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FOURTH
SECTION
CASE OF
M.S. v. THE UNITED KINGDOM
(Application
no. 24527/08)
JUDGMENT
STRASBOURG
3 May
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of M.S. v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki, President,
David
Thór Björgvinsson,
Nicolas
Bratza,
Päivi
Hirvelä,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 7 December 2010 and on 10 April 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 24527/08) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, M.S. (“the applicant”), on 9 May 2008. The
President of the Chamber decided not to have the applicant’s
name disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicant, who had been granted legal aid, was represented by Mr P.
Carlin, a solicitor with Peter Edwards Law, a law firm at Hoylake,
Wirral. The United Kingdom Government (“the Government”)
were represented by their Agent, Ms H. Moynihan, of the Foreign and
Commonwealth Office, London.
- The
applicant alleged violations of Articles 3 and 13 of the Convention.
- By
a decision of 7 December 2010, the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits, and each replied in writing to the
other’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970. At the time of filing his application, he
was resident in a psychiatric clinic. According to an expert report
drawn up during the domestic proceedings in this case, the applicant
has a diagnosis of mental impairment and, prior to the facts giving
rise to this case, had been admitted to psychiatric hospitals twice.
He also had a number of convictions against him, including for
indecent assault, burglary and theft.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The applicant’s detention
- In
the early hours of 6 December 2004, police in Birmingham were called
out to deal with the applicant, who was sitting in a car sounding its
horn repeatedly and behaving in a highly agitated manner. He was
arrested at 4.20 a.m. and transferred to a police station, where it
was noted that he was clearly suffering from some form of mental
illness and that a doctor would be required. His detention was
authorised under section 136 of the Mental Health Act 1983 (see
paragraph 28 below). The police also went to the applicant’s
address, where they found his aunt with serious and extensive
injuries to her face and upper body, inflicted by the applicant. She
was taken to hospital where a medical examination revealed cracked
ribs and a collapsed lung.
- The
applicant was examined in his cell at approximately 5 a.m. by the
Forensic Medical Examiner, Dr T. In view of the applicant’s
behaviour, speech and appearance, he assessed him as not fit to be
interviewed or charged with any criminal offence. A formal assessment
under the Mental Health Act 1983 was requested. This was done at
approximately 7 a.m. by the psychiatric specialist registrar on call,
Dr O. He concluded that the applicant was suffering from a mental
illness of a nature or degree warranting detention in hospital in the
interests of his health and safety and for the protection of other
persons.
- A
second assessment was carried out shortly after 11 a.m. by another
psychiatric specialist, Dr. O’D. He too advised that the
applicant be formally admitted to hospital for assessment. He also
advised that the applicant be observed via closed circuit television,
since the presence of a police officer outside his cell was causing
him to become agitated. For the remainder of his time at the police
station, the applicant remained under continuous observation by this
means.
- At
around midday, the applicant was visited by an approved social
worker, Mr G. He was also seen by a community psychiatric nurse,
Mr J. Both noted that the applicant was displaying clear
signs of mental illness. The social worker filled out the relevant
form for admission to a mental hospital, omitting just one point, the
name of the establishment, which had yet to be determined.
- At
around 3 p.m. two members of staff from a local psychiatric intensive
care unit stated that their establishment would not be able to admit
the applicant and advised that he be referred to Reaside Clinic,
which had a medium secure unit. The police thereupon contacted
Reaside to inform them of the situation. Shortly after 6 p.m., Dr M.,
a consultant forensic psychiatrist at Reaside, called back and was
informed of the situation concerning the applicant. According to the
custody record, he stated that someone would be sent over from the
clinic. According to Dr M.’s own notes on the situation, which
the Government have provided, he then consulted with a number of
colleagues. Believing that the applicant would be charged and
remanded in custody and that an assessment from Reaside would be
required only afterwards, they considered that there was no need for
their involvement before such time. At 7.24 p.m. the police received
a call from Reaside informing them that the clinic would not be
sending anyone to the station, but would liaise with the social
worker.
- The
custody record for the applicant’s first day at the police
station refers at several points to his disturbed behaviour: clapping
loudly, shouting, banging on the door, lowering his trousers and
waving his testicles about, and licking the wall of his cell. Dr T.
noted that the applicant repeatedly hit his head against the wall,
causing himself bruising. He was provided with, and accepted, food
and drink at intervals throughout the day.
- The
next day, 7 December, there were further telephone contacts between
the police station and Reaside regarding the applicant’s case.
The police also contacted other mental health officials, but
admission to Reaside remained the only viable solution. During the
morning Dr M. spoke with the duty solicitor of the Crown Prosecution
Service, who informed him that should there be any evidence of the
applicant assaulting his aunt then he would be charged and remanded
in custody. In the event of no charge being brought, they agreed that
the matter would be referred back to the doctor and social worker who
had assessed the applicant the previous day. In discussion with the
clinical director of Reaside, Dr M. noted that at that point there
was no immediate action to be taken. He was later told by Dr O. that
the applicant would be charged with assault, and arranged an
appointment to assess the applicant on 9 December at HMP Birmingham.
- An
entry in the custody record at 1.46 p.m. states that the duty
solicitor of the Crown Prosecution Service had concluded that there
was insufficient evidence to charge the applicant. An entry at 5.01
p.m. states that there was an “internal argument” between
doctors and the social services regarding the applicant. At 8.41 p.m.
an entry was made in the custody record expressing concern and
frustration at the lack of progress in relation to the applicant.
- The
applicant’s behaviour was observed to deteriorate over the
course of the day. By midday he had removed all of his clothing.
Later he drank water from the bowl of the toilet in his cell. He
accepted three meals, in the early morning, mid-morning and in the
mid-afternoon. He accepted a drink at 4.17 p.m., but, according to
the custody record, refused all further offers of food and drink for
the remainder of the day.
- On
the third day of the applicant’s detention, 8 December, the
duty Inspector made an entry in the custody record at 8.53 a.m.
noting his concern at the environment in which the applicant was
detained, given his obvious illness. The applicant was still naked
and was observed during the morning rocking to and fro on a bench,
talking to himself, banging his chest and ranting.
- Dr
M. arrived at the police station shortly before 11 a.m., accompanied
by other mental health professionals from Reaside to assess the
applicant. The police refused to open the door of the applicant’s
cell on the ground that this would endanger everyone’s safety.
The assessment was conducted through the hatch. Dr M. noted that the
applicant appeared agitated and was shouting loudly, and that his
naked body appeared to be smeared with food or faeces. The applicant
was elated, and his speech was incoherent at times. Dr M. concluded
that the applicant was clearly unwell and required inpatient
treatment in a medium-secure setting with adequate nursing resources
and a clear and effective care plan. He also advised that the
applicant be charged so that he could be dealt with under the
criminal justice and mental health systems. The
police indicated that their advice from the Crown Prosecution Service
was that there could be no charge at that point in time, given the
impossibility of interviewing the applicant. Dr M. said he would
endeavour to get a place for the applicant at Reaside, although it
would not be possible to receive him there until the following
morning, i.e. beyond the 72-hour limit laid down by the Mental Health
Act 1983. That afternoon, the Chief Superintendent spoke to the
clinical director of Reaside, who agreed to receive the applicant the
same evening.
- Informed
of this, Dr M. discussed the situation with nursing staff at Reaside.
He was informed that the resources needed to admit the applicant
could be made available for the following morning at 8 a.m. at the
earliest. He considered that an admission in the middle of the night,
i.e. just before the expiry of the permitted period of detention,
would pose unmanageable risks for all concerned. He suggested to the
Chief Superintendent that the applicant could be transferred to
Reaside at the end of the 72-hour period, but that police assistance
would be required to maintain him in safe conditions until it was
possible to admit him. He was informed that the presence of the
police could not be guaranteed for the whole period.
- At
7.46 p.m. a call was received from Reaside to say that the applicant
could not be taken until the following morning. Late that night, an
Approved Social Worker from Reaside came to the police station to
complete the necessary forms for the application’s admission
under the Mental Health Act 1983.
- The applicant
was provided with food and drink at 8.18 a.m., and further drinks of
water during the day (9.34 a.m. and 2.28 p.m.). At the end of the
afternoon a meal was not offered because the applicant was sleeping.
He requested food at 7.08 p.m., which was provided but which he
dropped on the floor. He refused an offer of a meal and a drink at
10.56 p.m.
- On
the fourth day, 9 December, the applicant was released from police
custody at 7.27 a.m. and escorted, in handcuffs, to Reaside.
According to the Government, it took eight members of the nursing
staff to restrain him once admitted. He was assessed as having
pressure of speech, flight of ideas, a labile mood, thought disorder
and persecutory delusions. The diagnosis was of a manic episode with
psychotic features. The applicant was put into seclusion and given
rapid tranquilisation on account of his bizarre behaviour and
aggressive, threatening manner. He received continued medication over
the following days and showed sustained improvement.
B. The applicant’s legal action against the local
health authority
- On
5 June 2006, the applicant lodged claims against the Birmingham and
Solihull Mental Health NHS Trust for negligence, for breaches of
Articles 3 and 8 of the Convention, and for misfeasance in public
office. The defendant applied for summary judgment on the ground that
the applicant had no real prospect of succeeding. A hearing was held
on 14 March 2007 before a District Judge. The applicant’s
counsel submitted a report prepared by a Consultant Forensic
Psychiatrist, Dr E., who had not interviewed the applicant but had
reviewed the relevant documents. Dr E. considered that Dr
M. should have assessed the applicant within 24 hours of being
made aware of the situation, since by that stage the applicant had
been detained for about 12 hours. The delay in assessing him and in
admitting him to Reaside had in turn delayed the applicant’s
treatment and recovery.
- The
judge granted the order for summary judgment. He held that although
the defendant had owed the applicant a duty of care, and that that
duty had been breached, it had not caused the applicant any physical
or psychological injury. The action in negligence therefore failed on
causation and loss. In any event, any loss had been absolutely
minimal. A delay of 31 hours in the hospitalisation of the
applicant could only lead to minimal damages. The judge also rejected
the claim based on the Human Rights Act on the grounds that Dr M.
could not be seen as a public authority for the purposes of the Act,
and that the situation did not meet the minimum level of severity
inherent in Article 3 of the Convention. The applicant’s claim
for damages based on Article 8 of the Convention was also dismissed,
the judge finding that this was not an exceptional case in which
compensation would be justified. The claim for misfeasance in public
office could only succeed if the applicant could show complete and
reckless disregard on the part of the defendant, which he had not
done.
- The
applicant was granted permission to appeal. The case was heard at
Birmingham County Court by Judge M., who dismissed the appeal in a
judgment of 14 November 2007. The judge described the applicant’s
claim in negligence as “hopeless”, there being no details
in the medical evidence submitted of any physical or psychiatric
injury caused to the applicant. It was unrealistic to suggest
that a delay of a given number of hours (the applicant’s
counsel having conceded that the delay was considerably less than 31
hours) in some way caused that number of hours of psychosis.
- In
relation to the claim under the Human Rights Act, the judge
considered that Dr M. should be viewed in that context as a “public
authority”. However, the claim failed because the situation did
not fall within Article 3. The applicant had been lawfully detained
and his basic needs had been met. The fact that he had spent an extra
12-24 hours at the police station did not make the situation so
appalling as to breach Article 3. The judge found that there had been
no breach of Article 8 because there had been no arbitrary or
deliberate interference with the applicant’s rights. As regards
the claim for malfeasance, he concurred with the decision of the
District Judge.
- In
light of these findings, the applicant’s legal representatives
advised him that legal aid would not be available for him to appeal
the decision further.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
136 of the Mental Health Act 1983 provides:
“Mentally disordered persons found in public
places.
(1) If a constable finds in a place to which the public
have access a person who appears to him to be suffering from mental
disorder and to be in immediate need of care or control, the
constable may, if he thinks it necessary to do so in the interests of
that person or for the protection of other persons, remove that
person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this
section may be detained there for a period not exceeding 72 hours for
the purpose of enabling him to be examined by a registered medical
practitioner and to be interviewed by an approved social worker and
of making any necessary arrangements for his treatment or care.”
A
“place of safety” is defined in section 135(6) as
follows:
“In this section “place of safety”
means residential accommodation provided by a local social services
authority..., a hospital as defined by this Act, a police station, an
independent hospital or care home for mentally disordered persons or
any other suitable place the occupier of which is willing temporarily
to receive the patient.”
- The
Code of Practice issued under the Mental Health Act 1983 provided at
the relevant time:
“The place of safety
10.5
The identification of preferred places of safety is a matter for
local agreement. However, as a general rule it is preferable for a
person thought to be suffering from mental disorder to be detained in
a hospital rather than a police station. Regard should be had to any
impact different types of place of safety may have on the person held
and hence on the outcome of an assessment. Once the person has been
removed to a particular place of safety, they cannot be transferred
to a different place of safety.
...
10.8.c. Where a police station is used as a place of
safety speedy assessment is desirable to ensure that the person
spends no longer than necessary in police custody but is either
returned to the community or admitted to hospital.”
III. RELEVANT INTERNATIONAL MATERIALS
- Extract
from Report to the Government of the United Kingdom on the visit to
the United Kingdom carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 18 November to 1 December
2008:
“148. The CPT also has concerns with
respect to the availability of appropriate psychiatric care for
persons detained by the police. More than once, members of the CPT’s
delegation were told that the behaviour of some detained persons
became so erratic that custody officers considered it necessary to
tie them naked to a chair in order to prevent any acts of self-harm.
Such treatment is clearly unacceptable and should be stopped
immediately. In such cases police officers should immediately
call a doctor and act in accordance with his instructions. Further,
detained persons who display severe psychiatric disorders should be
transferred without delay to a mental health facility.
The CPT recommends that immediate steps
be taken to ensure that detained persons with mental health
disorders, held in police stations, are provided with appropriate
care and treatment, until they are transferred to a mental health
facility.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant argued that his experience during the time he was detained
by the police had been inhuman and degrading, in violation of Article
3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. The parties’ observations
1. The applicant
- The
applicant submitted that he had been subjected to inhuman and
degrading treatment when inappropriately detained in a police cell
during a period of acute mental suffering. He rejected the view that
only the last 12-24 hours were relevant to his complaint. It had been
obvious from the outset and for the entire duration of his detention
by the police that he was severely mentally ill and required hospital
treatment as a matter of great urgency. His distress had been
prolonged and, as evidenced by the entries in the custody record,
exacerbated by the delay in arranging his transfer to Reaside. He
maintained that while the Mental Health Act 1983 allowed up to 72
hours’ detention, it was only in truly exceptional cases that
anything close to this duration should be accepted. Good professional
practice demanded that a person detained under that legislation
should be moved to a suitable facility as soon as possible, and this
was reflected in the official guidance on the use of the section 136
power. This, along with the fact that the power was used with some
frequency by the West Midlands police, meant that the Government
could not now characterise the situation as one of mere lack of
preparedness.
- While
not suggesting that there had been any intention on the part of the
authorities to humiliate him or cause him suffering, the applicant
noted that the authorities had brought the situation about and had
consciously allowed it to endure rather than act to end it, evincing
a somewhat cavalier attitude. He stressed that his mental illness had
left him in a highly vulnerable state at the time, demanding a prompt
response. It was beside the point for the Government to say that the
applicant had at least been safe while at the police station. In
reality, he had been in dire need of psychiatric care, which was not
provided until the fourth day. There could be no justification for
situations that were incompatible with human dignity. Issues such as
the limited availability of hospital beds or nursing staff, or the
expectation that he would be charged by the police over the assault
on his aunt, were irrelevant. The authorities had created the
situation by arresting him, and should bear responsibility for the
consequences on him. His own behaviour during the period at the
police station should not be seen as hindering the authorities’
endeavours to arrange for his treatment, but as evidence of the
urgency of the case. Although he may not have been able to rationally
perceive the nature of his situation at the time, all of the medical
professionals who examined him noted that he was in an agitated and
anguished state. He had also been in an unhygienic and undignified
state. As for food and water, the custody record showed that his
intake during the last 40 hours in the police station had been
inadequate. Given the applicant’s very vulnerable condition,
there had been an obligation on the police to ensure his basic
physical needs were effectively met.
2. The Government
- The
Government underlined that they did not seek to defend as acceptable
the circumstances and conditions of the applicant’s detention,
but these did not warrant classification as treatment contrary to
Article 3. They explained that Reaside Clinic normally dealt with
patients who were subject to the criminal process, and had a waiting
list of 14 persons at the time of the applicant’s arrest. It
did not usually accept patients directly off the street, which
explained why staff there expected that the applicant would be
charged first, and why it had not been possible to make the necessary
staffing arrangements to admit him until the morning after his
assessment by Dr M. They had simply been unprepared, which was
insufficient to ground a violation of Article 3. While the
applicant’s symptoms were manifest, his medical history,
including his reaction to psychiatric medication, was unknown. This
posed risks that had to be carefully managed for the applicant’s
own safety as well as that of Reaside staff. As stated above, it had
taken eight trained staff to restrain the applicant when he arrived
there. There was no evidence that the experience had caused any harm
to the applicant. Nor was there any evidence from him, or offered on
his behalf, that he had in fact experienced fear, anguish or
inferiority, or had endured suffering or humiliation.
- The
Government considered that the most the applicant could complain of
was an additional 24 hours in the police station, which although
regrettable was not sufficient to reach the threshold of Article 3.
The cases cited by the applicant all related to far worse situations
that had lasted for far longer periods. The police had no choice but
to keep him at the police station while a bed was found for him; the
option of releasing the applicant was not open to them. Although the
applicant’s mental illness could not be treated at the police
station, it was nevertheless a place of safety for him since he was
under constant surveillance and would have received treatment for any
injury or harm inflicted. The police had provided him with adequate
food and drink during the period, either on their own initiative or
at his request. It had not been established that he had suffered from
a lack of nutrition or hydration, or that he would have fared better
in this respect in Reaside. The Government strongly rejected any
suggestion that the persons who dealt with the applicant displayed a
lack of concern. Nor had there been any intention to humiliate or
debase him. On the contrary, they had all sought to bring about his
transfer as soon as this could be arranged. Once admitted to Reaside,
the applicant had received adequate care and his condition had
improved.
- The
Government regretted that the treatment of the applicant fell below
the standard of best practice set for the health services in England.
Following the events in this case, the police and health authorities
in that area had agreed on a new policy to deal more rapidly and
effectively with such situations.
B. The Court’s assessment
- Article 3 of the Convention enshrines one of the
fundamental values of democratic society, prohibiting in absolute
terms torture or inhuman or degrading treatment or punishment (see,
as a recent authority and for further references, Stanev v.
Bulgaria [GC], no. 36760/06, § 201, 17
January 2012). It is the consistent case-law of the Court that
in order to come within the scope of the interdiction contained in
Article 3 the treatment inflicted on or endured by the victim must
reach a minimum level of severity. The assessment of this minimum
level of severity is a relative one, depending on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim (Price v. the United Kingdom,
no. 33394/96, § 24, ECHR 2001 VII). As for the concept of
degrading treatment, the Court has in its case-law described it as
treatment such as to arouse feelings of fear, anguish and inferiority
capable of humiliating or debasing the victim and possibly breaking
their physical or moral resistance (see Keenan v. the United
Kingdom, no. 27229/95, ECHR 2001-III, § 110). In considering
whether a punishment or treatment is “degrading” within
the meaning of Article 3, the Court will have regard to whether its
object is to humiliate and debase the person concerned and whether,
as far as the consequences are concerned, it adversely affected his
or her personality in a manner incompatible with Article 3. However,
the absence of any such purpose cannot conclusively rule out a
finding of a violation of Article 3 (Ramirez Sanchez v. France
[GC], no. 59450/00, § 118, ECHR 2006 IX; see also Price,
cited above, § 30).
- At
the heart of this case is the applicant’s severe mental illness
at the time in question. As the Court has stated in its case-law
under this provision of the Convention, the mentally ill are in a
position of particular vulnerability, and clear issues of respect for
their fundamental human dignity arise whenever such persons are
detained by the authorities (Dybeku v. Albania, no. 41153/06,
§ 41, 18 December 2007). The issue is whether the authorities
fulfilled their obligation to protect the applicant from treatment
contrary to Article 3 (Keenan, cited above, § 113).
- The
Court does not doubt that the initial arrest of the applicant on
6 December 2004 was justified. He had just perpetrated a violent
assault on his aunt and, in his highly agitated state, posed an
obvious danger both to public safety as well as to himself. Given
that the arrest occurred during the night, and the real possibility
at the outset of serious criminal charges being brought against him,
the initial removal of the applicant to a police cell, a designated
place of safety under the 1983 Act, is not open to criticism.
Moreover, the applicant has not made any complaint under Article 5 of
the Convention.
- It
is common ground between the parties that there was no intention on
the part of the police or the health authorities to treat him in a
manner incompatible with Article 3. The Court agrees. The detailed
record of his detention that has been provided to the Court evidences
real concern on the part of the police to see the applicant
transferred to a therapeutic setting as quickly as could be arranged.
It is clear that the police endeavoured continuously to bring this
about. In the meantime, as the Government have observed, the cell in
which the applicant was detained, and kept under observation, was a
place of relative physical safety for him. Nevertheless, for as long
as he remained there no psychiatric treatment could be provided to
him.
- In
his submissions the applicant criticised the reaction of the medical
personnel at the clinic to his situation, describing it as cavalier.
The Court does not accept this. The information provided by the
Government shows that Dr M. did not remain passive. Indeed, it points
rather to his readiness to firstly assess the applicant, and then
subsequently to admit him to the clinic, subject to adequate staffing
arrangements being made to ensure the personal safety of all
involved. His expectation until the middle of the third day that the
applicant would become subject to the criminal process does not
appear to the Court to be groundless or otherwise unreasonable.
- The
Court will next consider the applicant’s criticism of the
material conditions of his detention, the allegation being that his
intake of adequate liquid and food was not ensured. In this regard
the County Court found that his basic physical needs had been met.
The Court can agree with this, discerning no real inadequacy, let
alone neglect, on the part of the police in this respect. They
offered the applicant meals and drinks at intervals. Although the
police record states that he did not consume all of these, the Court
does not consider this to raise any distinct or additional issue.
- The
fact remains, however, that the applicant was in a state of great
vulnerability throughout the entire time at the police station, as
manifested by the abject condition to which he quickly descended
inside his cell. He was in dire need of appropriate psychiatric
treatment, as each of the medical professionals who examined him
indicated. The Court considers that this situation, which persisted
until he was at last transferred to Reaside early on the fourth day,
diminished excessively his fundamental human dignity. It refers
here to the opinion of the Committee for the Prevention of Torture,
cited above (see § 30 above). It is of some significance that
the applicant’s situation failed to respect both best medical
practice in England as well as the maximum time-limit set by
Parliament in the relevant legislation. Throughout the relevant time,
the applicant was entirely under the authority and control of the
State. The authorities were therefore under an obligation to
safeguard his dignity, and are responsible under the Convention for
the treatment he experienced.
- In
their submissions the Government regretted the incident and explained
how it came about. The Court can accept that the efforts made on the
applicant’s behalf were genuine, and that those who came in
contact with him were sensitive to his distress. The situation
appears to have arisen essentially out of difficulties of
co-ordination between the relevant authorities when suddenly
confronted with an urgent mental health case. The Government have
indicated that this incident led to an improvement in the standing
arrangements between the police and the health authorities to respond
more rapidly in such circumstances. While welcoming these
improvements, the Court is required to deal with the treatment to
which the applicant was subjected. Even though there was no intention
to humiliate or debase him, the Court finds that the conditions which
the applicant was required to endure were an affront to human dignity
and reached the threshold of degrading treatment for the purposes of
Article 3.
- In
conclusion, the Court finds that the applicant suffered degrading
treatment. There has therefore been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Article
13 of the Convention provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties’ observations
1. The applicant
- The
applicant complained of the manner in which the domestic courts had
examined his case. He argued that they had made an error of fact,
failing to take into account that his intake of food and water had
not been properly ensured. He also argued that they had not properly
followed the Convention case-law, failing to give sufficient
consideration to his particular vulnerability as a mentally ill
person. In other words, they had mischaracterised his claim. As a
consequence, the domestic courts had not been in a position to
provide him with a remedy. There had been no full hearing of the case
even though the County Court had acknowledged that it was arguable.
Instead, the judge had been swayed by the low level of damages
potentially available, compared to the cost of proceeding to a full
hearing. This disregarded both the applicant’s right to receive
compensation for non-pecuniary damage and the public interest in
seeing a case of this sort proceed to trial. The applicant did not
accept that his claim had failed on the facts. A similar line of
argument had been rejected by the Court in McGlinchey and Others
v. the United Kingdom, no. 50390/99, § 65,
ECHR 2003 V.
2. The Government
- The
Government noted that the applicant had had the possibility of
pursuing civil proceedings against the relevant health authority on
three bases; negligence, misfeasance in public office, and an action
for damages under the Human Rights Act. Each of these claims had been
duly considered by a District Judge and then, on appeal, by the
County Court. Summary judgment had been given against the applicant
because the County Court concluded that there was no real chance or
prospect of success. Regarding the claim based on Article 3, the
County Court had taken account of the relevant Convention case-law.
There was nothing inherently ineffective about the claim under the
Human Rights Act. Accordingly, the applicant’s complaint
amounted to little more than a complaint of an unfavourable outcome.
B. The Court’s assessment
- The
Court refers to its settled case-law to the effect that Article 13
guarantees the existence of a domestic remedy to deal with the
substance of an “arguable complaint” under the Convention
and to grant appropriate relief. Contracting States are afforded some
discretion as to the manner in which they conform to their
obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant’s
complaint under the Convention. Nevertheless, the remedy required by
Article 13 must be “effective” in practice as well as in
law (see McGlinchey, cited above, § 62). Where,
as in the present case, the Court has found a breach of Article 3,
compensation for the non-pecuniary damage flowing from the breach
should in principle be part of the range of available remedies
(ibid., § 63).
- It
necessarily follows from the Court’s conclusion under Article 3
that the applicant did have an “arguable complaint” under
that provision. He therefore had the right to a remedy capable
of dealing with the substance of his complaint, and of granting any
appropriate relief
- The
Court considers that an appropriate remedy was available in the
domestic law. The two courts that considered the applicant’s
case assessed it in relation to three possible remedies, in
particular a claim for damages under the Human Rights Act. That the
outcome was not favourable for him does not mean that the remedy was
in principle ineffective. Compliance with Article 13 does not depend
on the certainty of a favourable outcome for an applicant (Ramirez
Sanchez, cited above, § 159). Nor, for the purposes of
Article 13, is the domestic courts’ assessment invalidated by
the fact that this Court has reached the contrary conclusion on the
applicant’s Article 3 complaint.
- The
applicant criticised the fact that before the District Court his case
was disposed of by summary judgment, and that the cost of legal aid
was given more weight than the interest in a full determination of
his claim. The Court does not consider these points to be
significant, it being clear from their judgments that each court
heard detailed submissions from the applicant’s counsel, and
reasoned their decisions at some length.
- In
conclusion, there has been no violation of Article 13 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant asked the Court to award him EUR 6,000 as compensation for
non-pecuniary damage.
- The
Government considered that the finding of a violation would provide
sufficient just satisfaction to the applicant. In any event, it
regarded the sum claimed as excessive in comparison with sums
recently awarded by the Court to applicants who had ensured
significantly more humiliating and debasing conditions of detention.
- Having
regard to all the circumstances in this case, the Court decides to
award the applicant the sum of EUR 3,000.
B. Costs and expenses
- The
applicant claimed a total of GBP 13,975 net of VAT for counsel’s
fees incurred in the proceedings before this Court, plus GBP 506.67
for his solicitor’s costs and expenses.
- The
Government submitted that the sums claimed were excessive. The
complexity of the case was not such as to justify either the amount
of time billed by the first counsel (26.5 hours), or the involvement
of additional counsel, who charged for 38 hours’ work on the
case. It suggested that GBP 2,000 would be an appropriate award for
both counsels’ fees.
- The
Court shares the Government’s view that the present case was
not especially complex, and therefore considers the sum claimed for
counsels’ fees to be too high. Taking account of the EUR 850
already received in legal aid from the Council of Europe, it awards
instead EUR 7,500 euros, plus a further EUR 650 for solicitor’s
costs and expenses, both sums inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds, unanimously, that there has been a
violation of Article 3 of the Convention;
- Holds, by six votes to one, that there has been
no violation of Article 13 of the Convention;
- Holds, unanimously,
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable on this sum, in respect
of non-pecuniary damage, to be converted into pounds sterling at the
rate applicable at the date of settlement;
(b) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,150 (eight thousand
one hundred and fifty euros), plus any tax that may be chargeable to
the applicant on this sum, in respect of costs and expenses, to be
converted into pounds sterling at the rate applicable at the date of
settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s claim
for just satisfaction.
Done in English, and notified in writing on 3 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
