JUNCAL v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

Application no. 32357/09
David Grant JUNCAL
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 17 September 2013 as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 5 June 2009,

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

1. The applicant, Mr David Grant Juncal, is a British national, who was born in 1966 and who is currently detained in London. He was represented before the Court by Mr R. Campbell-Taylor, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, Foreign and Commonwealth Office.

A. The circumstances of the case

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

1. The hospital and restriction orders

3. In 1995, the applicant was discharged from a high-security mental hospital in England, where he had been detained for three and a half years. In March 1997 he was detained in Northern Ireland, having been charged with an offence of unlawful wounding. He did not deny wounding the complainant, but contended that he acted in self-defence. While remanded in custody awaiting trial on the wounding charge he stabbed another prisoner in the head with a pencil. The victim said that the applicant had acted strangely before the attack and had claimed to be Jesus Christ. Following this incident, the applicant was moved to the prison psychiatric wing, where he displayed evidence of acute psychotic illness, consistent with paranoid schizophrenia, and was treated with anti-psychotic medication.

4. At the initiative of his defence team, the applicant was assessed by two psychiatrists, Dr Gray in the summer of 1997 and Dr Bownes in October 1997. Dr Bownes considered him unfit to plead by reason of active mental illness. He also found that the applicant needed in-patient psychiatric care and that the seriously damaging and dangerous nature of his behaviour meant that he required psychiatric treatment in the specialist setting of a maximum security unit. At the request of the prosecution, the applicant was assessed by another psychiatrist, Dr Fleming, who concluded that the combination of the applicant’s personality problems and his psychotic illness made him “one of the most potentially dangerous individuals that [he] had come across in 17 years of psychiatric practice”. Dr Fleming and Dr Bownes both gave evidence at the trial.

5. On 16 December 1997 the applicant was brought before the Belfast Crown Court. He was represented by counsel. In the light of the medical evidence, the question of fitness to plead fell to be decided by the jury under Article 49(4) of the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”: see paragraph 14 below). The jury considered the medical evidence, including the oral evidence of Drs Fleming and Brown, and found that the applicant was unfit to plead. There was no investigation of the facts upon which the criminal charge was based. Once the jury had made this finding, Article 49(6) of the 1986 Order obliged the court to order that he be admitted to hospital. Moreover, by virtue of Article 49(7) of the 1986 Order, the hospital order automatically had the same effect as a hospital order made with a restriction order made without limitation of time (see paragraphs 14 and 16 below). The recital to the hospital order stated:

“[T]he defendant is suffering from mental illness which warrants his detention in hospital for medical treatment... [T]he Court is of the opinion having regard to all the circumstances, including the nature of the offences and the character and antecedents of the defendant, and to the other available methods of dealing with him, that the most suitable method of dealing with the case is by means of Hospital Order.”

However, as Lord Justice Pill observed in the Court of Appeal (see paragraph 11 below) “because in the circumstances such findings were superfluous to the statutory procedure followed, they cannot conclude the issue whether the mental disorder was of a kind warranting compulsory confinement”. In other words the judicial finding, made on the basis of the medical evidence adduced before the Belfast Crown Court, that the applicant’s mental illness was such a to justify his detention in a mental hospital, was superfluous. By virtue of the applicable domestic law as it stood at the time, the court had no discretion but to make a hospital order once the applicant had been found unfit to plead. The applicant did not appeal against the finding of unfitness to plead.

6. Some two weeks later, on 30 December 1997, the Secretary of State for Northern Ireland ordered that the applicant be transferred from Northern Ireland to a hospital in Scotland under section 81(1) of the Mental Health (Scotland) Act 1984 (“the 1984 Act”). The Secretary of State’s power of transfer under section 8(1) of the 1984 Act could be exercised only where the Secretary of State considered that a transfer was in the interests of the patient. The applicant, who is Scottish, did not dispute that it was in his interests to be transferred to Scotland from Northern Ireland, where he had been on a visit at the time of the incident which led to his arrest. The applicant was admitted to a secure hospital in Scotland on 8 January 1998. The 1984 Act provided for a statutory review mechanism by the Scottish Ministers of patients subject to restriction orders, whereby reports were required from the patient’s responsible medical officer at least once a year. Throughout his detention in Scotland, the medical reports indicated that the applicant continued to be regarded by his treating psychiatrists as fulfilling the statutory criteria for detention under a hospital order and a restriction order. The applicant had a right of appeal to the sheriff, who would have been required to order the applicant’s release had he considered that the statutory detention criteria were not met. However, the applicant did not exercise this right.

7. On 24 May 2005, the Scottish Government issued a warrant of removal under section 77(1) of the 1984 Act, authorising the transfer of the applicant from the secure hospital in Scotland to a medium secure mental health facility in East London. The transfer took place on 14 June 2005. As with the transfer to Scotland, the applicant could be transferred to England only if the relevant Ministers considered it to be in his interests. From this point, he was treated as being detained under sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). He retained his right to apply to the Mental Health Review Tribunal under section 69 of the 1983 Act. Had such an application been made, the Mental Health Review Tribunal would have been obliged to direct his discharge from detention unless satisfied both that he was suffering from a mental disorder of a nature or degree which made it appropriate for him to be liable to be detained in hospital and that it was necessary for his health and safety or for the protection of other persons that he should receive such treatment.

8. During his detention, the applicant’s mental health improved to the extent that he was permitted periods of escorted leave from hospital. In early 2007, the applicant submitted a request for unescorted leave, supported by his Responsible Medical Officer. Leave was refused by the Secretary of State by a letter dated 4 April 2007.

2. The judicial review proceedings

9. On 22 March 2007, the applicant issued judicial review proceedings in the High Court against the Secretary of State for the Home Department, East London and City Mental Health NHS Trust, the Scottish Ministers and the Secretary of State for Northern Ireland, challenging the lawfulness of his detention under domestic law and/or under Articles 5, 6, 7, 8 and 14 of the Convention. He alleged in particular that the detention was arbitrary in breach of Article 5 § 1 because it was authorised by reference to allegations constituting a criminal charge, the truth of which were never determined by any court or tribunal and that his right under Article 5 § 4 to regular review of the lawfulness of his detention was breached because he could not challenge the lawfulness of his detention by reference to the truth of the facts alleged against him.

10. The applicant’s case was heard in the High Court on 21 October 2007. On 19 December 2007, the judge dismissed the applicant’s claim, holding that his detention was not arbitrary or unlawful. The judge further held that the proceedings before the Northern Ireland Crown Court could not be challenged on Article 6 grounds since the Human Rights Act 1998 (the 1998 Act) had not come into force at the time of those proceedings and did not operate retrospectively.

11. The applicant appealed to the Court of Appeal, arguing that the High Court judge had erred in law in dismissing his claim. His appeal was heard on 14 and 15 May 2008 and dismissed on 25 July 2008. The Court of Appeal held that the applicant could not challenge his continuing detention on the grounds that the processes which led to that detention contravened his Convention rights since the relevant decision had occurred before the coming into force of the 1998 Act. The court nonetheless went on to consider the lawfulness of his detention, not just in domestic law, but also under Article 5. It held that the 1986 Order was not unlawful as being arbitrary or unconstitutional and that the appellant did suffer from a mental disorder sufficiently serious to warrant detention, in accordance with the test set out in Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33. Although “fitness to plead” gave rise to different questions from “unsoundness of mind” and the conditions for detention were not considered in terms under the statutory procedure followed, those conditions were in fact met. Further, the applicant’s transfers between the jurisdictions were lawful and the provisions for detention in England, Scotland and Northern Ireland, though different in some respects, were “corresponding provisions” which allowed for transfers to be made under sections 77 and 81 of the 1984 Act.

12. On 11 December 2008, an application for permission to appeal to the House of Lords was refused on grounds that the applicant’s case did not raise an arguable point of law of general public importance.

B. Relevant domestic law

1. Unfitness to plead

13. The concept of “unfitness to plead” is concerned with the accused’s condition at the time of the trial, rather than at the time of the commission of the alleged offence. In Northern Ireland at the relevant time it was governed by common law and statute. Under the common law, the definition of “unfitness to plead” was set out in R v. Pritchard (1836) 7 C & P 303. More recently, in R v. John (M) [2003] EWCA Crim 3452, the Court of Appeal approved a trial judge’s direction that the jury could find unfitness to plead if the defence could establish on a balance of probabilities that any one of the following was beyond the accused’s capabilities, namely (1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; or (6) giving evidence in his own defence.

14. At the time of the applicant’s appearance before the Crown Court in Northern Ireland, Article 49 of the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”) provided:

“49(1) The following provisions of this Article apply where, on the trial of a person charged on indictment with the commission of an offence, the question arises (at the instance of the defence or otherwise) whether the accused is unfit to be tried (in this Article referred to as ‘the question of fitness to be tried’).

(2) Subject to para (3), the question of fitness to be tried shall be determined as soon as it arises.

...

(4) The question of fitness to be tried shall be determined by a jury...

(5) Where in accordance with paras (2) to (4) it is determined that the accused is unfit to be tried –

(a) The court shall direct a finding to that effect to be recorded; and

(b) the trial shall not proceed or, as the case may be, proceed further.

(6) Where a court has directed that a finding be recorded in pursuance of para 5(a), the court shall order that the person to whom the finding relates shall be admitted to hospital.

(7) An order under para (6) shall have the same effect as a hospital order together with a restriction order made without limitation of time.

(8) Where the Secretary of State is notified by the responsible medical officer that a person detained in a hospital by virtue of an order under para (6) no longer requires treatment for mental disorder, the Secretary of State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under para (6) shall cease to have effect. ...”

15. The 1986 Order has since been amended several times. Section 23(2) of the Domestic Violence, Crime and Victims Act 2004 amended the Order to provide that the determination whether or not an accused is unfit to plead shall be made by the court sitting without the jury. Article 49(4A) of the 1986 Order, as inserted by Article 48(a) of the Criminal Justice (Northern Ireland) Order 1996, requires that before making a determination of fitness to be tried, the court must hear the oral evidence of a medical practitioner appointed by the Mental Health Commission for Northern Ireland for the purposes of making medical recommendations for compulsory admissions to hospital. The court must also have before it the written evidence of one other medical practitioner. Articles 49A and 50A were inserted into the 1986 Order at the same time. Article 49A provides that, once a person has been found to be unfit to plead, the jury shall go on to determine whether the accused carried out the act or omissions with which he or she was charged, on the basis of the evidence adduced by the prosecution and by the person appointed by the court to put the case for the defence of the accused. Under Article 50A, following findings that the accused is unfit to be tried and that he did the acts or made the omissions charged against him, the court shall make either a hospital order, a guardianship order, a supervision and treatment order or an order for absolute discharge.

2. Powers of the court to restrict discharge from hospital: “restriction orders”

16. At the relevant time, Article 47 of the 1986 Order stated:

“(1) Where –

i. a court makes a hospital order in respect of any person; and

ii. it appears to the court, having regard to the nature of the offence, the antecedents of the person and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so,

the court may ... further order that the person shall be subject to the special restrictions specified in the order; and an order under this Article shall be known as a ‘restriction order’.

(2) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows, that is to say –

(a) none of the provisions of Part II relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is absolutely discharged ...;

(b) no application or reference shall be made to the Review Tribunal in respect of the patient under Articles 71 to 74;

(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely -

(i) power to grant leave of absence to the patient under section 17 above;

...

and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible clinician; and

(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

...

(6) While a person is subject to a restriction order the responsible clinician shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.”

17. Article 75 of the 1986 Order gave a right to patients detained in hospital and subject to a restriction order to apply to the Mental Health Review Tribunal within a period of six months from the date of the relevant hospital order or transfer direction and thereafter at 12-month intervals. Section 76 gave a power to the Secretary of State to refer the case of a restricted patient to the Tribunal at any time, and required him or her to make such a referral if the case had not been considered by the Tribunal in the course of the preceding two years.

COMPLAINTS

18. The applicant complained under Article 5 § 1 of the Convention that his detention was, and continued to be, arbitrary in that he was subject to detention under criminal provisions in circumstances where it was never determined whether or not he committed the acts constituting the criminal offence with which he was charged. He also complained under Article 5 § 4 that he was unable to challenge the legality of his current detention by reference to the truth of the facts alleged against him. The criteria under which he could apply to the Mental Health Review Tribunal for discharge were different to the criteria (namely fitness to plead) under which he was detained. He also complained about the making of the hospital order under Articles 6, 7, 8 and 14 of the Convention and, under Article 13, that the Court of Appeal’s judgment refusal to give retrospective effect to the Human Rights Act 1998 denied him an effective remedy for his Convention complaints.

THE LAW

A. Alleged violations of Article 5 §§ 1 and 4 of the Convention

19. The applicant complained that his detention violated Article 5 §§ 1 and 4 which provide, as relevant:

“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:

(a) the lawful detention of a person after conviction by a competent court;

...

(e) the lawful detention ... of persons of unsound mind ...

4. 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.”

1. The parties’ arguments

20. The Government submitted that the applicant’s complaint was based on a misconception, namely that he was and continued to be detained by reference to the occurrence of the events forming the subject matter of criminal charges. In fact, the applicant was never detained on the basis that he did the acts charged against him. He was detained because he was found by a court, on the basis of expert psychiatric evidence, to be unfit to be tried by reason of a mental disorder. The evidence before the Belfast Crown Court amply demonstrated that the disorder was such as to warrant compulsory confinement. Throughout his detention, the Winterwerp conditions for lawful detention under Article 5 § 1(e) applied. The applicant could have no realistic complaint that his detention was unjustified on the facts; his complaint was a technical one that the Northern Irish Crown Court was not, at the relevant time, required to make a formal finding as to the necessity of detention. However, Article 5 § 1(e) did not require, as a condition of detention, a formal finding to that effect by a court. Indeed, the majority of mental health detentions in the United Kingdom were the result of decisions by psychiatrists, not judges and it had never been suggested that this violated Article 5 § 1. Throughout the period of his detention, both in Scotland and England, the applicant had the right to apply to an independent court or tribunal which, had such an application been made, would have been required to discharge him from detention unless satisfied that his disorder persisted and remained of a kind warranting compulsory confinement. This was all that was required by Article 5 § 4.

21. The applicant emphasised that Article 5 § 1 required the process leading to detention to be free from arbitrariness. If a procedure leading to detention was arbitrary, there would be a violation of Article 5 § 1, whatever the substantive merits that might underpin detention under different conditions under a different provision of domestic law. He accepted that he suffered from unsoundness of mind and that he might therefore be subject to lawful detention under the civil provisions of the 1983 Act, if the necessary legal criteria were established. However, he contended that it was arbitrary to continue to detain him by virtue solely of his unfitness to plead to a criminal charge. Once his unfitness to plead had been established, the domestic court had no alternative but to make a hospital order and a restriction order. No discretion was exercised by the State authorities and there was no procedure for determining whether or not he needed to be detained on health grounds. He maintained that the detention of persons of unsound mind accused of criminal charges and detained by reference to the occurrence of the events forming the subject matter of those charges could only be justified under Article 5 where the accused person had either been tried and convicted of those charges or had the truth of those charges properly investigated, within a reasonable time. At the time of his “trial” before the Crown Court in Northern Ireland there was no procedure for a “trial on the facts” of those accused of crimes but found unfit to plead. Yet at the relevant time the Government had secured changes to the law in both England and Wales and Scotland which provided for such a process and the Northern Irish law was also subsequently amended in line with the rest of the United Kingdom. Similarly, he considered that there was a violation of Article 5 § 4, since had he appealed to the sheriff or the Mental Health Review Tribunal, each tribunal could only have reviewed whether he should continue to be detained by reason of any continuing mental disorder, but not with reference to the truth or otherwise of the facts alleged against him in the indictment.

2. The Court’s assessment

22. In Stanev v. Bulgaria [GC], no. 36760/06, §§ 143-147, ECHR 2012 the Court recently summarised the principles relating to the detention of persons of unsound mind, as follows:

“143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be ‘lawful’, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III).

144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, 29 January 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011).

145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of ‘unsound mind’ unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov v. Russia, no. 44009/05, § 114, ECHR 2008; and Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000‑X).

146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003‑IV).

147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the ‘detention’ of a person as a mental-health patient will be ‘lawful’ for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49).”

23. In the present case, the Court notes that the applicant does not deny that, as a matter of fact, he has at all relevant times been a person of “unsound mind” and that his mental disorder has at all relevant times been such as to warrant compulsory confinement. His complaint under Article 5 § 1 instead focuses on the procedure whereby the hospital order was made by the Belfast Crown Court in December 1997.

24. He complains, first, that prior to the making of the hospital order, there was no investigation into the facts upon which the criminal charge was based. The Court notes that, shortly after the hospital order was made in the applicant’s case, the law in Northern Ireland was amended (see paragraph 15 above). Under the amended law, once a person has been found to be unfit to stand trial, the jury must determine whether he committed acts or omissions which would have constituted a crime if done or made with the requisite mens rea. In Antoine v. the United Kingdom (dec.), no. 62960/00, 13 May 2003, the Court considered a similar procedure applied in England. It referred to the opinion of Lord Hutton in the House of Lords, who considered that this process served the purpose of striking a fair balance between the need to protect a person who had, in fact, done nothing wrong and was unfit to plead at his trial and the need to protect the public from a person who had committed an injurious act which would have been a crime if carried out with the appropriate mens rea. The Court itself was satisfied that the proceedings did not involve the determination of a criminal charge but that their essential purpose was instead “to consider whether the applicant had committed an act the dangerousness of which would require a hospital order in the interests of the protection of the public”.

25. It is not for the Court to assess whether the procedure under Article 49A of the 1986 Order, as amended, would have been fairer than that which was applied in relation to the applicant, since it must limit its examination to the facts of the present case. It is clear that, once the jury had found the applicant was unfit to plead, the material ground of detention moved from that provided for in subparagraphs (a) or (c) of Article 5 § 1 to that provided for by subparagraph (e). The question whether or not the applicant had performed the actus reus of the offence was of only peripheral relevance to the issues to be considered in connection with detention under Article 5 § 1(e). The Court does not, therefore, consider that the failure to determine whether the applicant had committed the acts charged gave rise to any arbitrariness.

26. Secondly, the applicant complains that the fitness to plead procedure did not require consideration to be given to whether the nature of his mental disorder warranted compulsory confinement. The Court observes that the question whether a person is unfit to plead under domestic law involves an enquiry into his or her capacity to instruct legal representatives, understand the trial and participate effectively in it (see paragraph 13 above). The test, therefore, is different from that required under Article 5 § 1(e), namely whether the person is suffering from a mental disorder of a nature or degree requiring compulsory confinement, and yet under the applicable domestic law the judge was obliged to make an order for compulsory confinement once the jury had found the applicant unfit to plead. To this extent, there could be said to have been a theoretical shortcoming in the text of the domestic legislation capable of leading to a decision of detention not in compliance with the requirements of Article 5 § 1 of the Convention.

27. However, again the Court underlines that it must base itself on the facts of this particular case. It notes that, in order to determine whether the applicant was unfit to plead and whether a hospital and restriction order should be made, the Belfast Crown Court heard evidence from two psychiatrists who had assessed him. Both considered that the applicant was suffering from psychotic mental illness. It is not known precisely what evidence they gave at the trial, but in his earlier written report the psychiatrist called by the defence, Dr Bownes, had found that the applicant needed in-patient psychiatric care and that the seriously damaging and dangerous nature of his behaviour meant that he required psychiatric treatment in the specialist setting of a maximum security unit. The psychiatrist appointed by the prosecution had found in his written report that the combination of the applicant’s personality problems and his psychotic mental illness made him “one of the most potentially dangerous individuals that [he] had come across in 17 years of psychiatric practice” (see paragraph 4 above). The uncontested evidence before the Belfast Crown Court, therefore, supported the view that the Winterwerp criteria were indeed satisfied in the circumstances of the applicant’s case. Moreover, it is noteworthy that the applicant has never challenged this assessment of him by the domestic authorities, for example by seeking to appeal against the finding of unfitness to plead by the Crown Court or by appealing against the hospital and restriction orders to the sheriff, while he was detained in Scotland, or to the Mental Health Review Tribunal following his transfer to England. In these circumstances, the Court does not consider that the hospital order failed to comply with the requirements of Article 5 § 1.

28. Finally under Article 5 § 1, the applicant complained that he was made subject to a restriction order, also without any prior determination that he committed the acts charged in the indictment. The Court observes that under domestic law at the time, it was open to a court making a hospital order also to make a restriction order where it appeared, “having regard to the nature of the offence, the antecedents of the person and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so” (see paragraph 16 above). A restriction order was mandatory where a hospital order was made in the context of a criminal trial, following a finding of unfitness to plead. The principal consequence for the applicant of being subject to a restriction order was that the authorisation of the Secretary of State was required before he could take unsupervised leave from hospital.

29. In connection with this complaint the Court recalls that, as set out in Stanev, cited above, § 147, it is established in its case-law that, subject to the requirement to detain a mental-health patient in a hospital, clinic or other appropriate institution, Article 5 § 1(e) is not in principle concerned with conditions of detention. While the imposition of the restriction order altered some of the legal conditions of the applicant’s detention regime, it did not change the character of his deprivation of liberty as a mental patient (see, mutatis mutandis, Ashingdane, cited above, § 47). Moreover, as noted above, the psychiatric evidence before the Belfast Crown Court supported the view that the additional safeguards involved in a restriction order were justified for the protection of the public.

30. The applicant also complained under Article 5 § 4 that he was unable to challenge the legality of his continuing detention by reference to the facts charged against him in the criminal indictment. However, the Court considers that this complaint, which is closely linked to that under Article 5 § 1, is manifestly ill-founded for similar reasons. Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1 (see Stanev, cited above, § 168). The Winterwerp criteria for “lawful detention” under sub-paragraph (e) of Article 5 § 1 (summarised in Stanev, § 145: quoted in paragraph 22 above) entail that the review of lawfulness guaranteed by Article 5 § 4 in relation to the continuing detention of a mental health patient should be made by reference to the patient’s contemporaneous state of health, including his or her dangerousness, as evidenced by up-to-date medical assessments, and not by reference to past events at the origin of the initial decision to detain.

31. The applicant had a right to apply to the Mental Health Review Tribunal within six months of the date of the making of the hospital order by the Belfast Crown Court and six months of each transfer direction. Thereafter, he had a right to apply at yearly intervals (see paragraph 17 above). Since the applicant did not make any such application, the Secretary of State was obliged to refer his case to the Tribunal at least once every two years. The Tribunal was empowered to examine whether the Winterwerp criteria continued to apply: namely, whether the applicant continued to suffer from a mental disorder of a kind or degree warranting compulsory confinement. Since the applicant’s detention fell under the exception to the right to liberty set out in Article 5 § 1(e), the scope of this review was sufficient for compliance with Article 5 § 4.

32. It follows that the applicant’s complaints under Article 5 §§ 1 and 4 are manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Other complaints

33. In addition, the applicant complained under Article 6 § 1 that the making of the hospital order, without any prior investigation into whether he had done the alleged acts or whether he suffered from a mental disorder of a nature or degree warranting compulsory detention, breached his right to a fair trial within a reasonable time in respect of the criminal charges. He complained under Article 7 that his detention offended the principles of legal certainty and nulla crimen sine lege. Under Article 8, the applicant complained that the application of the restriction order was not “in accordance with the law” and constituted a disproportionate interference with his private life, given that the truth of the criminal allegations which formed the basis for making such an order had never been determined. He complained of a breach of his rights under Article 14 taken in conjunction with Articles 5, 6, 7 and 8, in that a restriction order under section 41 of the 1983 Act could not have been made in respect of a person charged in England and Wales unless he or she had first being convicted of the offences charged or found to have committed the facts alleged. Finally, he complained that the judgment of the Court of Appeal dismissing his judicial review application, on the ground that the Human Rights Act 1998 had no retrospective application, deprived him of an effective remedy for his Convention complaints, in breach of Article 13.

34. As regards the applicant’s complaints under Articles 6 and 7, the Court recalls its ruling in Antoine, cited above, that a finding by a court that an accused is unfit to plead does not amount to the determination of a criminal charge. It follows that neither Article 6 nor Article 7 is applicable.

35. The Court considers that the applicant’s complaint under Article 8 is in essence a restatement of his complaint under Article 5 and does not, therefore, require separate examination. The imposition of the restriction order did not constitute a disproportionate interference with the applicant’s right to respect for private life, in the light of the psychiatric evidence relating to the danger the applicant represented to the public.

36. As regards the complaint under Article 14, the Court recalls that this provision protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention and its Protocols. It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual’s location at the time. For the Court, insofar as at the time of the applicant’s appearance in the Crown Court there existed a difference in treatment of individuals found unfit to plead in Northern Ireland and in England and Wales and Scotland, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained. This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature. In the present case, such a difference does not amount to discriminatory treatment within the meaning of Article 14 of the Convention (see, mutatis mutandis, Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000‑VI).

37. Finally, under Article 13, the Court notes that the domestic courts held that the applicant was unable to challenge the imposition of the hospital and restriction orders on the ground that they were incompatible with Article 5 §§ 1 and 4, because the orders were made before the Human Rights Act 1998 came into force and because the 1998 Act has no retrospective effect. The Court recalls that it has held that there is no obligation to incorporate the Convention into domestic law and that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see James and Others v. the United Kingdom, 21 February 1986, §§ 84-85, Series A no. 98). In any event, in this case both the High Court and the Court of Appeal went on to consider the merits of the applicant’s complaints under Article 5, and concluded that they were unfounded.

38. It follows that the applicant’s complaints under Articles 6 and 7 are inadmissible as incompatible ratione materiae with the provisions of the Convention and its Protocols and that the complaints under Articles 8, 13 and 14 are manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

              Françoise Elens-PassosIneta Ziemele
RegistrarPresident

Full & Egal Universal Law Academy