European Court of Human Rights

see also: [1994] ECHR 51

                  AS TO THE ADMISSIBILITY OF

                    Application No. 17821/91
                    by James KAY
                    against the United Kingdom


     The European Commission of Human Rights sitting in private
on 7 July 1993, the following members being present:

          MM.  C.A. NØRGAARD, President
               S. TRECHSEL
               F. ERMACORA
               G. JÖRUNDSSON
               J.-C. SOYER
               H.G. SCHERMERS
               H. DANELIUS
          Mrs. G.H. THUNE
          Sir  Basil HALL
          MM.  F. MARTINEZ
               C.L. ROZAKIS
          Mrs. J. LIDDY
          MM.  M.P. PELLONPÄÄ
               B. MARXER
               G.B. REFFI
               M.A. NOWICKI
               B. CONFORTI

          Mr.  H.C. KRÜGER, Secretary to the Commission


     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 14 December 1990
by James KAY against the United Kingdom and registered on 20 February
1991 under file No. 17821/91;

     Having regard to:

-    reports provided for in Rule 47 of the Rules of Procedure of the
     Commission;

-    the observations submitted by the respondent Government on
     31 October 1991 and the observations in reply submitted by the
     applicant on 31 March 1992;



-    the pre-hearing briefs submitted by the Government on 18 June
1993 and by the applicant on 23 June 1993;

-    the oral hearing on 7 July 1993;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1945 and is at present
detained in Broadmoor Special Hospital, Crowthorne, Berkshire
(hereafter referred to as Broadmoor) under sections 37 and 41 of the
Mental Health Act 1983 (the 1983 Act).

     The applicant is represented before the Commission by Messrs.
Irwin Mitchell & Co., solicitors, Sheffield.

     The facts of the present case, as submitted by the parties, may
be summarised as follows :

A.   The particular circumstances of the case

     In November 1970 the applicant killed the 12 year old daughter
of a neighbour.  The condition of the child's body indicated that she
had been raped, asphyxiated, cut with a sharp instrument and bitten.

     On 5 January 1971 the applicant pleaded guilty at Liverpool Crown
Court to a charge of manslaughter on grounds of diminished
responsibility.  This plea was accepted and the applicant was made the
subject of a Hospital Order and a Restriction Order without limit of
time under sections 60 and 65 of the Mental Health Act 1959 (now
replaced by sections 37 and 41 of the 1983 Act).  Medical evidence
before Liverpool Crown Court was that the applicant was suffering from
a psychopathic disorder.  In addition, the Court was aware that the
applicant had a number of previous convictions including three for
sexual offences.  In July 1962 the applicant had been convicted of
assaulting a girl under the age of 13 and been fined £15.  In December
1963 he had been convicted of having sexual intercourse with a girl
whose age was between 13 and 15 and he had been conditionally
discharged.  Finally, in January 1966 he had been convicted of rape and
sentenced to 3 years' imprisonment.

     After his conviction the applicant was sent to Broadmoor where
he remained until November 1981 when he was transferred to Park Lane
Hospital.

     In March 1985 he sought discharge from hospital by means of an
application to a Mental Health Review Tribunal as he was entitled to
do under section 70 of the 1983 Act.  The Secretary of State expressed
serious reservations about the medical evidence presented on the
applicant's behalf.  The Tribunal found, however, that there was no
evidence that the applicant was then suffering from any mental
disorder.  However, it took the view that it was appropriate for the
applicant to remain liable to be recalled to hospital for further
treatment.  Therefore the Tribunal was obliged, under section 73 (2)
of the Act, to order that the applicant be conditionally discharged
from hospital.  It made the relevant order on 19 March 1985.

     The conditions of discharge related to residence, probation and
medical supervision.  The applicant left hospital on 9 April 1985.
Whilst subject to conditional discharge the applicant was convicted on
14 April 1986 at Lancaster Crown Court of two offences, one of assault
occasioning actual bodily harm, the other of unlawful wounding.  The
offences were committed on 20 and 21 October 1985 respectively and the
victims were both young women.


     In the absence of a medical recommendation for a hospital order
under section 37 (2) of the 1983 Act, the applicant was not returned
to hospital but was sentenced to 3 years' imprisonment for each
offence, running consecutively.  Leading counsel appearing on behalf
of the applicant gave the following explanation to the Court for the
absence of such a recommendation :

     "There is no medical recommendation because as your Honour will
     know such a recommendation is only available if there is
     treatment available and a place available for treatment and such
     treatment is regarded as being likely to be successful.  I have
     a medical report which indicates that this man suffers from a
     severe personality disorder which is thought to be unbreakable
     at the moment, although we know the speed at which medical
     science advances these days."

     While in prison the applicant retained his status as a person
conditionally discharged from hospital.  On 30 June 1986 he applied for
his case to be considered again by a Mental Health Review Tribunal.
He sought his absolute discharge from hospital on the basis that he was
not suffering from any mental disorder.  The Tribunal, which considered
his case on 18 December 1986, refused to grant an absolute discharge
even though there was no medical evidence before it that the applicant
was then suffering from any psychopathic disorder. The Tribunal refused
such a discharge since it continued to take the view that it was
appropriate for the applicant to remain liable to be recalled to
hospital for further treatment.  In the light of the applicant's
imprisonment the Tribunal ordered that the conditions of his discharge
be suspended until the day of his release from prison.

     In consequence, the applicant would, on the day of his release
from prison, revert to the status of a person conditionally discharged
from hospital.  He would, under section 42 (3) of the 1983 Act, be
liable to be recalled to hospital by a warrant issued by the Home
Secretary.  The applicant unsuccessfully challenged the 1986 decision
of the Tribunal by way of judicial review.

     The applicant remained in prison at Albany on the Isle of Wight.
His earliest release date was 24 October 1989.  On 4 August 1989 the
applicant's solicitor wrote to the Home Office stating that the
applicant was seeking reassurance that the Home Secretary would not
exercise the power of recall.  However, on 1 September 1989 the Home
Secretary issued a warrant of recall stating that as soon as the
applicant was released from prison he should be taken to and detained
at Broadmoor Special Hospital, a secure establishment.  In a letter
addressed to the applicant at Albany prison dated 1 September 1989 the
Home Secretary gave his reasons for this decision.  He said that in the
light of the offences of which the applicant was convicted in April
1986, he was not satisfied that the applicant no longer presented a
serious risk to public safety.  The Secretary of State continued to
have grave misgivings about the applicant's motivation for the 1970
offence.  He was particularly concerned by a report that he had asked
Dr. Loucas, a consultant forensic scientist at Broadmoor, to prepare
in December 1986.  Without interviewing the applicant and on the basis
of the case papers, Dr. Loucas wrote that, "All reports stating 'not
psychopathic' appear to be based on the uncritical acceptance of 

Mr. Kay's explanations for his offences (contradictory and deliberately
misleading) without reference to his personal history ...".  Section
75 (1) (a) of the 1983 Act obliges the Home Secretary, when issuing a
warrant of recall under section 42 (3), to refer the case within one
month to a Mental Health Review Tribunal which has the responsibility
of deciding whether the subject should be detained or discharged
conditionally or absolutely. The Home Secretary advised the applicant
that his case would indeed be referred to a Mental Health Review
Tribunal.

     The applicant promptly sought judicial review of the Home
Secretary's decision in order to quash the Home Secretary's warrant of
recall on the ground that it was issued unlawfully.

     The applicant's application for judicial review was heard first
by Mr. Justice McCullough, who gave judgment refusing the applicant
relief on 23 October 1989, the day before the applicant was due to be
released from prison.  The applicant was subsequently transferred on
24 October from Albany prison to Broadmoor Special Hospital, where he
remains in detention.  On the same day the Secretary of State referred
the case to a Mental Health Review Tribunal.  The applicant also
applied to the Tribunal.

     The Tribunal was ready to sit on 22 March 1990, but at the
request of the applicant's solicitors the hearing date was postponed
until June 1990.  This second hearing date was again postponed due to
a request from the applicant's solicitors.  The Home Secretary obtained
a medical report on the applicant after he was transferred from Albany
to Broadmoor.  That report was prepared by a clinical psychiatrist, Dr.
Enda Dooley and was dated 24 November 1989.  Dr. Dooley concluded that
the applicant was suffering from a psychopathic disorder.

     The applicant entered an appeal against the refusal of relief on
judicial review by Mr. Justice McCullough.  The Court of Appeal
rejected the appeal on 3 July 1990.  Leave to appeal to the House of
Lords was refused by the Court of Appeal.  The applicant was
discouraged from applying to the House of Lords for leave to appeal
because of an earlier refusal of such leave in his first judicial
review proceedings.  Further he was advised by counsel that, in the
light of the decision of the Court of Appeal, English courts could
provide him with no other remedy.

     The Mental Health Review Tribunal heard the applicant's case on
25 and 26 November 1991.  No fresh evidence was placed before the
Tribunal on behalf of the applicant, who by then had withdrawn his
application to the Tribunal, leaving the Secretary of State's referral.
He declined to attend the hearing, but was represented by his solicitor
and counsel. The Tribunal directed that the applicant should not be
discharged from hospital because, following medical evidence submitted
by a Dr. Ferris, it was not satisfied that the applicant "is not
suffering from a continuing psychopathic disorder of such a nature or
degree as to make it appropriate for him to be liable to be detained
in hospital for medical treatment and that there is reason to believe,
taking into account particularly the 1985 assaults, that it is
necessary for the protection of others that he receive such treatment".


B.   The relevant domestic law and practice

     Hospital order

     Section 37 of the Mental Health Act 1983 ("the 1983 Act")
empowers a Crown Court to order a person's admission to and detention
in a hospital specified in the order ("a hospital order").

     The court can only make a hospital order if it is satisfied on
the evidence of two registered medical practitioners that the offender
is mentally disordered and that -

     (a)  the 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
          ... that such treatment is likely to alleviate or prevent
          a deterioration of his condition, and

     (b)  the court is of the opinion ... that the most suitable
          method of disposing of the case is by [a hospital order].

     Restriction order

     Section 41 of the 1983 Act empowers a Crown Court at the same
time as it makes a hospital order to make a restriction order without
limit of time.

     A restriction order may be made if it appears to the court,
having regard to the nature of the offence, the antecedents of the
offender and the risk of his committing further offences if set at
large, that it is necessary for the protection of the public from
serious harm to make the order.

     Application to the Mental Health Review Tribunal

     Under section 70 of the 1983 Act a person who is subject to a
hospital order and restriction order ("a restricted patient"), and who
is detained in hospital, can apply to a Mental Health Review Tribunal
("a Tribunal") after he has been detained for six months.  After he has
been detained for twelve months he can re-apply annually.  (Under
section 71 of the 1983 Act the Secretary of State may at any time refer
the case of a restricted patient to a Tribunal and must do so when his
case has not been considered by a Tribunal for three years.)

     Absolute discharge

     Under section 73(1) of the 1983 Act, read with section 72(1),
where an application is made to a Tribunal by a restricted patient who
is subject to a restriction order (as opposed to a restriction
direction imposed by the Secretary of State on transfer of a person
from prison to hospital), or where his case is referred to the Tribunal
by the Secretary of State, the Tribunal is required to direct the
absolute discharge of the patient if satisfied -


     (a)  (i)  that he is not then 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 him to be
          liable to be detained in a hospital for medical treatment ;
          or

          (ii) 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

     (b)  that it is not appropriate for the patient to remain liable
          to be recalled to hospital for further treatment.

     By virtue of section 73(3), where a patient is absolutely
discharged he ceases to be liable to be detained by virtue of the
hospital order and the restriction order ceases to have effect.

     Conditional discharge

     Under section 73(2) where the Tribunal are satisfied as to either
of the matters referred to in paragraph (a) above, but not as to the
matter referred to in paragraph (b) above, they are required to direct
the conditional discharge of the patient.  By virtue of section 73(4)
a patient who has been conditionally discharged may be recalled by the
Secretary of State under section 42(3) and must comply with the
conditions attached to his discharge.  It should be noted that, in
contrast to the case of absolute discharge, a conditionally discharged
patient does not cease to be liable to be detained by virtue of the
relevant hospital order.

     Secretary of State's power of recall

     The Secretary of State has power to recall a patient who he
himself has conditionally discharged (under section 42(2) of the 1983
Act) or who has been conditionally discharged by a Tribunal (under
section 73(2) of the 1983 Act).  This power is given by section 42(3)
of the 1983 Act which says :

     "The Secretary of State may at any time during the continuance
     in force of a restriction order in respect of a patient who has
     been conditionally discharged under sub-section (2) above by
     warrant recall the patient to such hospital as may be specified
     in the warrant."

     Referral to a Tribunal under section 75(1) of the 1983 Act

     Under section 75(1) of the 1983 Act when a restricted patient who
has been conditionally discharged is subsequently recalled to hospital
the Secretary of State is required, within one month of the day on
which the patient returns or is returned to hospital, to refer his case
to a Tribunal.


COMPLAINTS

     The applicant complains of a violation of Article 5 para. 1 of
the Convention by the Secretary of State's issue of a warrant of
recall.  He claims that he was illegally deprived of his liberty, not
being a person of unsound mind within the meaning of Article 5 para.
1 (e) of the Convention at the material time.

     The applicant also complains of a breach of Article 5 para. 4 of
the Convention in that the lawfulness of his detention was, allegedly,
not speedily decided by a court ie. the Mental Health Review Tribunal.


PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 14 December 1990 and registered
on 20 February 1991.

     After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
2 July 1991.  It decided to give notice of the application to the
respondent Government and to invite the parties to submit their written
observations on admissibility and merits.

     The Government submitted their observations on 31 October 1991.
The applicant replied on 31 March 1992 after an extension of the
time-limit.

     On 15 January 1993 the Commission decided to hold an oral hearing
on admissibility and merits.  The parties submitted pre-hearing briefs:
the Government on 18 June 1993, the applicant on 23 June 1993.

     The hearing was held on 7 July 1993.  The applicant was
represented by Mr. O. Thorold, counsel, and Mr. C. Gillott, solicitor,
Messrs. Irwin Mitchell & Co.  The Government were represented by
Mrs. A.F. Glover, Agent, Foreign and Commonwealth Office, Mr. M. Baker,
QC, counsel, Dr. P. Mason and Mr. P.W. Otley, Department of Health,
MM. H. Giles and N. Jordan, Home Office, and Dr. D. McGoldrick, Foreign
and Commonwealth Office.


THE LAW

1.   The applicant first complains of a violation of Article 5 para. 1
(Art. 5-1) of the Convention by virtue of the Secretary of State's
warrant of recall.  He claims that he was illegally deprived of his
liberty because the Secretary of State was not in possession of any
evidence at the material time that the applicant was a person of
unsound mind, within the meaning of Article 5 para. 1 (e)
(Art. 5-1-e) of the Convention, or in need of continued compulsory
confinement.  He submits that, on the contrary, the available evidence,
in particular the 1985 and 1986 decisions of the Mental Health Review
Tribunal, showed that he was not 

suffering from any mental disorder.  Furthermore, the Secretary of
State had had considerable notice that the applicant was due for
release from prison and therefore could have taken steps to procure up-
to-date medical reports beforehand.

     The Government contend, inter alia, that the warrant of recall
did not interfere with the applicant's rights under Article 5 para. 1
(Art. 5-1) of the Convention because he was not at liberty within the
meaning of that provision.  The Government state that the applicant was
and continues to suffer from a psychopathic disorder and, being subject
to a conditional discharge since 1985, he was liable to recall at any
time, even if he had been released from prison.  They affirm that it
would have been impossible for a reliable report to have been made on
the applicant's mental health while he was in prison because the
conditions there were inappropriate and the applicant had previously
been uncooperative in the preparation of such reports.  Moreover,
during the relevant period the applicant had been involved in
unsuccessful judicial review proceedings, the outcome of which was not
known to the Secretary of State until 2 August 1989, and these
proceedings could have been prejudiced by earlier steps being taken by
the Secretary of State.

2.   The applicant also complains to the Commission of a breach of
Article 5 para. 4 (Art. 5-4) of the Convention and alleges that the
lawfulness of his detention at Broadmoor was not speedily decided by
a court.  He submits, inter alia, that the Secretary of State only has
power to refer a case such as his to the Mental Health Review Tribunal
from the day on which the patient returns to hospital, and no later
than one month afterwards.  There is usually then a six months' delay
between the Secretary of State's referral and the Tribunal's hearing.
Furthermore, the applicant contends that the Tribunal has not decided
on the lawfulness of his detention because it does not have to find
positive evidence that the patient is suffering from a mental disorder.

     The Government assert that the judicial review proceedings
instituted by the applicant after his recall in large part satisfied
the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.
These proceedings, combined with the referral of the applicant's case
to the Mental Health Review Tribunal on the day of the recall, complied
with the requirements of this Convention provision.  A certain lapse
of time is necessary to enable an assessment of the patient to be made
by the responsible medical officers and the Tribunal hearings are
usually held within six months of referral.  Whilst the Tribunal
decision taken in the present case was not speedy it could have been
taken earlier if the applicant had pressed the matter and had not
himself caused delays in what was a complex case.

3.   The relevant part of Article 5 para. 1 (Art. 5-1) of the
Convention reads 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 ..."


     Article 5 para. 4 (Art. 5-4) of the Convention provides as
follows:

     "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, in the light of the parties'
submissions, that the case raises complex issues of law and fact under
the Convention, the determination of which should depend on an
examination of the merits of the application as a whole.  The
Commission concludes, therefore, that the application is not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.  No other grounds for declaring it inadmissible have been
established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE
     without prejudging the merits of the case.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)