CEDH · CASELAW;REPORTS;ENG — 16 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 25601/94                    Joseph Patrick Ferdinand Roux                               against                         the United Kingdom                      REPORT OF THE COMMISSION                   (adopted on 16 September 1997)                          TABLE OF CONTENTS                                                             Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1   PART I   : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3   PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .5                            INTRODUCTION   1.    This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by Mr. Joseph Patrick Ferdinand Roux against the United Kingdom on 12 July 1994. It was registered on 7 November 1994 under file No. 25601/94.   2.    The applicant was represented by Mr. S.J. Rees, solicitor, of Darwen.   3.    The Government of the United Kingdom were represented by their Agent, Mr. M.R. Eaton, of the Foreign and Commonwealth Office, London.   4.    On 4 September 1996 the Commission (First Chamber) declared the application admissible. It then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows:        "In the event of the Commission accepting a petition referred to      it:        a.    it shall, with a view to ascertaining the facts, undertake      together with the representatives of the parties an examination      of the petition and, if need be, an investigation, for the      effective conduct of which the States concerned shall furnish all      necessary facilities, after an exchange of views with the      Commission;        b.    it shall at the same time place itself at the disposal of      the parties concerned with a view to securing a friendly      settlement of the matter on the basis of respect for Human Rights      as defined in this Convention."   5.    The Commission (First Chamber) found that the parties had reached a friendly settlement of the case and on 16 September 1997 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.   6.    The following members were present when the Report was adopted:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL           Mrs. M. HION           Mr.   R. NICOLINI                               PART I                       STATEMENT OF THE FACTS   7.    The applicant is French / Canadian citizen born in 1945. When he introduced his application he was detained at Ashworth Hospital.   8.    The applicant was convicted in October 1974 after an argument with a prostitute over money. In 1975 he was convicted of unlawfully and maliciously administering a destructive thing, assault, and other offences (one involving threats to a prostitute). A hospital order without limit of time was made on 12 September 1975, and the applicant was admitted to Broadmoor Hospital under Sections 60 and 65 of the Mental Health Act 1959 (now Sections 37 and 41 of the Mental Health Act 1983) on 7 October 1975. He was transferred to Ashworth Hospital on 15 December 1980.   9.    On 25 February 1994 the Mental Health Review Tribunal found that:        "...this patient continues to suffer from psychopathic disorder      but ... such disorder is no longer of a nature or degree which      makes it appropriate for him to be detained in a hospital for      medical treatment."   10.   The Tribunal noted that the applicant had made remarkable progress over the previous four years, and that the risk which was inherent in such cases was minimal. It considered that he should be liable to recall, and discharged him conditionally. The discharge conditions were:        -     that he resided at a named address or such other place           approved by his supervising team;        -     that he received psychiatric treatment as and when           directed;        -     that he received social work and / or probation           supervision; and        -     that he received such psychological treatment as was           considered necessary by the supervising team.   11.   The applicant was discharged on 11 April 1994. He returned to his sheltered accommodation in a drunken state on the first night, appearing to be in a distressed state about the breakdown of a relationship with a nurse at Ashworth. On 16 April he described himself as suicidal and he was admitted to a psychiatric clinic as a voluntary patient the next day. In early May he returned to the sheltered accommodation with the agreement of those supervising him, but there was continued concern that he was exceeding the agreed levels of alcohol intake.   12.   On 25 May 1994 the applicant was recalled to Ashworth, pursuant to Section 42 (3) of the Mental Health Act 1983. A decision was taken by the supervising team not to inform the applicant of the pending recall as it was feared that he would react in a negative way to the news, and would be likely to abscond from the accommodation. A letter giving the reasons for the recall was sent to Dr. Cooney, the supervising psychiatrist at Ashworth, and he has confirmed that he discussed the reasons for recall with the applicant shortly after the applicant's recall.   13.   On 12 July 1994 the applicant's then representatives wrote to the Home Office asking for the reasons for recall. The reasons were given by letter of 4 August 1994.   14.   The applicant's case was referred to a Mental Health Review Tribunal under Section 75 (1) (a) of the Mental Health Act 1983 on 17 June 1994. Section 75 (1) (a) provides that the Secretary of State must refer the case of a recalled, conditionally discharged restricted patient to the Mental Health Review Tribunal within one month of the day on which the patient is returned to hospital.   15.   The applicant was not able himself to refer the case to a Mental Health Review Tribunal, but applied for judicial review of the Secretary of State's decision to recall.   16.   The Mental Health Review Tribunal met on 16 December 1994. It considered statements from the responsible medical officer and the Home Secretary, and reports from the social worker and the probation officer. The Home Secretary opposed discharge, primarily on the ground that the applicant continued to pose a serious danger to the public. The Mental Health Review Tribunal directed the applicant's conditional discharge, subject to residence and supervision conditions. It gave as its reasons:        "The patient continues to suffer from psychopathic disorder. He      has had the benefit of substantial psychological assistance and      treatment in a secure hospital over many years. He continues to      require treatment in the form of advice and social support and      psychological treatment in the forms of alcohol and sex      education. The risk of a recurrence of the sort of behaviour      which led to his index offences remain, but is fairly low, and      could be monitored in the community with the strict observance      of certain conditions. The treatment required does not need to      be undertaken in conditions of high security."   17.   The applicant was released on 9 January 1995, after appropriate arrangements had been made.   18.   The judicial review proceedings were terminated on 23 February 1995 as there was no longer any reason to continue.   19.   The applicant complained of his recall and of the time taken for the case to be brought before a tribunal, alleging violation of Articles 5 and 13 of the Convention.                               PART II                          SOLUTION REACHED   20.   Following the decision on the admissibility of the application, the Commission (First Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and invited the parties to submit any proposals they wished to make.   21.   In accordance with the usual practice, the Chamber Secretary, acting on the Commission's instructions, contacted the parties to explore the possibilities of reaching a friendly settlement.   22.   After an exchange of correspondence, the following agreed terms of settlement were submitted on 3 July 1997:        "The Government will pay £2,000.00 to the applicant together with      the agreed costs of his application. The Government has also      undertaken that, after consultation, the Mental Health Tribunal      Rules of 1983 will be amended to introduce a fixed time limit of      two months for a hearing to take place in the case of      applications of patients who have been recalled. The Government      also intends, following consultation and subject to parliamentary      approval, to include in a revised version of the Mental Health      Act Code of Practice (issues under Section 118 of the Act) new      guidance about the responsibility of hospital managers to ensure      that reports to Tribunals are prepared and submitted in      accordance with the time limits set down in the Tribunal rules.      Compliance on these matters will be monitored through the normal      mechanisms for performance monitoring in the National Health      Service."   23.   At its session on 16 September 1997, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   24.   For these reasons, the Commission adopted the present Report.        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber