THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50272/99 by Alexander Lewis HUTCHISON REID against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 15 November 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Sir Nicolas Bratza , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , judges , and Mr V . B erger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 August 1998 and registered on 11 August 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Alexander Lewis Hutchison Reid, is a United Kingdom national , born in 1950 and currently detained in Carstairs Hospital, Lanarkshire. He is represented before the Court by Ms Y. Mckenna, a lawyer practising in Glenrothes.

A. The circumstances of the case

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

On 8 September 1967, the applicant, then aged 17, was convicted, after a guilty plea, of culpable homicide. The court was satisfied on the oral evidence of two consultant psychiatrists that the applicant was suffering from “mental deficiency”, a mental disorder within the meaning of the Mental Health (Scotland) Act 1960 and such as would warrant his detention (sections 6 and 23(1)). It ordered that he be detained in a mental hospital under a hospital order. It also made an order restricting his discharge from detention without limit of time (sections 55(1) and (7) and 60(1) of the 1960 Act). Though one doctor gave the opinion that the applicant suffered from a psychopathic or personality disorder, this was not the basis for the detention.

On 24 April 1972, the applicant escaped from the State Hospital but was recaptured the same day.

By no later than 1980, he was no longer regarded as suffering from a mental deficiency. The sole medical basis for his detention since that date has been a diagnosis of anti-social personality or psychopathic disorder.

After 1983, patients under a restriction order were provided with the opportunity of applying annually to the Sheriff to obtain discharge. Pursuant to the Mental Health (Scotland) Act 1984 (1984 Act), the criteria for admission for both civil and criminal patients was amended. Section 17 provided that where the mental disorder from which the person suffered was a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct (i.e. a psychopathic or anti-social personality disorder), he could only be detained where medical treatment was likely to alleviate or prevent a deterioration of his condition. This reflected general medical pessimism as to the benefits of medical treatment for psychopaths. The sheriff was required to release a restricted patient where the patient was not suffering from a mental disorder making it appropriate for him to be detained in a hospital for medical treatment, or it was not necessary for the health and safety of the patient or the protection of other persons that he receive such treatment (section 64 of the 1984 Act).

In 1985, the applicant was transferred to an open hospital. On 6 August 1986, he re-offended, was arrested and remanded to prison. He was charged on a summary complaint with the assault and attempted abduction of an 8 year old child. Psychiatric reports were obtained from two consultant psychiatrists. In their reports of 14 August 1996, both referred to the applicant’s personality disorder but neither considered him to be suffering from mental disorder making it appropriate for him to receive hospital treatment. He was found sane and fit to plead. Accordingly, on conviction of assault and attempted abduction by a sheriff on 26 September 1986, he was sentenced to three months’ imprisonment, not to a hospital disposal.

On completion of his sentence in prison, the applicant was recalled to the State Hospital by the Secretary of State on the basis of the 1967 hospital and restriction orders, pursuant to section 68(3) of the 1984 Act. This had been on the recommendation of a consultant psychiatrist consulted by the Secretary of State, who in his report of 8 August found that there was no continuing evidence of mental subnormality or of any evidence of mental illness other than persistent abnormally aggressive or seriously irresponsible conduct. While he was not convinced that the applicant’s period of treatment in the open hospital had improved his behaviour in any consistent fashion, the only possible reason to continue his detention in hospital was to attempt to modify his aggressive and seriously irresponsible conduct. In his view the only type of hospital management appropriate would be the more secure and structured organisation within the State Hospital. It was further noted that the incident with the child raised grave doubts concerning the safety to other people of allowing the applicant to be released from institutional care and it was for that reason he recommended the applicant’s return to State Hospital. On 7 October 1986, on the day of the applicant’s release from prison, the applicant was transferred back to the State Hospital.

The applicant sought discharge from hospital on a number of occasions. Between February 1987 and June 1994 he instructed some 18 reports from six psychiatrists, the majority of which were to the effect that he did not suffer a mental disorder of a nature or degree justifying continued detention, as he was not treatable. Some of the reports indicated that the continuing detention was leading, or was likely to lead to a deterioration of his condition and that he required rehabilitation from his institutionalisation. Between August 1986 and May 1994, 10 psychiatric reports on the applicant were prepared for Government agencies by eight psychiatrists, in which varying opinions were also given as to the applicant’s susceptibility to treatment.

The applicant’s appeals to the Sheriff on 29 February 1988, 20 October 1988, and 12 May 1992 for absolute or conditional discharge were unsuccessful.

On 8 April 1994, the applicant lodged a further appeal to the Sheriff under section 63(2) of the 1984 Act. Between May and June 1994, psychiatric reports were prepared. On 14 June and 1 July 1994, the Sheriff heard evidence.

On 19 July 1994, the Sheriff refused the applicant’s application for discharge. He had before him the written and oral evidence of seven consultant psychiatrists. He found that they were unanimous that the applicant suffered from a mental disorder, namely a persistent and permanent psychopathic/anti-social personality disorder, manifested by abnormally aggressive and seriously irresponsible behaviour. He accepted that the evidence was such that the applicant’s disorder would not be likely to justify his admission to hospital had his original offence been committed in 1994 and noted that the majority of the opinions were to the effect that the applicant’s condition was not curable and that the medical treatment provided by the State Hospital had not alleviated and would not alleviate his condition. However he nonetheless found that the applicant’s disorder was severe and that it was appropriate for this applicant to be detained in a hospital for medical treatment. He stated that nowhere in the Act did it state that a criminal ordered by the High Court to be detained without limit of time required to be discharged if his condition was not being alleviated. However, in any event, he agreed with Dr. White, the responsible medical officer for the applicant, who stated in his report:

“in the structured setting of the State Hospital in a supervised environment [the applicant’s] anger management improves, resulting in his being less physically aggressive. There is evidence that when this structure or supervision is lessened that [the applicant] poses more of a danger to others e.g. his abuse of parole... Medical treatment has alleviated his condition and should continue to do so.”

He also referred to Dr Smith’s report which stated that “ At that time (1967) he was emotionally immature and illiterate. Since then there has been marked improvements in his educational attainments. He has benefitted from nursing and medical care in the stable environment provided by the State Hospital.”

The Sheriff concluded:

“The majority medical opinion is that rehabilitation should take place in another hospital. It is a matter for Dr White to consider whether he can prepare the applicant for a transfer; and it is for Dr White to decide and not for me to advise. Presumably rehabilitation will alleviate his condition. ...I am told that psychiatrists would today be unlikely to recommend admission to the State Hospital. However, the applicant was properly admitted and detained and I have not been satisfied that he is now not suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.”

No appeal lay against the Sheriff’s decision.

On 28 February 1995, the Secretary of State received notice that the applicant had applied for legal aid to challenge the Sheriff’s decision. In March 1995, legal aid was refused. On 16 October 1995, the Secretary of State received intimation of the applicant’s fresh application for legal aid. On 17 November 1995, legal aid was granted by the Scottish Legal Aid Board.

On 21 February 1996, the applicant lodged a petition in the Outer House of the Court of Session for judicial review of the Sheriff’s decision. A hearing took place on 16 May 1996 before Lord Rodger. On 29 May 1996, Lord Rodger dismissed the petition, findng that the Sheriff’s conclusion that it was appropriate that the applicant should be liable to be detained in hospital for treatment was entirely justifiable.

On 14 June 1996, the applicant renewed his application to the Inner House of the Court of Session. On 28 June 1996, the case was sisted (adjourned) to enable the applicant to apply for legal aid.  On 30 August 1996, the Scottish Legal Aid Board granted legal aid. On 7 November 1996, the applicant applied to end the adjournment. On 12 November 1996, the Inner House recalled the sist. On 23 January 1997, a hearing was set for 24-26 June 1997. The hearing took place.

On 22 August 1997, the Inner House of the Court of Session allowed the appeal and quashed the decision of the sheriff. They held that in the case of a psychopath the discharge criteria in section 64 of the 1984 Act incorporated the “treatability” criterion in section 17 of the Act i.e. the criterion that, in the case of a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, the medical treatment must be such as is likely to alleviate or prevent a deterioration in his condition. Having reviewed the evidence, they found that the Sheriff had wrongly concluded that the applicant was treatable and that the Sheriff was obliged to discharge a restricted psychopathic patient who was not treatable.

On 11 November 1997, the Secretary of State appealed to the House of Lords. On 9 December 1997 and 25 February 1998, the parties agreed to extension of time to lodge court documents. On 31 March 1998, the case was set down for hearing on 12 -13 October 1998.

Following that hearing, on 3 December 1998, the House of Lords allowed the appeal. In their judgment,  their Lordships agreed with the Inner House that the treatability criterion was incorporated into the discharge criteria in section 64 but rejected its approach to the evidence. They held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section 17(1) even if the treatment did not cure the disorder itself. They found that the Inner House, on a judicial review application, was not entitled to substitute its own opinion as to the applicant’s treatability for that of the Sheriff, though it could have done so on an appeal.

Lord Hutton said, inter alia :

“It is clear that there was a difference of opinion between the seven psychiatrists who gave evidence before the Sheriff. The Sheriff recognised this and stated that ‘the majority opinion among the witnesses was that the medical treatment provided by the State Hospital had not alleviated and would not alleviate his condition.’ But the Sheriff referred to the evidence of Dr Chiswick, who was in favour of an absolute discharge of the [applicant], and who stated that ‘Dr White’s plans for anger management etc. would be regarded by him as treatment’. And it is clear ... that the Sheriff accepted the opinion of Dr White, who was the responsible medical officer for the [applicant] that the anger management of the [applicant] in the structured setting of the State Hospital in a supervised environment resulted in his being less physically aggressive. In other words, it was Dr White’s opinion that the symptoms of his underlying condition were alleviated and this led the Sheriff to the conclusion that medical treatment ‘should continue” to alleviate his condition. Therefore in my view contrary to the opinion of the Inner House the Lord Ordinary was right to decide that, given the evidence which was before the Sheriff, it would be wrong to hold that no sensible sheriff could have reached the decision which he did.”

Lord Hutton adverted to the danger which could arise under the mental health provisions that a sheriff could be obliged to release an untreatable psychopath who might well harm members of the public. The balancing of the protection of the public as against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment would not improve his condition was however an issue for Parliament to decide, not the judges.

The Crime and Punishment (Scotland) Act 1997 provided, from its coming into force, that any person convicted of an offence for which a hospital order could be made could now be made subject of a hospital direction (or hybrid order), whereby the offender although sent to hospital also had a sentence imposed on him. If the offender’s mental condition improved to the extent that detention in hospital was no longer justified, he could be transferred to prison to complete the remainder of his sentence. These provisions, which are not retrospective, do not affect the applicant.

On 2 August 1999, in the case of Noel Ruddle v. the Secretary of State , the Sheriff ordered the release of a patient suffering from a psychopathic disorder where the treatability test was not satisfied. The release into community of this patient caused considerable public controversy and led to the first act of the new Scottish Parliament.

On 8 September 1999, the Parliament passed the Mental Health (Public Safety and Appeals) Scotland Act 1999 which amended section 64 so as to require the Sheriff to refuse an appeal of a patient where he was suffering from a mental disorder which required him to be detained in hospital, whether for medical treatment or not, in order to protect the public from serious harm. Proceedings were taken by two detainees inter alia concerning whether the Act was within the powers of the Parliament. The cases were heard before the Inner House of the Court of Session on 17-26 May 2000.

On 16 June 2000, the Lord President gave the judgment of the court, rejecting the challenges to the Act, inter alia , taking into account the principles laid down in Article 5 §§ 1 and 4 of the Convention ( A. v. the Scottish Ministers ).

B. Relevant domestic law and practice

Section 17(1) of the Mental Health (Scotland) Act 1984 provides:

“A person may, in pursuance of an application for admission under section 18(1) of the Act, be admitted to a hospital and there detained on grounds that-

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

( i ) in the case where the mental disorder from which he suffers is a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, such treatment is likely to alleviate or prevent a deterioration of his condition...

...and

(b) it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this Part of the Act.”

Section 64 (1) of the 1984 Act provided:

“Where an appeal is made by a restricted patient who is subject to a restriction order, the sheriff shall direct the absolute discharge of the patient if he is satisfied -

(a) that the patient is not, at the time of the hearing of the appeal, suffering from mental 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

(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 (in either case)

(c) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.”

As amended by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, in relation to hearings on or after 1 September 1999, section 64(A1) provides

“Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order, the sheriff shall refuse the appeal if satisfied that the patient is, at the time of the hearing of the appeal, suffering from a mental disorder the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not.”

This Act also gave a right of appeal from the Sheriff’s decision to the Court of Session for both the applicant and the Secretary of State.

The Report of the Millan Committee on the Review of the Mental Health (Scotland) Act 1984 made a number of recommendations concerning the 1999 Act. In particular, it criticised the fact that entry and exit criteria to hospital no longer coincided:

“the justification for continuing to detain a patient should reflect the basis on which detention was initiated. This is an important principle which we have emphasised throughout our report: no-one should be detained if they no longer meet the grounds for detention. ... The effect of the public safety test in the 1999 Act is that some restricted patients may be required to remain in hospital when they no longer meet the criteria for admission to hospital.”

In January 1999, the Report of the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital was issued concerning the treatment and detention of psychopathic offenders:

“6.3.1 Whether or not a convicted offender is diagnosed as suffering from psychopathic disorder and becomes the subject of a hospital order is, to a considerable extent, a matter of chance. ...

Because [the definition of the personality disorder category] is legal, not clinical, and is unlikely to be the subject of scrutiny, it is possible for almost any violent offender to slip into this category...

6.3.8 The uncertainties in this process have been called a “lottery”...

...

General Conclusions

6.10.1 It is evident from all the evidence which we have heard and read that there continues to be a wide diversity of opinion among experts from all the professions about the treatment and management of personality disorder and particularly severe personality disorder...

6.10.5 A few generalisations can be made with which there is general agreement:

1. Some personality disorders are more treatable than others and they are conditions which are less severe and which have a low association with violence.

2. Some personality disorders are sometimes treatable.

3. Some, particularly severe personality disorders, are resistant to treatment or frankly untreatable, although they may benefit from management and humane containment. ...

6.10.11 We see no rational justification for keeping this very manipulative and troublesome sub-group in expensive therapeutic units providing management and treatment techniques from which they gain no benefit.”

On 28 March 2001, the Court of Appeal held in R. v. the Mental Health Review Tribunal North & East London Region and the Secretary of State for Health ex parte H that sections 72 and 73 of the Mental Health Act 1983 (which contains provisions similar to those set out in section 64 of the Mental Health Act (Scotland) 1984)) were contrary to Articles 5 §§ 1 and 4 insofar as they imposed a test which required the continued detention of a patient where it could not be shown that his mental condition did not warrant detention.

COMPLAINTS

1. The applicant complains under Article 5 § 1 that his detention at Carstairs Hospital since 1986 has not been in accordance with Article 5 § 1(e). He submits that there must be some relationship between the ground of permitted deprivation of liberty and the place and conditions of detention. His detention cannot be regarded as lawful since objective medical opinion shows that hospital is not an appropriate place of detention for him. He points out that he was initially confined under diagnosis of one mental disorder which ceased to exist and claims that it is arbitrary to continue detention on the basis of a new disorder which would not, on current mental health provisions, be found to warrant compulsory confinement in hospital. It was clear that, if provisions existed permitting his transfer to prison, such a transfer would take place as being clearly more appropriate.

2. The applicant complains under Article 5 § 4 that he had no opportunity of obtaining a decision on the lawfulness of his detention. He argues that the sheriff in deciding his application was acting as a primary decision-maker not as a court. In particular, the sheriff was applying a higher onus of proof to the applicant than that applicable when a court ordered initial detention. He submits that the Inner House ordered his release but that the House of Lords reversed their decision on the principles of judicial review, which did not permit consideration of the merits of the applicant’s case. Further, the proceedings which lasted until 1998 were not speedy.

3. Alternatively to his complaints under Article 5 § 4, the applicant complained under Article 13 of the Convention that he had no effective remedy in respect of his complaints concerning his deprivation of liberty.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that his detention since 1986 has not been justified under sub-section 1(e). These provisions provide:

“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 persons of unsound mind ...”

The Government submit that the applicant’s detention was justified under Article 5 § 1(e) as the lawful detention of a person of unsound mind. The national authorities had found the applicant was suffering from a mental disorder warranting confinement and where the medical experts had expressed conflicting opinions and the patient posed a risk to public safety, they considered that the Court should be slow to disturb their conclusions. Article 5 § 1(e) was in any event not concerned with suitable treatment or conditions and it was not a precondition of the lawful detention of a person of unsound mind that treatment is available to him or that available treatment is to any extent beneficial. A person could be detained in conformity with the Convention where this was necessitated by his own interests, or for the protection of the public or on both medical and social grounds. Therefore, a person suffering from a psychopathic disorder could be lawfully detained in order to protect the public even if it is considered that the disorder cannot be treated.

In the present case, they argue that the applicant was lawfully detained in 1967 on the basis of hospital and restriction orders made on the objective medical expertise of two doctors that he was suffering from a mental disorder and those orders had been in force ever since, providing the lawful basis for his continuing detention. Since 1967, he has continued to suffer a persisting mental disorder established by objective medical expertise and warranting his compulsory confinement in State Hospital. Though by 1980 his problems were no longer mental deficiency, his medical history shows that he continued to suffer from a persisting mental disorder, being a psychopathic personality disorder. He also remained a risk to the public and the treatment available to him in the structured environment of the State Hospital prevented deterioration in his condition. Even if there was disagreement in 1994 amongst the experts as to his treatability , there was sufficient evidence that the care under medical supervision in the hospital prevented deterioration and constituted medical treatment.

The Government submit that it is hypothetical and unreal to postulate whether if his case arose today the psychiatrists would be unlikely to recommend admission to hospital. There was a proper relationship between the ground on which the applicant had been deprived of his liberty and the place and conditions of his detention. It would be entirely inappropriate, in their view, to detain a person such as the applicant in an ordinary prison where he requires care and supervision not available in such an environment.

The applicant accepts that he has been lawfully liable to be detained as a matter of domestic law since 1967, though he notes that the initial diagnosis of mental deficiency was of questionable accuracy in the circumstances and that the diagnosis of psychopathic disorder was not definitively made until many years later. However, Article 5 § 1(e) does not permit the detention of a person simply because his views or behaviour deviate from the norms prevailing in society. His disorder manifests itself only by abnormally aggressive or seriously irresponsible behaviour and he argues that Article 5 § 1(e) cannot permit his detention because of a propensity to re-offend in the absence of any possibility or intention of provision of medical treatment.

Even if the national authorities are better placed to evaluate the evidence in a case, he submits that the most authoritative consideration of the medical evidence was given by the Inner House of the Court of Session, which found that he was not treatable. The House of Lords had stated that if it had been sitting as a court of appeal it would have been justified in reaching such a conclusion. If the applicant’s condition warrants detention in prison rather than hospital and the applicant maintains that he would not now, as a psychopath, be considered as suitable for detention in hospital, his present detention is not in an appropriate institution of the purpose for which it is being effected. The clear majority view of the experts is that he is not treatable and in 1986 he was sentenced to prison rather than hospital.

The applicant submits that the definition of medical treatment as including nursing or care and supervision in a structured hospital environment is not in accordance with accepted clinical views of what constitutes medical treatment. This kind of treatment is in fact indistinguishable from containment. He disputes that risk of re-offending should be a valid ground for maintaining a person in hospital, this making the admission criteria linked to the possibility of medical treatment different from the discharge criteria. He denies that it is appropriate to detain him in hospital. The nature and degree of his disorder is indistinguishable from that of many persons in the prison population and he does not require care and supervision in hospital.

2. The applicant complains that he has not had a review of the continued lawfulness of his detention which complies with the requirements of Article 5 § 4 of the Convention, as there was no appeal against the Sheriff’s decision, the burden of proof was on him and the proceedings were not dealt with speedily. Article 5 § 4 provides :

“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 applicant was able to challenge the lawfulness of his continued detention in hospital by appealing to the Sheriff, who was a legally qualified judge with wide jurisdiction. The Sheriff is required to give the applicant or his legal representative an opportunity to be heard, he hears evidence in accordance with the ordinary rules of evidence and is empowered to release if the detention is unlawful. This review was wide enough to bear on all the conditions essential for the lawful detention of a person of unsound mind. They submit that Article 5 § 4 did not require that an appeal against the Sheriff’s decision also be available. Judicial review of the decision, though not an appeal system allowing the higher courts to substitute their view on the merits, was a useful supplement to the Sheriff’s proceedings, as it permitted a close scrutiny by more senior judges of the decision taken, in line with the principles of judicial review which included scrutiny of the nature and sufficiency of the evidence. This was in any event wide enough to satisfy the requirements of Article 5 § 4.

As regards the speediness of the proceedings, the Government submit that the proceedings before the Sheriff were speedily conducted, commencing in April 1994 and culminating with all due expedition in July 1994. The applicant however took no further steps until 28 February 1995 when the Government received notice of a legal aid application. Though legal aid was granted on 17 November 1995, the applicant did not lodge his petition until 21 February 1996, some 19 months after the decision which he sought to review. There was no delay in the Court of Session proceedings, though there was a further adjournment to allow the applicant to apply for legal aid to apply to the Inner House. This was granted on 30 August 1996, though the applicant did not apply to end the adjournment until 7 November 1996.  Similarly, the proceedings in the House of Lords proceeded with due expedition. The Secretary of State lodged an appeal after detailed consideration of the difficult issues on 11 November 1996 and legal aid was granted to the applicant on 28 November 1997. An extension of time from December 1997 and March 1998 for lodging documents was agreed by both parties. The House of Lords decision was issued with all due expedition on 3 December 1998 after a hearing on 12-13 October 1998. The case came before four courts and the judicial authorities conducted the case diligently. He also retained during this time an annual right to apply to the sheriff for release.

As regards the burden of proof in the Sheriff proceedings, the Government disputed that there was any different or higher standard of proof imposed than when initial detention was ordered. The Sheriff in the applicant’s case correctly stated that in appeals for discharge the onus was on the applicant and the test was the balance of probabilities.

The applicant submits that there was a failure of a court to decide the lawfulness of his detention and to order his release contrary to Article 5 § 4. The Sheriff held the applicant to be treatable and therefore detainable in the face of the great weight of evidence to the contrary. The three judges of the Inner House of the Court of Session reviewing that evidence took the view that the evidence was not such that he was treatable and that he should be discharged. The House of Lords, which did not themselves decide whether he was treatable, recognised that the Inner House would have been entitled to form the view they did on an appeal but that on judicial review principles the sheriff’s decision could not be challenged as unlawfully perverse. He was therefore denied a proper decision by a court on the merits on the evidence.

The applicant submits that the proceedings which commenced in April 1994 and only ended on 3 December 1998 were not conducted speedily. He denies that he failed promptly to expedite the proceedings at any stage. He had difficulties in obtaining legal aid. The Secretary of State objected to the grant of legal aid. The proceedings were entirely novel and complex and detailed consideration had to be given to the legal and factual issues arising by counsel. Although he retained the annual right to appeal to the Sheriff, this right was meaningless given the view of the law which prevailed at the time.

The applicant further submits that the onus of proof to a high standard of probability was placed on him in the proceedings before the sheriff, where he sought discharge. On admission the onus of proof had been placed on the authorities seeking to detain. The placing of the onus of proof on an applicant him by section 64 of the 1984 Act has also been recently held in a case dealing with comparable English provisions to be incompatible with the terms of Article 5 § 4 ( R. v. Mental Health Review Tribunal North and East London Region ex parte H , Court of Appeal, 28 March 2001).

3. The applicant complains, in the alternative to his submissions under Article 5 § 4 that he has no effective remedy for his complaints contrary to Article 13 of the Convention.

4. The Court has examined the applicant’s complaints and the submissions of the parties and finds that serious questions of fact and law arise which are of such complexity that their determination should depend on an examination on the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent B erger Georg Ress Registrar President