Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25895/94

by Dennis Gordon TOMSETT

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 30 September 1994

by Dennis Gordon TOMSETT against the United Kingdom and registered on

9 December 1994 under file No. 25895/94;

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

24 August 1995 and the observations in reply submitted by the

applicant on 24 November 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1924. He lives in

St. Andrew's Hospital, Northampton, and is represented before the

Commission by Ms. E. Needham, solicitor, of Messrs. Galbraith Branley,

London. The facts of the case, as submitted by the parties, may be

summarised as follows.

The particular circumstances of the case

The applicant was sentenced to a discretionary life sentence and

concurrent shorter periods on 11 October 1963 for buggery and causing

grievous bodily harm to a 14-year old boy. He was transferred to a

special hospital under Sections 72 and 74 of the Mental Health Act 1959

(subsequently Sections 47 and 49 of the Mental Health Act 1983) in

1965, and was detained in various mental hospitals until his formal

release in 1994.

The "tariff" in the applicant's case, that is the period which

represented the punishment aspect of his case, expired in 1973.

In 1989 the applicant was seen talking to a boy of about 11

outside the hospital gate.

In 1990 a Mental Health Review Tribunal found that the applicant

was not suffering from mental disorder of a nature or degree to make

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

treatment, but the Home Office did not authorise his conditional

discharge.

In 1991 the Parole Board asked for a firm hostel-based plan to

be formulated, and for his case to be referred back to them thereafter,

but no hostel became available.

On 31 May 1993 the Home Office stated in reply to a letter of

29 March 1993 from the applicant's solicitors that, because he had been

transferred to a special hospital under the mental health legislation,

his detention and release were governed by the 1983 Act. The Home

Office considered that a transferred prisoner was:

"only entitled to be treated as a prisoner where the 1983 Act

says that he may be, eg under Section 50(i)(b) which allows the

Home Secretary to exercise any power of release on licence which

would have been available had the transferred prisoner been in

prison....Section 34 of the [Criminal Justice Act 1991],

containing the provisions for review and release by the Parole

Board of discretionary life prisoners [do not] automatically

appl[y] in the case of a prisoner transferred to special

hospital."

The Home Office continued that the Secretary of State had powers

to release where he agreed with the opinion of the authorities which

reviewed continuing detention. On return to prison, Section 34 would

generally apply again.

On 24 September 1993 the applicant's solicitors applied for

judicial review of the letter of 31 May 1993. On 15 October 1993 the

Secretary of State referred the case to a Discretionary Lifer Panel of

the Parole Board (a "DLP"), and on 22 October 1993 the High Court 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 on the ground that they had been transferred

to hospital under the Mental Health Act 1983 was unlawful.

On 28 March 1994 a Mental Health Review Tribunal again found that

the applicant did not suffer psychopathic disorder of such a degree as

to require his continued treatment in hospital. It found that, if

subject to a restriction order, he would be entitled to be

conditionally discharged, and recommended that, if he was not to be

discharged, he should be detained in hospital. In concluding that he

ought to be entitled to a conditional discharge, it considered that

such discharge should be deferred until the following conditions were

met:

1. That the applicant reside at a staffed residential home;

2. That he remain under the supervision of a psychiatrist;

3. That he remain under the supervision of a social worker or

probation officer; and

4. That he remain liable to recall to hospital.

The applicant was not discharged.

The applicant was heard by the DLP on 14 June 1994. The panel

considered that it was no longer necessary for the protection of the

public that the applicant be confined, and it directed his release on

a life licence. One of the conditions of the licence was that the

applicant was to continue to reside at St. Andrew's Hospital and

another was that he should not reside in the same household as any

child under 16 years of age.

Relevant domestic law

Under Section 47 of the Mental Health Act 1983 ("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. Section 47

replaces Section 72 of the Mental Health Act 1959. 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. Section 49 derives from

Section 74 of the Mental Health Act 1959.

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."

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.

In 1994 the Court of Appeal found that persons who continue to

require treatment in hospital had no right of access to the Parole

Board under Section 34 of the 1991 Act.

COMPLAINTS

The applicant alleges a violation of Article 5 of the Convention.

He states that from the time his tariff expired in 1973 until the

hearing in 1994 he was deprived of any review of the legality of his

detention by a tribunal independent of the executive empowered to order

his release. He sees a violation of Article 5 para. 4 in the denial

of a prompt reference to a DLP, and in the fact that the decision to

refer to a panel was presented as the exercise of a discretion, rather

than a matter of a legal duty to the applicant.

He further complains that from the time that he was found to be

no longer mentally disordered in 1990, he was unlawfully detained in

that his continued detention could no longer be justified on grounds

of tariff, mental disorder or dangerousness.

Finally, he considers that the Convention is violated by the

continuing absence of a mechanism for securing an absolute discharge

from prison.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 September 1994 and

registered on 9 December 1994

On 17 May 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 24 August

1995. The applicant replied on 24 November 1995.

On 24 October 1995 the Commission granted the applicant legal

aid.

THE LAW

The applicant alleges violations of Article 5 (Art. 5) of the

Convention. He complains that his detention was not compatible with

Article 5 para. 1 (Art. 5-1) of the Convention from 3 September 1990,

when the Mental Health Review Tribunal found that he was not then

suffering from a mental disorder of a nature or degree which required

his continued detention in hospital for treatment. Under Article 5

para. 4 (Art. 5-4) of the Convention the applicant claims that there

was no "court" which could determine the lawfulness of his detention

from the expiry of his tariff in 1973 until 14 June 1994, when a

Discretionary Lifer Panel of the Parole Board directed the Secretary

of State to release the applicant on life licence.

Article 5 (Art. 5) of the Convention provides so far as relevant

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:

a. the lawful detention of a person after conviction by

a competent court ...

e. the lawful detention of persons for the prevention of

the spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants ...

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."

1. To the extent that the applicant complains of the absence of a

body which had the power to order his release, the Commission recalls

that in accordance with Article 26 (Art. 26) of the Convention, it may

only deal with matters in which a final decision is given less than six

months before introduction of the application. Where an applicant

complains about a state of affairs, and in the absence of domestic

remedies, the six months runs from the date on which the state of

affairs ends (cf. No. 6852/74, Dec. 5.12.78, D.R. 15 p. 5).

In the present case, it became clear at the latest on 15 October

1993 that the applicant's case would be transferred to a Discretionary

Lifer Panel, and the absence of access to a body with power to order

his release therefore ended then. However, the application to the

Commission was only introduced on 30 September 1994, that is, more than

six months after 15 October 1993.

It follows that this part of the application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

2. As to the remainder of the application, the Government submit

that the applicant's detention was authorised by the life sentence

imposed in October 1963. They point out that it is clear from the

domestic case-law that the applicant continued to serve his life

sentence after the tribunal's 1990 finding, even though he remained in

hospital, and add that once the tribunal had notified the Secretary of

State that the applicant no longer required treatment in hospital for

mental disorder, the Secretary of State was entitled to remit the

applicant to prison and to deal with him there as if he had not been

removed to hospital, or to release or discharge him under supervision

which could have been exercisable as if he had been remitted to prison.

The only explanation for these powers is, they submit, that the

authority for the applicant's continued detention flowed from his

sentence of life imprisonment. They further add that a certificate was

eventually issued to the effect that Section 34 of the 1991 Act was to

apply. Accordingly, and referring to the judgment of the Court in the

Weeks case (Eur. Court HR, Weeks v. the United Kingdom judgment of

2 March 1987, Series A no. 114) the Government regard the applicant's

detention as justified under Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention.

In connection with Article 5 para. 4 (Art. 5-4) of the

Convention, the Government consider that in domestic terms the

applicant was entitled to a review by a Discretionary Lifer Panel once

the Secretary of State had issued the certificate applying Section 34

of the 1991 Act to his case. Under the Convention, they submit that

he was entitled to a review by a DLP once the Government had had the

opportunity to implement the Court's Thynne Wilson and Gunnell judgment

(Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom

judgment of 25 October 1990, Series A no. 190). They do not accept

that he was entitled to a review before that date because he could have

brought his own application to the Commission, but did not do so. The

Government accept that there was a period of one year between the

coming into force of the 1991 Act (on 1 October 1992) and the issue of

the certificate applying Section 34 of that Act. They agree that the

delay was regrettable, but ascribe it to the wholly exceptional

circumstances: after the Thynne Wilson and Gunnell judgment, the

Government had to introduce primary legislation and complex rules, had

to deal with the temporary backlog created by the large number of

existing cases to whom the new arrangements applied, and all the

categories to which the rules applied had to be identified. The

Government consider that once the category of prisoners including the

applicant had been identified, certification and DLP hearings took

place without undue delay: the applicant was issued with a certificate

within two and a half weeks of the Government being notified of the

grant of leave to move for judicial review, and the DLP hearing took

place just eight months after the certificate was issued. The eight

months includes the 23 week timetable established by the Parole Board

Rules 1992 for preparation and disclosure of evidence for the DLP.

The applicant maintains his claims under Article 5 para. 1

(Art. 5-1) of the Convention. In particular, he considers that there

was no justification for continued detention after 1990: his detention

in hospital was not justified because he was not "suffering from mental

disorder of a nature or degree to make it appropriate for him to be

liable to be detained in a hospital", and his detention in any

custodial institution was not justifiable once the Parole Board had

found in 1991 that the applicant could and should be transferred to a

hostel for a one-month period. The Parole Board thereby found that in

principle the applicant's continued detention was not justified on

grounds of dangerousness. The applicant also submits that in any

event, his detention was in reality a form of Article 5 para. 1 (e)

(Art. 5-1-e) detention - the original discretionary life sentence was

premised in part on mental instability, and that instability was also

the reason for the applicant's transfer to Broadmoor in 1965. Once the

Tribunal had found that the applicant's mental condition had improved

sufficiently to merit a conditional discharge, there was no

justification for his continued detention, and he should have been

released.

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

applicant considers that it is clear that he did not have a review

complying with Article 5 para. 4 (Art. 5-4) until June 1994, and that

the only question is whether he should have had one in 1975, when his

tariff expired, or in September 1990, when his mental disorder no

longer justified continued detention under the Mental Health Act in

September 1990. He points out that even when, in October 1992, the

discretionary lifer system was introduced, he was denied certification

and reference to a DLP because the Government policy was that no

discretionary lifers were entitled to be referred to a DLP.

The Commission finds, in the light of the parties' submissions,

that this part of the application raises complex and serious issues

under the Convention which require determination on their merits. It

follows that it cannot be dismissed as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring it inadmissible has been established.

For the these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaint concerning the

absence of a tribunal with power to release him;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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TOMSETT v. THE UNITED KINGDOM

TOMSETT v. THE UNITED KINGDOM

LEXI