CEDH · CASELAW;REPORTS;ENG — 21 mai 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 25895/94                        Dennis Gordon Tomsett                                 against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 21 May 1997)                          TABLE OF CONTENTS                                                             Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1   PART I   : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3   PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .5                            INTRODUCTION   1.    This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Dennis Gordon Tomsett against the United Kingdom on 30 September 1994.   It was registered on 9 December 1994 under file No. 25895/94.   2.    The applicant was represented by Ms. E. Needham, solicitor, of Messrs. Galbraith Branley, London.   3.    The Government of the United Kingdom were represented by their Agent, Mr. M. Eaton, of the Foreign and Commonwealth Office, London.   4.    On 4 September 1996 the Commission (First Chamber) declared inadmissible the applicant's complaint concerning the absence of a tribunal with power to release him.   It declared admissible the remainder of the application.   The Commission then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:        "In the event of the Commission accepting a petition referred to      it:        a.    it shall, with a view to ascertaining the facts, undertake      together with the representatives of the parties an examination      of the petition and, if need be, an investigation, for the      effective conduct of which the States concerned shall furnish all      necessary facilities, after an exchange of views with the      Commission;        b.    it shall at the same time place itself at the disposal of      the parties concerned with a view to securing a friendly      settlement of the matter on the basis of respect for Human Rights      as defined in this Convention."   5.    The applicant complains under Article 5 of the Convention that he was deprived of any appropriate review of the length of his detention until 14 June 1994, when a Discretionary Lifer Panel of the Parole Board ("DLP") heard and released him.   6.    The Commission (First Chamber) found that the parties had reached a friendly settlement of the case and on 21 May 1997 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   7.    The following members were present when the Report was adopted:             Mrs. J. LIDDY, President           MM.   E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI                               PART I                       STATEMENT OF THE FACTS   8.    The applicant is a British citizen born in 1924.   He lives in St. Andrew's hospital, Northampton.   9.    The applicant was sentenced to a discretionary life sentence and concurrent shorter periods on 11 October 1963 for buggery and causing grievous bodily harm to a 14-year old boy.   He was transferred to a special hospital under Sections 72 and 74 of the Mental Health Act 1959 (subsequently Sections 47 and 49 of the Mental Health Act 1983) in 1965, and was detained in various mental hospitals until his formal release in 1994.   10.   The "tariff" in the applicant's case, that is the period which represented the punishment aspect of his case, expired in 1973.   11.   In 1989 the applicant was seen talking to a boy of about 11 outside the hospital gate.   12.   In 1990 a Mental Health Review Tribunal found that the applicant was not suffering from mental disorder of a nature or degree to make it appropriate for him to be liable to be detained in a hospital for treatment, but the Home Office did not authorise his conditional discharge.   13.   In 1991 the Parole Board asked for a firm hostel-based plan to be formulated, and for his case to be referred back to them thereafter, but no hostel became available.   14.   On 31 May 1993 the Home Office stated in reply to a letter of 29 March 1993 from the applicant's solicitors that, because he had been transferred to a special hospital under the mental health legislation, his detention and release were governed by the 1983 Act.   The Home Office considered that a transferred prisoner was:        "only entitled to be treated as a prisoner where the 1983      Act says that he may be, eg under Section 50(i)(b) which      allows the Home Secretary to exercise any power of release      on licence which would have been available had the      transferred prisoner been in prison....Section 34 of the      [Criminal Justice Act 1991], containing the provisions for      review and release by the Parole Board of discretionary      life prisoners [do not] automatically appl[y] in the case      of a prisoner transferred to special hospital."   15.   The Home Office continued that the Secretary of State had powers to release where he agreed with the opinion of the authorities which reviewed continuing detention.   On return to prison, Section 34 would generally apply again.   16.   On 24 September 1993 the applicant's solicitors applied for judicial review of the letter of 31 May 1993.   On 15 October 1993 the Secretary of State referred the case to a DLP, and on 22 October 1993 the High Court 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 on the ground that they had been transferred to hospital under the Mental Health Act 1983 was unlawful.   17.   On 28 March 1994 a Mental Health Review Tribunal again found that the applicant did not suffer psychopathic disorder of such a degree as to require his continued treatment in hospital.   It found that, if subject to a restriction order, he would be entitled to be conditionally discharged, and recommended that, if he was not to be discharged, he should be detained in hospital.   In concluding that he ought to be entitled to a conditional discharge, it considered that such discharge should be deferred until the following conditions were met:        1.    That the applicant reside at a staffed residential home;        2.    That he remain under the supervision of a psychiatrist;        3.    That he remain under the supervision of a social worker or           probation officer; and        4.    That he remain liable to recall to hospital.   18.   The applicant was not discharged.   19.   The applicant was heard by the DLP on 14 June 1994.   The panel considered that it was no longer necessary for the protection of the public that the applicant be confined, and it directed his release on a life licence.   One of the conditions of the licence was that the applicant was to continue to reside at St. Andrew's Hospital and another was that he should not reside in the same household as any child under 16 years of age.                               PART II                          SOLUTION REACHED   20.   Following the decision on the admissibility of the application, the Commission (First Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   21.   In accordance with the usual practice, the Chamber Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   22.   On 10 and 11 April 1997 the Government and the applicant's representative respectively informed the Commission that they had reached agreement for settlement of the case at £1500 plus the applicant's reasonable costs.   23.   At its session on 21 May 1997, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   24.   For these reasons, the Commission adopted the present Report.          M.F. BUQUICCHIO                   J. LIDDY           Secretary                      President      to the First Chamber           of the First Chamber