European Court of Human Rights

On 18 November, Sir Vincent Evans withdrew from the consideration of the case pursuant to Rule 24 par. 2. On 16 December, the Government of the United Kingdom ("the Government") appointed as ad hoc judge Mr. R. Y. Jennings, Q. C., Whewell Professor of International Law at the University of Cambridge (Article 43 of the Convention and Rule 23) (art. 43). Subsequently, Mr. J. Cremona, Mr. F. Gölcüklü, Mr. E. García de Enterría, Mr. L.-E. Pettiti and Mr. R. Macdonald were prevented from taking part in the consideration of the case; they were replaced by five substitute judges, Mr. M. Zekia, Mr. D. Evrigenis, Mr. F. Matscher, Mr. J. Pinheiro Farinha and Mr. B. Walsh (Rules 22 par. 1 and 24 par. 1).

Following his death on 9 December 1980, Mr. Balladore Pallieri was replaced as President of the Chamber by Mr. G. Wiarda, then the Vice-President of the Court (Rule 21 par. 3 (b) and 5). On 3 March 1981, the President of the Chamber agreed to extend to 7 April the time-limit granted to the Government; their memorial was received at the registry on 27 March. On 24 April, the Secretary to the Commission advised the Registrar that the Delegate would present his observations at the hearings.

There appeared before the Court:

- for the Government:

       Mrs. A. GLOVER, Legal Adviser,

                            Foreign and Commonwealth Office, Acting Agent,

       Mr. S. BROWN, Barrister-at-Law,                                               Counsel,

       Mr. A. COLE, Legal Advisers’ Branch, Home Office,

       Mr. A. HARDING, Home Office,

       Mr. D. PICKUP, Treasury Solicitor’s Department,                      Advisers;

- for the Commission:

       Mr. S. TRECHSEL,                                                                     Delegate,

       Mr. T. NAPIER, Solicitor,

       Mr. L. GOSTIN, Legal Director,

                            MIND (National Association for Mental Health), assisting         the Delegate (Rule 29 par. 1, second sentence, of the                                                     

                            Rules of Court).

The Court heard addresses by Mr. Trechsel, Mr. Napier and Mr. Gostin for the Commission, and by Mr. Brown for the Government. Various documents were submitted to the Court by the Delegate of the Commission.

AS TO THE FACTS

His complaints were directed against his recall to Broadmoor Hospital in April 1974, following a three-year period of conditional discharge. He claimed that his recall was unjustified, that he was not promptly given sufficient reasons for his re-detention, and that he had no effective way of challenging the authorities’ action.

A. The relevant domestic law and practice

A "patient" is defined by section 147 par. 1 as "a person suffering or appearing to suffer from mental disorder"; according to section 4 par. 1, "mental disorder" means "mental illness, arrested or incomplete development of mind, psychopathic disorder, any other disorder or disability of mind". The "responsible medical officer" (as referred to in subsequent paragraphs of this judgment) is defined by section 80 par. 1 as being "the medical practitioner in charge of the treatment of the patient".

a) the court must be satisfied, on the written or oral evidence of two medical practitioners (at least one of whom has special experience in the diagnosis or treatment of mental disorders), that the offender is suffering from mental illness, psychopathic disorder, subnormality or severe subnormality; and that the mental disorder is of a nature or degree which warrants the detention of the patient in a hospital for mental treatment;

b) the court must be of the opinion, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a hospital order.

Thus, the Home Secretary has special powers under section 66 of the 1959 Act in connection with the discharge of restricted patients. If he is satisfied that the restriction order is no longer required for the protection of the public, he may direct that the patient shall cease to be subject to the special restrictions (sub-section 1). While a restriction order is in force, he may, "if he thinks fit", discharge a patient from hospital either absolutely or subject to certain conditions; where he absolutely discharges him the restriction order ceases to have effect (sub-section 2). If the discharge is conditional, the Home Secretary may, at any time during the continuance in force of the restriction order, by warrant recall the patient to hospital (sub-section 3).

Rule 19 of the Mental Health Review Tribunals Rules provides that a Tribunal shall consider a reference made by the Home Secretary in whatever informal manner they think appropriate, that they may interview the patient and that they shall interview him if he so requests. In practice, a restricted patient may, like any other detained patient, be legally represented or accompanied by members of his family, or both. The dossier of papers supplied to the Tribunal by the Home Office is not generally disclosed to the patient himself and only partially disclosed to the legal representative, if any. In particular, the home circumstances report is never sent to the legal representative and the up-to-date medical report only if the responsible medical officer agrees.

Advice from Mental Health Review Tribunals about restricted patients is regarded as confidential to the Home Secretary. Patients and the representatives are simply told that the Minister’s decision has been taken in the light of Tribunal advice.

- there may be a recommendation from the medical officer responsible for the patient that the patient should be discharged;

- the patient may ask for his case to be referred to a Mental Health Review Tribunal (see paragraph 13 above);

- the patient may write about his case to a Member of Parliament who brings it to the attention of the Secretary of State;

- the patient himself may write to the Secretary of State asking that he be discharged.

At the end of 1980 ministerial circulars issued to the relevant authorities, including the police, the probation service and the special hospitals, announced that "in order to meet criticisms made by the European Commission of Human Rights", a new two-stage procedure for informing recalled patients of the reasons for their re-detention was to be introduced. At the first stage of this procedure, the person taking the patient into custody should inform the patient in simple terms that he is being recalled to hospital on the authority of the Home Secretary pursuant to the provisions of the 1959 Act and that a further explanation will be given later. A detailed account of the reasons for the recall must then be provided to the patient by the medical staff at the hospital where he is to be detained; this is to be done as soon as possible after the patient’s admission to hospital and in any event within 72 hours of admission. The responsible medical officer is also required to ensure that the officer who supervised the patient during release and a responsible member of the patient’s family (or his legal adviser) are informed of the reasons.

There is in this respect no limitation on access to the courts by patients detained under the 1959 Act. According to the Government, such patients may apply at any time for a writ of habeas corpus save that where an application fails a fresh application made on the same grounds but without fresh evidence to support it will not succeed.

In habeas corpus proceedings, in examining an administrative decision to detain, the court will always inquire whether the applicant has been lawfully detained in accordance with the requirements stated in the relevant legislation. Furthermore, even an order for detention that is technically good on its face can be upset, inter alia, if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose (see R. v. Governor of Brixton Prison, ex parte Sarno (1916) 2 King’s Bench 742 and R. v. Brixton Prison (Governor), ex parte Soblen (1962) 3 All England Law Reports 641), or if the decision to detain is supported by no sufficient evidence or is one which no reasonable person could have reached in the circumstances (see Shahid Iqbal (1978) 3 Weekly Law Reports 884 and Zamir v. Secretary of State (1980) 2 All England Law Reports 768). Subject to the foregoing, the court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority.

If the return to the writ on its face shows a valid authority for the detention, it will in effect be for the applicant to establish that the detention is illegal (see Re Wajid Hassan (1976) 2 All England Law Reports 123 and Zamir v. Secretary of State, loc. cit.).

B. The particular circumstances of the case

On 22 October 1968, he appeared at the Sheffield Assizes and pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. The facts before the court were that the applicant had struck a workmate in the mouth with a heavy spanner.

Following his conviction, the court remanded him in custody for medical reports. At the adjourned hearing on 7 November 1968, oral reports were given by two medical practitioners concerning the applicant’s mental health; the court made an order under section 60 of the 1959 Act for his admission to and detention in Broadmoor Hospital, a special secure mental hospital for the criminally insane. The court also made a restriction order against the applicant for an indefinite period in accordance with section 65.

However, in January 1971, the responsible medical officer was able to report an improvement in X’s condition to the extent that he recommended that X should be conditionally discharged. On 19 May 1971, the Home Secretary ordered the applicant’s conditional discharge under section 66 par. 2 of the 1959 Act. The conditions to be observed were that the applicant should reside at the matrimonial home, be under the supervision of a probation officer and attend a psychiatric out-patients’ clinic as directed by the responsible medical officer at Broadmoor Hospital.

The probation officer alerted the responsible medical officer at Broadmoor. The medical officer was aware of X’s previous history, including his record of impulsive and dangerous conduct under stress; he also had copies of the psychiatric reports prepared on X during the latter’s period of conditional release. In consequence, the doctor became alarmed at the possibility of a recurrence of violent behaviour by X, especially if X came to know of his wife’s intention to leave him. The doctor did not judge it necessary to seek to have the wife’s complaints verified since it was in his view sufficient that the complaints had been made and that the probation officer found them credible. The doctor therefore referred the matter to the Home Secretary who, acting on his advice, ordered the applicant’s immediate recall to Broadmoor Hospital in pursuance of section 66 par. 3 of the 1959 Act.

The Government maintained that immediately on X’s return to Broadmoor the responsible medical officer sought to explain to him the reasons for his recall, and in particular the fears and anxieties expressed by his wife. However, since X was at this time extremely resentful, disturbed and suffering from delusions, it is possible, so the Government submitted, that he did not fully understand or appreciate the explanations afforded to him.

The following Monday, the solicitors spoke on the telephone to the responsible medical officer who, in confidence, mentioned in general terms the wife’s visit to the probation officer, her anxiety regarding aspects of the applicant’s behaviour and his, the doctor’s, action in advising recall because of concern for the wife’s safety.

The application - which was made ex parte - came before the Divisional Court on 24 May. With the agreement of X’s counsel, the application was adjourned in order to enable further information to be sought; the Court wished in particular to know more about the reasons that had led to the Home Secretary’s action. One of the judges remarked: "It really needs more information, ... and very often the patient himself is unable to give it. One has to look to the sources which have called for his recall."

"In April 1974 the supervising probation officer reported to the responsible consultant psychiatrist at Broadmoor that [X’s] condition was giving cause for concern. In the light of the advice subsequently received from the consultant the Home Office considered it necessary for the protection of the public and in [X’s] own interest that he would be recalled to hospital immediately for further observation and treatment."

The solicitors also approached the probation service in Sheffield, but the probation service declined to supply them with the information sought.

In his report, dated 12 June 1974, the consultant psychiatrist wrote:

"For quite a time I felt that whilst one was sitting on a time-bomb I had no clear evidence that he was in fact likely to be harmful to somebody. Nevertheless I felt very apprehensive throughout the whole of his period ... In my opinion the man is a querulous suspicious person liable to paranoid ideation and inevitably presents a risk to the community ..."

He also confirmed views he had expressed in September 1971 in a letter to the Sheffield probation service. In this letter he spoke of the need to "steer [X] clear of depressed situations which could lead to murder or serious bodily harm to other people", and added:

"The greatest danger in handling him is to lose one’s judgement to such an extent that one minimises the degree to which he has shown evidence of a striking paranoid psychosis."

Counsel for the applicant, stating that his client had not the slightest idea why the probation officer had alerted the responsible medical officer at Broadmoor, explained:

"... although enquiries have been made, no information has been obtained on that point so that it is difficult for the applicant or his advisers to know whether there was sufficient justification for the course taken by the Home Secretary."

"Unless the Broadmoor authorities, [the consultant psychiatrist] and the Home Secretary take this view, then people life [X] cannot be released from hospital except in the most exceptional circumstances. The only possible way this can operate is by letting people out on licence, with very careful supervision, and an immediate reaction in the event of any signs of new danger ..."

In July 1975, X asked the Home Secretary to refer his case to a Mental Health Review Tribunal in accordance with section 66 par. 8 of the 1959 Act (see paragraph 13 above); X claimed to have made an earlier request in February 1975, but there is no record of this, either in the Home Office or at Broadmoor. The hearing before the Mental Health Review Tribunal took place in October 1975. The Tribunal’s advice, which was not communicated to X or his solicitors, was to the effect that the patient continued to suffer from mental illness but could now be released provided he remained subject to certain conditions. In December 1975, the responsible medical officer having noted an improvement in the patient’s state, the Home Secretary agreed in principle to a conditional discharge if suitable arrangements could be made.

X left the hospital in February 1976 on leave. In July of that year, the Home Secretary consented to his conditional discharge. X died on 17 January 1979.

PROCEEDINGS BEFORE THE COMMISSION

On 11 March 1976, the Commission declared the application inadmissible in so far as the applicant alleged inhuman or degrading treatment in breach of Article 3 (art. 3). By decision of 14 May 1977, it accepted the remainder of the application.

Although the next of kin are today to be regarded as having the status of "applicants" (see the Deweer judgment of 27 February 1980, Series A no. 35, pp. 19-20, par. 37), for the sake of convenience the present judgment will continue to refer to X as the "applicant".

- by fourteen votes to two, that X’s recall to Broadmoor Hospital and further detention there had not violated his rights under Article 5 par. 1 (art. 5-1);

- unanimously, that there had been breach of Article 5 par. 2 (art. 5-2), in that X was not given prompt and sufficient reasons for his arrest and readmission to Broadmoor;

- unanimously, that Article 5 par. 4 (art. 5-4) had been violated, since X had not been entitled to take proceedings by which the lawfulness of his detention consequent upon his recall to hospital could be decided speedily by a court.

FINAL SUBMISSIONS TO THE COURT

"(1) With regard to Article 5 par. 1 (art. 5-1)

To decide and declare that on the facts found, the actions taken by the United Kingdom Government recalling the applicant to Broadmoor Hospital and the further compulsory detention of the applicant at the Hospital, constitute a deprivation of liberty compatible with Article 5 par. 1 (art. 5-1) of the Convention.

(2) With regard to Article 5 par. 2 (art. 5-2)

(a) To decide and declare:

(i) that Article 5 par. 2 (art. 5-2) of the Convention has no application to the re-detention of a person who is taken back into custody in the circumstances in which the applicant was recalled to Broadmoor in the present case;

alternatively

(ii) that in the circumstances that obtained in the applicant’s case he was in fact given sufficient information to comply with the requirements of Article 5 par. 2 (art. 5-2) of the Convention.

Alternatively

(b) To conclude that the introduction of the revised procedures now in operation for informing patients of the reasons for their re-detention makes it unnecessary for the Court to pursue the issues to which submissions (a) (i) and (ii) relate.

(3) With regard to Article 5 par. 4 (art. 5-4)

(i) To decide and declare that having regard to the applicant’s conviction and committal to Broadmoor Hospital by a court in November 1968, Article 5 par. 4 (art. 5-4) of the Convention did not entitle the applicant to have the lawfulness of his detention reviewed by a court on his being recalled to the Hospital;

Alternatively, if the request at (i) should be rejected, then

(ii) To decide and declare that the remedy of habeas corpus satisfied the applicant’s entitlement to have the lawfulness of his detention reviewed subsequent to his being recalled to the Hospital".

"to determine the questions that have been put before [it] - that is to say, whether the applicant was a victim of a violation of Article 5 par. 1 and 5 par. 2 (art. 5-1, art. 5-2) of the Convention when he was recalled to Broadmoor Hospital on 5 April 1974 and whether thereafter the applicant was entitled to and received an adequate judicial determination of the lawfulness of his renewed detention in accordance with Article 5 par. 4 (art. 5-4) of the Convention".

AS TO THE LAW

I. THE ALLEGED BREACH OF ARTICLE 5 PAR. 1 (art. 5-1)

"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 of unsound mind ...;

 ..."

A. Whether paragraph 1 (a) and paragraph 1 (e) were applicable

Having regard to the reasons for X’s recall to hospital in 1974 and subsequent detention there until 1976, sub-paragraph (e) likewise covers the second stage of his deprivation of liberty. The particular circumstances of this case, and notably the fact that X was conditionally released and enjoyed a lengthy period of liberty before being re-detained, may give rise to some doubts as to be the continued applicability of sub-paragraph (a). The Court does not judge it necessary to decide the point, however, since it must in any event verify whether the requirements of sub-paragraph (e) were fulfilled and no problem arises in the present case as regards compliance with the requirements of sub-paragraph (a).

B. Compliance with Article 5 par. 1 (art. 5-1)

Section 66 par. 3 is, it is true, framed in very wide terms; the Home Secretary may at any time recall to hospital a "restricted patient" who has been conditionally discharged. Nevertheless, it is apparent from other sections in the Act that the Home Secretary’s discretionary power under section 66 par. 3 is not unlimited. Section 147 par. 1 defines a "patient" as "a person suffering or appearing to be suffering from a mental disorder" and section 4 par. 1 defines "mental disorder" as "mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind". According to the Government, it is implicit in section 66 par. 3 that unless the Home Secretary on the medical evidence available to him decides that the candidate for recall falls within this statutory definition, no power of recall can arise.

Certainly, the domestic law itself must be in conformity with the Convention, including the general principles expressed or implied therein (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 19, par. 45). However, section 66 par. 3, it should not be forgotten, is concerned with the recall, perhaps in circumstances when some danger is apprehended, of patients whose discharge from hospital has been restricted for the protection of the public (section 65 par. 1 of the 1959 Act - see paragraph 11 above). The Winterwerp judgment expressly identified "emergency cases" as constituting an exception to the principle that the individual concerned should not be deprived of his liberty "unless he has been reliably shown to be of ‘unsound mind’" (ibid., p. 18, par. 39); neither can it be inferred from the Winterwerp judgment that the "objective medical expertise" must in all conceivable cases be obtained before rather than after confinement of a person on the ground of unsoundness of mind. Clearly, where a provision of domestic law is designed, amongst other things, to authorise emergency confinement of persons capable of presenting a danger to others, it would be impracticable to require thorough medical examination prior to any arrest or detention. A wide discretion must in the nature of things be enjoyed by the national authority empowered to order such emergency confinements. In the Court’s view, the terms of section 66 par. 3, read in their context, do not grant an arbitrary power to the Home Secretary; nor are they such that they exclude observance in individual cases of the principles stated in the Winterwerp judgment (see, mutatis mutandis, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 91, par. 240).

Having regard to the foregoing considerations, the conditions under the 1959 Act governing the recall to hospital of restricted patients do not appear to be incompatible with the meaning under the Convention of the expression "the lawful detention of persons of unsound mind". What remains to be determined is whether the manner in which section 66 par. 3 was in fact applied in relation to X gave rise to a breach of Article 5 par. 1 (e) (art. 5-1-e).

The reaction of the authorities must be seen against this background (set out at paragraphs 20, 21, 23 and 28 above). On being informed of the wife’s complaints, the responsible medical officer at Broadmoor, who had copies of the psychiatric reports prepared concerning the applicant during the period of his conditional release, became alarmed at the possibility of a recurrence of violent behaviour by the applicant, especially if he came to know of his wife’s intention to leave him. The responsible medical officer therefore referred the matter to the Home Office and, acting on the doctor’s advice, the Home Secretary issued a warrant in pursuance of which the applicant was recalled to hospital the same day, without prior medical examination or verification of the wife’s allegations (see paragraph 23 above).

In such circumstances, the interests of the protection of the public prevail over the individual’s right to liberty to the extent of justifying an emergency confinement in the absence of the usual guarantees implied in paragraph 1 (e) of Article 5 (art. 5-1-e) (see paragraph 41, third sub-paragraph, above). On the facts of the present case, there was sufficient reason for the Home Secretary to have considered that the applicant’s continued liberty constituted a danger to the public, and in particular to his wife.

II. THE ALLEGED BREACH OF ARTICLE 5 PAR. 4 (art. 5-4)

"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."

A. Proceedings before the Sheffield Assizes in 1968

"At first sight, the wording of Article 5 par. 4 (art. 5-4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty...  Where [this] decision ... is one taken by an administrative body, there is no doubt that Article 5 par. 4 (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 par. 4 (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after "conviction by a competent court" (Article 5 par. 1 (a) (art. 5-1-a) of the Convention)."

X’s detention fell within the ambit of sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) at least as much as within that of sub-paragraph (a) (art. 5-1-a) (see paragraph 39 above). The "detention of persons of unsound mind" constitutes a special category with its own specific problems (see the above-mentioned Winterwerp judgment, pp. 23-24, par. 57 and 60). In particular, "the reasons initially warranting confinement of this kind may cease to exist". This leads, so the Winterwerp judgment noted, to a consequence of some importance (p. 23, par. 55):

"... it would be contrary to the object and purpose of Article 5 (art. 5) ... to interpret paragraph 4 ... (art. 5-4) as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court. The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals."

By virtue of Article 5 par. 4 (art. 5-4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is thus in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the "lawfulness" - within the meaning of the Convention (see paragraph 57 below) - of his detention, whether that detention was ordered by a civil or criminal court or by some other authority.

B. The habeas corpus proceedings

The Commission did not agree with this line of reasoning. Reaffirming the opinion it had stated in its report of 15 December 1977 in the Winterwerp case, it interpreted Article 5 par. 4 (art. 5-4) as conferring on a person compulsorily confined on the ground of unsoundness of mind the right to have a judicial determination of both the substantive and the formal lawfulness of his detention (see the above-mentioned Winterwerp judgment, pp. 26-27, par. 68 - the issue was not settled by the Court). The remedy of habeas corpus, so the Commission found, does not allow a judicial determination as wide as this. Counsel on behalf of the applicant in substance supported this view.

All this, however, followed from the nature of the remedy provided. In habeas corpus proceedings, in examining an administrative decision to detain, the court’s task is to inquire whether the detention is in compliance with the requirements stated in the relevant legislation and with the applicable principles of the common law. According to these principles, such a decision - even though technically legal on its face - may be upset, inter alia, if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose, or if the decision is supported by no sufficient evidence or is one which no reasonable person could have reached in the circumstances. Subject to the foregoing, the court will not be able to review the grounds or merits of a decision taken by an administrative authority to the extent that under the legislation in question these are exclusively a matter for determination by that authority (see paragraph 19 above). As X’s case well exemplifies, when the terms of a statute afford the executive a discretion, whether wide or narrow, the review exercisable by the courts in habeas corpus proceedings will bear solely upon the conformity of the exercise of that discretion with the empowering statute.

In the present case, once it was established that X was a patient who had order, the statutory requirements for recall by warrant under section 66 par. 3 of the 1959 Act were satisfied (see paragraph 12 above). This being so, it was then effectively up to X to show, within the limits permitted by English law, some reason why the apparently legal detention was unlawful. The evidence adduced by X did not disclose any such reason and the Divisional Court had no option but to dismiss the application.

On the other hand, in the Court’s opinion, a judicial review as limited as that available in the habeas corpus procedure in the present case is not sufficient for a continuing confinement such as the one undergone by X.  Article 5 par. 4 (art. 5-4), the Government are quite correct to affirm, does not embody a right to judicial control of such scope as to empower the court, on all aspects of the case, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which, according to the Convention, are essential for the "lawful" detention of a person on the ground of unsoundness of mind, especially as the reasons capable of initially justifying such a detention may cease to exist (see paragraphs 40 and 52 above). This means that in the instant case, Article 5 par. 4 (art. 5-4) required an appropriate procedure allowing a court to examine whether the patient’s disorder still persisted and whether the Home Secretary was entitled to think that a continuation of the compulsory confinement was necessary in the interest of public safety (see, mutatis mutandis, the above-mentioned De Wilde, Ooms and Versyp judgment, pp. 43-44, par. 82-83).

C. Other procedures

The Court fully accepts the need to take a comprehensive view of the whole system, as apparent shortcomings in one procedure may be remedied by safeguards available in other procedures (see, mutatis mutandis, the above-mentioned Winterwerp judgment, p. 25, par. 62).

The first three do not, however, bring into play any independent review procedure, whether judicial or administrative.

The fourth calls for closer examination since, in relation to the confinement of restricted patients, the 1959 Act provides the opportunity for a periodic review on a comprehensive factual basis by Mental Health Review Tribunals. There is nothing to preclude a specialised body of this kind being considered as a "court" within the meaning of Article 5 par. 4 (art. 5-4), provided it enjoys the necessary independence and offers sufficient procedural safeguards appropriate to the category of deprivation of liberty being dealt with (see paragraph 53 above and the above-mentioned Winterwerp judgment, p. 24, par. 20). Nonetheless, even supposing Mental Health Review Tribunals fulfilled these conditions, they lack the competence to decide "the lawfulness of [the] detention" and to order release if the detention is unlawful, as they have advisory functions only (see paragraph 14 above).

Therefore, without underestimating the undoubted value of the safeguards thereby provided, the Court does not find that the other machinery adverted to by the Government serves to remedy the inadequacy, for the purposes of Article 5 par. 4 (art. 5-4), of the habeas corpus proceedings.

III. THE ALLEGED BREACH OF ARTICLE 5 PAR. 2 (art. 5-2)

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."

The changes relied on by the Government were introduced expressly "in order to meet criticisms made by the European Commission of Human Rights" on the basis, precisely, of Article 5 par. 2 (art. 5-2). Nevertheless, they date from the end of 1980, are valid only for the future and clearly could not have restored the right claimed by X under Article 5 par. 2 (art. 5-2) whose requirements, moreover, the Government continue to deny having contravened (see the above-mentioned Deweer judgment, p. 20 par. 37 in fine, and the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, p. 15, par. 36). It is therefore not possible to speak of a "solution", even partial, "of the matter" (see, mutatis mutandis, Rule 47 par. 2 of the Rules of Court and the above-mentioned Guzzardi judgment, p. 31, par. 85).

Not only did the respective arguments advanced differ as to the applicability of paragraph 2 (art. 5-2) to X’s situation, but they were also in conflict as to whether it had been complied with in the circumstances. In the Government’s view, the reasons given to the applicant and subsequently to his solicitors were sufficient to satisfy any obligation arising by virtue of Article 5 par. 2 (art. 5-2). The Commission, on the other hand, was unanimous in concluding that whatever may have been said to X himself, there could have been no justification for withholding from his solicitors an official and detailed explanation; the vague statement from the Home Office (see paragraph 27 above) could not constitute the information necessary to make effective use of the right ensured by Article 5 par. 4 (art. 5-4).

IV. THE APPLICATION OF ARTICLE 50 (art. 50)

Accordingly, although it was raised under Rule 47 bis of the Rules of Court, the question is not yet ready for decision. The Court is therefore obliged to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant’s next of kin.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been no breach of Article 5 par. 1 (art. 5-1) of the Convention;

2. Holds unanimously that there has been a breach of Article 5 par. 4 (art. 5-4);

3. Holds by six votes to one that it is not necessary also to examine the case under Article 5 par. 2 (art. 5-2);

4. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;

(a) accordingly reserves the whole of the said question;

(b) invites the Commission to submit to the Court, within two months from the delivery of the present judgment, the Commission’s written observations on the said question and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant’s next of kin may have arrived;

(c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be.

Done in English and in French, both texts being authentic, at the Human Rights Building, Strasbourg, this fifth day of November, one thousand nine hundred and eighty-one.

Gerard WIARDA

President

Marc-André EISSEN

Registrar

The separate dissenting opinion of Mr. Evrigenis is annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court.

G.W.

M.-A.E.