TOOMEY v. THE UNITED KINGOM
Inadmissible
Nicolas Bratza
The applicant is a British citizen, born in 1958 and he is currently in prison in Derbyshire. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 December 1983 the applicant pleaded guilty to assault occasioning actual bodily harm and to wounding with intent. Both charges related to unprovoked and serious assaults on two different women, the latter victim having been beaten and stabbed in the neck three times by the applicant. The applicant received a life sentence on the latter charge and no separate sentence on the former. The trial judge had before him a medical report on the applicant which showed an abnormal encephalogram with symptoms of disturbed behaviour associated with abnormal electrical activity in the temporal lobe of the brain. A psychiatric report dated 21 November 1993 considered that anticonvulsive drugs were required for this condition, that antidepressants were required for his recurrent depression and that he needed observation in secure surroundings where he could have further tests, surveillance and study. The trial judge made it clear that the imposition of the life sentence was to ensure that the applicant would not be a liberty until those responsible for his supervision were satisfied that the risk he posed to the public, and particularly to young women, was gone. The Court of Appeal rejected his appeal against sentence by judgment dated 7 June 1984. That court described the attacks as “horrifying” and noted that, while the applicant had initially denied the attacks, he had then stated that he had committed them in revenge for a sexual assault on him by a man when he was 18 years old. The applicant was subsequently diagnosed as suffering from a psychopathic disorder within the meaning of the Mental Health Act 1983 and in July 1985 he was transferred under section 47 of the 1983 Act to a psychiatric hospital. In April 1989 the applicant was transferred back to the prison system because he was not deemed suitable for treatment. Following a Parole Board review, he was transferred in January 1992 to HM Channing Wood prison which was a progressive move to less secure Category C conditions. The applicant completed his non-vocational industrial skills qualifications there. Following another Parole Board review, he was transferred in March 1994 to open conditions in HM Leyhill prison where he completed a “supervised resettlement and lifer skills” course. On 7 September 1995 a discretionary life panel (“DLP”) of the Parole Board reviewed the applicant's case. A number of very positive reports were before the DLP, all referring to his past sexual identity problems and all (but one) recommending without reservation his release on licence. The report of the Governor of HM Leyhill prison noted that the applicant accepted full responsibility for his behaviour and sincerely regretted what he had done and concluded that the risk posed by the applicant on release would be minimal. The principal officer in the “lifer unit” at HM Leyhill prison indicated that the applicant had been working in the community and had had two home leaves all of which had gone well. His behavioural record was excellent and his performance was first class. The psychologist's report dated 20 March 1995 considered the applicant's attitude to his offences to be appropriate. It detailed, under the heading “Insight into offence related behaviour”, the applicant's sexual identity problems which included a prior and long period of transsexualism and a homosexual relationship in prison. However, it was noted that the applicant had worked through these matters and had now come to terms with his male heterosexual identity. The psychiatric report dated 27 March 1995 considered that the applicant had been angry because of his frightening childhood, his being sexually assaulted when he was young, his serious speech impediment, he felt trapped at the time of the offences in an unhappy common-law marriage and as a result of his transsexual feelings. It was felt that a combination of this anger and his inability to communicate was the explosive combination that led to the offences. That report detailed the reasons for his sexual identity issues and, noting that these issues had been resolved by the applicant and that he had a stable relationship for a number of years with a woman, the psychiatrist could not see how he could be a danger on release. Two probation officer reports were equally supportive of the applicant's release. A third probation report did provisionally express some reservations about the depth of the applicant's understanding of his offences referring, inter alia, to his sexual identity problems and noting that such problems were considered in many previous reports to have been one of the main factors in the applicant's offences. The DLP directed the applicant's release on licence, one of the conditions being that he reside at a probation hostel. The applicant was conditionally released on 18 September 1995. On 22 November 1995 the probation service submitted a report outlining certain concerns about the applicant's behaviour. It was noted that the applicant had been observed by hostel staff taking an undue interest in a woman residing opposite the hostel. The probation service had also found a bread knife, a pair of binoculars, a pair of handcuffs, women's clothing, women's clothing catalogues and a fetishist catalogue in the applicant's room. Concern was also expressed about the applicant's relationship with prostitutes. Given his offences and his history of mental instability, the probation service no longer felt in a position to be able to supervise him safely in the community and recommended his immediate recall. On 23 November 1995 the applicant's licence was revoked by the Secretary of State under Section 39(2) of the Criminal Justice Act 1991 and he was taken to prison. The DLP confirmed his recall on 1 December 1995. On the applicant's initiative, his case was re-examined by the DLP on 27 March 1996, the DLP hearing the applicant and his counsel together with evidence from a psychologist and psychiatrist. The DLP found no convincing explanation from the applicant for most of the matters noted in the probation service report. At the request of the applicant's counsel, the panel recommended that certain investigations be carried out. These included a full neurological and a full neuro-psychological assessment, EEG and CAT scans, an investigation of the applicant's sexual identity and possible fetishism and, thereafter if appropriate, investigation of a possible sexual motive for the offences for which he had been convicted in 1983. The panel also recommended assessment for the Sex Offenders Treatment Programme (“SOTP”) and consideration of the applicant's transfer for treatment if a sexual motive for his offences was established. These recommendations were accepted by the Secretary of State. Prior to his transfer to HM Albany prison, the applicant requested clarification from the prison authorities of whether he was being transferred to HM Albany prison to take part in the SOTP or to be assessed for such a course. The reply stated that “you are going to do a SOTP course”. On 24 July 1997 the applicant was moved to HMP Albany prison. On 8 and 15 September 1997 the applicant requested copies of the results of various tests he had already undergone and information on further tests to be done. He was informed, inter alia, that he was on the waiting list for the Penile Polygraph (PPG) assessment. Further to another query the applicant was furnished, on 1 October 1997, with certain results of previous tests and with the question and answer leaflet on the PPG test (detailed above at “Relevant domestic law and practice”). On 29 September 1997 the applicant met with a senior psychologist who explained to him the proposed PPG procedure and the nature of the material which it was planned to use. The purpose of doing so was to ensure that the applicant agreed to the PPG assessment and was prepared for it in order to avoid extreme reactions during the test which would limit its usefulness. The applicant was reticent but agreed to participate in the test. On 3 October 1997 the applicant underwent his first PPG test and it lasted 1 hour and 20 minutes. A female trained technician conducted the tests. The applicant was put in a small room without windows and with bolts both inside and outside the door. Two electrodes were attached to his left index and middle finger. A video recorder was adjusted to the level of his face and the operator left the room although monitoring of the applicant was possible via a camera and a microphone. The applicant then had to attach a sensor clip to his penis and to leave his underpants and trousers removed throughout the test. The applicant was shown three categories of material. The first category (designed to discover any age preferences) was a set of slides comprising nude images of young children, pubescent and adult males and females. The images were produced in the United States for the purpose of the PPG assessment and all images were single frontal nudes, either sitting, standing or prone but not posed in a deliberately erotic fashion. The second category was a set of video sequences depicting consensual sex, rape and non-sexual violence. The sequences were also produced for the PPG assessment. The third category was a set of slides depicting young men and women in more erotic poses than in the first set of slides, elderly naked women in relatively non-erotic poses and women in bondage poses. The latter images were all obtained from soft-core pornographic magazines such as could be openly and legally published in specialist shops. The slides were left on for about 20 seconds and each was shown approximately six times. Each video lasted about a minute. The videos and slides were shuffled, being shown in no particular order. The television on which the slides and videos were shown was at eye level about 18 inches from his face and the applicant's head was kept steady by a headrest on the back of the chair. The test then continued with a 'key score' pad, the applicant being requested to score from 0-9 his sexual attraction to the same slides which he was again shown, each slide being shown six times. His second PPG test was conducted on 6 October 1997. It lasted 40 minutes, was similar to the first but the applicant was shown slides only. The slides were each shown six times and in no particular order. The document headed “PPG results” for 3 October 1997 noted that the applicant had consented to the test because he wanted a transfer from Albany Prison. As regards the slides, it was recorded that the greatest response of the applicant was to male children and that his responses to adults was low. As to the videos, it was noted that his response to aggression was higher than would be expected. It was also noted that the applicant was not happy with the violent scenes as it brought back bad memories of the offences. The general remarks recorded in his test results after 6 October 1997 was that his preferences were “non-deviant” given that his greatest responses was to adult females. In a report dated 19 November 1997 a forensic psychologist from Albany prison assessed the applicant based on the PPG test results and other formal and informal assessment procedures. It was noted that the applicant did not have an “index” conviction including a sex offence, an index offence which included an unconvicted sex offence, a previous conviction for a sex offence nor any other indications that his sexual behaviour could, at any point, be deemed inappropriate. However, given the reasons for his recall, the report focussed upon behavioural trends present which may or may not imply a future sex offence. The test disclosed no strong indication that there were risk factors and indicated that he did not have a deviant PPG profile. In the circumstances, together with the absence of any indication of substance abuse or of any relevant previous convictions of note, the conclusion was that the applicant presented a low risk case of re-offending. As to the items found in his possession prior to recall, this report noted they provided no substantive evidence on which to base a risk of re-offending. It was noted that the initial PPG assessment demonstrated a mysogynistic profile rather than one which is directly indicative of his deriving sexual pleasure from inflicting aggressive action upon others. Given this initial assessment, the second PPG test had been tailored to focus on that mysogynistic profile and the second test had indicated that his profile was non-deviant. The report therefore concluded that the principle concern in the applicant's case was his resentment of females rather than a pro-active desire to harm them for sexual gratification. As to the applicant's convictions, the psychologist noted that although there was an opportunity for, there was no evidence of, sexual interference with the victims. It was considered not insignificant that the victims were both women but the offences should not be considered for that reason sexual assaults. That psychologist did not consider the applicant a candidate for the SOTP. However, given the applicant's deep seated resentment of females in his life, it was highly recommended that the applicant continue the Enhanced Thinking Skills Programme he had begun and pursue other relevant treatment programmes. B. Relevant domestic law and practice A document entitled “Your questions and answers about the PPG” produced by the prison authorities reads as follows: “What is the PPG? It is a test that helps us to understand the direction and extent of a man's sexual interest. What is the point of the test? It is important for us to know if you are aroused inappropriately, as it will help us to tailor the treatment to best help you. How does it work? You will be asked to put a clip around your penis. You will be able to feel it in place but it will not hurt. The clip can detect changes in the size of your penis. Who will carry out the test? The test will be carried out by a trained psychologist. Your privacy will be respected at all times, and when you are undergoing the test you will be sitting alone in a separate room. Do I have to do the test? It is an important part of the Sex Offender Programme. We feel that we cannot successfully treat people's offending if we do not have full information about the nature and extent of their sexual interest. What will I have to do? After you have fitted the PPG clip you will sit in front of a television and you will be shown some pictures of males and females of various ages. You will also be shown some movies. The pictures you will be shown are the same for everybody, and nothing is more explicit than the kinds of things you might ordinarily see on the TV or in the newspapers. Is it safe? Every care is taken to ensure your safety. The equipment is made to very high standards and is regularly tested. It would be impossible for it to give you a shock - even in the unlikely event of something breaking down the voltages used are very low and quite safe. The equipment is fully sterilised every time it is used and so no diseases can be passed on. Will I be given electric shocks. No. Electric shock treatment IS NOT USED. Are the results confidential? The PPG is an important part of the Sex Offender Programme and it is important that the Tutors have as much information about the people on the programme as is possible. The programme staff however will NOT gossip about your results to other staff or to inmates. What if the test shows an interest that does not exist? Men can have an abnormal sexual interest for a lot of reasons, and just because they have an unusual interest it does not necessarily mean that they will act on it. But if someone has offended in a particular way and his PPG results show a sexual interest in that direction we know that to help him avoid further offending we must help him to do something about the sexual interest. Can the PPG prove that I did (or didn't) commit an offence? NO. It is not possible to say that someone is guilty of an offence simply because they show sexual interest in that direction. The point of a PPG is to help plan the treatment of someone who is known to have committed an offence.”