European Court of Human Rights

Information Note on the Court’s case-law No. 167

Juncal v. the United Kingdom (dec.) - 32357/09

Decision 17.9.2013 [Section IV] See: [2013] ECHR 1157

Article 5

Article 5-1-e

Persons of unsound mind

Order for psychiatric confinement made as a result of finding of unfitness to plead: inadmissible

Facts – In December 1997 the applicant was brought before the Crown Court on a charge of unlawful wounding. He claimed he had been acting in self-defence. However, after hearing psychiatric evidence that had been adduced at the defence’s initiative, the jury found that he was unfit to plead. There was no investigation of the facts upon which the criminal charge was based. Once the jury had made its finding, the Crown Court was obliged by the Mental Health (Northern Ireland) Order 1986 to order the applicant’s admission to hospital and to make a restriction order preventing him from taking unsupervised leave from the hospital without authorisation from the Secretary of State.

Law – Article 5 § 1: The applicant did not deny that he had at all relevant times been a person of “unsound mind” and that his mental disorder had been such as to warrant compulsory confinement. His complaint instead focused on the procedure whereby the hospital order was made. In particular, he complained that there had been no investigation into the facts upon which the criminal charge was based and that the fitness-to-plead procedure did not require consideration to be given to whether the nature of his mental disorder warranted compulsory confinement.

As to the first point, the Court observed that, once the jury had found the applicant unfit to plead, the material ground of detention moved from that provided for in subparagraphs (a) or (c) of Article 5 § 1 to that provided for by sub-paragraph (e). The question whether or not he had performed the actus reus of the offence was of only peripheral relevance to the issues to be considered in connection with detention under Article 5 § 1 (e). Accordingly, the failure to determine whether the applicant had committed the acts charged had not given rise to any arbitrariness.

As to the second point, the Court observed that the test for determining whether a person was unfit to plead under domestic law – which involved an enquiry into his or her capacity to instruct legal representatives, understand the trial and participate effectively in it – was different from the requirement under Article 5 § 1 (e) to determine whether the person concerned is suffering from a mental disorder of a nature or degree requiring compulsory confinement. Despite that difference, under the applicable domestic law the judge was obliged to make an order for compulsory confinement once the jury had found the applicant unfit to plead. To that extent, there could therefore be said to have been a theoretical shortcoming in the text of the domestic legislation.

Nevertheless, the Court had to base itself on the facts of the individual case. In order to determine whether the applicant was unfit to plead and whether a hospital and restriction order should be made, the Crown Court had heard evidence from two psychiatrists both of whom considered that he was suffering from psychotic mental illness. The psychiatrist called by the defence had found that the seriously damaging and dangerous nature of the applicant’s behaviour meant that he required psychiatric treatment in the specialist setting of a maximum- security unit, while the psychiatrist appointed by the prosecution had found that the combination of his personality problems and psychotic mental illness made him potentially very dangerous. The uncontested evidence before the Crown Court therefore supported the view that the Winterwerp criteria were satisfied in the circumstances of the applicant’s case and the applicant had never challenged this assessment of him by the domestic authorities. In these circumstances, the hospital order had not failed to comply with the requirements of Article 5 § 1.

The applicant’s final complaint under Article 5 § 1, which related to the making of a restriction order (meaning that Secretary of State authorisation was required before he could take unsupervised leave from hospital) was also ill-founded as, while the restriction order altered some of the legal conditions of the applicant’s detention regime, it did not change the character of his deprivation of liberty as a mental patient and Article 5 § 1 (e) was not in principle concerned with conditions of detention.

Conclusion: inadmissible (manifestly ill-founded).

Article 5 § 4: The applicant further complained that he had been unable to challenge the legality of his continuing detention by reference to the facts charged against him in the criminal indictment. The Court noted, however, that the Winterwerp criteria for “lawful detention” under sub-paragraph (e) of Article 5 § 1 entailed that the review of lawfulness guaranteed by Article 5 § 4 in relation to the continuing detention of a mental-health patient should be made by reference to the patient’s contemporaneous state of health, including his or her dangerousness, as evidenced by up-to-date medical assessments, not by reference to past events at the origin of the initial decision to detain.

The applicant had a right to apply to the Mental Health Review Tribunal at regular intervals and in default the Secretary of State was obliged to refer his case to the Tribunal at least once every two years. The Tribunal was empowered to examine whether the Winterwerp criteria continued to apply: namely, whether the applicant continued to suffer from a mental disorder of a kind or degree warranting compulsory confinement. Since the applicant’s detention fell under the exception to the right to liberty set out in Article 5 § 1 (e), the scope of this review was sufficient for compliance with Article 5 § 4.

Conclusion: inadmissible (manifestly ill-founded).

(See also Stanev v. Bulgaria [GC], 36760/06, 17 January 2012, Information Note 148; and Winterwerp v. the Netherlands, 6301/73, 27 November 1981)

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