Cotterham v UK [1999] ECHR 185

The 10-month delay between the MHRT application and the hearing at first sight appeared to be a breach of Article 5(4); however, in the circumstances, there was no lack of diligence on the part of the judicial authorities: the delays were due to postponements for an independent report which arrived late and was served later still, and for the solicitor to be available.

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 1999 are available here: MHLR 1999. 1999 97

Delays in Tribunal hearings – whether 10 months between application and hearing breached Art 5(4) ECHR - Jean Cotterham v UK [1999] MHLR 97

Points Arising: A question of delay in a mental health tribunal is to be considered under Art 5(4) rather than Art 6(1) ECHR; a 10-month delay is at first sight in breach of the requirement of speediness, which the judicial authorities have to ensure is met, but allowing a patient time to have a report by a psychiatrist of her choice and fixing a date that was convenient for solicitors of her choice meant that there was no lack of due diligence and so the complaint was inadmissible.

Facts and Outcome: JC was a restricted patient who had been conditionally discharged but then recalled to hospital. She complained about the delays in a Tribunal hearing based on an application made on 20 May 1996 and received by the Tribunal on 24 May 1996; on 18 June 1996, legal aid was allowed for an independent psychiatric report, and JC’s solicitors asked that the Tribunal hearing be fixed around mid-September 1996 to allow the report to be prepared, though in fact the psychiatrist did not see her until 19 September 1996 and did not provide a report until 11 February 1997; all other reports were available; a hearing date was offered for 5 March 1997 but JC’s solicitors were not available; the hearing took place on 25 March 1997, and resulted in a decision not to discharge. The Court, considering the case under Art 5(4) rather than 6(1), held that, whilst the relevant court had to ensure expedition and a 10 month delay was not speedy at first sight, there was no breach of Art 5(4) as time was allowed for the preparation of a report by a psychiatrist of her choice and for her solicitor to be free (failure to allow which might have meant that the hearing was not fair), and so there was no lack of due diligence by the Tribunal. As such, there was no breach of Art 5(4) and the application was inadmissible as ill-founded.

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