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Cite as: [2010] ECHR 249
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17 February 2010
FOURTH SECTION
Application no.
32357/09
by David Grant JUNCAL
against the United
Kingdom
lodged on 5 June 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr David Grant Juncal, is a British national who was born in 1966 and is detained at the John Howard Centre, London. He is represented before the Court by Rod Campbell-Taylor of Campbell-Taylor Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In March 1997 the applicant was detained in Northern Ireland, having been charged with an offence of unlawful wounding, contrary to section 21 of the Offences Against the Person Act 1861.
On 16 December 1997 he was brought before the Northern Ireland Crown Court. The Crown Court heard oral evidence from two consultant psychiatrists, Dr Brian Fleming and Dr Frederick Brown, to the effect that the applicant was suffering from paranoid schizophrenia. On the basis of this evidence, the court found that the applicant was “unfit to plead”.
In light of this finding, the applicant was made subject to a hospital order together with restrictions without limitation of time, pursuant to Article 49 of the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”). There was no investigation by the Court of the facts upon which the criminal charge was based or whether the applicant had carried out the acts alleged to form the substance of the charge. Under the law then in force, the hospital order with restrictions was an automatic consequence of the finding of unfitness to plead.
Nonetheless, the recital to the hospital order did state:
“the defendant is suffering from mental illness which warrants his detention in hospital for medical treatment... the Court is of the opinion having regard to all the circumstances, including the nature of the offences and the character and antecedents of the defendant, and to the other available methods of dealing with him, that the most suitable method of dealing with the case is by means of Hospital Order.”
On 30 December 1997, the Secretary of State for Northern Ireland ordered that the applicant be transferred from Northern Ireland to Carstairs, Scotland under section 81(1) of the Mental Health (Scotland) Act 1984 (“the 1984 Act”).
The applicant was admitted to Carstairs on 8 January 1998. The notification of the applicant's admission to Carstairs, dated 16 January 1998, records that he was detained there pursuant to section 174 of the Criminal Procedure (Scotland) Act 1975. This cannot have been correct as that legislation was repealed with effect from 1 April 1996. The relevant legislation in force at the time was the Criminal Procedure (Scotland) Act 1995. The Scottish Government have since stated, in a letter dated 27 January 2009, that the applicant “should be treated as having been detained under sections 57(2)(a) and (b) of the Criminal Procedure (Scotland) Act 1995”.
On 24 May 2005, the Scottish Government issued a warrant of removal under section 77(1) of the 1984 Act, authorising the transfer of the applicant from Carstairs to the John Howard Centre for Forensic Mental Health in London (“the Centre”).
On 13 June 2005, the Secretary of State issued a direction in the following terms:
“Whereas the [applicant] has been ordered by the court in pursuance of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964, as substituted by section 3 of the 1991 Act, to be admitted to such hospital as may be specified by the Secretary of State, the Secretary of State hereby directs that the said hospital shall be Howard Centre, 2 Crozier Terrace, Hackney, London E9 6AT and accordingly the said person shall be detained in that hospital and shall be treated for all purposes of the Mental Health Act 1983 as if subject to a hospital order with a restriction order made without limit of time.”
The applicant was transferred to the Centre on 14 June 2005. He was treated as being detained under sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”).
In early 2007, the applicant submitted a request for unescorted leave. The applicant's request was supported by his Responsible Medical Officer. However, because the applicant was detained “with restrictions”, only the Secretary of State could authorise his leave. By letter dated 4 April 2007, the Secretary of State refused such leave.
1. The High Court
On 22 March 2007, the applicant issued judicial review proceedings in the High Court against the Secretary of State for the Home Department, East London and City Mental Health NHS Trust, the Scottish Ministers and the Secretary of State for Northern Ireland, challenging the lawfulness of his detention.
The applicant argued, inter alia, that: (1) his detention was arbitrary and therefore unlawful under domestic law and/or under Article 5 of the Convention, because it was authorised by reference to allegations constituting a criminal charge, the truth of which were never determined by any court or tribunal; (2) his right under Article 5 § 4 to regular review of the lawfulness of his detention was breached because he could not challenge the lawfulness of his detention by reference to the truth of the facts alleged against him; (3) the procedure leading to his detention offended against the principles of Articles 6 and 7 of the Convention as he was not treated as presumed innocent and/or he was denied a fair trial within a reasonable time; (4) the conditions of his detention under sections 37 and 41 of the 1983 Act, specifically in relation to the restrictions imposed, amounted to unlawful interference with his rights under Article 8; (5) his detention offended against Article 14 because a person charged with an offence in England and Wales (or Scotland) could not lawfully be detained under sections 37 and 41 of the 1983 Act without first being convicted of the offences charged or without a prior investigation of the facts alleged.
The applicant's case was heard in the High Court before Mr Justice Wyn Williams on 21 October 2007. On 19 December 2007, the judge dismissed the applicant's claim, holding that his detention was not arbitrary or unlawful. The judge further held that the proceedings before the Northern Ireland Crown Court could not be challenged on Article 6 grounds since the Human Rights Act 1998 (“the HRA”) had not come into force at the time of those proceedings and did not operate retrospectively.
2. Court of Appeal
The applicant appealed against the High Court decision, arguing that the judge had erred in law in dismissing his claim. His appeal was heard on 14 and 15 May 2008 and dismissed on 25 July 2008. The Court of Appeal held that the applicant could not challenge his continuing detention on the grounds that the processes which led to that detention contravened his Convention rights since the relevant decision had occurred before the coming into force of the HRA. The Court nonetheless went on to consider the lawfulness of his detention, not just in domestic law, but also under Article 5. It held that the 1986 Order was not unlawful as being arbitrary or unconstitutional and that the appellant did suffer from a mental disorder sufficiently serious to warrant detention, in accordance with the test set out in Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33. Although “fitness to plead” gave rise to different questions from “unsoundness of mind” and the conditions for detention were not considered in terms under the statutory procedure followed, those conditions were in fact met. Further, the applicant's transfers between the jurisdictions were lawful and the provisions for detention in England, Scotland and Northern Ireland, though different in some respects, were “corresponding provisions” which allowed for transfers to be made under sections 77 and 81 of the 1984 Act. The executive act of transferring the applicant from Scotland to England in 2005 did not permit challenge to the applicant's detention in England, or to the conditions of that detention, as these were the continuing effects of the original hospital order, made in 1997 before the coming into force of the HRA.
3. House of Lords
On 11 December 2008, an application for permission to appeal to the House of Lords was refused on grounds that the applicant's case did not raise an arguable point of law of general public importance.
B. Relevant domestic law
At the time of the applicant's trial in Northern Ireland, Articles 47 and 49 of the 1986 Order provided:
“47.
(1) Where –
i. a court makes a hospital order in respect of any person; and
ii. it appears to the court, having regard to the
nature of the offence, the
antecedents of the person 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
do so,
the court may... further order that the person shall be subject to the special restrictions set out in this Article, whether without limit of time or during such period as may be specified in the order; and an order under this Article shall be known as a 'restriction order'.
(2) The special restrictions applicable to a patient in respect of whom a restriction is in force are as follows, that is to say –
(a) none of the provisions of Part II in relation to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is absolutely discharged...;
(b) no application or reference shall be made to the Review Tribunal in respect of the patient under Articles 71-74;
(c) ...
49.
(1) The following provisions of this Article apply where, on the trial of a person charged on indictment with the commission of an offence, the question arises (at the instance of the defence or otherwise) whether the accused is unfit to be tried (in this Article referred to as “the question of fitness to be tried”).
(2) Subject to para (3), the question of fitness to be tried shall be determined as soon as it arises.
(3) If, having regard to the nature of the supposed mental condition of the accused, the court is of the opinion that it is expedient so to do and in the interests of the accused, the court may –
(a) postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence; and
(b) if, before the said question falls to be determined, the jury returns a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) The question of fitness to be tried shall be determined by a jury...
(5) Where in accordance with paras (2) to (4) it is determined that the accused is unfit to be tried –
(a) The court shall direct a finding to that effect to be recorded; and
(b) the trial shall not proceed or, as the case may be, proceed further.
(6) Where a court has directed that a finding be recorded in pursuance of para 5(a), the court shall order that the person to whom the finding relates shall be admitted to hospital.
(7) An order under para (6) shall have the same effect as a hospital order together with a restriction order made without limitation of time.
(8) Where the Secretary of State is notified by the responsible medical officer that a person detained in a hospital by virtue of an order under para (6) no longer requires treatment for mental disorder, the Secretary of State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under para (6) shall cease to have effect.
(9) In this Article... 'unfit to be tried' includes unfit to plead.”
At the time of the applicant's transfer from Northern Ireland to Scotland, section 81 of the 1984 Act, under which he was transferred, provided:
“(1) If it appears to the responsible authority, in the case of a patient who is for the time being liable to be detained or subject to guardianship under the Mental Health Act (Northern Ireland) 1961 [the 1986 Order], that it is in the interests of the patient to remove him to Scotland, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him in guardianship there, the responsible authority may authorise his removal to Scotland and may give any necessary directions for his conveyance to his destination.
(2) ...where a patient who is liable to be detained under this Act by virtue of an application, order or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in Scotland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application forwarded to the managers of the hospital, or an order or direction made or given, on that date under the corresponding enactment in force in Scotland, and, where he is subject to an order or direction under any enactment in [the 1986 order] restricting his discharge, as if he were subject to an order or a restriction direction under the corresponding enactment in force in Scotland.”
At the time of the applicant's transfers from Scotland to England, section 77 of the 1984 Act, under which he was transferred, provided:
“(1) If it appears to the Secretary of State, in the case of a patient who is for the time being liable to be detained or subject to guardianship under the Act, that it is in the interests of the patient to remove him to England and Wales, and that arrangements have been made for admitting him to a hospital or, as the case may be, for receiving him in guardianship there, the Secretary of State may authorise his removal to England and Wales and may give any necessary directions for his conveyance to his destination.
(2) Where a patient who is liable to be detained under this Act by virtue of an application, order or direction under any enactment in force in Scotland is removed under this section and admitted to a hospital in England and Wales, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the corresponding enactment in force in England and Wales, and, where he is subject to an order or direction under any enactment in this Act restricting his discharge, as if he were subject to an order or direction under the corresponding enactment in force in England and Wales.
Sections 37 and 41 of the 1983 Act (as amended), under which the applicant currently is treated as being detained, provide as follows:
37.
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(1A) In the case of an offence the sentence for which would otherwise fall to be imposed—
(a) under section 51A(2) of the Firearms Act 1968,
(b) under section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000, or
(c) under any of sections 225 to 228 of the Criminal Justice Act 2003,
nothing in those provisions shall prevent a court from making an order under subsection (1) above for the admission of the offender to a hospital.
(1B) References in subsection (1A) above to a sentence falling to be imposed under any of the provisions mentioned in that subsection are to be read in accordance with section 305(4) of the Criminal Justice Act 2003.
(2) The conditions referred to in subsection (1) above are that—
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either—
(i) the mental
disorder from which the offender is suffering 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 or mental impairment, that such treatment is likely to
alleviate or prevent a
deterioration of his condition; or
(ii) in the case
of an offender who has attained the age of 16 years, the
mental
disorder is of a nature or degree which warrants his reception into
guardianship under this Act; and
(b) the court is 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 an order under this section.
(3) Where a person is charged before a magistrates' court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case as being a person suffering from mental illness or severe mental impairment, then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.
(4) ...
(7) A hospital order or guardianship order shall specify the form or forms of mental disorder referred to in subsection (2)(a) above from which, upon the evidence taken into account under that subsection, the offender is found by the court to be suffering; and no such order shall be made unless the offender is described by each of the practitioners whose evidence is taken into account under that subsection as suffering from the same one of those forms of mental disorder, whether or not he is also described by either of them as suffering from another of them.
(8) Where an order is made under this section, the court shall not—
(a) pass sentence of imprisonment or impose a fine or make a community order (within the meaning of Part 12 of the Criminal Justice Act 2003)] in respect of the offence,
(b) if the order under this section is a hospital order, make a referral order (within the meaning of the Powers of Criminal Courts (Sentencing) Act 2000) in respect of the offence, or
(c) make in respect of the offender a supervision order (within the meaning of that Act) or an order under section 150 of that Act (binding over of parent or guardian),
but the court may make any other order which it has power to make apart from this section; and for the purposes of this subsection “sentence of imprisonment” includes any sentence or order for detention.
41.
(1) Where a hospital order is made in respect of an offender by the Crown Court, and 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 so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as “a restriction order”.
(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.
(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows—
(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under section 42, 73, 74 or 75 below;
(aa) none of the provisions of Part II of this Act relating to after-care under supervision shall apply;
(b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;
(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely—
(i) power to grant leave of absence to the patient under section 17 above;
(ii) power to transfer the patient in pursuance of regulations under section 19 above or in pursuance of subsection 3 of that section; and
(iii) power to order the discharge of the patient under section 23 above;
and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer; and
(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;
and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule.
(4) A hospital order shall not cease to have effect under section 40(5) above if a restriction order in respect of the patient is in force at the material time.
(5) ...
(6) While a person is subject to a restriction order the responsible medical officer shall at such intervals (not exceeding one year) as the Secretary of State may direct examine and report to the Secretary of State on that person; and every report shall contain such particulars as the Secretary of State may require.
The provisions that apply to those charged in England, who are found unfit to plead and subsequently detained under sectioned 37 and 41 of the 1983 Act, are set out in the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which provides as follows:
4A
(1) This section applies where... it is determined by a jury that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury—
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
5.
(1) This section applies where—
(a) ...
(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused—
(a) a hospital order (with or without a restriction order);
(b) a supervision order; or
(c) an order for his absolute discharge.
(3)...
(4) In this section—
“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;
“restriction order” has the meaning given to it by section 41 of that Act...
5A.
(1) In relation to the making of an order by virtue of subsection (2)(a) of section 5 above, section 37 (hospital orders etc) of the Mental Health Act 1983 (“the 1983 Act”) shall have effect as if—
(a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies;
(b) the words after “punishable with imprisonment” and before “or is convicted” were omitted; and
(c) for subsections (4) and (5) there were substituted—
“(4) Where an order is made under this section
requiring a person to be
admitted to a hospital (“a
hospital order”), it shall be the duty of the
managers of
the hospital specified in the order to admit him in
accordance
with it.”
(2) ...
(3) In relation to the making of any order under the 1983 Act by virtue of this Act, references in the 1983 Act to an offender shall be construed as including references to a person in whose case section 5 above applies, and references to an offence shall be construed accordingly.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that his detention was, and continues to be, arbitrary and therefore unlawful in that he was and is subject to detention under criminal provisions in circumstances where it has never been determined whether he did commit the acts constituting the criminal offence with which he was charged.
He further complains under Article 5 that there has been a breach of the principle of legal certainty in that he is detained on the basis of a fiction that a trial of the facts constituting the criminal charge against him occurred when it did not and never has. The applicant is detained in England and Wales by virtue of sections 81(2) and 77(2) of the 1984 Act which provide for detention under “corresponding” provisions. However, the applicant claims that there are and were no corresponding provisions, either in England and Wales or in Scotland, to those under which he was detained in Northern Ireland, as the provisions in England and Wales and in Scotland require examination of the facts constituting the criminal charge before any detention can be imposed.
The applicant complains under Article 5 § 4 of the Convention that he is unable to challenge the legality of his current detention by reference to the truth of the facts alleged against him. The criteria under which he could apply to the MHRT for discharge are different to the criteria (namely fitness to plead) under which he was detained.
The applicant further alleges that his detention under criminal provisions (including criminal restrictions that could not be imposed under corresponding civil provisions of the 1983 Act), by reference to a criminal charge, without consideration of the facts alleged against him, was contrary to the presumption of innocence and amounted to the denial of a fair trial, in breach of Articles 6 and 7 of the Convention. Alternatively, he argues that, if he has not been deemed guilty of the offence, in breach of Article 6 § 2, he must have been denied the right to trial of the charge against him “within a reasonable time”, in breach of Article 6 § 1.
In addition, the applicant complains that the conditions of his detention amount to a disproportionate interference with his Article 8 rights in that the regime to which he is subject under the criminal provisions of the 1983 Act is substantially less favourable than the regime to which he would be subject if detained under the civil provisions of the same Act. The applicant argues that there is no reasonable justification for differentiating between the civil and criminal regimes solely on the basis of a finding of unfitness to plead.
He also complains of breach of Article 14 in connection with the above Articles in that a person charged in England and Wales would not, and could not, have been detained under sections 37 and 41 of the 1983 Act without first being convicted of the offences charged or without prior investigation of the facts alleged.
Finally, the applicant claims breach of Article 13 in relation to all of the above complaints. He argues that the Court of Appeal decision completely prevented him from relying on his Convention rights before the domestic courts.
QUESTIONS TO THE PARTIES