England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(THE HONOURABLE MR JUSTICE HOLMAN)
[2007] EWHC 1028 (Admin), (2007) 10 CCLR 464

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/03/2008

Lord Justice Keene:

1. This appeal and cross-appeal raise issues about the statutory provisions under the Mental Health Act 1983 ("the 1983 Act") dealing with convicted persons detained in hospital because of their mental condition and about the right such persons have under Article 5(4) of the European Convention on Human Rights ("ECHR") to take proceedings to obtain a speedy determination by a court of the lawfulness of their detention. The appeals are brought from a judgment of Holman J dated 23 April 2007 in the Administrative Court.

The Statutory Context:

2. Under section 37 of the 1983 Act, a criminal court may in certain circumstances order the detention in hospital of a person who has been convicted, if satisfied that that person is suffering from a mental disorder which meets the conditions set out in section 37(2). A Crown Court may also then make a restriction order in respect of the offender, if his offence, antecedents and the risk of further offences make such an order necessary for the protection of the public from serious harm: section 41(1). The effect of such a restriction order is to remove the ability of the responsible medical officer and the hospital to order the patient's discharge from hospital, a power which exists where an unrestricted hospital order has been made under section 37. The Secretary of State is, generally speaking, given greater powers of control in respect of those subject to a restriction order: see, for example, section 42.
3. Such restricted patients may nonetheless apply after six months in the first instance and at intervals thereafter to a Mental Health Review Tribunal ("MHRT") under section 70, and their case may also be referred to a MHRT by the Secretary of State under section 71. In certain circumstances the Secretary of State must make such a reference. The MHRT then has, by virtue of section 72 and 73, the power and in some cases the duty, to discharge the patient from hospital, either absolutely or conditionally. If a restricted patient is discharged conditionally, the Secretary of State may at any time recall him by warrant to a hospital specified in the warrant: see sections 73(4)(a) and section 42(3). As we shall see, this is the situation which arose in the present case.
4. Having been recalled to hospital, section 75(1) then operates. Its provisions are at the heart of this case. It reads as follows:

"(1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital-

(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; and

(b) section 70 above shall apply to the patient as if the relevant hospital order[, hospital direction] or transfer direction had been made on that day."

5. Once such a reference has been made, the procedure is then governed by the Mental Health Review Tribunal Rules 1983. Rule 29 of those Rules is of particular relevance, especially rule 29 (cc) which states:

"(cc) where a reference is made under section 75(1) of the Act, on receipt of the reference the tribunal shall

(i) fix a date for the hearing being not later than eight weeks, nor earlier than five weeks, from the date on which the reference was received;

(ii) fix the time and place for the hearing; and

(iii) give notice of the date, time and place of the hearing to the patient, the responsible authority and the Secretary of State,"

The Facts:

6. The respondent, Daniel Rayner, was convicted in April 2002 of assault and possession of an offensive weapon. He was diagnosed as suffering from schizophrenia, and in August 2002 the Crown Court made hospital and restriction orders under section 37 and 41 of the 1983 Act. In August 2004 an MHRT directed his conditional discharge under section 73. He was duly released, but in May 2005 he was readmitted as a voluntary patient to Pembury Hospital in Kent. He was thus already in hospital when, on 14 June 2005, the Secretary of State for the Home Department issued a warrant under section 42(3), formally recalling him to that hospital. From that date the respondent was being compulsorily detained in hospital under the 1983 Act.
7. Given the terms of section 75(1) set out earlier, the Secretary of State was required to refer Mr Rayner's case to an MHRT before, at the latest, 14 July 2005. The specialist unit within his Department was, of course, well aware of this statutory duty, but it is not in dispute that the duty was not performed within the specified time. A letter from solicitors acting on behalf of Mr Rayner and dated 4 August 2005 produced a reply from the Department, dated 8 August 2005 and stating as follows:

"Thank you for your letter of 4 August 2005 to Mr Pocock, who has now left this office.

I regret to inform you that, due to an oversight, a referral to the Mental Health Review tribunal was not made following Mr Rayner's recall to hospital in June. Please accept my apologies for this error.

A referral letter has been sent to the Tribunal office today."

A witness statement in the proceedings by a caseworker in the Mental Health Unit of the Department, Mr Chris Kemp, explains that the oversight was due, at least in part, to the involvement of a temporary member of staff. It is not suggested by either party that the failure to comply with section 75(1) was the result of anything but an oversight. That cuts both ways, since it means that there is no attempt by the Department to justify the delay on any rational basis. The fact that there has been a breach of the statutory duty is not in issue.

8. The reference having been made on 8 August 2005, the MHRT initially arranged that the hearing should take place on 27 September 2005, but that date had to be vacated because of problems in providing the necessary reports in time. A detailed description of those problems is given in Holman J's judgment, but I need not cover those aspects in detail since there is no appeal against his finding that neither the MHRT nor the Trust responsible for the hospital was in breach of any duty owed to Mr Rayner. The MHRT hearing eventually took place on 28 October 2005. The tribunal directed the conditional discharge of Mr Rayner, but as one of the conditions was only fulfilled on 12 January 2006, it was only on that date that he was discharged.

The Issues:

9. The issues in this case arise from Article 5(4) of the ECHR, part of the article dealing with the right of liberty and security of person. Article 5(1) allows for certain exceptions to that right, one of which is sub-paragraph (e),

"the lawful detention … of persons of unsound mind … ."

Article 5(4) confers a further right. It provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

That is an additional and free-standing right, as one would expect: see De Wilde, Ooms and Versyp v. Belgium [1971] EHRR 373 at paragraph 73. There is no dispute that an MHRT constitutes "a court" for the purpose of Article 5(4) and that it is empowered to decide whether a patient's detention is lawful or not. It can order his release if it concludes that the detention is unlawful: see section 73. The matters which are in issue in this case derive from two features of Article 5(4): first, the requirement that the court's decision should be made "speedily" raises questions about the timescale of the procedures under section 75(1) and rule 29 of the Mental Health Review Tribunal Rules. Secondly, the wording of Article 5(4) to the effect that the detainee "shall be entitled to take proceedings" by which the lawfulness of his detention shall be decided gives rise to the issue of whether the duty on the Secretary of State under section 75(1) to make a reference to an MHRT suffices to meet that requirement and, if not, whether any other available legal procedures make up the deficiency. There is considerable Strasbourg jurisprudence in recent years on this latter topic.

(i) Timescale:

10. Before Holman J it was submitted on behalf of Mr Rayner that the maximum of one month allowed under section 75(1) to the Secretary of State for the making of a reference to an MHRT after the return of a patient to hospital was, particularly when seen in combination with the eight weeks then allowed under rule 29(cc) for a hearing date, incompatible with the requirement of a speedy decision and that a declaration of incompatibility in this respect should be made. Holman J rejected that submission. He concluded that section 75(1) could be read and given effect to in a way compatible with the Article 5(4) right, in that it in no way prevented the Secretary of State from making an immediate reference. All that it did was to set an outer time limit on references.
11. It is no longer contended before this court that these domestic provisions are incompatible with Article 5(4) in so far as they deal with timescale. Mr Bowen, who appears on behalf of Mr Rayner, has made it clear that a declaration of incompatibility is not sought on this aspect of the case. In my view, that is a proper concession. Section 75(1) can be operated in a way which is compatible with the patient's right under Article 5(4), since it does not prevent a prompt reference by the Secretary of State and a speedy decision by the MHRT. Section 3(1) of the Human Rights Act 1998 requires that, so far as it is possible to do so, primary and secondary legislation must be read and given effect to in a way compatible with the rights under the ECHR. A declaration of incompatibility is "a measure of last resort": see R v. A (No. 2) [2001] UKHL 25 at paragraph 44, per Lord Steyn. Since the Secretary of State is a "public authority" within the meaning of section 6 of the 1998 Act, he must exercise his power under section 75(1) in a way which is compatible with the patient's Article 5(4) rights. The stipulation that he must act within a maximum of one month does not prevent him from acting with such promptness within that month as is required by Article 5(4).
12. On the other hand, the Secretary of State for his part concedes that on the facts of this case he was in breach of Article 5(4) and indeed of the duty under section 75(1), in that the reference was not made by him until 8 August 2005, which was almost two months after Mr Rayner's return to hospital with the status of a compulsory detainee. That delay meant that a speedy determination of the lawfulness of his detention was not achieved.
13. The sole remaining issue on this part of the case is in truth a relatively narrow one. The Secretary of State challenges the way in which Holman J expressed the burden resting on him under section 75(1). The judge spoke in terms of Article 5(4) requiring an "immediate reference" to the MHRT (paragraphs 75 and 76 of the judgment) and stated that a case should be referred "at once" unless the circumstances of the applicant or his case positively otherwise require. Holman J noted the evidence given on behalf of the Secretary of State that his normal practice was to refer within 72 hours of recall, in the light of which the judge found that in this present case

"the very last day upon which the Secretary of State could lawfully have referred the case was Monday 20 June": paragraph 83.

14. It is argued on behalf of the Secretary of State that the judge went wrong in so interpreting the obligation arising under Article 5(4). Indeed, at one stage in his submissions Mr Hyam on behalf of the Secretary of State contended that there could be no breach of the article unless the Secretary of State delayed a reference beyond one month. He accepted that the Secretary of State must act with such promptness as is conducive to a speedy decision by the MHRT but argued that in cases such as the present one a reference at any time within a month from the patient's return to hospital would meet that test. In any event, it is submitted, one cannot lay down any quantified period of time which defines what is meant by a "speedy" decision, even in the generality of cases. Whether Article 5(4) is ultimately breached in any given case will depend on all the circumstances of that case, including such factors as the readiness of the applicant and his witness for a hearing.
15. On behalf of Mr Rayner, it is emphasised that, if a reference by the Secretary of State under section 75(1) is to be capable of sufficing under Article 5(4), it must provide as effective and speedy a remedy as could be achieved by the patient taking proceedings himself. Mr Bowen points out that, on the face of it, Article 5(4) requires there to be a right for the detainee himself to take proceedings to challenge the lawfulness of his detention. With a right of direct challenge, the detainee could start proceedings as soon as he chooses. If a section 75(1) reference by the Secretary of State is to be an adequate substitute, it must be made on a comparable timescale.
16. It is also argued that any period of time in excess of eight weeks between return to hospital following a recall and the decision calls for an explanation, in the absence of which there would be a breach of Article 5(4). Mr Bowen derives that figure from a number of authorities. The first is E v. Norway [1994] 17 EHRR 30, where the European Court of Human Rights found that there had been a violation of Article 5(4) because some eight weeks had elapsed between the institution of court proceedings by the detainee and the delivery of judgment by the court. The court stated at paragraph 64 that eight weeks

"does appear, prima facia, difficult to reconcile with the notion of 'speedy'."

It then went on to examine the specific circumstances, noting that some 12 days delay occurred because the judge responsible was on holiday, and finding that the decision had not in fact been made speedily.

17. Reliance is also placed on the terms of the friendly settlement in Roux v. United Kingdom (Application No. 25601/94). That settlement involved the United Kingdom government undertaking to amend the Mental Health Tribunal Rules (as they then stood) so as to introduce

"a fixed time limit of two months for a hearing to take place in the case of applications of patients who have been recalled".

The Commission at Strasbourg noted that this settlement had been secured "on the basis of respect for Human Rights as defined in the Convention." That undertaking by the government led to the amendment now contained in rule 29(cc) of the Mental Health Review Tribunal Rules. Finally Mr Bowen seeks to derive support from this court's decision in R (on application of C) v. MHRT London and South West Region [2001] EWCA Civ 1110; [2002] 1 WLR 176. It was there held that there was nothing inconsistent with Article 5(4) in having a target date of eight weeks as the maximum between a patient's application for discharge (in that case, under section 66(1)(b) of the 1983 Act) and the hearing, but that a routine practice of fixing hearing dates eight weeks after the application date was unlawful, since it involved no effort to see that an individual application was heard as soon as reasonably practicable.

18. I begin my own consideration of this topic of the time-scale under Article 5(4) with three preliminary points. First, it should be noted that the statutory period of one month as the maximum for the Secretary of State to make a reference to the MHRT under section 75(1) runs not from the date of the warrant of recall of the patient but from the return of the latter to hospital. That is clear from the wording of section 75(1)(a) and it also makes good sense, since the recall itself may not result immediately in the detention of the patient. As Mr Kemp pointed out in his evidence in the present case, a patient may have absconded before the warrant can be executed, and he gave an example of a patient who was unlawfully at large for 14 days. The distinction between recall and physical return to hospital did not matter in the present case, since Mr Rayner had already returned to hospital on a voluntary basis by the time of his recall. Nonetheless, the distinction should be noted.
19. Secondly, that does not rob the warrant of recall of its significance. It is the basis for the compulsory detention of the patient, and since it is issued by the Secretary of State he is well aware that the patient is being returned to hospital. That may be thought a very obvious point, but it means that the need to comply with his obligation to make a reference under section 75(1) does not come out of the blue to the Secretary of State. It can be no surprise to him and his officials.
20. Thirdly, the right under Article 5(4) is to a court decision which is to be achieved "speedily", rather than specifically to obtaining a start to the court process (such as a section 75(1) reference) speedily. Theoretically, it may be possible to envisage circumstances where the MHRT acted so quickly on receiving a reference from the Secretary of State (albeit observing the five weeks minimum between reference and hearing under Rule 29(cc)) that delay on the part of the Secretary of State in making the reference would not necessarily result in a breach of Article 5(4). The test is whether the court decision has been achieved speedily, and that has to be determined before deciding who is responsible for any breach. In reality, the more likely scenario is that an unjustifiable passage of time before a reference is made is going to result in a breach of the Convention right, even if the MHRT acts efficiently and without fault on its part in making the arrangements for the hearing. In such a case, only the Secretary of State would be liable for the breach.
21. I turn to the respective positions adopted on this topic by the parties. Neither seems to me to be entirely sound. One cannot accept that the Secretary of State is generally entitled to take the statutory maximum of one month before making a reference. Where the liberty of the subject is at stake and where his action is to be seen as at least a principal method of getting the issue of the lawfulness of detention before a court, the concept of speediness requires a more energetic and rapid approach. I accept Mr Bowen's point that, since the detained person has no direct right to apply to an MHRT, it is all the more important that the Secretary of State should act with despatch. Indeed, his practice, according to Mr Kemp, is to make a reference as soon as possible and normally within 72 hours. There would normally be no reason for him to take longer: as I emphasised earlier, he has himself initiated the recall process by issuing a warrant and is therefore well aware of the likelihood of an imminent return of the patient to the hospital in question. While he will need to be informed by the hospital as and when that return has been effected, it is his duty to ensure that appropriate arrangements are in place for his Department's Mental Health Unit to obtain that necessary information without delay.
22. At the same time I would accept that there is force in the criticism of the judge's use of the word "immediate" to describe the reference which is required by the ECHR. There may be certain checks which are required before the reference is made, and in any event it is to be observed that the Strasbourg Court in E v. Norway took the view that "speedily" in Article 5(4) was a less stringent requirement than arose from the word "promptly" in Article 5(3), dealing with the right of arrested or detained persons to be brought before a judge. At paragraph 64, the court stated:

"Indeed, the notion of 'promptly' (aussitôt) in the latter provision indicates greater urgency than that of 'speedily' (á bref délai) in Article 5(4)."

23. In its own jurisprudence the Strasbourg Court has refrained from spelling out a specific timeframe of general application when dealing with Article 5(4) issues. In Sanchez-Reisse v. Switzerland [1987] 9 EHRR 71 the Court said at paragraph 55, with reference to the word "speedily":

"In the Court's view, this concept cannot be defined in the abstract; the matter must … be determined in the light of the circumstances of each case."

In practice, it has dealt with this issue on a case-by-case basis. That makes obvious sense, since many factors may affect the timing of the hearing itself, including delay on the part of the detained person or those advising him. One illustration is provided by Cottenham v. United Kingdom [1999] 1 MHLR 97, where it was the time taken for an independent medical report to be obtained on behalf of the patient that was largely responsible for a substantial delay between an application and the hearing. It would not be right for our domestic courts to adopt a different approach to the issue of whether a determination has been obtained "speedily" and to start prescribing quantified periods of time within which a determination must be achieved.

24. As for the reference under section 75(1) by the Secretary of State, I would adopt the test identified by this court in R (on application of C) v. MHRT London and South West Region (ante) at paragraph 43, where Lord Phillips, MR summarised the Strasbourg jurisprudence as asking

"whether there was a failure to proceed with reasonable despatch, having regard to all the material circumstances."

That was the test identified in respect of the timescale of the determination, but in my view it is an appropriate one to be applied to the Secretary of State's obligation under section 75(1). One would normally expect it to require a reference to the MHRT within days, not weeks, of the return of the patient to hospital, and normally within a few days.

25. In the present case, Holman J's conclusion was that in all the circumstances a reference should have been made by 20 June 2005, almost a week after the issue of the warrant of recall, which converted Mr Rayner's presence in hospital into compulsory detention. Although the judge arrived at that conclusion after expressing the view that an "immediate reference" was required, it seems to me that he was in fact allowing the Secretary of State an appropriate period of time by finding that the reference should have been made by 20 June 2005. Even on the approach which I have adopted in this judgment, that date would seem to be an appropriate one, and I would not seek to interfere with that part of the judge's conclusions. In any event, it is of course the case that it is conceded by the Secretary of State that he was in breach of Article 5(4) and section 75(1) on the facts of the present case.

(ii) The Right to Take Proceedings

26. Section 75(1)(b) applies the provisions of section 70 to the case of a restricted patient subsequently recalled to hospital, and thus such a person may apply to an MHRT but only after six months has elapsed from his return to hospital. Prior to the expiring of that period, it is clear that the statutory machinery under the 1983 Act does not provide for a person in Mr Rayner's position to make his own application to an MHRT after his recall. The mechanism laid down by Parliament is that of imposing a statutory duty on the Secretary of State to make a reference, and the patient is then treated as if he had made an application to the MHRT: see the 1983 Rules, rule 29. But the patient has no statutory right for six months after recall to make his own direct application. The issue which arises is whether the absence of that direct right during that time involves a breach of Article 5(4), insofar as the wording may seem to require a right "to take proceedings".
27. Holman J concluded that there was no breach. He regarded the statutory duty on the Secretary of State to refer the recalled patient's case to an MHRT as amounting to an automatic review procedure, which in the light of cases such as X v. United Kingdom [1981] 4 EHRR 188 sufficed to achieve compliance with Article 5(4).
28. In X v. United Kingdom the Strasbourg Court stated at paragraph 52:

"By virtue of Article 5(4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the "lawfulness" (within the meaning of the Convention, see para. 57, below) of his detention, whether that detention was ordered by a civil or criminal court or by some other authority."

It is the reference to "at any rate where there is no automatic periodic review" on which Holman J placed emphasis. That was strengthened by the Court's decision in Weeks v. United Kingdom [1988] 10 EHRR 293, where the fact that the Secretary of State was obliged to refer a recalled life prisoner's case to the Parole Board was seen as meeting the requirements of Article 5(4). The Court said at paragraph 65:

"In these circumstances, the recalled person can be considered as having sufficient access to the Parole Board for the purpose of Article 5(4)."

29. There are many other decisions of the European Court of Human Rights where automatic review of a person's detention has been seen as meeting the terms of Article 5(4), even though no direct right to apply for review existed: see Koendjbiharie v. The Netherlands App. No. 11487/85; Megyeri v. Germany [1992] 15 EHRR 582 at paragraph 22. The most recent reference to "automatic periodic review of a judicial character" as meeting Article 5(4) is to be found in Rutten v. The Netherlands App. No. 32606/96, a decision dated 24 July 2001. However, Mr Bowen submits that the jurisprudence of the Strasbourg Court has evolved and altered since then.
30. He accepts that until relatively recently the Court accepted that automatic review would suffice under Article 5(4). But he contends that recent decisions have indicated a need for the detained person to have a direct personal right of access to the reviewing court. Those decisions are Rakevich v. Russia App. No. 58973/00, Gorshkov v. Ukraine App. No. 67531/01, and Kucheruk v. Ukraine App. No. 2570/04. The first of those was decided on 28 October 2003. It concerned a woman who was taken to a mental hospital on the initiative of an acquaintance because of her behaviour. She was there diagnosed as suffering from a grave mental disorder. On the same day, the hospital applied to a court, as it was required to do by Russian law, for approval of her confinement in the hospital. Some six weeks later the court gave its approval. The relevant provision of domestic law stated:

"An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is detained."

31. The patient complained, amongst other things, that she did not have a right herself to initiate a judicial review of her detention. The Court's conclusions on this issue were as follows:

"44. The administration of the hospital, acting under section 33-2 of the Psychiatric Treatment Law, applied for the judicial review of the applicant's detention. The Law did not permit the applicant to apply to the court herself. Instead, the initiative lay solely with the medial staff. However, Article 5(4) requires in the first place an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the detention. When this remedy is available, the detainee's access to the judge should not depend on the good will of the detaining authority. Whilst the legal mechanism contained in section 33-35 of the Psychiatric Treatment Law, ensuring that a mental patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it would still be deficient if it does not contain the basic guarantee of Article 5(4). Surplus guarantees do not eliminate the need for fundamental ones.

45. It does not appear that the Law on Psychiatric Treatment provided the applicant with a direct right of appeal in order to secure her release. Sections 47 and 48 of the Law referred to by the Government recognised a detainee's right to complain about the unlawful actions of medical staff in general, but Article 5(4) requires a specific remedy to protect the liberty of a detainee.

46. The Court therefore finds that the applicant was not entitled to take proceedings to test the lawfulness of her detention by a court, as required by Article 5(4) of the Convention. There has, accordingly, been a violation of that provision."

32. The judgment in the Gorshkov case was delivered on 8 November 2005. The case again concerned someone detained in a psychiatric hospital, though this patient had been convicted of a criminal offence. The domestic law required the psychiatric institution to apply to a court not less than once every six months for a decision to continue the detention of the patient. The Court's conclusions on Article 5(4) are to be found in paragraphs 44 to 46 of the judgment. They read:

"44. The Court reiterates that a key guarantee under Article 5(4) is that a patient compulsorily detained for psychiatric treatment must have the right to seek judicial review on his or her own motion (see, eg., Musial v. Poland, judgment of 25 March 1999, Reports 1999-II, (43); the aforementioned Rakevich v. Russia judgment (45)) Article 5(4) therefore requires, in the first place, an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the continued detention. The detainee's access to the judge should not depend on the good will of the detaining authority, activated at the discretion of the medical corps or the hospital administration.

45. Whilst the legal mechanism contained in sections 19-22 of the Psychiatric Medical Assistance Act and Chapter 34 of the Code of Criminal Procedure, in force at the material time (see paragraphs 30 and 31 above), ensuring that a mental health patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it is insufficient on its own. Such surplus guarantees do not eliminate the need for an independent right of individual application by the patient.

46. The Court concludes that the applicant was not entitled to take proceedings to test the lawfulness of his continued detention for compulsory medical treatment by a court, as required by Article 5(4) of the Convention. There has, accordingly, been a violation of this provision."

33. The reference to Musial in those passages is somewhat puzzling, since that was not a case where any issue arose about the significance of a direct right of the patient to institute proceedings himself. The case actually concerned whether there had been a speedy determination, and the Court there was not seeking to pronounce on the issue now under consideration.
34. Nonetheless, the decision in Gorshkov has been followed very recently by the Strasbourg Court in Kucheruk v. Ukraine, where paragraphs 44 to 46 of Gorshkov were cited with approval and regarded as decisive. That decision in Kucheruk is dated 6 September 2007. Mr Bowen emphasises that in both the Ukrainian cases the domestic legal framework imposed a duty on the detaining hospital to apply to a court, as was the situation under Russian law in Rakevich. Yet this was not regarded by the Court as achieving sufficient compliance with Article 5(4), because that provision requires the patient to have the right to start proceedings himself to review the lawfulness of his detention. This may represent a development of the Court's jurisprudence, but that is a recognised phenomenon of that jurisprudence. On that basis it is clear, argues Mr Bowen, that the statutory mechanism under section 75 is insufficient to comply, since the patient cannot take the initiative in instituting proceedings before an MHRT. He is dependent on the Secretary of State.
35. Our attention is also drawn to a passage in the House of Lords decision in R (H) v. Secretary of State for Health [2005] UKHL 60; [2006] 1AC 441, where at paragraph 24 Baroness Hale notes that in Rakevich it was held that

"even the judicial review of every admission on the initiative of the detaining authorities is not enough if the patient does not herself have the direct right to apply for her release."

That, argues Mr Bowen, indicates a degree of approval at House of Lords level for the proposition he now puts forward. He recognises that later in the same judgment Baroness Hale placed reliance on the existence of the Secretary of State's power to refer a case to an MHRT, coupled with his duty to act compatibly with the patient's Convention rights and the ability of the patient to use the judicial review process to compel the Secretary of State to act. But it is submitted that the House of Lords there was dealing with a very different situation, namely one where the patient had already had a right for 28 days to apply to an MHRT and where proceedings in the county court had already started but were taking a long time. Thus a court was already involved.

36. For the Secretary of State, Mr Hyam draws attention to the reasoning of the Strasbourg Court in Rakevich, where it was emphasised that a detainee's access to the courts "should not depend on the goodwill of the detaining authority" (paragraph 44). The same phraseology appears in Gorshkov at paragraph 44, with additional reference to the need for access not to be "at the discretion of the medical corps or the hospital administration", a passage which is then repeated in Kucheruk. It is submitted that it is this factor which underlay the Court's decision in those cases, but the position in this country under the 1983 Act is quite different. Section 75(1) gives the Secretary of State no discretion about making a reference after recall. He is under a specific duty to refer and that duty has to be performed within a specified time. Once the reference has been made, the patient is treated as an applicant.
37. The Secretary of State also relies on the fact that the patient has the right to use judicial review to ensure that the statutory duty is performed and indeed performed so as to comply with the speedy determination requirement in Article 5(4). Since the Secretary of State is a public authority under section 6(3) of the Human Rights Act, 1998, he is prohibited by section 6(1) of that Act from acting in a way which is incompatible with the patient's Convention rights, a point noted by Baroness Hale in the case of H (ante) at paragraph 30. Judicial review or habeas corpus could also be used by the patient to challenge directly the lawfulness of his detention. Consequently the patient does have under English law rights of direct access to the courts to achieve a determination in accordance with Article 5(4) and in this respect, it is said, the position is quite different from that with which the Strasbourg Court has been dealing in the recent cases.
38. It seems to me that a study of the Strasbourg jurisprudence does reveal at the very least a shift of emphasis in recent years towards a greater stress on the requirement that a detained person should be able to take the initiative himself to start proceedings to challenge the lawfulness of his detention. The decisions in Rakevich, Gorshkov and Kucheruk spell this out and do appear to show a change since cases like X v. United Kingdom and Weeks v. United Kingdom (see paragraph 28 ante). I say that because it can be seen that in Rakevich there was apparently a duty on the hospital to make an application to the court for approval of the patient's detention. It is, of course, well established that the jurisprudence of the ECHR must evolve and reflect changing circumstances and standards, and hence the concept of the Convention as a "living instrument": see Tyrer v. United Kingdom [1978] 2 EHRR 1 at paragraph 31.
39. Having said that, there is no doubt that the reasoning of the Court in the three cases mentioned is somewhat difficult to understand, since it relies on the point that access to the courts should not depend upon the goodwill or discretion of the authorities. Of course it should not, but the Russian domestic law cited in the Rakevich decision did not appear to make access so dependent. What may be important are two features of those cases: first, there does not appear to have been any provision of domestic law which required the authorities to act quickly to get the issue of the lawfulness of the detention before the courts. Section 33(2) of the relevant Russian Law merely required an application to be made, but was unspecific as to its timing (see paragraph 30, ante). Likewise in the Ukrainian cases the government was relying in the Strasbourg proceedings on the requirement in Ukrainian law for automatic review by a court, but this was only required to take place once every six months. So there seems to have been a substantial element of discretion allowed to the authorities over the timing of any reference to the courts.
40. Secondly, the Strasbourg Court did not accept that there was, under either Russian law or Ukrainian law, a sufficient mechanism available by which the detainee could himself challenge the legality of his detention. An argument to the contrary by the government in the Rakevich case was rejected.
41. I accept Mr Hyam's submissions that the situation under English domestic law gives greater protection to the patient. He has a direct right by means of a judicial review application to enforce the Secretary of State's duty under section 75(1) of the 1983 Act to make a reference to an MHRT. This was the mechanism referred to by Baroness Hale in the case of R (H), at paragraph 30, where she was referring to the Secretary of State's discretion (on the facts of that case) to make a reference:

"Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so."

One recognises that that case was dealing with a different situation from that before this court, insofar as in R (H) the matter was already before the county court, albeit for an unusually long time. Nonetheless the process of using judicial review to force the Secretary of State to act was regarded as an important safeguard of the detainee's position and as a means of securing his or her Article 5(4) rights.

42. That case also made reference to the right to use judicial review and/or habeas corpus to mount a direct challenge to the lawfulness of the detainee's detention: paragraph 31. As Baroness Hale there noted, the European Court of Human Rights had held in X v. United Kingdom that such processes were not a sufficiently rigorous review of the merits, as opposed to the formal legality, of the detention to comply with Article 5(4), though she indicated that things may have changed since the implementation of the Human Rights Act, 1998. In fact, as Mr Bowen accepts, the position has changed since X was decided. In Secretary of State for the Home Department v. MB [2007] QB 415, at Court of Appeal level, a control order case, the court in its judgment delivered by Lord Phillips of Worth Matravers, CJ, stated at paragraph 48:

"So far as procedure is concerned, a court conducting a judicial review has all the powers it requires, including the power to hear oral evidence and to order cross-examination of witnesses, to enable it to substitute its own judgment for that of the decision maker, if that is what article 6 requires. An example of the exercise of such powers is R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419. Section 3 of the HRA requires that section 3(10) and section 11(2) of the PTA be interpreted, if possible, in a manner that enables the court to carry out a review of the Secretary of State's decision that complies with the requirements of article 6. So far as the standard of review is concerned, we can see no difficulty in so reading those sections a to produce this result, whatever those requirements may be."

43. The Wilkinson case there referred to was one concerning a patient compulsorily detained under the 1983 Act, who brought judicial review proceedings and who was held by the Court of Appeal to be entitled to require the attendance of medical witnesses at the hearing and to cross-examine them. It was emphasised that that was necessary if the court were to be able to resolve the relevant issues on their merits, Hale LJ saying at paragraph 83:

"Super-Wednesbury is not enough. The claimant is entitled to a proper hearing, on the merits, of whether the statutory grounds … are made out."

In short, since the Human Rights Act 1998 the court has to be prepared to investigate more closely the merits of a decision challenged by way of judicial review, so as to ensure that the court as a public authority does not act incompatibly with the Convention rights of the applicant.

44. Mr Bowen recognizes this. He accepts that judicial review is now capable of being operated in such a way as to provide a review which meets the requirements of Article 5(4) for a review on the merits. But he submits that such a procedure still falls short of what is required, because the Administrative Court does not have the power to order the release of a patient subject to conditions. It can declare that the patient should be conditionally released and it can order the Secretary of State to discharge him conditionally, but it is submitted that that would not suffice to comply with Article 5(4). It must be able itself to order his release: see X v. United Kingdom (ante).
45. I am not persuaded that the court's powers fall short of what is required to meet the patient's Convention rights. The decision in X turned on the fact that at that time the judicial body in question, an MHRT, performed only an advisory function and its advice did not have to be followed by the Secretary of State. It could not make the decision itself to discharge, nor could it order the Secretary of State to discharge. In contrast, the Administrative Court in judicial review proceedings does have the power to make a mandatory order directing the Secretary of State to release a detained person. Nor can I see why it should not order the Secretary of State to discharge such a person on a conditional basis, if that is appropriate.
46. I conclude that, while section 75 of the 1983 Act, if it stood alone, might now not be regarded as sufficient to achieve the protection of Article 5(4) rights required by the ECHR and the Strasbourg jurisprudence, the combination of that statutory mechanism, the right of the patient to enforce the Secretary of State's statutory duty (as interpreted in the light of the Convention) by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus does suffice to comply with Article 5(4). The patient has direct access as of right to the courts and can obtain swift redress if he is being unlawfully detained. I would only add that, as a matter of procedure, if judicial review has to be resorted to by a patient, he or she would normally find it quicker and more effective to apply for an order enforcing the Secretary of State's statutory duty rather than embark on a direct challenge in the courts to the lawfulness of the detention.
47. For these reasons I would reject the arguments on this issue advanced on behalf of Mr Rayner. For my part I would dismiss both the appeal and the cross-appeal.

Mrs Justice Black:

48. I agree.

Lord Justice Ward:

49. I also agree.