Criminal Justice in Europe: A Comparative Study

detained is of unsound mind, and that no such evidence had been available to the Home Secretary at the time when he issued the warrant.⁹⁰ The Court of Appeal rejected this argument on the basis that the wording of the English provision was clear, and there was no requirement that the Secretary of State must act on medical evidence of mental disorder. The court applied the principle laid down in R. v. Secretary of State for the Home Department, ex parte Brind⁹¹ that where the words of an English statute are plain and unambiguous it is not open to the English courts to look to the Convention for assistance in their interpretation.

K's appeal was dismissed. He has since applied to the European Commission on Human Rights. The Court of Human Rights has repeatedly stressed that national authorities have a certain margin of appreciation as to what is mental disorder of a nature warranting confinement, but has also maintained a commitment to the principle in Winterwerp that, except in emergencies, objective evidence of mental disorder is required.⁹² K's application, was declared admissible by the Commission on 8 July 1993.⁹³

An important contrast between the two systems is that, while in the Netherlands detention of an offender under a TBS or under the civil law is extended only by the court after judicial proceedings, in England and Wales the extension procedure is essentially administrative, and the patient can challenge the decision to extend after it has been made, rather than participate in making it. In the case of non-restricted patients, the hospital managers extend the detention on the application of the patient's psychiatrist. With restricted patients, the detention need not be renewed while the restriction order is in force, and it may be imposed without limit of time.

In both jurisdictions review of psychiatric detention has traditionally been conducted in a strongly inquisitorial style where the main role played by the patient was at worst as a piece of evidence to be examined by the medical profession, or at best as a key witness. The influence of Winterwerp and X v. United Kingdom has been to introduce entitlements for patients to more active participation in the hearings, and to provide them with a measure of equality of arms through legal aid.

The English and Dutch systems are very different in terms of the sheer numbers of patients being looked after, and the relative sizes of prison population. This may explain the ability of the Dutch system to develop

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