FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16084/03
by Patrick MORLEY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 5 October 2004 as a Chamber composed of:
MrM. Pellonpää, President,
SirNicolas Bratza,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 13 May 2003,
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, Mr Patrick Morley, is a United Kingdom national, who was born in 1965 and is currently detained in HM Prison Full Sutton, York. He is represented before the Court by Mr S. Chahal of Bindman & Partners Solicitors, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 May 1989, the applicant was convicted, inter alia, of three counts of rape and sentenced to life imprisonment. His tariff, set at 10 years, expired in prison.
The applicant suffers from a personality disorder (“psychopathic disorder”) which constitutes a mental disorder for the purposes of section 1(1) of the Mental Health Act 1983 (the 1983 Act). In prison, he was assessed by a number of psychiatrists with a view to possible transfer to hospital under section 47 of the 1983 Act, which led to a formal recommendation for transfer.
On 17 January 2000, the applicant was transferred from HM Prison Full Sutton to Rampton Hospital by virtue of a restriction direction made by the Home Secretary under sections 47 and 49 of the 1983 Act. This was based on the recommendations of two registered medical practitioners that the applicant was suffering from a psychopathic disorder of a nature or degree that made it appropriate for him to be detained in hospital for treatment and that treatment was likely to alleviate or to prevent a deterioration of his condition. The transfer was for the purposes of assessment as to possible therapeutic treatment, as well as ongoing treatment, and it had been pointed out in a report by Dr Keitch dated 15 June 1998 that there could be no guarantees as to long-term admission and that should he prove “untreatable” he would be remitted to prison.
On 12 December 2001, a Mental Health Review Tribunal considering an application by the applicant who was raising, inter alia, concerns about his diagnosis ruled that he did not fulfil the criteria for discharge under section 73 of the 1983 Act and that he was properly detained in hospital. It noted, inter alia, that he had begun to engage in psychotherapeutic treatment including a sex offender treatment programme and that it was too early to tell whether and to what extent he would respond or benefit. The SOTP programme commenced on September 2001 and was expected to continue until July 2003.
In a report dated 12 January 2002, a consultant psychiatrist, Dr Brugha, commissioned by Rampton Hospital to provide a second opinion on the applicant found that his developmental disorder probably included the little understood pathological demand avoidance syndrome and stated:
“In conclusion I have little doubt that if Patrick returned to a purely custodial setting in which there was no understanding of his deficits and no capacity to work with him the risk of repetition of his former antisocial behaviours on returning to the community would be considerable. I am impressed by the level of understanding demonstrated in the psychological reports I have seen at Rampton Hospital and believe that a long-term programme of rehabilitation within secure NHS settings followed by a gradual, closely and skilfully supervised return to the community will significantly reduce the risk to the public in the longer term.”
On 5 September 2001, a new Resident Medical Officer (RMO), Dr Hayden, had assumed responsibility for the applicant's care. In the annual report which he issued on the applicant on 14 January 2002, Dr Hayden stated that the applicant caused difficulties in the ward, was controlling and demanding, was undermining the therapeutic regime and that at this point in time there was no conclusive indication that he had benefited from treatment. He nonetheless concluded that he remained appropriately detained in hospital under the classification of Psychopathic Disorder.
After, inter alia, an incident in which the applicant was the subject of an investigation into an alleged sexual assault on another patient, Dr Hayden came to the conclusion that the applicant was not benefiting from treatment at Rampton. A meeting was held concerning the applicant on 6 March 2002 with other members of hospital staff. Dr Hayden consulted both Dr Krishnan, clinical director of the hospital's personality disorder directorate, and Doctor Evershed, an acting consultant involved in treating the applicant. On 8 March 2002, Dr Hayden notified the Home Officer Mental Health Unit requesting that the applicant be transferred back to prison as soon as possible. He stated:
“Since moving to Evans Ward Mr Morley has repeatedly presented significant management problems and attitudes and behaviour demonstrating that he is not benefiting from the overall treatment package available to him. He has consistently demonstrated a lack of meaningful reflection on his behaviour and attitudes. Until such time as he is in a position to contemplate and meaningfully reflect on his attitudes and behaviour he will not meaningfully benefit from treatment and there is no evidence that change is imminent in this respect.
Mr Morley has repeatedly resisted accepting necessary therapeutic challenge from his Named Nurse and RMO. Mr Morley has repeatedly attempted to dictate his own treatment needs. He has this month demanded that his Named Nurse be changed.
At present Mr Morley is ward-based as he is subject of investigation into an alleged sexual assault on a fellow patient.
Reasons for requesting urgent return to prison include recent behaviours of Mr Morley whereby hospital security has been compromised, a recent threat to a staff member in which Mr Morley threatened to put the staff member's head through a window and his general undermining effect on the therapeutic ethos of the ward...”
The same day, the Home Office issued the warrant under section 50 authorising the applicant's immediate transfer back to prison.
A number of further meetings were held within the hospital to discuss the applicant's position. On 18 March 2002 nine staff members were present at a multidisciplinary team meeting. At a meeting on 20 March 2002, the applicant was present and put forward his views that the Hospital had failed him and challenging the views expressed about his conduct and “treatability”. On 22 March 2002, the applicant was seen, at his request, by the Hospital Managers, who noted that there were “irreconciliable differences” between the applicant patient and the clinical team and that they were satisfied that the team had made a joint decision to return the applicant to prison and had consulted with previous members of the team.
It later transpired that the view that the applicant was no longer benefiting from treatment was not shared in all respects by all the clinical team. A post-discharge summary signed by Mr Jones, Consultant Forensic Psychologist, Dr Evershed, acting Consultant Psychologist, and four Trainee Groupwork Facilitators concluded:
“If Mr Morley had not left Rampton we would be recommending that he continue with the Core Programme here. We have some concerns about his ability to re-engage in the Prison Service Core Programme, having previously dropped out. We feel that he requires Sex Offender Interventions but alongside this he will require individual work to address responsivity issues ... The pattern of his alienating staff has occurred in the Prison Service and at Rampton Hospital. We feel that without this work to address responsivity, the same behaviours are likely to recur.”
In a report dated 27 March 2002, an individual therapist in dialectical behaviour therapy (“DBT”) stated that her impression of the applicant was that “He had consistently demonstrated motivation and commitment to engaging in DBT and had made an effort to communicate his experiences and how he perceives and interacts with the world around him.” On 28 March 2002, a trainee clinical psychologist supervised by Dr Evershed highlighted concerns about barriers to treatability but concluded that she and the applicant had “developed a firm and rewarding therapeutic relationship”.
On 26 March 2002, the applicant returned to HM Prison Full Sutton as a Category A prisoner. The same day the applicant lodged a claim for judicial review challenging the procedure whereby he was returned to prison. He obtained expert medical reports which gave the opinion that he should continue to be treated in hospital. In a report dated 4 April 2002, Dr Grubin, who had previously given a report to the MHRT, observed that having read the documentation he remained unclear as to why the applicant had been returned to prison and maintained his opinion that his condition was treatable and that it was more appropriate for him to be treated in hospital:
“I do not understand the rationale for prematurely curtailing Mr Morley's treatment in Rampton only for him to commence a similar programme in prison, but one in which the skills normally found in a hospital multidisciplinary team will be lacking. Similarly, it is simply not the case ... that sex offender treatment in prison is “exactly the same” as in Rampton; indeed this issue was discussed in some detail at the Tribunal hearing when the differences between the two were emphasised, particularly in relation to the greater ability of a hospital-based programme to tolerate offenders with severe personality disorder.
I am also concerned about Mr Morley's transfer because there is now a good deal of evidence to show that offenders who leave Sex Offender Treatment Programmes prematurely, for whatever reason, are at a higher risk of sexual re-offending ... The actions ... in returning Mr Morley to prison are therefore not simply neutral but may have a profound negative impact on his long-term risk.
... I note that since January an entirely new clinical team appears to have taken over Mr Morley's care. Given the complexity of this man's personality disorder, I think it unlikely that those involved will have had an opportunity to understand the case fully. My impression is that the decision to return Mr Morley to prison was an arbitrary one made by a locum RMO who knows little about the patient and was influenced by considerations unrelated to Mr Morley's treatment needs or longer term management.”
Permission was granted, with expedition, on 5 April 2002.
On 27 June 2002, Mr Justice Burton dismissed his claims. He found that section 50 did not require the hospital to carry out prior consultation with the patient concerned but that even if it did this was a case where no different result would have occurred even had there been consultation and the hospital had been entitled, rationally, to reach its decision as a matter of urgency. As regarded the Secretary of State, he considered that he was not bound by the MHRT's decision of 12 November 2001 that the applicant should be treated in hospital and that there had plainly been a change of circumstance since then including the incidents put in evidence by Dr Hayden and the change of clinical judgment of Dr Hayden and his team. The Secretary of State had therefore not acted irrationally or failed to take into account a consideration that he should have done. As regarded the Brugha report, this related to an assessment in the previous September and was not by a treating doctor and it was not necessary for the Secretary of State to take it into account. So far as the giving of reasons was concerned, he was satisfied that the reason given, namely that he was satisfied that no effective treatment for the disorder could be given in the hospital to which he had been removed, was sufficient and that that no further reasons were required. Insofar as the applicant complained of the failure to give him notice that it was intended to request his transfer back to prison, the judge noted, inter alia, that the RMO's evidence that notice was not given as the applicant's conduct, as well as being deceitful and manipulative, presented in some respects a real risk to hospital security.
The applicant's application for permission to appeal to the Court of Appeal was granted on 30 July 2002. After a hearing on 27 November 2002, his appeal was rejected.
As regarded the applicant's counsel's argument that there was a duty on the RMO to inform the Secretary of State as to the existence of other views on whether the applicant was benefiting from treatment, Lord Justice Pill stated:
“39. In the statutory context, I do not consider that Dr Hayden needed to disclose either the views of the psychologists or the report of Dr Brugha. The view of the psychologists now appears in the discharge reports prepared. Had the applicant not left the hospital, they would be recommending that he continue with the core programme at the hospital. Concern is expressed about his ability to re-engage in the prisoner service core programme ... The applicant's difficulties, including his pattern of alienating staff, are also mentioned. As RMO, Dr Hayden was required to take an overall view when applying the treatability test. It does not follow from progress in the introductory module of SOTP that the test is satisfied. If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by section 50 when deciding whether to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged. He was not in the circumstances under a duty to disclose reports on individual components of the applicant's medical regime or to present to the Secretary of State contrary views which may have been expressed by some members of the interdisciplinary team.
40. As to Dr Brugha's report, Dr Hayden acknowledges Dr Brugha's expertise and standing in the psychiatric world. Dr Hayden disagreed with his opinion and pointed out that he was not involved in the day to day care and clinical experience of the applicant ... The examination on which the report was based was conducted as long before the notification as 8 September 2001 and there were many subsequent developments as the evidence before this Court demonstrates. Dr Brugha recognised that it is 'perhaps not for me to speculate on treatment in this case'... In those circumstances, there was no duty on the RMO to send the report to the Secretary of State. Nor was the Secretary of State required to consider its contents. The responsibility for the clinical judgment is that of the RMO.
41. I do however express surprise and concern that the decision was taken with the speed it was though I do have regard to the need, for the reasons given by Dr Hayden, for urgency and for the decision not to tell the applicant of the notification until some time after it was made ... In my judgment there is a duty upon a RMO before giving a section 50(1) notification to make proper enquiries within the hospital as to whether the treatability test is satisfied and to consider views expressed, as well as his own first-hand knowledge and experience, before making a recommendation. The extent of the enquiry and of disclosure of information will depend on the circumstances of the particular case and will normally be judged as at the moment of decision. In my judgment, Dr Hayden did enough in the circumstances of this case to discharge that duty and did so before notification was given...
44. While I have accepted Mr Clayton's submission that the disputed documents need not have been disclosed to the Secretary of State, he puts it too high when submitting as a matter of principle there cannot be a general free standing duty on one public body to pass information to another public body. Under the statutory procedure, the Secretary of State can be expected to give considerable weight to the RMO's opinion and judgment. That involves a correlative duty upon the RMO, the content of which I have attempted to specify, to make full and fair enquiries at the hospital before making the clinical judgment and notification ...”
As regarded any alleged duty on the Secretary of State, Lord Justice Pill said:
“In the present statutory context, a right to make representations does not on the present facts arise. The issue is treatability and the Secretary of State's decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment is fairly and rationally made, a duty on the Secretary of State to permit and consider representations does not in my judgment arise ... There will be cases in which circumstances, including information available to the Secretary of State, either in the documents by which the notification is given or from other sources, create a duty in the Secretary of State to make further enquiries or take further action or both but that situation has not arisen in the present case ...”
Concerning the applicant's reliance on Article 8 of the Convention, he stated:
“49. I do not consider that there was a breach of Article 8 of the Convention. The applicant was serving a sentence of imprisonment for life. In the absence of a breach of another Article or Articles, the Convention does not render unlawful that interference with private life which inevitably follows from a lawfully imposed custodial sentence. Transfer from prison to hospital and hospital back to prison, as part of a high-security custodial regime, cannot in present circumstances be said to breach the Article notwithstanding the differences in medical treatment which occur. I do not of course exclude the possibility that certain aspects of a custodial regime might attract a case for breach but the decisions complained of do not fall within the concept of respect for private life in Article 8.”
His petition to the House of Lords for leave to appeal was dismissed on 17 February 2003.
Meanwhile, the applicant applied for discharge to a Discretionary Lifer Panel of the Parole Board. On 21 November 2002, the Panel heard evidence from two consultants that the applicant remained at risk of further re-offending, that that risk could only be addressed by suitable treatment and that he should not have been transferred back to prison because the required treatment for his mental disorder could only be provided in a special hospital. The Panel, rejecting his application for discharge, concluded:
“The panel was anxious that whereas both matters of security with their appropriate categorisation and consideration of any transfer to a Special Hospital must always remain a matter for others, the oral evidence provided at the hearing might form a basis for others to reach a prognosis which will give priority to the medical considerations raised and the reduction of risk so engendered.”
B. Relevant domestic law and practice
1. Transfers from prison to hospital
Section 47 of the Mental Health Act 1983 provides:
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered practitioners;
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which the person is suffering 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 his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that the person be removed to and detained in such hospital ...”
2. Transfers from hospital to prison
Section 50 of the 1983 Act provides:
“(1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person's sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may–
(a) by warrant direct that he be remitted to any 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...”
3. Human Rights Act 1998
Section 6 of the Act provides inter alia:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
COMPLAINTS
The applicant complains under Article 5 § 4 of the Convention that his transfer to prison from hospital violated his right to a review of the lawfulness of his detention. Once he had been transferred to hospital as being of unsound mind, the lawfulness of his detention depended on whether he continued to be of unsound mind. As he remains of unsound mind, his transfer fails to comply with Article 5 § 1 (e) and the decision should have been taken by a court. Instead the decision to transfer was taken by the executive, who was not independent or impartial and in a procedure that did not afford any guarantees against arbitrariness.
Further or alternatively, the applicant complains under Article 8 that the transfer from hospital to prison where he can no longer receive appropriate treatment and will be detained in a punitive and non-therapeutic environment with adverse consequences on his prospects of future release, was not attended by sufficient procedural safeguards against arbitrary or mistaken removal, in particular as there was no mechanism for adjudicating between the differing medical views and no disclosure of materials to the applicant or possibility to make representations.
The applicant also complains under Articles 5 § 5 and 13 that he had no enforceable right to compensation or effective remedy in respect of the above.
THE LAW
The applicant complains about his transfer back to prison from hospital, invoking variously:
Article 5 of the Convention provides 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:
...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...
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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 8 of the Convention:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Article 35 § 1 of the Convention: exhaustion of domestic remedies
The Government submitted that the applicant did not argue in the domestic proceedings before the High Court or Court of Appeal that he had been the victim of a violation of Article 5 of the Convention, which he could have done under the Human Rights Act 1998. He had therefore failed to exhaust available domestic remedies as required by Article 35 § 1 of the Convention.
The applicant made no submissions on this argument in his observations in reply. In his application form, he stated that he did not invoke Article 5 § 4 in the domestic courts as it would not have enabled section 50 of the Mental Health Act to be interpreted in a manner which gave the Mental Health Review Tribunal the final decision on return to prison. Applying for a declaration of incompatibility would not have been a sufficient remedy as it would not have affected his return to hospital or entitled him to compensation.
The Court notes that the parties' arguments as to whether human rights claims in civil proceedings would have provided adequate redress for his complaints overlap with issues under Article 5 § 4 of the Convention as to whether adequate review was available over the circumstances of the applicant's continued detention. Accordingly, the Court considers it appropriate to examine these issues under the substantive provision below.
B. Article 5 of the Convention
1. The parties' submissions
a. The Government
The Government submitted that the applicant had been sentenced to life imprisonment and that following expiry of his tariff the Parole Board, a body satisfying the guarantees of Article 5 § 4, had not ordered his release. At the time of his transfer to hospital he remained detained in accordance with his life sentence. If he had not been transferred to hospital he would have remained in prison. At all times he was lawfully detained in accordance with the original sentence. The applicant's complaints about his transfer is essentially directed to the conditions in which he was detained and that the decision of the Secretary of State to return him to prison from the hospital was not one which determined the lawfulness of his detention within the meaning of Article 5 § 4: it merely determined where the applicant was to be detained (e.g. K.M. v. U.K., no. 28376/95, (dec.) 3 December 1996). The Court's case-law established that Article 5 § 4 did not impose a judicial control of the legality of all aspects or details of the detention.
To the extent that the applicant argued that his transfer was not in accordance with Article 5 § 1(e), the Government submitted that the applicant was transferred from hospital back to prison when it was concluded fairly and rationally that no effective treatment could be given for him and that he would continue to receive such treatment as was appropriate. It was not the case that he was being detained in conditions which were harmful or inappropriate to his condition.
b. The applicant
The applicant argued that his detention following his transfer to prison fell under the scope of both Article 5 §§ 1 (a) and (e) and that as long as it did so he could only be lawfully detained in a “hospital, clinic or other appropriate institution (citing Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, § 46). As he had now served the tariff part of his life sentence and his continued detention relied on his continuing to be found dangerous, there was a necessary link between his mental illness and his detention. The decision taken by the Secretary of State to return him to prison was in breach of Article 5 § 4; such a decision should only have been taken by a proper court-like body, namely, the Mental Health Review Tribunal. Access to the Parole Board was irrelevant as it had no power to consider the lawfulness of his detention under Article 5 § 1(e), in particular whether he continued to be of unsound mind and required detention in a hospital, clinic etc.
Although the applicant was sentenced to life imprisonment and his detention fell within Article 5 § 1(a) initially, following his transfer to hospital the lawfulness of his detention fell also to be considered under Article 5 § 1(e). He should therefore have continued to be detained in a hospital or like institution until a competent Article 5 § 4 body concluded that his detention as being of “unsound mind” was no longer justified.
2. The Court's assessment
The Court notes, first of all, that the applicant does not appear to be complaining that his transfer from hospital back to prison was in breach of Article 5 § 1(e) as such. He is rather supporting his claim of a breach of Article 5 § 4 by arguing that the ground of his detention, as a person of unsound mind, fell within the scope of that provision and required that he obtain a proper review of that detention. The applicant, in any case, did not claim in the domestic proceedings that his detention in prison was unlawful under Article 5 § 1 as was open to him and the essence of his complaint is that any transfer decision should have been taken by the Mental Health Review Tribunal, and not by the Secretary of State. The Court has therefore examined the applicant's complaint under Article 5 § 4 alone.
The Court recalls that a prisoner's detention may fall under more than one head of Article 5 § 1 (see e.g. X. v. U.K., judgment of 5 November 1981, Series A No. 46, § 39; E. v. Norway, judgment of 29 August 1990, Series A No. 181-A, § 53.) In the present case, the applicant was sentenced by a competent court to a term of life imprisonment; his detention since that date has fallen within the scope of Article 5 § 1 (a). When the applicant was transferred to prison by the Secretary of State on the recommendation of two doctors that he was suffering from a psychopathic disorder of a nature or degree that made it appropriate to be detained in hospital for treatment, his detention in the hospital may be regarded as also falling under Article 5 § 1(e). The question remains what significance this had on the requirements imposed by Article 5 § 4 for review of the lawfulness of any continued detention.
As pointed out by the Government, Article 5 § 4 does not guarantee a right to judicial control of the legality of all aspects or details of detention (Ashingdane v. the United Kingdom, judgment of 28 May 1985 Series A no. 93, § 52). It does however require review of the essential elements making up the lawfulness of that detention. Prior to his transfer to hospital, the applicant had access to the Parole Board which could determine whether his detention continued to be justified on the ground of his dangerousness. It had the power to order release if it found no justification. On the applicant's transfer, by the Secretary of State, to hospital, the Mental Health Review Tribunal had the power to decide that it was no longer appropriate for him to remain in hospital; if, however, it had found that the applicant was no longer of unsound mind this would not have led to the applicant's release as he remained liable to detention under the life sentence and he would have been returned to prison where the Parole Board would review his position in due course. The applicant's position must therefore be distinguished from prisoners who are detained under Article 5 § 1(e) because they are persons suffering from a mental illness, as in Johnson v. the United Kingdom (judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII) where the obligation on the authorities was to release him within a reasonable time of their decision that his mental condition no longer warranted detention in a hospital. The Court further recalls that in Silva Rocha v. Portugal (judgment of 15 November 1996, Reports 1996-V, §§ 27-29) during the period that the applicant's detention was justified under Article 5 § 1(a) as well under Article 5 § 1(e), he could not claim the annual or periodic review under Article 5 § 4 which the case-law indicated was required for those whose detention was based on their subsisting mental condition alone. It may be noted that the applicant's transfer to the hospital in this case was effectively subject to the condition that he was thoroughly assessed and proved treatable and was not regarded as a definitive or permanent admission.
It is true that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention and that in the context of persons detained as mental health patients the Court has stated that issues of lawfulness under Article 5 may arise where they are not detained in a suitable therapeutic environment (e.g. Aerts v. Belgium, cited above and Hutchison Reid v. the United Kingdom, no. 50272/99, ECHR 2003-IV, § 55). To the extent that this applicant, also detained on grounds of his conviction and continued dangerousness, may claim that issues may arise from the change of his place of detention from hospital to prison, the Court would note that he had the opportunity to apply to the court raising traditional judicial review grounds, including the fairness or rationality of the RMO's clinical judgment that he was not treatable, as well as Convention arguments as to the lawfulness of his transfer back to prison or complaining that the conditions of his detention in prison would, in light of his mental condition, be harmful or damaging or inappropriate due to the lack of essential therapeutic facilities and in that respect in breach of the Human Rights Act 1998. In the judicial review proceedings brought by the applicant however it may be noted that the applicant did not raise Article 5 of the Convention. The Court is satisfied that in the circumstances of this case an application to the court would provide adequate review of the lawfulness of the change in location in the applicant's place of detention. The applicant has not raised, either in the domestic courts, or before it, any complaints as to the speed of the review.
As regards the applicant's complaints under Article 5 § 5 of the Convention, the Court observes that Article 5 § 5 guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention in contravention of the provisions of Article 5. In view of the lack of any appearance of a violation of Article 5 § 4 of the Convention as found above, it follows that Article 5 § 5 is not applicable.
The Court concludes that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Article 8 of the Convention
The Government submitted that the applicant's transfer from hospital to prison did not constitute an interference with his right to respect for private life, as concerning the inevitable consequences of a lawfully imposed custodial sentence. Alternatively, any interference was justified: his detention was at all times in accordance with a sentence of life imprisonment, his transfer to prison took place because the medical consensus was that no effective treatment for his disorder could be provided in hospital, his continued presence served no useful purpose and was detrimental to the interests of the other patients. The decision was based on a fair and rational clinical judgment and was the subject of scrutiny by the courts which found no unfairness arising. It would have been inappropriate to involve the applicant in the decision-making process due to his particular mental disability.
The applicant submitted that Article 8 was engaged as the decision to return him to prison impacted on his “physical and psychological integrity” over and above that normally associated with a custodial sentence. He was removed from an ostensibly therapeutic to an ostensibly penal environment with the real possibility that such move would be detrimental to his mental health. To comply with Article 8, he argued that there should have been a fair procedure which allowed for the applicant's effective participation. In his case, the Secretary of State issued his decision after hearing only the RMO's views and did not enquire into whether the transfer would be detrimental to the applicant's health or whether there were any alternatives. Nor did the procedure give the applicant any opportunity to make representations, either himself, or through legal representation, if it was considered that he was incapable of representing himself. These failures were not rectified by the courts as on judicial review the limited scope of examination does not permit interference with clinical professional judgment.
The Court recalls that mental health must be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 71 and the authorities cited therein). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life (Bensaid v. the United Kingdom, 44599/98, ECHR 2001-I, § 47).
The Court recalls that the applicant argues that the return to prison threatened to impact negatively on his psychological state. A report given by Dr Brugha on 12 January 2002 stated that the risk of repetition of anti-social behaviour would increase, while a report from Dr Grubin dated 4 April 2002 stated that the premature curtailment of the treatment at the hospital could also have negative impact on his long-term risk of re-offending. The domestic courts noted that the RMO, who was a treating doctor with clinical experience of the applicant, disagreed with Dr Brugha and considered that, given developments since his report, the RMO had been entitled to rely on his own assessment of whether the applicant was benefiting from treatment at the hospital. The Court would note therefore that the material before it indicates, not that the applicant's mental state is deteriorating or suffering further damage due to the conditions of his confinement, but, at most, that they are not optimising whatever possibility of long-term improvement of his disorder might exist. In the circumstances, the Court is not persuaded therefore that it has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention.
Even assuming, however, that the difference in regimes between the hospital and prison could be considered by itself as affecting the applicant's private life, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure “in accordance with the law”, pursuing the aims of the prevention of disorder and crime and protection of the rights of others, as well as being “necessary in a democratic society” for those aims. Relevant and sufficient reasons supported the RMO's recommendation to return the applicant to prison, as was also found in the domestic courts' review of the case. Insofar as the applicant complains that the procedural element in Article 8 was not respected due to his lack of involvement in the decision-making process, the Court would note that different considerations arise as regards the input which mentally ill patients can appropriately have into their treatment as compared with, for example, child care cases in which it has been held that parents must be effectively involved in the procedures concerning their children (e.g. T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001-V, § 72). The Court recalls that the applicant's resistance to the therapeutic requirements of the hospital and his own attempts to control his treatment had been perceived as part of the reasons rendering him incapable of benefiting from the hospital regime. His conduct, which was in addition viewed as in some respects threatening to hospital security, had also influenced the decision to give him no advance notice of his possible return to prison. However, insofar as the applicant considered that there was any unfairness or impropriety in the procedure adopted, the Court notes that he had the opportunity of putting his complaints to the courts in judicial review proceedings. In the circumstances, it is not persuaded that the decision-making procedure has been shown to disclose the lack of any fundamental safeguard or defect undermining its validity such as could raise an issue under Article 8.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Article 13 of the Convention
The Government submitted that the applicant had a right to compensation and an effective remedy contained within the HRA 1998.
The applicant submitted that the courts could not have found a breach of Article 5 or granted damages as section 6(2) of the HRA 1998 provided a defence where as a result of provisions of primary legislation the authority could not have acted differently. A declaration of incompatibility would not have been a sufficient remedy either.
According to the Court's case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
Insofar therefore as the Court has found above that the substantive complaints under Article 8 are manifestly ill-founded, the applicant cannot be regarded as having an “arguable claim”. Insofar as the applicant has invoked Article 5, in which respect Article 5 §§ 4 and 5 are generally the lex specialis, the Court finds no separate issue arising.
It follows that this part of the application must also be rejected pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy