Lexploria

The European Commission of Human Rights sitting in private on

18 July 1986, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

F. ERMACORA

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Sir Basil HALL

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 October 1985 by

P.R. against the United Kingdom and registered on 10 March 1986 under

file No. 12039/86;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a French citizen, born in 1945 in London. He is

detained at Park Lane Hospital on Merseyside and is represented before

the Commission by Mr. E. Rex Makin of Messrs. E. Rex Makin & Co.,

Solicitors, Liverpool.

On 12 September 1975 the applicant was placed in Broadmoor Special

Hospital under a Hospital Order made under Section 60 of the Mental

Health Act 1959. A Restriction Order under Section 65 of that Act was

also made.

On 23 March 1984 the applicant appeared before a Mental Health Review

Tribunal created by the Mental Health Act 1983, which provides, so far

as relevant, as follows:

"72 (1) Where application is made to a Mental Health Review Tribunal

by or in respect of a patient who is liable to be detained under this

Act, the tribunal may in any case direct that the patient be

discharged, and -

...

(b) the tribunal shall direct the discharge of a patient liable to be

detained otherwise ... if they are satisfied -

(i) that he 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 him to be liable to be detained in a hospital for

medical treatment; or

(ii) 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 ; or ...

...

(3) A tribunal may under subsection (1) above direct the discharge of

a patient on a future date specified in the direction; and where a

tribunal do not direct the discharge of a patient under that

subsection the tribunal may -

(a) with a view to facilitating his discharge on a future date,

recommend that he be granted leave of absence or transferred to

another hospital or into guardianship; and

(b) further consider his case in the event of any such recommendation

not being complied with. ...

...

(5) Where application is made to a Mental Health Review Tribunal

under any provision of this Act by or in respect of a patient and the

tribunal do not direct that the patient be discharged, the tribunal

may, if satisfied that the patient is suffering from a form of mental

disorder other than the form specified in the application, order or

direction relating to him, direct that that application, order or

direction be amended by substituting for the form of mental disorder

specified in it such other form of mental disorder as appears to the

tribunal to be appropriate.

(7) Subsection (1) above shall not apply in the case of a restricted

patient except as provided in sections 73 and 74 below.

...

73 (1) Where an application to a Mental Health Review Tribunal is

made by a restricted patient who is subject to a restriction order, or

where the case of such a patient is referred to such a tribunal, the

tribunal shall direct the absolute discharge of the patient if

satisfied -

(a) as to the matters mentioned in paragraph (b)(i) or (ii) of

section 72 (1) above; and

(b) that it is not appropriate for the patient to remain liable to be

recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in

subsection (1) above the tribunal are satisfied as to the matters

referred to in paragraph (a) of that subsection but not as to the

matter referred to in paragraph (b) of that subsection the tribunal

shall direct the conditional discharge of the patient.

(3) Where a patient is absolutely discharged under this section he

shall thereupon cease to be liable to be detained by virtue of the

relevant hospital order, and the restriction order shall cease to have

effect accordingly.

(4) Where a patient is conditionally discharged under this section -

(a) he may be recalled by the Secretary of State under subsection (3)

of section 42 above as if he had been conditionally discharged under

subsection (2) of that section; and

(b) the patient shall comply with such conditions (if any) as may be

imposed at the time of discharge by the tribunal or at any subsequent

time by the Secretary of State.

(5) The Secretary of State may from time to time vary any condition

imposed (whether by the tribunal or him) under subsection (4) above.

(6) Where a restriction order in respect of a patient ceases to have

effect after he has been conditionally discharged under this section

the patient shall, unless previously recalled, be deemed to be

absolutely discharged on the date when the order ceases to have effect

and shall cease to be liable to be detained by virtue of the relevant

hospital order.

(7) A tribunal may defer a direction for the conditional discharge of

a patient until such arrangements as appear to the tribunal to be

necessary for that purpose have been made to their satisfaction; and

where by virtue of any such deferment no direction has been given on

an application or reference before the time when the patient's case

comes before the tribunal on a subsequent application or reference,

the previous application or reference shall be treated as one on which

no direction under this section can be given.

(8) This section is without prejudice to section 42 above.

circumstances and subject to certain conditions, of patients subject

to "restriction orders".>

...

(78) (8) A Mental Health Review Tribunal may, and if so required by

the High Court shall, state in the form of a special case for

determination by the High Court any question of law which may arise

before them."

The Tribunal directed that the applicant should not be discharged

either conditionally or unconditionally. It was unable to accept that

the applicant constituted no danger to others, but it did accept that

he was by then less dangerous than on his arrival at the hospital and

it thought that the time was appropriate for escorted leave and, if

that worked well, unescorted leave, particularly to his sister and

brother-in-law.

On 28 February 1985, the applicant appeared before a further Tribunal.

That Tribunal considered that the applicant did not require further

detention in a special hospital, although it was not satisfied that he

was not suffering from a psychopathic disorder and considered that

hospital treatment was necessary. The Tribunal considered that a

conditional discharge, even deferred, would be premature, and it

adjourned the hearing for a period of unescorted leave to be arranged.

The necessary leave from the Home Office for such unescorted leave was

refused. The Home Secretary submitted supplementary observations to

the Mental Health Review Tribunal which were received on 6 June 1985.

The Home Secretary gave as his reasons for refusing leave that there

could be an unacceptable risk to public safety if the applicant was

released.

The Tribunal reconvened on 11 June 1985, when it found that it could

not evaluate the degree to which the applicant presented a risk to the

public without the evidence of unescorted leave and he was accordingly

not discharged.

COMPLAINTS

The applicant complains of a violation of Article 5 para. 4 (art. 5-4)

of the Convention because the Mental Health Act 1983 failed to give

the Mental Health Review Tribunal sufficient power to meet the

reasonable needs of a "court" within the meaning of Article 5 para. 4

(art. 5-4). They claim that it is not sufficient for the Tribunal to

be able to discharge, conditionally or unconditionally, but that it

must also have ancillary powers, such as the ability to give brief

trial leave of absence. The applicant's representatives state that it

is difficult to reconcile the exclusive power of the Home Secretary to

authorise even one day's escorted leave with the Tribunal's power to

give an absolute discharge because the power to grant brief trial

leave is clearly less drastic than a power to order an absolute

discharge.

In correspondence, the applicant's representatives have stated that

there appear also to be violations of Articles 3, 5 para. 1 (e), 6

para. 1, 8 and 13 (art. 3, 5-1-e, 6-1, 8, 13) of the Convention,

although no further details have been submitted.

THE LAW

1. The applicant alleges a violation of Article 5 para. 4

(art. 5-4) of the Convention because, although the Mental Health Review

Tribunal which considered the applicant's case on 28 February 1985

felt that the applicant should be granted unescorted leave, the

Tribunal itself was unable to provide such leave. As a result, when

the Secretary of State refused to give unescorted leave, the Tribunal

declined to discharge the applicant, either conditionally or

absolutely.

The essence of this complaint is that the inability of the Tribunal to

provide for unescorted leave prevented the Tribunal from having

sufficient powers to be able to function as a "court" within the

meaning of Article 5 para. 4 (art. 5-4) of the Convention, which

provides as follows:

"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 notes that the criteria for continued detention of a

restricted patient such as the applicant under the Mental Health Act

1983 or review by the Mental Health Appeal Tribunal can be summarised

as follows:

(i) That he is suffering from such mental illness as to make it

appropriate that he be detained in hospital; or

(ii) That it is necessary for the health or safety of the applicant

or for the protection of others that he receive hospital treatment.

If neither of these conditions is met, the Tribunal must order a

patient's discharge, which may be conditional or absolute depending on

whether the patient should or should not be liable to recall to

hospital.

The Commission recalls that in the Winterwerp case (Eur. Court H.R.,

Winterwerp judgment of 24 October 1979, Series A no. 33) the Court

found three criteria for determining whether a person of unsound mind

is lawfully detained, namely:

(i) that it should be reliably shown that the individual concerned

is of "unsound mind";

(ii) that the mental disorder be of a kind or degree warranting

compulsory confinement; and

(iii) that the disorder is of a continuing nature (Winterwerp

judgment para. 39).

In the case of X. v. the United Kingdom (Eur. Court H.R., 5 November

1981, Series A no. 46), the Court considered (at para. 57) that there

was no reason "to suppose that in relation to one and the same

deprivation of liberty the significance of 'lawfulness' differs from

para. 1 (e) to para. 4".

In the present case the Mental Health Review Tribunal had jurisdiction

to decide on the substantive lawfulness of the applicant's detention

and it had the power (indeed the duty) to release the applicant if the

conditions for continued detention were not satisfied. In this

respect the present Mental Health Review Tribunal is different from

that considered by the Court in the case of X. the United Kingdom.

The Commission notes that the applicant's representatives make no

complaint about the reliability of evidence before or the criticism

recorded by the Tribunal as to the applicant's state of mind, but that

the complaint is restricted to the question of whether the Tribunal

should have been empowered to release on unescorted leave.

The Commission considers that Article 5 para. 4 of (art. 5-4) the

Convention does not require any control of detention beyond that of

"the lawfulness of his detention" and in the present case the Mental

Health Review Tribunal was able to make such a review.

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's representatives in correspondence have

referred to possible violations of Articles 3, 5 para. 1 (e), 6, 8

and 13 (art. 3, art. 5-1-e, art. 6, art. 8, art. 13) of the

Convention. No submissions have been made in respect of these Articles

and accordingly, in the absence of any evidence to support this

allegation, the remainder of the application is also manifestly

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

the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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R. v. THE UNITED KINGDOM

R. v. THE UNITED KINGDOM

LEXI