Information Note on the Court’s case-law 50
February 2003
Hutchison Reid v. the United Kingdom - 50272/99
Judgment 20.2.2003 [Section III]
Article 5
Article 5-1-e
Persons of unsound mind
Continued detention on basis of mental disorder not amenable to treatment: no violation
Article 5-4
Review of lawfulness of detention
Burden of proof on detainee to show he is no longer suffering from a mental disorder warranting detention: violation
Facts: The applicant was convicted of culpable homicide in 1967. The court was satisfied that he was suffering from a mental deficiency and made an order for his detention in a mental hospital and a further order restricting his discharge without limit of time. In 1986 the applicant, who had been moved to an open prison, was convicted of assault and attempted abduction and sentenced to three months’ imprisonment. On completion of the sentence, he was recalled to hospital on the strength of the 1967 orders. He subsequently sought discharge on a number of occasions and obtained reports from different psychiatrists, most of whom considered that he was not suffering from a mental disorder of a nature or degree justifying continued detention, as he was not treatable. Under the Mental Health (Scotland) Act 1984, where a mental disorder was a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct, as in the applicant’s case, detention was only permissible where medical treatment was likely to alleviate or prevent a deterioration of the condition. In April 1994, after several unsuccessful appeals, the applicant again appealed to the Sheriff Court. The Sheriff, having noted that the burden of proof was on the applicant, obtained several psychiatric reports, which agreed that the applicant was suffering from a mental disorder manifested by abnormally aggressive and seriously irresponsible behaviour. The majority also expressed the view that the condition was not curable. The Sheriff nevertheless considered that detention for treatment was appropriate, taking into account the severity of the applicant’s condition and the risk of re-offending, and refused the appeal in July 1994. The applicant’s petition for judicial review was dismissed but a renewed application was allowed and in August 1997 the Court of Session quashed the Sheriff’s decision, considering that he was obliged to discharge a psychopathic patient who was not treatable. However, in December 1998 the House of Lords allowed the Secretary of State’s appeal, taking the view that treatment which alleviated the symptoms and manifestations of a mental disorder, even if it did not cure the disorder, fell within the scope of the applicable provision.
Law: Article 5 § 1 (e) – It was not disputed that the applicant’s detention in 1967 was “lawful” and on grounds of mental illness which fell within this provision. Moreover, the domestic proceedings had not resulted in any finding of unlawfulness and there was no basis for interfering with the courts’ assessment in that respect. The principal question was therefore whether the detention offended the underlying aim of protecting individuals from arbitrary detention. The applicant’s complaint turned on the requirement of domestic law at the time that the mental condition warranting detention should be amenable to treatment. However, there is no such requirement under Article 5, which also allows compulsory confinement when the person needs control and supervision to prevent harm to himself or others. There was nothing arbitrary in the decision not to release the applicant in 1994 and in the light of the finding that there was a high risk of re-offending, the decision could be regarded as justified. Furthermore, no issues of arbitrariness were disclosed by the fact that the grounds for detention in hospital changed during the applicant’s detention, nor did the detention offend the spirit of Article 5 – indeed, it would be prima facie unacceptable not to detain a mentally ill person in a suitable therapeutic environment. Even if the applicant’s condition was not curable or susceptible to treatment, the Sheriff had found that he derived benefit from the hospital environment and that his symptoms became worse outside its supportive structure. In the circumstances, there was a sufficient relationship between the grounds of the detention and the place and conditions of detention to satisfy Article 5 § 1.
Conclusion: no violation (unanimously).
Article 5 § 4 – (a) As to the burden of proof, there is no direct Convention case-law governing the onus of proof in proceedings under this provision but it may be regarded as implicit that it is for the authorities to prove that an individual satisfies the conditions for compulsory detention. Indeed, this has been recognised in other proceedings in Scotland and England. The Government argued rather that the burden of proof was largely irrelevant, since in practice the authorities always led evidence in support of the continued detention, and it was true that there was considerable medical evidence before the Sheriff, who made clear and unequivocal findings as to the existence of a serious mental disorder and the risk of the applicant re-offending. However, there was also the issue of whether the condition was amenable to treatment and in that respect the Sheriff, referring to the onus of proof, was not satisfied that the applicant was not suffering from a condition requiring detention in hospital for treatment. It was sufficient that the burden of proof was capable of influencing the decision, which appeared to be the case, since there were conflicting views in that respect. The imposition of the burden of proof on the applicant was not compatible with Article 5(4).
Conclusion: violation (unanimously).
(b) As to the speediness of the review, while the applications challenging the Sheriff’s decision involved judicial review rather than full appeals, the courts nonetheless ruled on issues concerning the lawfulness of the applicant’s detention, which could potentially have led to his release, and there was no reason why these proceedings should not be taken into account. The fact that the Scottish system provides a four-tier system of review could not justify deprivation of Article 5 § 4 rights. There were no exceptional grounds justifying the delay in determining the applicant’s application for release and these delays were not remedied by the fact that the applicant could re-apply for release each year, since it could not reasonably be anticipated that subsequent applications would have any prospect of success.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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