CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25601/94                       by Joseph Patrick Ferdinand ROUX                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 12 July 1994 by Joseph Patrick Ferdinand ROUX against the United Kingdom and registered on 7 November 1994 under file No. 25601/94;        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      31 August 1995 and the observations in reply submitted by the      applicant on 25 September 1995;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the application, as submitted by the parties, may be summarised as follows.   The applicant is a French / Canadian citizen born in 1945.   When he introduced his application he was detained at Ashworth Hospital.   He is represented before the Commission by Mr. S.J. Rees, solicitor, of Darwen.   The particular circumstances of the case        The applicant was convicted in October 1974 after an argument with a prostitute over money.   In 1975 he was convicted of unlawfully and maliciously administering a destructive thing, assault, and other offences (one involving threats to a prostitute).   A hospital order without limit of time was made on 12 September 1975, and the applicant was admitted to Broadmoor Hospital under Sections 60 and 65 of the Mental Health Act 1959 (now Sections 37 and 41 of the Mental Health Act 1983) on 7 October 1975.   He was transferred to Ashworth Hospital on 15 December 1980.        On 25 February 1994 the Mental Health Review Tribunal found that:        "...this patient continues to suffer from psychopathic disorder      but ... such disorder is no longer of a nature or degree which      makes it appropriate for him to be detained in a hospital for      medical treatment."        The Tribunal noted that the applicant had made remarkable progress over the previous four years, and that the risk which was inherent in such cases was minimal.   It considered that he should be liable to recall, and discharged him conditionally.   The discharge conditions were:        -      that he resided at a named address or such other place            approved by his supervising team;        -      that he received psychiatric treatment as and when            directed;        -      that he received social work and / or probation            supervision; and        -      that he received such psychological treatment as was            considered necessary by the supervising team.        The applicant was discharged on 11 April 1994.   He returned to his sheltered accommodation in a drunken state on the first night, appearing to be in a distressed state about the breakdown of a relationship with a nurse at Ashworth.   On 16 April he described himself as suicidal and he was admitted to a psychiatric clinic as a voluntary patient the next day.   In early May he returned to the sheltered accommodation with the agreement of those supervising him, but there was continued concern that he was exceeding the agreed levels of alcohol intake.        On 24 May 1994 a report was brought to the attention of Dr. Finnegan, one of the psychiatrists supervising him, that he had brought a prostitute back to his flat and had been heard arguing with her about money.   Dr. Finnegan was concerned that the applicant was beginning to repeat the pattern of behaviour prior to the commission of his two offences against prostitutes.   Dr. Finnegan formed the view that the applicant's mental state was likely to deteriorate if he were allowed to remain at the flat, and he considered it necessary for the applicant to be recalled to Ashworth for his own health and safety and to ensure that his condition did not deteriorate to the point where he presented an immediate risk to others.        At the request of Dr. Finnegan, and with the agreement of Dr. Coorey, the other doctor supervising the applicant, a warrant of recall was issued pursuant to Section 42 (3) of the Mental Health Act 1983.   A decision was taken by the supervising team not to inform the applicant of the pending recall as it was feared that he would react in a negative way to the news, and would be likely to abscond from the accommodation.   A letter giving the reasons for the recall was sent to Dr. Coorey, the supervising psychiatrist at Ashworth, and he has confirmed that he discussed the reasons for recall with the applicant shortly after the applicant's recall.        On 12 July 1994 the applicant's then representatives wrote to the Home Office asking for the reasons for recall.   The reasons were given by letter of 4 August 1994.        The applicant's case was referred to a Mental Health Tribunal under Section 75 (1) (a) of the Mental Health Act 1983 on 17 June 1994.        In an attempt to force the matter before a Mental Health Tribunal, the applicant applied for judicial review of the Secretary of State's decision to recall.        The Mental Health Review Tribunal met on 16 December 1994.   It considered statements from the responsible medical officer and the Home Secretary, and reports from the social worker and the probation officer.   The Home Secretary opposed discharge, primarily on the ground that the applicant continued to pose a serious danger to the public. The Mental Health Review Tribunal directed the applicant's conditional discharge, subject to residence and supervision conditions.   It gave as its reasons:        "The patient continues to suffer from psychopathic disorder.   He      has had the benefit of substantial psychological assistance and      treatment in a secure hospital over many years.   He continues to      require treatment in the form of advice and social support and      psychological treatment in the forms of alcohol and sex      education.   The risk of a recurrence of the sort of behaviour      which led to his index offences remain, but is fairly low, and      could be monitored in the community with the strict observance      of certain conditions.   The treatment required does not need to      be undertaken in conditions of high security."        The applicant was released on 9 January 1995, after appropriate arrangements had been made.        The judicial review proceedings were terminated on 23 February 1995 as there was no longer any reason to continue.   Relevant domestic law        Section 37 of the Mental Health Act 1983 empowers a court to order a person, on being convicted of a criminal offence, to be admitted to and detained in a specified hospital ("a hospital order"). Under Section 41 of the same Act, a court may make a restriction order (without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court (having regard to the nature of the offence, the antecedents of the offender 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 make the order.        The Secretary of State may at any time refer the case of a restricted patient to the Mental Health Review Tribunal (Section 71 of the Mental Health Act 1983). Tribunals are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member.   Under Section 75 (1) (a) of the Mental Health Act 1983, the Secretary of State is required to refer the case of a conditionally discharged restricted patient who has been recalled to a Mental Health Review Tribunal within one month of the day on which the patient is returned to hospital.   COMPLAINTS        The applicant alleges a violation of Articles 5 and 13 of the Convention.        He complains that his recall on 25 May 1994 was in breach of Article 5 because there was no non-compliance with a court order, and no breach of an obligation prescribed by law.   He further complains, referring to Article 13 of the Convention, of the failure to bring the matter promptly before a tribunal and that he is prohibited from himself bringing the matter before a tribunal.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 July 1994 and registered on 7 November 1994.        On 17 May 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 31 August 1995.   The applicant replied on 25 September 1995.        On 13 September 1995 the Commission granted the applicant legal aid.   THE LAW        The applicant alleges violation of Articles 5 and 13 (Art. 5, 13) of the Convention in connection with the proceedings connected with his recall to hospital in May 1994.   In particular, he alleges that he should not have been recalled as he had not breached any of the conditions of his conditional discharge, and that no court determined the state of his mental health at the time of the recall. He also alleges that the time taken for the case to be put before a court (the Mental Health Review Tribunal) exceeded that which is permitted by the Convention.        Article 5 (Art. 5) of the Convention provides, so far as relevant, as follows.        "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 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."        The Government submit that the application is manifestly ill- founded.        In connection with the applicant's state of health at the time he was recalled, they point out that he had been found by the Mental Health Review Tribunal which ordered his conditional release in February 1994 to suffer from psychopathic disorder, and the Tribunal which considered his case in December 1994, after his recall, also found that the applicant "continues to suffer from psychopathic disorder".   They underline that the applicant's recall by the Home Secretary was at the request and on the advice of the two psychiatrists responsible for the applicant's supervision in the community, and that their clear view on 25 May 1994 was that not only was the applicant suffering from mental disorder, but that his disorder then required a recall to a secure hospital for treatment in the interests of both the applicant's health and safety and the safety of the general public.        The Government do not accept that the power to recall is necessarily linked to the conditions attached to release: the Secretary of State's power to recall is not limited by the conditions, and there may well be occasions where recall is appropriate even where no conditions have been breached.   Similarly, there may be breaches of the conditions which do not warrant recall.   There is no requirement of domestic law requiring that conditions be breached before recall.        The Government note that the applicant's case was referred to the Mental Health Review Tribunal on 17 June 1994, within the month prescribed by Section 75 (1) (a) of the Mental Health Act 1983.   They also note that the applicant was furnished with the reasons for his recall on his return to hospital, and his representatives were given the reasons when they asked for them.   They recall that the Responsible Medical Officer's report was received on 8 August 1994, and the case was set down for the first available date when both a judge and the Responsible Medical Officer were available, namely 18 November 1994. The hearing was adjourned on that day to 16 December 1994, when the applicant's conditional discharge was ordered.   The Tribunal considered written reports from the supervising psychiatrist, social worker, probation officer and a statement from the Home Secretary, and oral evidence from the applicant, his Responsible Medical Officer, his social worker, his probation officer, a priest and three other witnesses.   They Government submit that the lawfulness of the applicant's continued detention was determined "speedily" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention.        The applicant submits that he was not a "person of unsound mind" within the meaning of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention on 25 May 1994 as he had been found on 25 February not to be suffering from a disorder requiring his retention in hospital for treatment.   Moreover, the applicant had not been ordered to be detained by a court, and had not broken any conditions of discharge or any other conditions prescribed by law.        As to the reference to the Mental Health Review Tribunal, the applicant compares the position to that under Section 2 of the Mental Health Act (compulsory admission to hospital for assessment): under that provision, a tribunal actually sits within one month, and usually within 14 days.   He submits that the case was not determined "speedily".        The Commission finds, in the light of the parties' submissions, that the application raises complex and serious issues under the Convention which require determination on their merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For the these reasons, the Commission, unanimously,        DECLARES 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