Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25601/94

by Joseph Patrick Ferdinand ROUX

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 12 July 1994 by

Joseph Patrick Ferdinand ROUX against the United Kingdom and registered

on 7 November 1994 under file No. 25601/94;

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

31 August 1995 and the observations in reply submitted by the

applicant on 25 September 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the application, as submitted by the parties, may

be summarised as follows. The applicant is a French / Canadian citizen

born in 1945. When he introduced his application he was detained at

Ashworth Hospital. He is represented before the Commission by

Mr. S.J. Rees, solicitor, of Darwen.

The particular circumstances of the case

The applicant was convicted in October 1974 after an argument

with a prostitute over money. In 1975 he was convicted of unlawfully

and maliciously administering a destructive thing, assault, and other

offences (one involving threats to a prostitute). A hospital order

without limit of time was made on 12 September 1975, and the applicant

was admitted to Broadmoor Hospital under Sections 60 and 65 of the

Mental Health Act 1959 (now Sections 37 and 41 of the Mental Health Act

1983) on 7 October 1975. He was transferred to Ashworth Hospital on

15 December 1980.

On 25 February 1994 the Mental Health Review Tribunal found that:

"...this patient continues to suffer from psychopathic disorder

but ... such disorder is no longer of a nature or degree which

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

medical treatment."

The Tribunal noted that the applicant had made remarkable

progress over the previous four years, and that the risk which was

inherent in such cases was minimal. It considered that he should be

liable to recall, and discharged him conditionally. The discharge

conditions were:

- that he resided at a named address or such other place

approved by his supervising team;

- that he received psychiatric treatment as and when

directed;

- that he received social work and / or probation

supervision; and

- that he received such psychological treatment as was

considered necessary by the supervising team.

The applicant was discharged on 11 April 1994. He returned to

his sheltered accommodation in a drunken state on the first night,

appearing to be in a distressed state about the breakdown of a

relationship with a nurse at Ashworth. On 16 April he described

himself as suicidal and he was admitted to a psychiatric clinic as a

voluntary patient the next day. In early May he returned to the

sheltered accommodation with the agreement of those supervising him,

but there was continued concern that he was exceeding the agreed levels

of alcohol intake.

On 24 May 1994 a report was brought to the attention of

Dr. Finnegan, one of the psychiatrists supervising him, that he had

brought a prostitute back to his flat and had been heard arguing with

her about money. Dr. Finnegan was concerned that the applicant was

beginning to repeat the pattern of behaviour prior to the commission

of his two offences against prostitutes. Dr. Finnegan formed the view

that the applicant's mental state was likely to deteriorate if he were

allowed to remain at the flat, and he considered it necessary for the

applicant to be recalled to Ashworth for his own health and safety and

to ensure that his condition did not deteriorate to the point where he

presented an immediate risk to others.

At the request of Dr. Finnegan, and with the agreement of

Dr. Coorey, the other doctor supervising the applicant, a warrant of

recall was issued pursuant to Section 42 (3) of the Mental Health Act

1983. A decision was taken by the supervising team not to inform the

applicant of the pending recall as it was feared that he would react

in a negative way to the news, and would be likely to abscond from the

accommodation. A letter giving the reasons for the recall was sent to

Dr. Coorey, the supervising psychiatrist at Ashworth, and he has

confirmed that he discussed the reasons for recall with the applicant

shortly after the applicant's recall.

On 12 July 1994 the applicant's then representatives wrote to the

Home Office asking for the reasons for recall. The reasons were given

by letter of 4 August 1994.

The applicant's case was referred to a Mental Health Tribunal

under Section 75 (1) (a) of the Mental Health Act 1983 on 17 June 1994.

In an attempt to force the matter before a Mental Health

Tribunal, the applicant applied for judicial review of the Secretary

of State's decision to recall.

The Mental Health Review Tribunal met on 16 December 1994. It

considered statements from the responsible medical officer and the Home

Secretary, and reports from the social worker and the probation

officer. The Home Secretary opposed discharge, primarily on the ground

that the applicant continued to pose a serious danger to the public.

The Mental Health Review Tribunal directed the applicant's conditional

discharge, subject to residence and supervision conditions. It gave

as its reasons:

"The patient continues to suffer from psychopathic disorder. He

has had the benefit of substantial psychological assistance and

treatment in a secure hospital over many years. He continues to

require treatment in the form of advice and social support and

psychological treatment in the forms of alcohol and sex

education. The risk of a recurrence of the sort of behaviour

which led to his index offences remain, but is fairly low, and

could be monitored in the community with the strict observance

of certain conditions. The treatment required does not need to

be undertaken in conditions of high security."

The applicant was released on 9 January 1995, after appropriate

arrangements had been made.

The judicial review proceedings were terminated on 23 February

1995 as there was no longer any reason to continue.

Relevant domestic law

Section 37 of the Mental Health Act 1983 empowers a court to

order a person, on being convicted of a criminal offence, to be

admitted to and detained in a specified hospital ("a hospital order").

Under Section 41 of the same Act, a court may make a restriction order

(without limit of time) at the same time as it makes a hospital order.

The restriction order gives the Secretary of State, inter alia,

increased powers over the movement of a patient and may be made if it

appears to the court (having regard to the nature of the offence, the

antecedents of the offender and the risk of his committing further

offences if set at large) that it is necessary for the protection of

the public from serious harm to make the order.

The Secretary of State may at any time refer the case of a

restricted patient to the Mental Health Review Tribunal (Section 71 of

the Mental Health Act 1983). Tribunals are made up of a legally

qualified member who sits as the chairperson, a medically qualified

member who interviews the patient and a lay member. Under

Section 75 (1) (a) of the Mental Health Act 1983, the Secretary of

State is required to refer the case of a conditionally discharged

restricted patient who has been recalled to a Mental Health Review

Tribunal within one month of the day on which the patient is returned

to hospital.

COMPLAINTS

The applicant alleges a violation of Articles 5 and 13 of the

Convention.

He complains that his recall on 25 May 1994 was in breach of

Article 5 because there was no non-compliance with a court order, and

no breach of an obligation prescribed by law. He further complains,

referring to Article 13 of the Convention, of the failure to bring the

matter promptly before a tribunal and that he is prohibited from

himself bringing the matter before a tribunal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 July 1994 and registered on

7 November 1994.

On 17 May 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 31 August

1995. The applicant replied on 25 September 1995.

On 13 September 1995 the Commission granted the applicant legal

aid.

THE LAW

The applicant alleges violation of Articles 5 and 13

(Art. 5, 13) of the Convention in connection with the proceedings

connected with his recall to hospital in May 1994. In particular, he

alleges that he should not have been recalled as he had not breached

any of the conditions of his conditional discharge, and that no court

determined the state of his mental health at the time of the recall.

He also alleges that the time taken for the case to be put before a

court (the Mental Health Review Tribunal) exceeded that which is

permitted by the Convention.

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."

The Government submit that the application is manifestly ill-

founded.

In connection with the applicant's state of health at the time

he was recalled, they point out that he had been found by the Mental

Health Review Tribunal which ordered his conditional release in

February 1994 to suffer from psychopathic disorder, and the Tribunal

which considered his case in December 1994, after his recall, also

found that the applicant "continues to suffer from psychopathic

disorder". They underline that the applicant's recall by the Home

Secretary was at the request and on the advice of the two psychiatrists

responsible for the applicant's supervision in the community, and that

their clear view on 25 May 1994 was that not only was the applicant

suffering from mental disorder, but that his disorder then required a

recall to a secure hospital for treatment in the interests of both the

applicant's health and safety and the safety of the general public.

The Government do not accept that the power to recall is

necessarily linked to the conditions attached to release: the Secretary

of State's power to recall is not limited by the conditions, and there

may well be occasions where recall is appropriate even where no

conditions have been breached. Similarly, there may be breaches of the

conditions which do not warrant recall. There is no requirement of

domestic law requiring that conditions be breached before recall.

The Government note that the applicant's case was referred to the

Mental Health Review Tribunal on 17 June 1994, within the month

prescribed by Section 75 (1) (a) of the Mental Health Act 1983. They

also note that the applicant was furnished with the reasons for his

recall on his return to hospital, and his representatives were given

the reasons when they asked for them. They recall that the Responsible

Medical Officer's report was received on 8 August 1994, and the case

was set down for the first available date when both a judge and the

Responsible Medical Officer were available, namely 18 November 1994.

The hearing was adjourned on that day to 16 December 1994, when the

applicant's conditional discharge was ordered. The Tribunal considered

written reports from the supervising psychiatrist, social worker,

probation officer and a statement from the Home Secretary, and oral

evidence from the applicant, his Responsible Medical Officer, his

social worker, his probation officer, a priest and three other

witnesses. They Government submit that the lawfulness of the

applicant's continued detention was determined "speedily" within the

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

The applicant submits that he was not a "person of unsound mind"

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

Convention on 25 May 1994 as he had been found on 25 February not to

be suffering from a disorder requiring his retention in hospital for

treatment. Moreover, the applicant had not been ordered to be detained

by a court, and had not broken any conditions of discharge or any other

conditions prescribed by law.

As to the reference to the Mental Health Review Tribunal, the

applicant compares the position to that under Section 2 of the Mental

Health Act (compulsory admission to hospital for assessment): under

that provision, a tribunal actually sits within one month, and usually

within 14 days. He submits that the case was not determined

"speedily".

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

that 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 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

Menu

ROUX v. THE UNITED KINGDOM

ROUX v. THE UNITED KINGDOM