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AS TO THE ADMISSIBILITY OF

Application No. 29467/95

by Douglas Leslie SMITH

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

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

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 1 August 1995 by

Douglas Leslie SMITH against the United Kingdom and registered on

6 December 1995 under file No. 29467/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1946 and currently

detained in Ashworth Hospital, Liverpool, under the Mental Health Act

1983. He is represented before the Commission by Mr. S. J. Rees, a

solicitor practising in Darwen.

A. Particular circumstances of the case

The applicant was convicted in 1966 of the manslaughter of a nine

year old boy, whom he strangled and then sexually abused. The

applicant was initially detained under Sections 60 and 65 of the Mental

Health Act 1959, by the Liverpool Assizes on 28 January 1966. On

25 November 1983 the applicant received a conditional discharge by a

Mental Health Review Tribunal. On discharge he went to live with his

parents and after a short period moved to an independent flat where he

was supervised by a probation officer. During this period he developed

a friendship with some boys. There was no evidence of sexual

misconduct by the applicant, however the fact the applicant had

concealed his friendship from those charged with his care and

supervision, was deemed sufficiently serious for the Home Office to

recall the applicant on 13 November 1984. The continued detention of

the applicant was as if he was subject to an order under Sections 37

and 41 of the Mental Health Act 1983.

The applicant was the subject of frequent reviews under the

Mental Health Act 1983. For each of these reviews a psychiatric report

on the applicant was prepared by the Reporting Medical Officer. In his

report of 5 March 1996, Dr. Strickland, the Responsible Medical

Officer, stated that the applicant remained a danger to young boys and

that he continued to suffer from a psychopathic disorder of a nature

and degree which warranted his continued detention. The applicant

through his solicitors instructed an independent psychiatric report

from Dr. Anil Kumar. This report dated 7 April 1996 concluded that it

would be appropriate for the Tribunal to consider a conditional

discharge.

The most recent decision of the Mental Heath Tribunal ("the

Tribunal") was 28 June 1996. The Tribunal held that the applicant's

detention should continue and they accepted the opinion of

Dr. Strickland given in the report of 5 March 1996, preferring this

over the opinion of Dr. Kumar. The Tribunal gave a negative response

to each of the following three questions:

"1. Is the Tribunal satisfied that the patient is not now

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 the patient to be liable to be detained in a

hospital for medical treatment?

2. Is the Tribunal satisfied that it is not necessary for the

health or safety of the patient or for the protection of other

persons that the patient should receive such treatment?

3. Is the Tribunal satisfied that it is not appropriate for

the patient to remain liable to be recalled to hospital for

further treatment?"

The Tribunal gave the following reasons for its decision:

"The Tribunal is satisfied that the patient suffers from

psychopathic disorder of a nature and degree which makes it

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

medical treatment for the protection of male children.

Sadly there is no change from the position addressed by the

Tribunal in 1995. We are extremely concerned at the lack of

insight shown by the patient. He does not accept that he

requires treatment to deal with his sexual attraction to young

boys. He refuses still to attend a group treatment programme

offered to him because he is frankly of the view that it is

unnecessary. We accept the opinion of Dr. Strickland ... that

the patient still poses a serious danger to young boys and unless

and until he is prepared to acknowledge his problem and such

treatment for it the prognosis is bleak. We do not accept the

opinion of Dr. Kumar that the patient is safe to be released

directly into the community by way of a deferred conditional

discharge. We do not feel that he has fully appreciated the

potential dangerousness of this patient."

B. Relevant domestic law and practice

Sections 60 and 65 of the Mental Health Act 1959 ("the 1959

Act"), under which the applicant was detained, were repealed and

replaced by Sections 37 and 41 of the Mental Health Act 1983 ("the 1983

Act") which came into force on 30 September 1983. After the repeal of

Sections 60 and 65 of the 1959 Act, the applicant was treated as if he

was subject to an order under Sections 37 and 41 of the 1983 Act.

Under the 1959 Act a person subject to a restriction order had no right

to apply to the Tribunal for his discharge and could only require that

his case be referred to the Tribunal by the Home Secretary, who

ultimately decided whether a detained person could be released. Under

Section 42 of the 1983 Act, the Home Secretary retains a right to

release anyone detained under the Act, but in addition under Section 73

of the 1983 Act, the detained person can apply to a Mental Health

Review Tribunal, which can authorise a conditional or unconditional

release. Under both the 1959 Act and the 1983 Act a conditional

discharge meant the person could be recalled at any moment.

COMPLAINTS

The applicant complains that in violation of Article 7 para. 1

of the Convention and due to the implementation of the 1983 Act, he is

suffering a heavier penalty than the one that was applicable at the

time the criminal offence was committed. The applicant further

complains that his continued detention is unlawful and in breach of

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

THE LAW

1. The applicant complains under Article 7 para. 1 (Art. 7-1) of the

Convention that he is suffering a heavier penalty than the one that was

applicable at the time the criminal offence was committed.

Article 7 para. 1 (Art. 7-1) of the Convention provides, so far

as relevant, as follows:

"... Nor shall a heavier penalty be imposed than the one that was

applicable at the time the criminal offence was committed."

The Commission notes that the applicant was detained by the

Liverpool Assizes under Sections 60 and 65 of the 1959 Act. These

Sections were repealed and replaced by Sections 37 and 41 of the 1983

Act. From 30 September 1983, when the 1983 Act came into force, the

applicant was detained as if under the 1983 Act. Even assuming

Article 7 (Art. 7) applies to cases where the issue of criminal

punishment and detention in a mental health institution is involved,

the Commission notes that the 1983 Act did not alter the system of

detention or conditional discharge and the right of recall. However

the 1983 Act gave detained persons the additional possibility of making

an application to the Tribunal who had power to grant conditional or

unconditional release. The Commission thus considers that the

applicant's claims that he suffered a heavier penalty due to the

introduction of the 1983 Act is unsubstantiated. Indeed to the

contrary, the applicant was in a more advantageous position under the

1983 Act as he was able to apply to the Tribunal for a review of his

continued detention, rather than having to rely on the intervention of

the Home Secretary.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains that his continued detention is unlawful

and in breach of Article 5 para. 1 (e) (Art. 5-1-e).

Article 5 para. 1 (e) (Art. 5-1-e) provides, so far as relevant,

as follows:

"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...".

The Commission notes that the applicant was detained lawfully

under the 1959 Act and that under the 1983 Act his continued detention

is authorised. Under the 1983 Act the applicant is able to apply to

the Tribunal to seek a recommendation for his discharge. In the most

recent decision by the Tribunal the Reporting Medical Officer's opinion

is that the applicant: "still poses a serious danger to young boys."

The Commission recalls that in the Winterwerp judgment of

24 October 1979 (Eur. Court HR, Series A no. 33, p. 18, para. 39) the

Court stated three minimum conditions which have to be satisfied in

order for there to be "the lawful detention of a person of unsound

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

in emergency cases the individual concerned must be reliably shown to

be of unsound mind, that is to say, 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.

In the present case the Tribunal accepted the opinion of the

Responsible Medical Officer, that the applicant posed a serious danger

to young boys and that he suffered from a psychopathic disorder of a

nature and degree which warrants his continued detention in hospital

for further treatment. The Commission notes that the applicant did

obtain a more favourable psychiatric report which recommended

conditional discharge with supervision, although the report itself

acknowledged the possibility that the applicant may engage in

inappropriate behaviour towards young boys. The Commission considers

that the Tribunal was entitled to give greater weight to the report of

the treating doctor, and considers that the Tribunal's decision to

refuse to discharge the applicant was based on objective medical

evidence and cannot be said to be arbitrary or unreasonable (see Eur.

Court HR, X v. the United Kingdom judgment of 5 November 1981, Series A

no. 46, pp.19-21).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SMITH v. THE UNITED KINGDOM

SMITH v. THE UNITED KINGDOM

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