CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 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. 28212/95                       by Nicholas FORDE, Patrick BENJAMIN                       and Hueth WILSON                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 3 August 1995 by Nicholas FORDE, Patrick BENJAMIN and Hueth WILSON against the United Kingdom and registered on 11 August 1995 under file No. 28212/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are United Kingdom citizens.   The first applicant, Mr. Forde, was sentenced to life imprisonment for wounding with intent in 1984; the second applicant, Mr. Benjamin, was sentenced to life imprisonment for rape in 1985, and the third applicant, Mr. Wilson, was sentenced to life imprisonment for buggery of a young girl in 1977. The applicants are represented before the Commission by Ms. L. Scott- Moncrieff, solicitor, of Scott-Moncrieff, Harbour and Sinclair, London. The facts of the application, as submitted by the applicants' representative, may be summarised as follows.   The particular circumstances of the case        Each applicant was transferred from prison to a special hospital under Sections 47 and 49 of the Mental Health Act 1983 ("the 1983 Act").        By decisions of the Secretary of State for the Home Department communicated to the applicants in October and November 1992, the Secretary of State refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by Section 34 of the Criminal Justice Act 1991 to order their release on licence.   Leave to apply for judicial review of the decisions was granted on 17 May 1993.        On 22 October 1993 the High Court, granting the application, made a declaration that the Secretary of State's policy not to certify discretionary life prisoners under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 ("the 1991 Act") on the ground that they had been transferred to hospital under the 1983 Act was unlawful ([1994] Q.B. 378).        On appeal, the Court of Appeal reversed the High Court's decision in part.   It considered that, although the applicants were existing life prisoners within the meaning of the paragraph 9 of Schedule 12, the discharge nevertheless remained subject to the procedure laid down in Section 50 of the 1983 Act.   The rights to a hearing under the 1991 Act were conferred only on persons who were solely subject to that Act, and not on those who were mental patients ([1995] Q.B. 43).        The applicants were informed by letter of 18 May 1995 that the House of Lords had refused leave to appeal to it.   Relevant domestic law        Under Section 47 of the 1983 Act, the Secretary of State may transfer a person serving a sentence of imprisonment to hospital if he is satisfied that the person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, and that the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of the condition.   A transfer under Section 47 of the 1983 Act is called a "transfer direction", and has the same effect as if a hospital order had been made under Section 37 (1) of the 1983 Act (that is, where a court convicts a person and, instead of sentencing him, orders his detention in hospital).        At the same time as making a transfer direction, the Secretary of State may also make a "restriction direction" under Section 49 of the 1983 Act.   A restriction direction has the same effect as a restriction order made by a court under Section 41 of the 1983 Act on conviction, namely that the granting of leave of absence, transfer to another hospital, and discharge from hospital, are only exercisable with the consent of the Secretary of State.        A transferred life prisoner subject to restriction directions can be discharged from hospital in three possible ways.   Each can be initiated only by the Secretary of State.   1.    Section 42 (2) of the 1983 Act gives the Secretary of State      power, if he thinks fit, by warrant to discharge the patient      either absolutely or subject to conditions.   2.    Section 50 of the 1983 Act provides that where the Secretary of      State is notified by the responsible medical officer, and other      registered practitioner or a Mental Health Review Tribunal that      the person no longer requires treatment in hospital for mental      disorder, or that no effective treatment for the disorder can be      given in the hospital, the Secretary of State may remit the      person to a prison or to a different institution, or he may      exercise any power of releasing or discharging him which would      have been exercisable if he had been so remitted.   3.    Under Section 74 (2) of the 1983 Act,              "Where an application to a Mental Health Review Tribunal is      made by a restricted patient who is subject to a restriction      direction, or where the case of such a patient is referred to      such a tribunal, the tribunal -        (a)    shall notify the Secretary of State whether, in their      opinion, the patient would, if subject to a restriction order,      be entitled to be absolutely or conditionally discharged under      Section 73 ...; and        (b)    if they notify him that the patient would be entitled to be      conditionally discharged, may recommend that in the event of his      not being discharged under this section he should continue to be      detained in hospital."        Section 73 of the 1983 Act provides that the tribunal must direct conditional discharge if they are satisfied that he is not suffering from mental illness or disorder of a type which makes it appropriate for the person to be detained in a hospital for medical treatment, or that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment, and they believe that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment.        In 1985, the Home Secretary announced that life sentence prisoners who had been transferred to hospital would normally be discharged under Section 50 of the 1983 Act rather than Sections 42 (2) or 74 (2).   This enables release on life licence with life-long control rather than the possibility of eventual absolute discharge by the Secretary of State.   The policy was found to be lawful in the case of R. v. Secretary of State for the Home Department ex parte Stroud (16 July 1992).        Section 34 of the Criminal Justice Act 1991 provides that where a discretionary life prisoner has served his tariff (that is, the "punishment" part of his sentence), and the Parole Board is satisfied that it is no longer necessary for the protection of the public that he should be detained and has directed his release, it is the duty of the Secretary of State to release him.   Under Paragraph 9 of Schedule 12, which is a transitional provision of the 1991 Act, the Secretary of State can apply the provisions of Section 34 to discretionary life prisoners who were sentenced before Section 34 of the 1991 Act came into force on 10 October 1992 by issuing a certificate that, if the 1991 Act had been in force when the person was sentenced, Section 34 would have been applied.   COMPLAINTS        The applicants claim that there is no tribunal to which they can turn which is able to test the legality of their detention: they have been denied access to the Discretionary Lifer Panel, and the Mental Health Review Tribunal would only have advisory powers because of Section 74 of the 1983 Act.   They allege a violation of Article 5 para. 4 of the Convention.        On 14 December 1995 the applicants' representatives informed the Commission that the first applicant, Mr. Forde, had been discharged into the community and that he no longer wished to proceed with the application.   THE LAW   1.    The first applicant, Mr. Forde, originally alleged a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   On 14 December 1994 he informed the Commission through his representatives that he had been discharged into the community and no longer wished to pursue his application.        Having regard to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention, the Commission notes that the applicant does not intend to pursue the petition.   Furthermore, in accordance with Article 30 para. 1 (Art. 30-1) in fine, the Commission finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of the application.   2.    The second and third applicants maintain their claim that they are denied access to a tribunal which has power to discharge them, and that this denial is in violation of Article 5 para. 4 (Art. 5-4) of the Convention.        Article 5 para. 4 (Art. 5-4) of the Convention provides as follows.        "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 Commission considers that it cannot, on the basis of the file, determine the admissibility of these applicants' complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of them to the respondent Government.          For these reasons, the Commission, unanimously,          DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES to the      extent that it is brought by the first applicant; and        DECIDES TO ADJOURN the examination of the second and third      applicants' complaints that they are denied access to a tribunal      with the powers required by Article 5 para. 4 (Art. 5-4) of the      Convention.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber