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AS TO THE ADMISSIBILITY OF

Application No. 28212/95

by Patrick BENJAMIN and Hueth WILSON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

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

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 August 1995 by

Patrick BENJAMIN and Hueth WILSON against the United Kingdom and

registered on 11 August 1995 under file No. 28212/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

19 March 1997 and the observations in reply submitted by the

applicants on 9 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are United Kingdom citizens. The first applicant,

Mr Benjamin, was sentenced to life imprisonment for rape in 1985, and

the second applicant, Mr Wilson, was sentenced to life imprisonment for

buggery of a young girl in 1977. The applicants are represented before

the Commission by Ms L. Scott-Moncrieff, solicitor, of Scott-Moncrieff,

Harbour and Sinclair, London. The facts of the application, as

submitted by the parties, may be summarised as follows.

The particular circumstances of the case

Each applicant was transferred from prison to a special hospital

under Sections 47 and 49 of the Mental Health Act 1983 ("the 1983

Act").

By decisions of the Secretary of State for the Home Department

communicated to the applicants in October and November 1992, the

Secretary of State refused to certify the applicants as eligible for

review by the discretionary lifer panels empowered by Section 34 of the

Criminal Justice Act 1991 to order their release on licence. Leave to

apply for judicial review of the decisions was granted on 17 May 1993.

On 22 October 1993 the High Court, granting the application, 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 ("the 1991 Act") on the ground that they had

been transferred to hospital under the 1983 Act was unlawful ([1994]

Q.B. 378).

On appeal, on 19 July 1994, the Court of Appeal reversed the High

Court's decision in part. It considered that, although the applicants

were existing life prisoners within the meaning of the paragraph 9 of

Schedule 12, the discharge nevertheless remained subject to the

procedure laid down in Section 50 of the 1983 Act. The rights to a

hearing under the 1991 Act were conferred only on persons who were

solely subject to that Act, and not on those who were mental patients

([1995] Q.B. 43).

The applicants were informed by letter of 18 May 1995 that the

House of Lords had refused leave to appeal to it.

Relevant domestic law

Under Section 47 of the 1983 Act, the Secretary of State may

transfer a person serving a sentence of imprisonment to hospital if he

is satisfied that the person is suffering from mental illness,

psychopathic disorder, severe mental impairment or mental impairment,

and that the mental 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 or mental impairment, that

such treatment is likely to alleviate or prevent a deterioration of the

condition. A transfer under Section 47 of the 1983 Act is called a

"transfer direction", and has the same effect as if a hospital order

had been made under Section 37 (1) of the 1983 Act (that is, where a

court convicts a person and, instead of sentencing him, orders his

detention in hospital).

At the same time as making a transfer direction, the Secretary

of State may also make a "restriction direction" under Section 49 of

the 1983 Act. A restriction direction has the same effect as a

restriction order made by a court under Section 41 of the 1983 Act on

conviction, save that because the person was not given a hospital order

by the court, the Secretary of State must consent to his discharge from

hospital, as well as to the granting of leave of absence or transfer

to another hospital.

A transferred life prisoner subject to restriction directions can

be discharged from hospital in three possible ways. Each can be

initiated only by the Secretary of State.

1. Section 42 (2) of the 1983 Act gives the Secretary of State

power, if he thinks fit, by warrant to discharge the patient

either absolutely or subject to conditions.

2. Section 50 of the 1983 Act provides that where the Secretary of

State is notified by the responsible medical officer, and other

registered practitioner or a Mental Health Review Tribunal that

the person no longer requires treatment in hospital for mental

disorder, or that no effective treatment for the disorder can be

given in the hospital, the Secretary of State may remit the

person to a prison or to a different institution, or he may

exercise any power of releasing or discharging him which would

have been exercisable if he had been so remitted.

3. Under Section 74 of the 1983 Act,

"(1) Where an application to a Mental Health Review Tribunal is

made by a restricted patient who is subject to a restriction

direction, or where the case of such a patient is referred to

such a tribunal, the tribunal -

(a) shall notify the Secretary of State whether, in their

opinion, the patient would, if subject to a restriction

order, be entitled to be absolutely or conditionally

discharged under Section 73 ...; and

(b) if they notify him that the patient would be entitled

to be conditionally discharged, may recommend that in the

event of his not being discharged under this section he

should continue to be detained in hospital.

(2) If in the case of a patient not falling within subsection (4)

below-

(a) the tribunal notify the Secretary of State that the

patient would be entitled to be absolutely or

conditionally discharged; and

(b) within the period of 90 days beginning with the date

of that notification the Secretary of State gives

notice to the tribunal that the patient may be so

discharged,

the tribunal shall direct the absolute or, as the case may be,

the conditional discharge of the patient.

...

(4) If, in the case of a patient who is subject to a transfer

direction under Section 48 above, the tribunal notify the

Secretary of State that the patient would be entitled to be

absolutely or conditionally discharged, the Secretary of State

shall, unless the tribunal have made a recommendation under

subsection (1)(b) above, by warrant direct that the patient be

remitted to a prison or other institution in which he might have

been detained if he had not been removed to hospital, there to

be dealt with as if he had not been so removed."

Section 73 of the 1983 Act (which relates to restricted patients

under Section 41 of the 1983 Act) provides that the tribunal must

direct conditional discharge if they are satisfied that he is not

suffering from mental illness or disorder of a type which makes it

appropriate for the person to be detained in a hospital for medical

treatment, or 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 they believe that it is appropriate for the patient

to remain liable to be recalled to hospital for further treatment.

In 1985, the Home Secretary announced that life sentence

prisoners who had been transferred to hospital would normally be

discharged under Section 50 of the 1983 Act rather than Sections 42 (2)

or 74 (2). This enables release on life licence with life-long control

rather than the possibility of eventual absolute discharge by the

Secretary of State. The policy was found to be lawful in the case of

R. v. Secretary of State for the Home Department ex parte Stroud

(16 July 1992).

Section 34 of the Criminal Justice Act 1991 provides that where

a discretionary life prisoner has served his tariff (that is, the

"punishment" part of his sentence), and the Parole Board is satisfied

that it is no longer necessary for the protection of the public that

he should be detained and has directed his release, it is the duty of

the Secretary of State to release him. Under Paragraph 9 of Schedule

12, which is a transitional provision to the 1991 Act, the Secretary

of State can apply the provisions of Section 34 to discretionary life

prisoners who were sentenced before Section 34 of the 1991 Act came

into force on 10 October 1992 by issuing a certificate that, if the

1991 Act had been in force when the person was sentenced, Section 34

would have been applied.

COMPLAINTS

The applicants claim that there is no tribunal to which they can

turn which is able to test the legality of their detention: they have

been denied access to the Discretionary Lifer Panel, and the Mental

Health Review Tribunal only has advisory powers because of Section 74

of the 1983 Act. They allege a violation of Article 5 para. 4 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 August 1995 and registered

on 11 August 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government to the extent that it was

brought by Mr Benjamin and Mr Wilson, and to strike the application out

of the list of cases to the extent that it was brought by a further

applicant, a Mr Forde.

The Government's written observations were submitted on 19 March

1997, after an extension of the time-limit fixed for that purpose. The

applicants replied on 9 July 1997, after expiry of the time-limit.

On 28 May 1997 the Commission granted the applicants legal aid.

THE LAW

The applicants allege violation of Article 5 para. 4 (Art. 5-4)

of the Convention, claiming that they are unable to have the lawfulness

of their detention reviewed by a court which has power to release them.

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."

The Government inform the Commission that it is the practice and

policy of the Secretary of State to follow recommendations of the

Mental Health Review Tribunal as to discharge under Section 74 of the

1983 Act, and it would be unlawful for the Secretary of State not to

comply with his own policy. They therefore consider that in substance

the Mental Health Review Tribunals which consider the applicants' cases

do have power to effect the applicants' release. The Government

further regard the application as moot because the release of the

applicants has not been recommended, and so they would not have been

released even if the tribunal had had power to order release directly.

The applicants point out that the European Court of Human Rights

in the case of X v. the United Kingdom (judgment of 5 November 1981,

Series A no. 46) required judicial control over the liberty of

Article 5 para. 1 (e) (Art. 5-1-e) detainees, and argue that the fact

that the Government claim that a recommendation would, as a matter of

policy, be accepted, is not a sufficient guarantee.

The Commission considers, in the light of the parties'

submissions, that the remainder of the case raises complex issues of

law and fact under the Convention, the determination of which should

depend on an examination of the merits of the application. The

Commission concludes, therefore, that the remainder of the application

is not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BENJAMIN AND WILSON v. THE UNITED KINGDOM

BENJAMIN AND WILSON v. THE UNITED KINGDOM

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