20 On 9 February 1981, the R.H.A. set up a committee to investigate

the complaint.

21 From February to 16 July 1981, investigations were carried out

by the Regional Solicitor culminating in the decision that the

situation was sufficiently serious for action under Circular H.M.

(61)112 (the disciplinary procedure for medical staff). From August

1981 to March 1982, the Regional Solicitor pursued further

investigations, obtaining statements from 23 witnesses and collecting

hundreds of pages of documents.

22 The Regional Solicitor's report was submitted to the R.H.A. in

April 1982, and on 14 June 1982 the R.H.A. authorised disciplinary

proceedings under H.M. (61)112.

23 By letter dated 25 June 1982 the R.H.A. suspended the applicant

from duty pending disciplinary proceedings.

24 Particulars of the allegations against the applicant were settled

by counsel in June-July 1982 and the schedule of allegations with

supporting documents served on the applicant on 10 August 1982. The

applicant was requested to submit his representations by 11 October

1982. On 13 October 1982, the applicant's solicitor requested an

extension of time to 25 October 1982. On 2 December 1982, the

applicant's solicitor forwarded his representations to the R.H.A.

25 On 9 December 1982, there were informal discussions between the

applicant's solicitor and the Regional Solicitor with a view to

settling the case.

26 Between December 1982 and February 1983, the R.H.A. delayed

setting up the Inquiry in view of the possibility of settlement, which

was being discussed, and the Regional Solicitor undertook further

enquiries.

27 On 5 May 1983, the R.H.A. appointed the chairman of the Inquiry

and fixed the commencement of the Inquiry for 6 June 1983. On 11 May

1983, the R.H.A. served a supplemental statement of complaints and a

further bundle of documents. The applicant's request for postponement

of the Inquiry until 13 June 1983 was granted.

28 On 13 June 1983, the Inquiry commenced. It sat for 32 days. The

applicant was represented by counsel at the hearing at which witnesses

gave evidence orally and were cross-examined.

29 On 1 December 1983, the panel reported, in a document of 100

pages, to the R.H.A. finding the applicant at fault in certain

respects. A sub-committee was appointed to consider the report and

hear representations from the applicant in mitigation. The

sub-committee recommended that the applicant's appointment as

consultant microbiologist be terminated and on 14 May 1984, the Trent

R.H.A. decided to dismiss the applicant with three months' notice.

30 On 23 May 1984, the applicant appealed to the Secretary of State

under paragraph 190 of the Terms and Conditions of Service of Hospital

Medical and Dental Staff according to which a consultant - such as the

applicant - who considers that his employment is being unfairly

terminated is entitled to send a full statement of the facts to the

Secretary of State who will obtain the written views of the authority

concerned and place the case before a professional committee for their

advice (hereinafter "the Paragraph 190 procedure").

31 On 7 September 1984, the Department of Health and Social Security

(D.H.S.S.) forwarded the applicant's statement of the case to the

R.H.A. On 17 December 1984, the R.H.A.'s answer was sent to the

D.H.S.S. and the applicant.

32 On 14 May 1985, a Professional Committee appointed by the

Secretary of State in accordance with the Paragraph 190 procedure,

consisting of five senior doctors, held a hearing at which the

applicant and the R.H.A. were represented.

33 On 25 July 1985, the Professional Committee sent its report to

the Family Practitioner Services Division of the D.H.S.S., which on 14

August 1985 made its submissions to the Secretary of State. The

Secretary of State sought further information on 17 September 1985 and

a further submission was made on 30 September 1985.

34 On 16 October 1985, the applicant was sent a letter from the

D.H.S.S. stating that the Secretary of State, on the recommendation of

the Committee, had decided to direct the R.H.A. to offer the applicant

another post in the region without managerial responsibility. The

letter also commented that the Committee had been very critical of the

handling of the dispute, in particular, on the failure to give the

applicant a verbal or written warning or to ask for his comments before

initiating the Inquiry.

35 On 6 January 1986, the R.H.A. made representations to the

Secretary of State challenging his direction on legal grounds.

36 The applicant was not offered another post by the R.H.A., and by

letter dated 21 February 1986 he was informed by the D.H.S.S. that the

Secretary of State was not bound by the Committee's recommendation to

uphold the applicant's appeal and, considering that the findings

justified dismissal, confirmed the termination of the applicant's

employment. The applicant later discovered that the R.H.A. had made

representations to the Secretary of State concerning the Committee's

report. Neither these representations nor the report had been

disclosed to the applicant.

37 On 24 April 1986, the applicant instituted judicial review

proceedings in respect of the Secretary of State's decision. On 21

July 1986, the Divisional Court found that the Secretary of State had

failed to act with procedural fairness. It granted a declaration that

this decision was invalid and indicated that the Secretary of State

should reconsider the matter.

38 On 27 August 1986, the Secretary of State wrote to the applicant

and the R.H.A. informing them that he would not appeal and setting out

details about the future conduct of the case. He requested written

representations to be made by 22 October 1986 and stated that it was

not proposed to reconvene a Professional Committee under the Paragraph

190 procedure.

39 On 18 September 1986, the applicant's solicitors replied stating

that they intended to consult counsel. By telex of 9 October 1986,

they asked for the deadline to be extended. On 25 October 1986, the

applicant informed the D.H.S.S. that he was now represented by the

British Medical Association (B.M.A.) and that he wished a further

Paragraph 190 appeal.

40 On 31 December 1986, the D.H.S.S. wrote to the applicant

requesting written representations by 30 January 1987. On 27 January

1987, the R.H.A. submitted written representations. On 12 February

1987, a meeting between the D.H.S.S., the B.M.A. and the R.H.A. was

held to discuss procedure. On 13 February 1987, the D.H.S.S. wrote to

the B.M.A. seeking comments on the proposed procedure by 12 March 1987.

On 23 March 1987, the D.H.S.S. wrote to the B.M.A. pointing out that

no reply had been received. On 7 April 1987, the B.M.A. wrote to the

D.H.S.S. informing them that they would not press for a Paragraph 190

or similar hearing. On 15 April 1987, the D.H.S.S. wrote to the B.M.A.

stating that there would be no Paragraph 190 hearing and asking for

representations to be sent within 14 days. On 29 April 1987, the B.M.A.

informed the D.H.S.S. that they could not respond at that time. On

6 May 1987, the applicant wrote that he did not consider that the ad

hoc Committee proposed by the D.H.S.S. was within the terms of the

judgment and that he would, in compliance with Paragraph 190, send a

confidential statement of his position within a fortnight. On 13 May

1987, the applicant submitted a statement of his position to the

Secretary of State. At the same time, the B.M.A. informed the D.H.S.S.

that the applicant had not accepted their advice and they were no

longer representing him.

41 On 1 June 1987, the D.H.S.S. wrote to the applicant sending a

copy of the R.H.A.'s representations and requesting any observations

in reply within 21 days. On 19 June 1987, the R.H.A. sent the D.H.S.S.

their response to the applicant's representations. On 25 June 1987, the

D.H.S.S. informed the applicant that they had not received any further

observations from him and would continue with the procedure. On 31

July 1987, they consulted him concerning dates for a meeting before the

ad hoc Committee. On 2 August 1987, the applicant proposed 23 September

1987 and this date was fixed.

42 On 26 August 1987, the applicant's new solicitors informed the

D.H.S.S. that they had advised the applicant not to attend the meeting

and would be referring the matter back to the Divisional Court for

directions. On 30 September 1987, the D.H.S.S. informed the applicant

that the meeting had accordingly been cancelled and that the Minister

would proceed to a decision on the basis of the written material. An

opportunity to submit further observations before 7 October 1987 was

offered. On 7 October 1987, the applicant's solicitor made further

representations to which the R.H.A. responded on 9 November 1987. On

23 December 1987, the D.H.S.S. forwarded its submissions to the

Secretary of State with the additional documents. On 12 January 1988,

the Secretary of State sought further advice from the Medical Officer

of the Department. On 22 January 1988, he sought advice from the

chairman of the previous Professional Committee. The chairman replied

on 1 February 1988.

43 On 29 February 1988, the Secretary of State decided to confirm

the applicant's dismissal. By letter dated 18 March 1988, the D.H.S.S.

informed the applicant that on the basis of the written

representations, the Secretary of State had decided that re-employment

was not a possibility and confirmed the decision to terminate the

applicant's appointment.

44 On 30 March 1988, the applicant again instituted judicial review

proceedings. Following a hearing on 3 November 1988, the Divisional

Court accepted the procedure adopted by the Secretary of State and

dismissed the application.

45 The applicant had applied for re-instatement and re-engagement

to the Industrial Tribunal on 10 August 1984. The proceedings were

stayed at intervals of approximately six months at the applicant's

request, pending the results of the appeal to the Secretary of State

and the judicial review proceedings. The Industrial Tribunal

proceedings were reactivated on 9 November 1988 by the Trent R.H.A.,

which sought an order for the dismissal or withdrawal of the

applicant's application.

46 On 6 February 1989, a pre-hearing assessment took place before

the Tribunal which determined that a hearing could take place with no

cost consequences to the applicant. The applicant's claim before the

Industrial Tribunal was that he was unfairly dismissed since he was

given no or no sufficient warning prior to dismissal and that the

matters relied upon did not justify his dismissal. On 24 April 1989,

the Tribunal ordered the R.H.A. to produce certain documents and on 6

June 1989, the Tribunal ordered the R.H.A. to produce further and

better particulars of its defence.

47 The Industrial Tribunal's hearing of the applicant's claim took

place on 15 and 16 January 1990. In its decision of 23 February 1990,

the Tribunal held that the dismissal of the applicant was not unfair.

As regards the applicant's complaints of the length of the proceedings,

the Tribunal stated:

"This Tribunal, however, is not persuaded that the

applicant has in any way been prejudiced by the time which

lapsed until a decision was finally reached. The applicant

was paid his salary in full until March 1988."

48 On 6 April 1990, the applicant appealed to the Employment Appeal

Tribunal. The proceedings are still pending.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

49 The Commission has declared admissible the applicant's complaint

that the proceedings in which he challenged the dismissal from his post

were unreasonably long.

B. Point at issue

50 Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. The alleged violation of Article 6 para. 1 (Art. 6-1) of the

Convention

a) Applicability

51 Article 6 para. 1 (Art. 6-1) of the Convention provides in its

first sentence:

"In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

In its decision as to the admissibility of the application, the

Commission has concluded that Article 6 para. 1 (Art. 6-1) is

applicable in the present case.

b) Relevant period

52 The proceedings concerned the applicant's dismissal from his

contractual employment with the Trent Regional Health Authority, his

Paragraph 190 appeal against this dismissal, and judicial review

applications challenging the fairness of the procedure, as well as an

application to the Industrial Tribunal challenging the fairness of the

dismissal.

53 With regard to the period to be taken into consideration for the

purposes of Article 6 para. 1 (Art. 6-1), the Commission recalls that

the applicant was dismissed from his post on 14 May 1984. The period

before this concerned the internal inquiry and disciplinary hearing

carried out by the applicant's employer. This period cannot be taken

into account for the purposes of Article 6 para. 1 (Art. 6-1). Until

the dismissal occurred, there was no "dispute" as to the legality or

fairness of that dismissal. The Commission has therefore taken the

date of the applicant's Paragraph 190 appeal as the starting point of

the dispute. The period in question thus runs from 23 May 1984 until

the unfair dismissal proceedings have been concluded. The case is still

pending before the Employment Appeal Tribunal. Thus the proceedings

have so far lasted eight years.

c) Compliance with Article 6 para. 1 (Art. 6-1)

54 According to the case-law of the European Court of Human Rights,

the reasonableness of the length of proceedings must be assessed in the

light of the particular circumstances of the case and having regard to

the criteria laid down in the Court's case-law, in particular the

complexity of the case and the conduct of the applicant and of the

relevant authorities (see Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30, with further

reference).

55 The Commission notes that the case was of no particular

complexity and that in any case, by the time the Paragraph 190 appeal

was lodged on 23 May 1984, the compilation of the documentary evidence

and the hearing of witnesses had already been concluded.

56 Concerning the conduct of the parties, the Commission notes that

in the Paragraph 190 appeal proceedings a period of approximately 21

months (from 23 May 1984 to 21 February 1986) elapsed between the

appeal and its determination by the Secretary of State, mainly due to

the exchange of numerous communications between the departments

concerned; even after the Professional Committee had made its

recommendations on 25 July 1985, a further seven months elapsed before

a decision was taken. There was another period of approximately 20

months (from 21 July 1986 to 18 March 1988) from the decision of the

Divisional Court in the judicial review proceedings to the

reconsideration of the case by the Secretary of State.

57 While it is true that some of the delays can be attributed to the

conduct of the applicant and his advisers, the Commission considers

that the authorities have not acted as diligently and expeditiously as

was required in this case. In taking this view, the Commission has had

regard to the importance of what was at stake for the applicant. The

proceedings were decisive for the applicant's continued employment with

the R.H.A., even though he continued to receive his salary until the

conclusion of the proceedings. Although his right to practise his

profession remained unaffected, his dismissal effectively made it

difficult, if not impossible, for him to work as a consultant

microbiologist. Yet it took the Secretary of State nearly two years to

reconsider the case and take a decision - confirming the applicant's

dismissal - following the Divisional Court's finding that the procedure

leading to the termination of the applicant's employment in February

1986 had been unfair. At the same time, these delays caused the

proceedings in the Industrial Tribunal to be unduly long as they were

stayed for over four years, pending the results of the applicant's

appeal to the Secretary of State and the judicial review proceedings.

58 In the light of these circumstances, the Commission considers

that the length of the proceedings complained of was excessive and

failed to satisfy the "reasonable time" requirement.

Conclusion

59 The Commission concludes unanimously that in this case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary Acting President

to the First Chamber of the First Chamber

(M. de SALVIA) (F. ERMACORA)

CONCURRING OPINION

of Sir Basil HALL

I agree that there has been a violation of Article 6 para. 1 in

this case. In determining the length of proceedings which are relevant

to this conclusion I do not however agree that the Paragraph 190

procedure should be taken into account. The appeal to the Secretary of

State was of an administrative character, and the Secretary of State

is not a tribunal established by law. The proceedings which must be

considered for the purposes of Article 6 para. 1 are in my view the

proceedings before the Industrial Tribunal claiming that the applicant

had been unfairly dismissed and the proceedings on appeal to the

Employment Appeal Tribunal.

These proceedings were instituted on 10 August 1984 before the

Nottingham Industrial Tribunal but were stayed from time to time at the

applicant's request until, on 9 November 1988, the respondents in the

proceedings, the Trent Regional Health Authority, sought an order that

the proceedings be dismissed or withdrawn by the applicant. For the

delays up till then the applicant must bear responsibility - it was his

choice that the proceedings were delayed while he sought a non-judicial

remedy, the Paragraph 190 procedure.

The proceedings were then re-activated.

Before the Industrial Tribunal they then took just over a year.

The Tribunal found on 23 February 1990 that the applicant had not been

unfairly dismissed. On 6 April 1990 the applicant appealed to the

Employment Appeal Tribunal. This appeal has not yet been heard.

In cases before Industrial Tribunals and the Employment Appeal

Tribunal concerning relations between employers and employees -

particularly where reinstatement is on issue - there is particular need

that a final determination should be made expeditiously. The

proceedings before the Employment Appeal Tribunal have taken two years

so far. That is too long.

APPENDIX I

HISTORY OF PROCEEDINGS BEFORE THE COMMISSION

Date

2 December 1988 Introduction of the application

29 May 1989 Registration of the application

Examination of admissibility

11 October 1989 Commission's decision to give notice of

the application to the respondent

Government and to invite them to submit

written observations on the complaint

concerning the length of the proceedings

24 May 1990 Observations of the respondent Government

20 July 1990 Applicant's observations in reply

7 September 1990 Commission's decision to grant applicant

legal aid

7 December 1990 Commission's decision to hold an oral

hearing and to refer the case to the First

Chamber

10 April 1991 Hearing before the First Chamber and

decision on the admissibility of the

application

Examination of the merits

13 May 1992 Deliberations on the merits, vote and

adoption of the Report provided for in

Article 31 of the Convention

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DARNELL v. THE UNITED KINGDOM

DARNELL v. THE UNITED KINGDOM

LEXI