[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DARNELL v. THE UNITED KINGDOM - 15058/89 [1993] ECHR 47 (26 October 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/47.html Cite as: (1994) 18 EHRR 205, [1993] ECHR 47, 18 EHRR 205

[New search] [Contents list] [Help]

In the case of Darnell v. the United Kingdom*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr B. Walsh,

Mr C. Russo,

Mr N. Valticos,

Mr S.K. Martens,

Mrs E. Palm,

Mr A.N. Loizou,

Sir John Freeland,

Mr A.B. Baka,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 22 April and

24 September 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 34/1992/379/453. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 11 September 1992, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 15058/89) against the United Kingdom of Great Britain

and Northern Ireland lodged with the Commission under Article 25

(art. 25) on 2 December 1988 by a British citizen, Dr Royce Darnell.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United Kingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 para. 1 (art. 6-1) of the

Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 26 September 1992, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr C. Russo,

Mr S.K. Martens, Mrs E. Palm, Mr A.N. Loizou and Mr A.B. Baka

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently Mr N. Valticos, substitute judge, replaced

Mr Thór Vilhjálmsson, who was unable to take part in the further

consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent of

the Government of the United Kingdom ("the Government"), the

applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). In

accordance with the order made in consequence, the Registrar received

on 29 January 1993 the applicant's memorial and, on 1 February, the

Government's. On 15 April 1993 he was informed by the Commission's

secretariat that the Delegate would submit his observations at the

hearing.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

20 April 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mrs A. Glover, Legal Counsellor, Foreign and

Commonwealth Office, Agent,

Mr M. Baker, Q.C., Counsel,

Mr G. Berry, Department of Health,

Mr M. Evans, Department of Health,

Mr J. Evans, Trent Regional Health Authority, Advisers;

(b) for the Commission

Mr L. Loucaides, Delegate;

(c) for the applicant

Ms F. Hampson, senior lecturer in law at the

University of Essex, Counsel.

The Court heard addresses by Mr Baker for the Government, by

Mr Loucaides for the Commission and by Ms Hampson for the applicant,

as well as replies to its questions.

AS TO THE FACTS

6. The applicant, Dr Royce Darnell, who was born in 1929, has been

unemployed since the Trent Regional Health Authority ("the RHA")

terminated his employment as a consultant microbiologist and Director

of the Public Health Laboratory in Derby. This case concerns the

length of time that proceedings relating to this dismissal have taken.

7. Following administrative changes in the National Health Service

in 1977, management problems arose in many regions including the Trent

RHA. As a result of differences over staff appointment procedures, in

October 1979 a local grievance procedure was initiated against

Dr Darnell before the Area Health Authority ("the AHA") by the

Association of Scientific, Technical and Managerial Staffs.

Although Dr Darnell was considered by the British Medical

Association's legal department to have been acting within the terms of

the Government's guidelines in Health Service Circular (IS) 16, the AHA

endorsed the new appointments procedure.

8. Following further disagreement, a formal complaint was made in

December 1980 by the AHA to the Trent RHA alleging non-compliance with

laboratory staff appointment procedures. Dr Darnell was informed by

letter of 19 March 1981 that a sub-committee had been set up to deal

with the AHA's formal complaint.

After various investigations had been carried out, a

disciplinary procedure under circular HM (61) 112 was instituted

against Dr Darnell by the Trent RHA. By letter of 25 June 1982 he was

suspended from duty pending the outcome.

9. After attempts to settle the case had failed, a panel of

inquiry sat for thirty-two days between June and August 1983. It

reported in December that the applicant was at fault in certain

respects.

A sub-committee subsequently appointed by the Trent RHA

recommended that Dr Darnell's employment as a consultant microbiologist

be terminated. Accordingly, by letter of 16 May 1984 from the Trent

RHA, the applicant was dismissed on three months' notice with effect

from 19 August 1984.

10. The applicant appealed to the Secretary of State against his

dismissal on 23 May 1984. A professional committee was appointed in

accordance with paragraph 190 of the Terms and Conditions of Service

of Hospital Medical and Dental Staff. The paragraph 190 procedure has

since been replaced by a new procedure which incorporates time-limits

into the various stages of an appeal to the Secretary of State against

dismissal.

After holding a hearing on 14 May 1985, the professional

committee reported to the Secretary of State who, in September 1985,

sought further information.

11. The Secretary of State directed the RHA to offer Dr Darnell a

new post in the region without managerial responsibility. In reaching

this decision the Secretary of State had noted that the professional

committee had been very critical of the handling of the case.

The RHA challenged this direction. The applicant was informed

by the Department of Health and Social Security ("the DHSS") that in

view of the unavailability of alternative employment, the case had been

remitted to the Secretary of State who, not being bound by the

professional committee's recommendation to allow the appeal, had

decided that the termination of Dr Darnell's services in accordance

with the paragraph 190 procedure should be confirmed.

12. By judicial review proceedings commenced in the High Court on

24 April 1986, the applicant challenged the fairness of the procedure

leading to the Secretary of State's decision. The High Court granted

a declaration that this decision was invalid and indicated that the

Secretary of State should reconsider the matter. The Secretary of

State did not appeal.

13. On 25 October 1986 the applicant informed the DHSS that he now

sought a further paragraph 190 hearing. An exchange of correspondence

took place. The DHSS attempted to convoke an ad hoc committee meeting,

but this was cancelled as the applicant refused to accept such a

compromise. On 29 February 1988, having proceeded on the basis of the

written material which included further written submissions, the

Secretary of State decided to confirm the applicant's dismissal.

Accordingly, by letter of 18 March 1988, the DHSS informed the

applicant that, on the basis of the professional committee's report of

25 July 1985 and the written submissions made by Dr Darnell and the

Trent RHA, re-employment was not a possibility and termination of his

services was effective from the date of that letter.

14. The applicant's application for judicial review of the validity

of the Secretary of State's direction was dismissed on 3 November 1988.

15. In the meantime, the applicant had also sought reinstatement,

re-engagement and damages for dismissal by proceedings in the

Industrial Tribunal. Two applications had been made to the Tribunal,

the first on 10 August 1984 following his dismissal in May of that year

and the second in May 1986 following the Secretary of State's initial

rejection of his appeal against dismissal. These proceedings had been

stayed from time to time at the applicant's request, pending the

results of the appeal to the Secretary of State and the judicial review

proceedings.

In November 1988, the second Industrial Tribunal application

was revived and the first was subsequently withdrawn. A pre-hearing

assessment took place on 6 February 1989 in which the Tribunal

determined that a hearing could take place with no cost consequences

to the applicant.

In its reserved decision of 23 February 1990, the Tribunal held

that the dismissal of the applicant was not unfair. It had not been

persuaded that the applicant had in any way been prejudiced by the time

which had elapsed until a decision was finally reached. He had been

paid his salary in full until March 1988.

16. The applicant's appeal to the Employment Appeal Tribunal was

dismissed on 8 April 1993.

17. In June 1988 a separate action in the High Court claiming

damages for the applicant's suspension from work in June 1982 pending

the outcome of the disciplinary procedure was struck out as it

disclosed no reasonable cause of action. An appeal against the

striking out was dismissed in 1990.

PROCEEDINGS BEFORE THE COMMISSION

18. Dr Darnell lodged his application (no. 15058/89) with the

Commission on 2 December 1988. He complained under Article 6 para. 1

(art. 6-1) of the Convention that the "civil rights" proceedings taken

against him which led to the final termination of his employment took

an unreasonable length of time; he also alleged that the Secretary of

State and the RHA had followed a procedure which was neither fair nor

public and that the former was not independent or impartial. In

addition, he claimed that, contrary to Article 13 (art. 13), he had no

effective domestic remedy for those Convention complaints.

19. On 10 April 1991 the Commission declared the applicant's

complaint concerning the length of the proceedings admissible and

dismissed the remainder of his application. In its report of

13 May 1992 drawn up under Article 31 (art. 31), it expressed the

opinion that there had been a violation of Article 6 para. 1 (art. 6-1)

(unanimously).

The full text of the Commission's opinion and of the concurring

opinion contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 272 of Series A

of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

20. Dr Darnell complained that the length of the proceedings

relating to the termination of his employment by Trent RHA constituted

a breach of Article 6 para. 1 (art. 6-1) of the Convention, according

to which:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ..."

This allegation was supported by the Commission and is no

longer contested by the Government.

21. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

In view of the Government's concession that there has been a

violation, the Court does not consider it necessary to rule on the

dispute between the participants as to the starting date of the period

to be taken into consideration in the present case. Even if the Court

were to adopt the Government's position that, at the earliest, it

should start to run from 10 August 1984, the date of the initial

application to the Industrial Tribunal (see paragraph 15 above), the

lapse of time of nearly nine years until the Employment Appeal Tribunal

gave its reserved judgment on 8 April 1993 cannot, in the circumstances

of the present case, be regarded as "reasonable".

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

22. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of this Court shall, if necessary, afford just

satisfaction to the injured party."

A. Non-pecuniary damage

23. Dr Darnell sought £5,000 by way of compensation for the

considerable stress and strain which he has suffered over the years in

which he has been fighting legal battles instead of practising

medicine.

24. The Court notes that Dr Darnell's medical competence was not

challenged or criticised, but he none the less suffered serious damage

to his professional career as a result of time lost from the practice

of medicine.

The Court acknowledges the public apology which was given to

Dr Darnell by the Government's representative at the hearing before it.

It takes the view, however, that in all the circumstances further

satisfaction is required and accordingly holds that the applicant

should be awarded the amount claimed.

B. Costs and expenses

25. For lawyer's fees and disbursements, Dr Darnell sought

reimbursement of the sum of £3,922.11 less the 6,025 French francs

already paid by way of legal aid provided by the Council of Europe in

respect of the proceedings before the Court. No claims were made for

travel and subsistence expenses, which were covered by the above grant

of legal aid.

26. Having examined the claim, which the Government accepted was

reasonable, in the light of the criteria emerging from its case-law,

the Court finds that the applicant should be awarded the amount claimed

in its entirety and that this figure should be increased by any

value-added tax that may be chargeable.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 para. 1

(art. 6-1);

2. Holds that the respondent State is to pay to the applicant,

within three months:

- £5,000 (five thousand pounds) by way of compensation for

non-pecuniary damage;

- £3,922.11 (three thousand nine hundred and twenty-two pounds

and eleven pence) by way of legal costs and expenses less

6,025 (six thousand and twenty-five) French francs, together

with any value-added tax that may be chargeable.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 26 October 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar