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AS TO THE ADMISSIBILITY OF

Application No. 28212/95

by Nicholas FORDE, Patrick BENJAMIN

and Hueth WILSON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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

Nicholas FORDE, Patrick BENJAMIN and Hueth WILSON against the United

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

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 applicants are United Kingdom citizens. The first applicant,

Mr. Forde, was sentenced to life imprisonment for wounding with intent

in 1984; the second applicant, Mr. Benjamin, was sentenced to life

imprisonment for rape in 1985, and the third 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 applicants'

representative, 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, 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, namely that the granting of leave of absence, transfer to

another hospital, and discharge from hospital, are only exercisable

with the consent of the Secretary of State.

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 (2) of the 1983 Act,

"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."

Section 73 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 of 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 would only have advisory powers because of

Section 74 of the 1983 Act. They allege a violation of Article 5

para. 4 of the Convention.

On 14 December 1995 the applicants' representatives informed the

Commission that the first applicant, Mr. Forde, had been discharged

into the community and that he no longer wished to proceed with the

application.

THE LAW

1. The first applicant, Mr. Forde, originally alleged a violation

of Article 5 para. 4 (Art. 5-4) of the Convention. On 14 December 1994

he informed the Commission through his representatives that he had been

discharged into the community and no longer wished to pursue his

application.

Having regard to Article 30 para. 1 (a) (Art. 30-1-a) of the

Convention, the Commission notes that the applicant does not intend to

pursue the petition. Furthermore, in accordance with Article 30 para.

1 (Art. 30-1) in fine, the Commission finds no special circumstances

regarding respect for human rights as defined in the Convention which

require the continuation of the examination of the application.

2. The second and third applicants maintain their claim that they

are denied access to a tribunal which has power to discharge them, and

that this denial is in violation of Article 5 para. 4 (Art. 5-4) of the

Convention.

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

follows.

"4. 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 Commission considers that it cannot, on the basis of the

file, determine the admissibility of these applicants' complaints and

that it is therefore necessary, in accordance with Rule 48 para. 2 (b)

of the Rules of Procedure, to give notice of them to the respondent

Government.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES to the

extent that it is brought by the first applicant; and

DECIDES TO ADJOURN the examination of the second and third

applicants' complaints that they are denied access to a tribunal

with the powers required by Article 5 para. 4 (Art. 5-4) of the

Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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FORDE, BENJAMIN AND WILSON v. THE UNITED KINGDOM

FORDE, BENJAMIN AND WILSON v. THE UNITED KINGDOM

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