Benjamin & Wilson v. United Kingdom

B and W were detained in hospital after being sentenced to terms of discretionary life imprisonment. Both complained that they did not have access to a procedure by which they could challenge the lawfulness of their continued detention.

B was sentenced to life imprisonment for rape in 1983. His tariff period of detention was set at six years. While in prison, B suffered delusions and had behavioral problems. In 1989, following a decision of the Secretary of State, he was made the subject of a transfer direction and a restriction order under sections 47 and 49 of the Mental Health Act 1983 (the 1983 Act) and transferred to Broadmoor Special Hospital. In  1993, the Secretary of State decided that B should be regarded as a ‘technical lifer,’ (meaning a person suffering from a mental disorder that had influenced him to a significant extent at the time of the offense). B was transferred to Bracton Clinic Regional Secure Unit, and, in 2001, the Mental Health Review Tribunal (Tribunal) recommended his discharge, which the Secretary of State accepted.

In 1977, W was sentenced to life imprisonment for buggery. Psychiatric experts testified that W suffered from a mental illness and should be made subject to a hospital order coupled with a restriction order with no time limit under sections 37 and 41 of the Mental Health Act 1959. Due to an absence of any beds in hospitals providing the necessary level of security, the judge imposed a discretionary life sentence, adding that W could later be transferred to hospital if his condition required it. W’s tariff period was set at eight years. From  1977 onwards, W was transferred several times between hospital and prison. In October 1992, he was transferred to Rampton Special Hospital, and in June 1993 he was made a technical lifer. The Tribunal  twice rejected W’s case for discharge.

The Secretary of State refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by section 34 of the Criminal Justice Act 1991 (1991 Act) to order their release. The High Court declared that the Secretary of State’s policy not to certify discretionary life prisoners on the ground that they had been transferred to hospital under the 1983 Act was unlawful. On appeal, the Court of Appeal reversed the High Court’s decision. It considered that, although the applicants were existing life prisoners, their discharge nevertheless remained subject to the procedure laid down in section 50 of the 1983 Act. The right to a hearing under the 1991 Act was conferred only on persons who were solely subject to that Act, and not on those who were mental patients.

B and W filed an application with the European Commission on Human Rights, complaining that, as a result of their detention in hospital following sentences to terms of discretionary life imprisonment, they had no procedure available to them by which they could challenge the lawfulness of their continued detention in violation of Article 5(4) of the European Convention on Human Rights (“Convention”), which protects the right to liberty and security of person.

[Adapted from INTERIGHTS summary, with permission]

The Court held that there had been a violation of Article 5(4). The Court reasoned that Article 5(4) protects against the arbitrariness of detention and provides for detained persons to obtain a review by a court of the lawfulness of their detention both at the time of the initial deprivation of liberty and, where new issues of lawfulness are capable of arising, periodically thereafter. In this case, the court was the Tribunal, which was required to have the judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including, most importantly, independence of the executive and of the parties. Article 5(4) requires that the Tribunal must have not merely advisory functions but also the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful. Because the Secretary of State. and not the Tribunal itself,  had the power to order release, the procedure in place violated the plain wording of Article 5(4). The Secretary was a member of the executive, not the judiciary, and thus the procedure infringed on the fundamental principle of separation of powers and allowed for the possibility of abuse.

[Adapted from INTERIGHTS summary, with permission]

"Nor does the Court accept the Government's argument that the applicants cannot claim to be victims, the first applicant since he has been released when the Tribunal so recommended and the second applicant as his release has never been recommended. Both applicants, the first applicant until the date of his release in January 2001, were entitled to have a review of the lawfulness of their continued detention by a body satisfying the requirements of Article 5 § 4. As the Tribunal could not order the release of the applicants, they were not able to obtain such a review." Para. 37.