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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DARNELL v. THE UNITED KINGDOM - 15058/89 [1993] ECHR 47 (26 October 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/47.html
Cite as: (1994) 18 EHRR 205, [1993] ECHR 47, 18 EHRR 205
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In the case of Darnell v. the United Kingdom*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr B. Walsh,
Mr C. Russo,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr A.N. Loizou,
Sir John Freeland,
Mr A.B. Baka,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 April and
24 September 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 34/1992/379/453. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 11 September 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 15058/89) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) on 2 December 1988 by a British citizen, Dr Royce Darnell.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 (art. 6-1) of the
Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 26 September 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr C. Russo,
Mr S.K. Martens, Mrs E. Palm, Mr A.N. Loizou and Mr A.B. Baka
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr N. Valticos, substitute judge, replaced
Mr Thór Vilhjálmsson, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Government of the United Kingdom ("the Government"), the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). In
accordance with the order made in consequence, the Registrar received
on 29 January 1993 the applicant's memorial and, on 1 February, the
Government's. On 15 April 1993 he was informed by the Commission's
secretariat that the Delegate would submit his observations at the
hearing.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 April 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs A. Glover, Legal Counsellor, Foreign and
Commonwealth Office, Agent,
Mr M. Baker, Q.C., Counsel,
Mr G. Berry, Department of Health,
Mr M. Evans, Department of Health,
Mr J. Evans, Trent Regional Health Authority, Advisers;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Ms F. Hampson, senior lecturer in law at the
University of Essex, Counsel.
The Court heard addresses by Mr Baker for the Government, by
Mr Loucaides for the Commission and by Ms Hampson for the applicant,
as well as replies to its questions.
AS TO THE FACTS
6. The applicant, Dr Royce Darnell, who was born in 1929, has been
unemployed since the Trent Regional Health Authority ("the RHA")
terminated his employment as a consultant microbiologist and Director
of the Public Health Laboratory in Derby. This case concerns the
length of time that proceedings relating to this dismissal have taken.
7. Following administrative changes in the National Health Service
in 1977, management problems arose in many regions including the Trent
RHA. As a result of differences over staff appointment procedures, in
October 1979 a local grievance procedure was initiated against
Dr Darnell before the Area Health Authority ("the AHA") by the
Association of Scientific, Technical and Managerial Staffs.
Although Dr Darnell was considered by the British Medical
Association's legal department to have been acting within the terms of
the Government's guidelines in Health Service Circular (IS) 16, the AHA
endorsed the new appointments procedure.
8. Following further disagreement, a formal complaint was made in
December 1980 by the AHA to the Trent RHA alleging non-compliance with
laboratory staff appointment procedures. Dr Darnell was informed by
letter of 19 March 1981 that a sub-committee had been set up to deal
with the AHA's formal complaint.
After various investigations had been carried out, a
disciplinary procedure under circular HM (61) 112 was instituted
against Dr Darnell by the Trent RHA. By letter of 25 June 1982 he was
suspended from duty pending the outcome.
9. After attempts to settle the case had failed, a panel of
inquiry sat for thirty-two days between June and August 1983. It
reported in December that the applicant was at fault in certain
respects.
A sub-committee subsequently appointed by the Trent RHA
recommended that Dr Darnell's employment as a consultant microbiologist
be terminated. Accordingly, by letter of 16 May 1984 from the Trent
RHA, the applicant was dismissed on three months' notice with effect
from 19 August 1984.
10. The applicant appealed to the Secretary of State against his
dismissal on 23 May 1984. A professional committee was appointed in
accordance with paragraph 190 of the Terms and Conditions of Service
of Hospital Medical and Dental Staff. The paragraph 190 procedure has
since been replaced by a new procedure which incorporates time-limits
into the various stages of an appeal to the Secretary of State against
dismissal.
After holding a hearing on 14 May 1985, the professional
committee reported to the Secretary of State who, in September 1985,
sought further information.
11. The Secretary of State directed the RHA to offer Dr Darnell a
new post in the region without managerial responsibility. In reaching
this decision the Secretary of State had noted that the professional
committee had been very critical of the handling of the case.
The RHA challenged this direction. The applicant was informed
by the Department of Health and Social Security ("the DHSS") that in
view of the unavailability of alternative employment, the case had been
remitted to the Secretary of State who, not being bound by the
professional committee's recommendation to allow the appeal, had
decided that the termination of Dr Darnell's services in accordance
with the paragraph 190 procedure should be confirmed.
12. By judicial review proceedings commenced in the High Court on
24 April 1986, the applicant challenged the fairness of the procedure
leading to the Secretary of State's decision. The High Court granted
a declaration that this decision was invalid and indicated that the
Secretary of State should reconsider the matter. The Secretary of
State did not appeal.
13. On 25 October 1986 the applicant informed the DHSS that he now
sought a further paragraph 190 hearing. An exchange of correspondence
took place. The DHSS attempted to convoke an ad hoc committee meeting,
but this was cancelled as the applicant refused to accept such a
compromise. On 29 February 1988, having proceeded on the basis of the
written material which included further written submissions, the
Secretary of State decided to confirm the applicant's dismissal.
Accordingly, by letter of 18 March 1988, the DHSS informed the
applicant that, on the basis of the professional committee's report of
25 July 1985 and the written submissions made by Dr Darnell and the
Trent RHA, re-employment was not a possibility and termination of his
services was effective from the date of that letter.
14. The applicant's application for judicial review of the validity
of the Secretary of State's direction was dismissed on 3 November 1988.
15. In the meantime, the applicant had also sought reinstatement,
re-engagement and damages for dismissal by proceedings in the
Industrial Tribunal. Two applications had been made to the Tribunal,
the first on 10 August 1984 following his dismissal in May of that year
and the second in May 1986 following the Secretary of State's initial
rejection of his appeal against dismissal. These proceedings had been
stayed from time to time at the applicant's request, pending the
results of the appeal to the Secretary of State and the judicial review
proceedings.
In November 1988, the second Industrial Tribunal application
was revived and the first was subsequently withdrawn. A pre-hearing
assessment took place on 6 February 1989 in which the Tribunal
determined that a hearing could take place with no cost consequences
to the applicant.
In its reserved decision of 23 February 1990, the Tribunal held
that the dismissal of the applicant was not unfair. It had not been
persuaded that the applicant had in any way been prejudiced by the time
which had elapsed until a decision was finally reached. He had been
paid his salary in full until March 1988.
16. The applicant's appeal to the Employment Appeal Tribunal was
dismissed on 8 April 1993.
17. In June 1988 a separate action in the High Court claiming
damages for the applicant's suspension from work in June 1982 pending
the outcome of the disciplinary procedure was struck out as it
disclosed no reasonable cause of action. An appeal against the
striking out was dismissed in 1990.
PROCEEDINGS BEFORE THE COMMISSION
18. Dr Darnell lodged his application (no. 15058/89) with the
Commission on 2 December 1988. He complained under Article 6 para. 1
(art. 6-1) of the Convention that the "civil rights" proceedings taken
against him which led to the final termination of his employment took
an unreasonable length of time; he also alleged that the Secretary of
State and the RHA had followed a procedure which was neither fair nor
public and that the former was not independent or impartial. In
addition, he claimed that, contrary to Article 13 (art. 13), he had no
effective domestic remedy for those Convention complaints.
19. On 10 April 1991 the Commission declared the applicant's
complaint concerning the length of the proceedings admissible and
dismissed the remainder of his application. In its report of
13 May 1992 drawn up under Article 31 (art. 31), it expressed the
opinion that there had been a violation of Article 6 para. 1 (art. 6-1)
(unanimously).
The full text of the Commission's opinion and of the concurring
opinion contained in the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 272 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
20. Dr Darnell complained that the length of the proceedings
relating to the termination of his employment by Trent RHA constituted
a breach of Article 6 para. 1 (art. 6-1) of the Convention, according
to which:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
This allegation was supported by the Commission and is no
longer contested by the Government.
21. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
In view of the Government's concession that there has been a
violation, the Court does not consider it necessary to rule on the
dispute between the participants as to the starting date of the period
to be taken into consideration in the present case. Even if the Court
were to adopt the Government's position that, at the earliest, it
should start to run from 10 August 1984, the date of the initial
application to the Industrial Tribunal (see paragraph 15 above), the
lapse of time of nearly nine years until the Employment Appeal Tribunal
gave its reserved judgment on 8 April 1993 cannot, in the circumstances
of the present case, be regarded as "reasonable".
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
22. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of this Court shall, if necessary, afford just
satisfaction to the injured party."
A. Non-pecuniary damage
23. Dr Darnell sought £5,000 by way of compensation for the
considerable stress and strain which he has suffered over the years in
which he has been fighting legal battles instead of practising
medicine.
24. The Court notes that Dr Darnell's medical competence was not
challenged or criticised, but he none the less suffered serious damage
to his professional career as a result of time lost from the practice
of medicine.
The Court acknowledges the public apology which was given to
Dr Darnell by the Government's representative at the hearing before it.
It takes the view, however, that in all the circumstances further
satisfaction is required and accordingly holds that the applicant
should be awarded the amount claimed.
B. Costs and expenses
25. For lawyer's fees and disbursements, Dr Darnell sought
reimbursement of the sum of £3,922.11 less the 6,025 French francs
already paid by way of legal aid provided by the Council of Europe in
respect of the proceedings before the Court. No claims were made for
travel and subsistence expenses, which were covered by the above grant
of legal aid.
26. Having examined the claim, which the Government accepted was
reasonable, in the light of the criteria emerging from its case-law,
the Court finds that the applicant should be awarded the amount claimed
in its entirety and that this figure should be increased by any
value-added tax that may be chargeable.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay to the applicant,
within three months:
- £5,000 (five thousand pounds) by way of compensation for
non-pecuniary damage;
- £3,922.11 (three thousand nine hundred and twenty-two pounds
and eleven pence) by way of legal costs and expenses less
6,025 (six thousand and twenty-five) French francs, together
with any value-added tax that may be chargeable.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 26 October 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar