CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 29467/95                       by Douglas Leslie SMITH                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  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            Mrs.   M. HION            Mr.    R. NICOLINI              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 1 August 1995 by Douglas Leslie SMITH against the United Kingdom and registered on 6 December 1995 under file No. 29467/95;        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 applicant is a British citizen, born in 1946 and currently detained in Ashworth Hospital, Liverpool, under the Mental Health Act 1983.   He is represented before the Commission by Mr. S. J. Rees, a solicitor practising in Darwen.   A.    Particular circumstances of the case        The applicant was convicted in 1966 of the manslaughter of a nine year old boy, whom he strangled and then sexually abused.   The applicant was initially detained under Sections 60 and 65 of the Mental Health Act 1959, by the Liverpool Assizes on 28 January 1966. On 25 November 1983 the applicant received a conditional discharge by a Mental Health Review Tribunal.   On discharge he went to live with his parents and after a short period moved to an independent flat where he was supervised by a probation officer.   During this period he developed a friendship with some boys.   There was no evidence of sexual misconduct by the applicant, however the fact the applicant had concealed his friendship from those charged with his care and supervision, was deemed sufficiently serious for the Home Office to recall the applicant on 13 November 1984.   The continued detention of the applicant was as if he was subject to an order under Sections 37 and 41 of the Mental Health Act 1983.        The applicant was the subject of frequent reviews under the Mental Health Act 1983.   For each of these reviews a psychiatric report on the applicant was prepared by the Reporting Medical Officer.   In his report of 5 March 1996, Dr. Strickland, the Responsible Medical Officer, stated that the applicant remained a danger to young boys and that he continued to suffer from a psychopathic disorder of a nature and degree which warranted his continued detention.   The applicant through his solicitors instructed an independent psychiatric report from Dr. Anil Kumar.   This report dated 7 April 1996 concluded that it would be appropriate for the Tribunal to consider a conditional discharge.        The most recent decision of the Mental Heath Tribunal ("the Tribunal") was 28 June 1996.   The Tribunal held that the applicant's detention should continue and they accepted the opinion of Dr. Strickland given in the report of 5 March 1996, preferring this over the opinion of Dr. Kumar.   The Tribunal gave a negative response to each of the following three questions:        "1.    Is the Tribunal satisfied that the patient is not now      suffering from mental illness, psychopathic disorder, severe      mental impairment, or mental impairment or from any of those      forms of disorder of a nature or degree which makes it      appropriate for the patient to be liable to be detained in a      hospital for medical treatment?        2.     Is the Tribunal satisfied that it is not necessary for the      health or safety of the patient or for the protection of other      persons that the patient should receive such treatment?        3.     Is the Tribunal satisfied that it is not appropriate for      the patient to remain liable to be recalled to hospital for      further treatment?"      The Tribunal gave the following reasons for its decision:        "The Tribunal is satisfied that the patient suffers from      psychopathic disorder of a nature and degree which makes it      appropriate for him to be liable to be detained in a hospital for      medical treatment for the protection of male children.        Sadly there is no change from the position addressed by the      Tribunal in 1995.   We are extremely concerned at the lack of      insight shown by the patient.   He does not accept that he      requires treatment to deal with his sexual attraction to young      boys.   He refuses still to attend a group treatment programme      offered to him because he is frankly of the view that it is      unnecessary.   We accept the opinion of Dr. Strickland ... that      the patient still poses a serious danger to young boys and unless      and until he is prepared to acknowledge his problem and such      treatment for it the prognosis is bleak.   We do not accept the      opinion of Dr. Kumar that the patient is safe to be released      directly into the community by way of a deferred conditional      discharge.   We do not feel that he has fully appreciated the      potential dangerousness of this patient."   B.    Relevant domestic law and practice        Sections 60 and 65 of the Mental Health Act 1959 ("the 1959 Act"), under which the applicant was detained, were repealed and replaced by Sections 37 and 41 of the Mental Health Act 1983 ("the 1983 Act") which came into force on 30 September 1983.   After the repeal of Sections 60 and 65 of the 1959 Act, the applicant was treated as if he was subject to an order under Sections 37 and 41 of the 1983 Act. Under the 1959 Act a person subject to a restriction order had no right to apply to the Tribunal for his discharge and could only require that his case be referred to the Tribunal by the Home Secretary, who ultimately decided whether a detained person could be released.   Under Section 42 of the 1983 Act, the Home Secretary retains a right to release anyone detained under the Act, but in addition under Section 73 of the 1983 Act, the detained person can apply to a Mental Health Review Tribunal, which can authorise a conditional or unconditional release.   Under both the 1959 Act and the 1983 Act a conditional discharge meant the person could be recalled at any moment.   COMPLAINTS        The applicant complains that in violation of Article 7 para. 1 of the Convention and due to the implementation of the 1983 Act, he is suffering a heavier penalty than the one that was applicable at the time the criminal offence was committed.   The applicant further complains that his continued detention is unlawful and in breach of Article 5 para. 1 (e) of the Convention.   THE LAW   1.    The applicant complains under Article 7 para. 1 (Art. 7-1) of the Convention that he is suffering a heavier penalty than the one that was applicable at the time the criminal offence was committed.        Article 7 para. 1 (Art. 7-1) of the Convention provides, so far as relevant, as follows:        "... Nor shall a heavier penalty be imposed than the one that was      applicable at the time the criminal offence was committed."        The Commission notes that the applicant was detained by the Liverpool Assizes under Sections 60 and 65 of the 1959 Act.   These Sections were repealed and replaced by Sections 37 and 41 of the 1983 Act.   From 30 September 1983, when the 1983 Act came into force, the applicant was detained as if under the 1983 Act.   Even assuming Article 7 (Art. 7) applies to cases where the issue of criminal punishment and detention in a mental health institution is involved, the Commission notes that the 1983 Act did not alter the system of detention or conditional discharge and the right of recall.   However the 1983 Act gave detained persons the additional possibility of making an application to the Tribunal who had power to grant conditional or unconditional release.   The Commission thus considers that the applicant's claims that he suffered a heavier penalty due to the introduction of the 1983 Act is unsubstantiated.   Indeed to the contrary, the applicant was in a more advantageous position under the 1983 Act as he was able to apply to the Tribunal for a review of his continued detention, rather than having to rely on the intervention of the Home Secretary.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains that his continued detention is unlawful and in breach of Article 5 para. 1 (e) (Art. 5-1-e).        Article 5 para. 1 (e) (Art. 5-1-e) provides, so far as relevant, as follows:        "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 of unsound mind...".        The Commission notes that the applicant was detained lawfully under the 1959 Act and that under the 1983 Act his continued detention is authorised.   Under the 1983 Act the applicant is able to apply to the Tribunal to seek a recommendation for his discharge.   In the most recent decision by the Tribunal the Reporting Medical Officer's opinion is that the applicant:   "still poses a serious danger to young boys."        The Commission recalls that in the Winterwerp judgment of 24 October 1979 (Eur. Court HR, Series A no. 33, p. 18, para. 39) the Court stated three minimum conditions which have to be satisfied in order for there to be "the lawful detention of a person of unsound mind" within the meaning of Article 5 para. 1 (e) (Art. 5-1-e). Except in emergency cases the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.        In the present case the Tribunal accepted the opinion of the Responsible Medical Officer, that the applicant posed a serious danger to young boys and that he suffered from a psychopathic disorder of a nature and degree which warrants his continued detention in hospital for further treatment.   The Commission notes that the applicant did obtain a more favourable psychiatric report which recommended conditional discharge with supervision, although the report itself acknowledged the possibility that the applicant may engage in inappropriate behaviour towards young boys. The Commission considers that the Tribunal was entitled to give greater weight to the report of the treating doctor, and considers that the Tribunal's decision to refuse to discharge the applicant was based on objective medical evidence and cannot be said to be arbitrary or unreasonable (see Eur. Court HR, X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp.19-21).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber