AS TO THE ADMISSIBILITY OF
Application No. 28212/95
by Patrick BENJAMIN and Hueth WILSON
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 3 August 1995 by
Patrick BENJAMIN and Hueth WILSON against the United Kingdom and
registered on 11 August 1995 under file No. 28212/95;
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
19 March 1997 and the observations in reply submitted by the
applicants on 9 July 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are United Kingdom citizens. The first applicant,
Mr Benjamin, was sentenced to life imprisonment for rape in 1985, and
the second applicant, Mr Wilson, was sentenced to life imprisonment for
buggery of a young girl in 1977. The applicants are represented before
the Commission by Ms L. Scott-Moncrieff, solicitor, of Scott-Moncrieff,
Harbour and Sinclair, London. The facts of the application, as
submitted by the parties, may be summarised as follows.
The particular circumstances of the case
Each applicant was transferred from prison to a special hospital
under Sections 47 and 49 of the Mental Health Act 1983 ("the 1983
Act").
By decisions of the Secretary of State for the Home Department
communicated to the applicants in October and November 1992, the
Secretary of State refused to certify the applicants as eligible for
review by the discretionary lifer panels empowered by Section 34 of the
Criminal Justice Act 1991 to order their release on licence. Leave to
apply for judicial review of the decisions was granted on 17 May 1993.
On 22 October 1993 the High Court, granting the application, made
a declaration that the Secretary of State's policy not to certify
discretionary life prisoners under paragraph 9 of Schedule 12 to the
Criminal Justice Act 1991 ("the 1991 Act") on the ground that they had
been transferred to hospital under the 1983 Act was unlawful ([1994]
Q.B. 378).
On appeal, on 19 July 1994, the Court of Appeal reversed the High
Court's decision in part. It considered that, although the applicants
were existing life prisoners within the meaning of the paragraph 9 of
Schedule 12, the discharge nevertheless remained subject to the
procedure laid down in Section 50 of the 1983 Act. The rights to a
hearing under the 1991 Act were conferred only on persons who were
solely subject to that Act, and not on those who were mental patients
([1995] Q.B. 43).
The applicants were informed by letter of 18 May 1995 that the
House of Lords had refused leave to appeal to it.
Relevant domestic law
Under Section 47 of the 1983 Act, the Secretary of State may
transfer a person serving a sentence of imprisonment to hospital if he
is satisfied that the person is suffering from mental illness,
psychopathic disorder, severe mental impairment or mental impairment,
and that the mental 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 the
condition. A transfer under Section 47 of the 1983 Act is called a
"transfer direction", and has the same effect as if a hospital order
had been made under Section 37 (1) of the 1983 Act (that is, where a
court convicts a person and, instead of sentencing him, orders his
detention in hospital).
At the same time as making a transfer direction, the Secretary
of State may also make a "restriction direction" under Section 49 of
the 1983 Act. A restriction direction has the same effect as a
restriction order made by a court under Section 41 of the 1983 Act on
conviction, save that because the person was not given a hospital order
by the court, the Secretary of State must consent to his discharge from
hospital, as well as to the granting of leave of absence or transfer
to another hospital.
A transferred life prisoner subject to restriction directions can
be discharged from hospital in three possible ways. Each can be
initiated only by the Secretary of State.
1. Section 42 (2) of the 1983 Act gives the Secretary of State
power, if he thinks fit, by warrant to discharge the patient
either absolutely or subject to conditions.
2. Section 50 of the 1983 Act provides that where the Secretary of
State is notified by the responsible medical officer, and other
registered practitioner or a Mental Health Review Tribunal that
the person no longer requires treatment in hospital for mental
disorder, or that no effective treatment for the disorder can be
given in the hospital, the Secretary of State may remit the
person to a prison or to a different institution, or he may
exercise any power of releasing or discharging him which would
have been exercisable if he had been so remitted.
3. Under Section 74 of the 1983 Act,
"(1) Where an application to a Mental Health Review Tribunal is
made by a restricted patient who is subject to a restriction
direction, or where the case of such a patient is referred to
such a tribunal, the tribunal -
(a) shall notify the Secretary of State whether, in their
opinion, the patient would, if subject to a restriction
order, be entitled to be absolutely or conditionally
discharged under Section 73 ...; and
(b) if they notify him that the patient would be entitled
to be conditionally discharged, may recommend that in the
event of his not being discharged under this section he
should continue to be detained in hospital.
(2) If in the case of a patient not falling within subsection (4)
below-
(a) the tribunal notify the Secretary of State that the
patient would be entitled to be absolutely or
conditionally discharged; and
(b) within the period of 90 days beginning with the date
of that notification the Secretary of State gives
notice to the tribunal that the patient may be so
discharged,
the tribunal shall direct the absolute or, as the case may be,
the conditional discharge of the patient.
...
(4) If, in the case of a patient who is subject to a transfer
direction under Section 48 above, the tribunal notify the
Secretary of State that the patient would be entitled to be
absolutely or conditionally discharged, the Secretary of State
shall, unless the tribunal have made a recommendation under
subsection (1)(b) above, by warrant direct that the patient be
remitted to a prison or other institution in which he might have
been detained if he had not been removed to hospital, there to
be dealt with as if he had not been so removed."
Section 73 of the 1983 Act (which relates to restricted patients
under Section 41 of the 1983 Act) provides that the tribunal must
direct conditional discharge if they are satisfied that he is not
suffering from mental illness or disorder of a type which makes it
appropriate for the person to be detained in a hospital for medical
treatment, or 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 they believe that it is appropriate for the patient
to remain liable to be recalled to hospital for further treatment.
In 1985, the Home Secretary announced that life sentence
prisoners who had been transferred to hospital would normally be
discharged under Section 50 of the 1983 Act rather than Sections 42 (2)
or 74 (2). This enables release on life licence with life-long control
rather than the possibility of eventual absolute discharge by the
Secretary of State. The policy was found to be lawful in the case of
R. v. Secretary of State for the Home Department ex parte Stroud
(16 July 1992).
Section 34 of the Criminal Justice Act 1991 provides that where
a discretionary life prisoner has served his tariff (that is, the
"punishment" part of his sentence), and the Parole Board is satisfied
that it is no longer necessary for the protection of the public that
he should be detained and has directed his release, it is the duty of
the Secretary of State to release him. Under Paragraph 9 of Schedule
12, which is a transitional provision to the 1991 Act, the Secretary
of State can apply the provisions of Section 34 to discretionary life
prisoners who were sentenced before Section 34 of the 1991 Act came
into force on 10 October 1992 by issuing a certificate that, if the
1991 Act had been in force when the person was sentenced, Section 34
would have been applied.
COMPLAINTS
The applicants claim that there is no tribunal to which they can
turn which is able to test the legality of their detention: they have
been denied access to the Discretionary Lifer Panel, and the Mental
Health Review Tribunal only has advisory powers because of Section 74
of the 1983 Act. They allege a violation of Article 5 para. 4 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 August 1995 and registered
on 11 August 1995.
On 27 November 1996 the Commission decided to communicate the
application to the respondent Government to the extent that it was
brought by Mr Benjamin and Mr Wilson, and to strike the application out
of the list of cases to the extent that it was brought by a further
applicant, a Mr Forde.
The Government's written observations were submitted on 19 March
1997, after an extension of the time-limit fixed for that purpose. The
applicants replied on 9 July 1997, after expiry of the time-limit.
On 28 May 1997 the Commission granted the applicants legal aid.
THE LAW
The applicants allege violation of Article 5 para. 4 (Art. 5-4)
of the Convention, claiming that they are unable to have the lawfulness
of their detention reviewed by a court which has power to release them.
Article 5 para. 4 (Art. 5-4) of the Convention 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 Government inform the Commission that it is the practice and
policy of the Secretary of State to follow recommendations of the
Mental Health Review Tribunal as to discharge under Section 74 of the
1983 Act, and it would be unlawful for the Secretary of State not to
comply with his own policy. They therefore consider that in substance
the Mental Health Review Tribunals which consider the applicants' cases
do have power to effect the applicants' release. The Government
further regard the application as moot because the release of the
applicants has not been recommended, and so they would not have been
released even if the tribunal had had power to order release directly.
The applicants point out that the European Court of Human Rights
in the case of X v. the United Kingdom (judgment of 5 November 1981,
Series A no. 46) required judicial control over the liberty of
Article 5 para. 1 (e) (Art. 5-1-e) detainees, and argue that the fact
that the Government claim that a recommendation would, as a matter of
policy, be accepted, is not a sufficient guarantee.
The Commission considers, in the light of the parties'
submissions, that the remainder of the case raises complex issues of
law and fact under the Convention, the determination of which should
depend on an examination of the merits of the application. The
Commission concludes, therefore, that the remainder of the application
is not manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF 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
Full & Egal Universal Law Academy