Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22520/93

by Stanley JOHNSON

against the United Kingdom

The European Commission of Human Rights sitting in private on

18 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A. WEITZEL

H.G. SCHERMERS

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

B. CONFORTI

N. BRATZA

J. MUCHA

E. KONSTANTINOV

A. PERENIC

C. BlRSAN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 July 1993 by

Stanley JOHNSON against the United Kingdom and registered on

24 August 1993 under file No. 22520/93;

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

25 April 1994 and the observations in reply submitted on behalf

of the applicant on 18 July 1994;

- the further observations submitted on behalf of the applicant on

4 May 1995;

- the parties' oral submissions at the hearing on 18 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the parties may be summarised as

follows.

The applicant is a British citizen born in 1947 and resident in

Leicester. He is represented before the Commission by Mr. A.K. Bergman,

a solicitor practising in Leicester.

A. Particular circumstances of the case

On 8 August 1984 the applicant was convicted of causing actual

bodily harm, for which the maximum sentence is five years'

imprisonment. The circumstances of the offence were that the applicant

had, for no apparent reason, punched a pregnant woman in the stomach

and head as she walked down the street. The applicant had been

previously convicted of an assault on his mother in 1974, on a girl in

1977 and of two further assaults in 1981.

The applicant was, at the time of his conviction in 1984, found

to be suffering from mental illness involving delusions of conspiracy

and "astral beings". Therefore the trial court made him subject to a

hospital order under section 37 of the Mental Health Act 1983, together

with a restriction order under section 41 of the same Act. The hospital

order specified that the applicant was suffering from "mental illness".

The section 41 order imposed restrictions on his discharge without

limit of time.

On 15 August 1984 the applicant was admitted to Rampton Hospital,

a maximum security psychiatric institution, where he was diagnosed by

the Responsible Medical Officer ("RMO") as suffering from schizophrenia

superimposed on a psychopathic personality. Subsequently, the

applicant's case was considered by various Mental Health Review

Tribunals and the background to these reviews, together with the

psychiatric and social work evidence before those Tribunals, is

outlined below.

1986 Review

Before the Tribunal, the psychiatric reports of both the RMO and

the applicant's psychiatrist confirmed the continued existence of

mental illness in addition to a drug problem. The applicant was also

reported as having been devious with staff and dishonest about his

problems. Neither psychiatrist recommended any change in the

applicant's status. On 17 December 1986 the Tribunal therefore ordered

that the applicant continue to be detained.

1987 and 1988 Reviews

The applicant's case was again considered by the Tribunal on 14

August 1987 and 10 February 1988. No direction for discharge or

reclassification was made, as it was found that the applicant required

treatment in hospital for his own health and safety and for the

protection of others.

1989 Review

Three reports were before the Tribunal. In the first place, the

RMO reported that the applicant's psychotic symptoms had resolved

themselves within six months of admission and that the applicant was

free of any symptoms of mental illness. However the RMO noted that the

applicant was in need of rehabilitation and was not therefore fit for

full discharge. Secondly, an independent psychiatrist was of the view

that the applicant was "a schizoid personality with a history of

explosive anti-social behaviour induced by intoxication", that the

applicant's own view of uncontrolled drinking was unattainable and that

he would benefit from a stay in a hostel for people with drink problems

as a half-way house prior to full discharge. Thirdly, a further

psychiatric report before the Tribunal recognised the likelihood that

the applicant had suffered from a brief drug-induced psychosis at the

time of his offence and original admission to Rampton Hospital, found

that by May 1989 the applicant was showing no evidence of mental

illness and that under the circumstances the applicant was not

detainable under the mental health legislation and should be

discharged.

The Tribunal hearing took place on 15 June 1989 and held as

follows:

"The Tribunal accepts the medical evidence that the patient is

not now suffering from mental illness. The episode of mental

illness from which he formally suffered has come to an end."

However, the Tribunal went on to note that the applicant had an

unrealistic opinion of his ability to live on his own in the community

after nearly five years in a hospital and required rehabilitation under

medical supervision. The Tribunal was of the opinion that the

recurrence of mental illness requiring recall to hospital could not be

excluded without successful rehabilitation. The Tribunal therefore

ordered the applicant's discharge to a supervised hostel and

supervision by a psychiatrist and a social worker. The applicant's

discharge was to be deferred until arrangements could be made for

suitable accommodation.

1990 Review

The subsequent search for hostels proved difficult in light of

those hostels' concern over the applicant's drinking problem and

history of assaults on women. The Government also point out that the

difficulty was partly due to the applicant portraying himself

unfavourably during visits to hostels, thus making the hostels hesitant

to accept him. One hostel was prepared to take the applicant but only

after he spent a trial period in a less secure hospital environment.

That hostel would have required the applicant to return every night,

but otherwise the applicant would have been free to socialise and spend

his days as he wished, including working if possible. A social work

report dated 4 April 1990 noted that if the applicant was left to his

own devices and discharged without support, he would get back into

trouble quickly.

On 9 May 1990 the Tribunal, having heard the applicant who

presented his own application, accepted the reasoning of the 1989

Tribunal, noted that the applicant would infinitely prefer absolute

discharge, but felt that it was in the interests of the applicant and

the public that "he remain liable to hospital recall and to have the

support that is assured by a discharge that is conditional". Thus it

was recommended that he be conditionally discharged under supervision

as soon as suitable accommodation could be found.

On 10 September 1990 the applicant commenced trial leave at

another hospital which was less secure than Rampton Hospital. On

9 October 1990 the applicant, having been to a local pub, assaulted

another patient (due, according to the applicant, to some provocation)

and he was returned to Rampton hospital on 22 October 1990. The

Government also submit that the applicant had terrorised staff at that

hospital and rejected any attempt at rehabilitation. The applicant was

given the choice to return to the pre-discharge unit at Rampton

hospital, where he could pursue other pre-discharge possibilities, or

to go to another ward containing more long-term patients. The applicant

chose the latter option.

1991 Review

In December 1990 the applicant was reported, by his then

supervising psychiatrist, as:

"suffering from an explosive disorder of personality which means

that when he is not in the middle of an explosion he is not in

the formal sense mentally ill."

That psychiatrist stated that intoxication played some part in

the breakdown of the rehabilitation process, that such explosions were

likely to reoccur whenever the applicant was granted freedom into the

community with access to intoxicants, that he was pessimistic about the

applicant's future and that he would be unwilling to take on the role

of supervising psychiatrist in the future.

The RMO's report to the Tribunal concluded as follows:

" is not mentally ill and does not require to

remain in Rampton Hospital. Since June 1989 attempts to obtain

his conditional discharge have been foiled by his inability to

cooperate with the arrangements made and it is now difficult to

envisage any conditions of his discharge that would be acceptable

to ."

A further social work report dated 22 January 1991 reiterated

concerns in relation to the applicant's attitude to alcohol and drugs,

and to his resistance to treatment for this.

On 9 April 1991 the Tribunal found that the applicant was not

suffering from:

"mental illness, psychopathic disorder, severe mental impairment

or mental impairment or from any of these forms of disorder of

a nature or degree which makes it appropriate for him to be

detained in hospital for medical treatment."

However, the Tribunal was satisfied that it was appropriate for

the applicant to remain liable to be recalled to hospital for further

treatment. The reasons given were that the applicant did not accept

sufficient responsibility for his own behaviour to be able to cope with

the pressures of life in the community without a considerable degree

of supervision and support. Hence the applicant was again ordered to

be conditionally discharged, such discharge to be deferred until

alternative supervised accommodation could be found.

1993 Review

Prior to the applicant's final review he was assessed by the RMO,

who indicated that the applicant had no mental illness symptoms and,

provided the topic of rehabilitation was avoided, he was constantly

pleasant, friendly and cooperative. This psychiatrist concluded as

follows:

"There is no basis for continuing to be

classified as suffering from mental illness and with the benefit

of hindsight it appears unlikely that he ever experienced more

than a drug induced psychosis. ... He does not require to remain

in Rampton Hospital but it is difficult to envisage any

conditions of his discharge that would be acceptable to him and

his current application for an absolute discharge must now be

considered on its merits."

On 12 January 1993 the Mental Health Review Tribunal ordered the

applicant's absolute discharge on the basis that the applicant:

"is not now suffering from any form of mental disorder and that

it is not appropriate for the patient to remain liable to be

recalled to hospital for further treatment."

It noted that the RMO had stated that the applicant had not

suffered from mental illness since 1987, that the applicant was not

receiving any treatment from the hospital in any sense of the word and

that he was "often acting more like a member of staff than a patient"

in his role on the ward.

The applicant was released from the hospital on 21 January 1993.

B. Relevant domestic law and practice

Mental disorder

Section 1(2) of the Mental Health Act 1983 ("the 1983 Act")

defines "mental disorder" as mental illness, arrested or incomplete

development of mind, psychopathic disorder and any other disorder or

disability of mind. A personality disorder would not, of itself,

justify detention unless it came within the definition of psychopathic

disorder.

Hospital order

Section 37 of the 1983 Act 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") .

The court can only make a hospital order if it is satisfied on

the evidence of two registered medical practitioners that the offender

is mentally disordered (see above) and that -

"1. the 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 his condition; and

2. the court is of the opinion ... that the most suitable

method of disposing of the case is by [a hospital order]."

Restriction order

Section 41 of the 1983 Act empowers a court to 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.

Mental Health Review Tribunals

Under section 70 of the 1983 Act a person who is subject to a

hospital order and restriction order ("a restricted patient"), and who

is detained in hospital, can apply to a Mental Health Review Tribunal

after six months' detention. After twelve months' detention such

applications can be made annually.

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.

Absolute discharge

Under section 73(1) and (2) of the 1983 Act, read with section

72(1), where an application is made to a Tribunal by a restricted

patient or where his case is referred to the Tribunal by the Secretary

of State, the Tribunal is required to direct the absolute discharge of

the patient if satisfied -

1. (a) that the patient is not then 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; or

(b) 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

2. that it is not appropriate for the patient to remain liable

to be recalled to hospital for further treatment.

Pursuant to section 73(3), where a patient is absolutely

discharged he ceases to be liable to be detained by virtue of the

hospital order and the restriction order ceases to have effect.

Conditional discharge

Under section 73(2) where the Tribunal is satisfied as to either

of the matters referred to in paragraph 1. above, but not as to the

matter referred to in paragraph 2. above, it is required to direct the

conditional discharge of the patient. By virtue of section 73(4) of the

1983 Act, a patient who has been conditionally discharged may be

recalled by the Secretary of State and must comply with the conditions

attached to his discharge. In contrast to the case of absolute

discharge, a conditionally discharged patient does not cease to be

liable to be detained by virtue of the relevant hospital order.

Under section 73(7) of the 1983 Act, a Tribunal can defer a

direction for the conditional discharge of a patient until such

arrangements, as appear to be necessary for the purpose, have been made

to their satisfaction.

COMPLAINTS

The applicant complains that his continued detention from June

1989 to January 1993 constituted a violation of Article 5 paras. 1 and

4 of the Convention. He submits that the factor that determined the

imposition of that form of indefinite detention, namely his mental

illness, was no longer present during this period. Since the validity

of his continued confinement depended on the persistence of the mental

illness, he should have been released in 1989 when the Tribunal

concluded that he no longer suffered from mental illness, particularly

since he had been detained for a period exceeding the sentence of five

years that could have been imposed on punitive grounds.

The applicant also claims that his detention constituted

treatment contrary to Article 3 of the Convention in view of the

overall length of his detention and his detention during a period when

he was no longer suffering from mental illness.

In addition, the applicant submits, in the observations submitted

on his behalf dated 4 May 1994, that the onerous pre-conditions fixed

for his release constituted an unreasonable interference with his

personal and family life contrary to Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 July 1993 and was registered

on 24 August 1993.

On 1 December 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

written observations on the admissibility and merits of the applicant's

complaints under Article 5 para. 1 of the Convention.

The Government's observations were received on 25 April 1994

after one extension of the time limit fixed for this purpose. The

observations submitted on behalf of the applicant were received on

18 July 1994 also after an extension in the time limit.

On 16 January 1995 the Commission decided to invite the parties

to an oral hearing.

Further observations were submitted on behalf of the applicant

on 4 May 1995.

At the hearing, which took place on 18 May 1995, the parties were

represented by Mr. Martin Eaton, Agent, Foreign and Commonwealth

Office, and Mr. James Eadie, Counsel, together with Mrs. Rosemary

Davies and Mr. Nigel Shackleford as advisers. The applicant was

represented by Mr. Edward Fitzgerald, Q.C., Mr. Oliver Thorrold,

Counsel, and Mr. Andrew Bergman, Solicitor.

THE LAW

1. The applicant claims, in the first place, that his detention

constituted treatment contrary to Article 3 (Art. 3) of the Convention

in view of the overall length of his detention and the fact that he was

detained during a period when he was not suffering from mental illness.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that ill-treatment must attain a certain

level of severity if it is to fall within the scope of Article 3

(Art. 3). The assessment of this minimum is, in the nature of things,

relative and it depends on all the circumstances of the case. Such

circumstances include not only the duration of the treatment but also

its physical or mental effects and, in some cases, the sex, age and

state of health of the victim. Such treatment causing, if not actual

bodily injury, at least intense physical and mental suffering, falls

into the category of inhuman treatment within the meaning of Article

3 (Art. 3) of the Convention (Eur. Court H.R., Ireland v. the United

Kingdom judgment of 18 January 1978, Series A no. 25, pp. 65-67,

paras. 162, 167; Tyrer judgment of 25 April 1978, Series A no. 26, pp.

14-15, paras. 29-30; Soering judgment of 7 July 1989, Series A no. 161,

p. 39, para. 100). The Commission also recalls that Article 3

(Art. 3) of the Convention cannot be read as requiring even a life

sentence to be reviewed with a view to its remission or termination

(No. 11635/85, Dec. 3.3.86, D.R. 46 p. 231).

The Commission does not find that, in the circumstances of the

present case, the applicant's detention amounted to treatment of such

a level of severity as to constitute a breach of Article 3 (Art. 3) of

the Convention. Accordingly, the Commission finds this complaint of the

applicant manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

2. The applicant next complains under Article 5 paras. 1 (e) and 4

(Art. 5-1-e, 5-4) of the Convention in relation to his detention after

June 1989.

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

provides 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: ...

(e) the lawful detention ... of persons of unsound mind,

...

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 applicant submits, inter alia, that since the original basis

for his detention (namely, mental illness) was recognised as being no

longer present after June 1989, the imposition of onerous pre-

conditions on his release and the indefinite deferral of such release

meant that his detention after June 1989 was in violation of Article

5 para. 1 (e) (Art. 5-1-e) of the Convention. Even if it could not be

excluded that his mental illness might reoccur, this would not be

sufficient to justify his continued detention. In addition, the

applicant submits that since his detention after June 1989 was

arbitrary, it was in violation of Article 5 para. 1 (e) (Art. 5-1-e).

Furthermore, the applicant contends that the imposition of the pre-

conditions for his release themselves constituted a further deprivation

of liberty in that they required compulsory residence at a hostel

subject to severe restrictions.

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

applicant submits that the Tribunal did not have the power either to

direct his immediate release to a specific hostel in such a way as to

oblige that hostel to accept him or to compel the authorities to

provide supervised accommodation within a specific period of time. This

lack of power on the part of the Tribunal effectively meant that he was

detained until January 1993.

The Government contend that the application is manifestly ill-

founded. They submit, inter alia, that the successive Tribunals were

attempting to release the applicant in an appropriate manner and not

to detain him. It was the applicant's failure to co-operate with the

conditional release procedure that led, at least in part, to his not

being released until 1993.

As to the conditional release procedure itself, the Government

further submit that the conditional release of the applicant was

advised as necessary by the relevant psychiatric experts in order to

provide for the applicant's rehabilitation into the community after a

considerable period of time in a psychiatric institution. The

Government argue that such a conditional release procedure and the

deferral of that release pending (as in this case) suitable

accommodation being found, fall within the margin of appreciation

afforded to the State by the Convention. To interpret the Convention

in any other way would lessen the availability and effectiveness of

care in the community for those who have suffered from mental illness

and result in an unacceptable risk to the public. In the circumstances

of the present case, an appropriate balance had to be and was found

between the interests of the applicant and those of the public.

Furthermore, the Government do not agree that the conditions imposed

on the applicant were such as to amount to a deprivation of liberty

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

Convention.

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

that this part of the application raises complex and serious issues

under Article 5 paras. 1 (e) and 4 (Art. 5-1-e, 5-4) of the Convention

which require determination on their merits. It follows that these

complaints of the applicant 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 them inadmissible has been

established.

3. The applicant further complains of an unjustified interference

with his personal and family life, ensured by Article 8 (Art. 8) of the

Convention. He submits that the imposition of onerous pre-conditions

on his release, which would have dictated how he lived his life after

his release at a time when he was recognised as no longer suffering

from mental illness, was in breach of Article 8 (Art. 8).

The Commission recalls that the running of the period of six

months, set out in Article 26 (Art. 26) of the Convention, is not

interrupted until the date when the complaint is first submitted to the

Commission (cf. No. 10293/83, Dec. 12.12.85, D.R. 45 p. 41). The

Commission notes that the applicant did not raise this complaint until

the observations dated 4 May 1995 were submitted on his behalf, which

is more than six months after the date of his release from Rampton

Hospital in January 1993. It follows that this complaint has been

submitted out of time and must be rejected in accordance with Article

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

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints about the lawfulness of his detention

after June 1989 and its judicial control;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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JOHNSON v. THE UNITED KINGDOM

JOHNSON v. THE UNITED KINGDOM

LEXI