Resolution CM/ ResDH (2010)186 [1]

Execution of the judgment of the European Court of Human Rights

Benjamin and Wilson against United Kingdom

(Application No. 28212/95 , judgment of 26 September 2002, final on 26 December 2002 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the absence of a right to bring proceedings to review the lawfulness of detention on mental health grounds (violation of article 5, paragraph 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2010)186

Information about the measures to comply with the judgment in the case of

Benjamin and Wilson against United Kingdom

Introductory case summary

This case concerns the Mental Health Review Tribunal ’ s (MHRT) lack of competence to order the applicants ’ release in proceedings reviewing their detention on mental health grounds.

The applicants were initially sentenced to terms of discretionary life imprisonment following criminal convictions. They were subsequently granted the status of “technical lifers” (i.e. the recognition that they were suffering from a mental disorder and that they should be treated administratively (as patients) as if they had originally been sentenced to a restricted hospital order under sections 37 and 41 of the Mental Health Act 1983.

In accordance with the applicable provisions of the Mental Health Act 1983 (section 74), the MHRT could only recommend but not order their release. The release of technical lifers who had not returned to prison following such a recommendation could only be ordered by the Secretary of State, without reference to the Parole Board.

According to the European Court the situation did not meet the requirements of Article 5§4 of the Convention, as the MHRT could only issue recommendations and was not empowered to release the applicants.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The applicants made no claims for damages, accepting that a finding of a violation would constitute just satisfaction in the circumstances of their case.

b) Individual measures

The first applicant was convicted in 1983, his tariff expired in 1989. In October 1993 he was made a technical lifer. In 2001 the MHRT recommended his discharge from hospital. The Secretary of State accepted the recommendation and he was released on 09/01/2001.

The second applicant was sentenced in 1977; his tariff expired in 1984. In June 1993, he was made a technical lifer. In January 2009 he was discharged from hospital and released after a decision of the First-Tier Tribunal (Mental Health) (FTT), the successor to the MHRT.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

The United Kingdom passed section 295 of the Criminal Justice Act 2003 which inserts a new section 74(5A) of the Mental Health Act 1983. The technical lifer scheme was abolished on 02/04/2005. It is no longer possible for new life sentence prisoners to be treated as “technical lifers”.

The amended section 74 applies to all life sentence prisoners who have been transferred from prison to hospital and who are currently detained in hospital. Their detention in hospital is subject to review by the FTT under the Mental Health Act 1983. If the FTT finds that they no longer meet the criteria for detention in a hospital, it makes a recommendation under Section 74 of the Mental Health Act that they are entitled to be absolutely or conditionally discharged from hospital. If not released at this point, they will be returned to prison unless the Tribunal has recommended that they remain in hospital (for other medical reasons). In either case (return to prison or remaining in hospital), provided they have served their tariff, their detention is subject to review by the Parole Board as for any prisoner and the Parole Board can order their release on life licence.

Issues concerning the Parole Board have been examined in the context of the supervision of the execution of Stafford against the United Kingdom ( Application No. 46295/99). As a result of the legislative amendments introduced in the Criminal Justice Act 2003 the Parole Board is now competent to rule on the release of both life sentence prisoners and transferred prisoners who remain in hospital; the Secretary of State is not free to depart from its decisions.

The judgment of the European Court was published in European Human Rights Reports at (2003) 36 EHRR 1.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies