Kay v. United Kingdom

The applicant, a British citizen, claimed violations of sections one and four of Article 5 of the European Convention on Human Rights (the “Convention”) related to his involuntary recall to medical detention by the Home Secretary.

In 1970, the applicant raped and killed his twelve year old neighbor. In January of 1971, the applicant pled guilty to manslaughter on the grounds of diminished responsibility. After conviction, the applicant was sent to a mental institution. In March of 1985, the applicant applied to the Mental Health Review Tribunal (the “Tribunal”) to seek discharge from the hospital as he claimed he no longer suffered from his mental illness. The Tribunal determined that there was no evidence the applicant was still suffering from mental illness, but thought it appropriate for the applicant to be subject to recall for further treatment if necessary. Therefore the Tribunal permitted a conditional discharge..

While on conditional discharge, the applicant was convicted of two additional offenses and was sentenced to six years in prison. The applicant was not returned to the hospital for the duration of his sentence as the prosecuting counsel did not recommend it, explaining that there was no treatment for the applicant’s disorder. During this period of incarceration, the applicant applied again to the Tribunal, seeking an absolute discharge from the hospital’s prior conditional discharge order. The Tribunal found that at this time the applicant did not appear to be suffering from mental illness, but denied the absolute discharge. The Tribunal declared that the conditional discharge would not apply while the applicant was incarcerated, but it would resume once the applicant was released. The applicant sought judicial review of this decision, but was unsuccessful.

Prior to the applicant’s release from prison, the Home Secretary issued a warrant of recall stating that as soon as the applicant was released he would be detained in Broadmoor Special Hospital as he still presented a significant risk to public safety. The applicant sought judicial review regarding the recall, but the judge refused relief.  When the applicant was released from prison, he was returned to Broadmoor Special Hospital and the case was referred to the Tribunal. . A new report from November of 1989, prepared on the basis of case papers without personal examination of the applicant, declared that the applicant was suffering from a psychopathic disorder.  The Tribunal eventually heard the case in November of 1991 and determined that the applicant could not be released as he continued to suffer from a psychopathic disorder.

The applicant then appealed to the European Commission of Human Rights (the “Commission”) for alleged violations of sections one and four of Article 5 of the Convention with regards to the deprivation of liberty and due process.

The Commission held that the actions of the Government violated sections 1 and 4 of Article 5 of the Convention.

With regards to Article 5 § 1, the Commission held that the Government failed to meet the minimum conditions to ensure “that the deprivation of liberty is consistent with the general purpose of Article 5 (Art. 5), namely the protection of individuals from arbitrariness.” The Commission named four relevant criteria for the detention of a person for purposes of unsound mind: (1) that the detention be in accordance with a procedure from domestic law; (2) that except in emergency cases, the individual must be shown to be of unsound mind; (3) that the disorder is one that warrants compulsory confinement; and (4) that the validity of the continued confinement depends on the continuation of the disorder. The Commission found that while the Government complied with procedures from domestic law, the outdated medical evidence did not show that at the time of recall the applicant was of unsound mind. The Commission acknowledged the State’s concern about the protection of the public considering the applicant’s history of violent behavior, but held that such concern did not “dispense with the need to obtain up-to-date medical evidence about the applicant’s mental health before ordering his recall to hospital.”.

With regards to Article 5 § 4, the Commission held that the process of review by the Tribunal subsequent to an exercise of recall failed to be speedy enough to comply with the Convention, despite the fact that certain of the delays in the applicant’s case were caused by the applicant,. The Convention stated that everyone deprived of their liberty “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.” The Government admitted that it was not unusual for the time period between referral to the Tribunal and the actual hearing to be in excess of six months. The Commission found this to be too slow to comply with the requirements under Article 5 § 4 of the Convention. One Commissioner partially dissented, arguing that the applicant’s responsibility in causing delays should mean that he was estopped from complaining about the length of proceedings under Article 5 § 4 of the Convention.

Another Commissioner dissented, arguing that, considering the applicant had been in prison for three years he establishment of the applicant’s mental health state would have been difficult. Thus, considering the risks that the applicant posed to society, it was appropriate for the State to have based its decision on  the applicant’s prior conduct, different reports concluding his mental disorder, and the fact his conditional discharge meant was liable to recall at any time.

“47. The Commission recalls the minimum conditions attached to the lawfulness of the detention of a person of unsound mind within the meaning of Article 5 para 1 (e) …:

-           the detention must be effected in accordance with a procedure prescribed by law, i.e. domestic law;

-          except in emergency cases, the individual concerned must be clearly shown to be of unsound mind, i.e. a true mental disorder must be established before a competent authority on the basis of objective medical expertise;

-          the mental disorder must be of a kind or degree warranting compulsory confinement; and

-          the validity of the continued confinement depends upon the persistence of such a disorder.”

“53. The Commission considers that when the Secretary of State decided to recall the applicant to Broadmoor certain minimum conditions of lawfulness were not respected. In particular, there was no up-to-date objective medical expertise showing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorder persisted. This disorder was only confirmed a month after the applicant’s recall.”

“65. In the Commission’s view the system itself is inherently too slow. Accordingly, it does not deem relevant the applicant’s subsequent requests for adjournments and, later, his apparent disinterest. It considers that the absence of any psychiatric assessment prior to the applicant’s recall demonstrates a deficiency in the system, which contributed to the delays before the Tribunal. In all the circumstances, the Commission is of the opinion that the proceedings before the Mental Health Review Tribunal were not conducted ‘speedily’, within the meaning of Article 5 para 4.”