Case No: C4/2009/1454
Neutral Citation Number: [2010] EWCA Civ 347
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
HH Judge Vosper QC 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/03/2010
Before :
THE MASTER OF THE ROLLS
LADY JUSTICE ARDEN 
and
LORD JUSTICE SULLIVAN
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Between :

	THE QUEEN on the application of
MC (ALGERIA)	Claimant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	

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Mr Raza Husain QC & Mr Graham Denholm (instructed by Messrs Wilson & Co) for the Claimant
Mr Sarabjit Singh (instructed by The Treasury Solicitors) for the Defendant

Hearing dates : 1, 2 & 23rd March 2010
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Judgment
Lord Justice Sullivan:  
1.	In this claim for Judicial Review the Claimant challenges the lawfulness of his detention by the Defendant under the powers conferred by Schedule 3 to the Immigration Act 1971.
2.	After a rolled up hearing on the 1st July 2009 HH Judge Vosper QC refused permission to apply for judicial review save on one point : the manner in which the Claimant had been detained at HMP Wandsworth between 20th December 2008 and 15th April 2009.  The Claimant, as an immigration detainee was an unconvicted prisoner who should not have been required against his will to share his cell with a convicted prisoner.  There was no Cross-Appeal against that decision.
3.	On the 16th October 2009 Laws LJ granted permission to apply for judicial review and ordered that the application for judicial review should be retained in this Court.
Factual Background
4.	The Claimant is an Algerian national who was born on 3rd December 1974.  He first attempted to gain entry to the United Kingdom in January 1990, but he was refused entry and returned to Algeria.  In August 1993 he successfully entered the United Kingdom using French identification documents to which he was not entitled.  On 10th April 1994 he was arrested on suspicion of immigration offences.  He claimed asylum on 13th April 1994.  His claim was refused and an appeal against that decision was dismissed in his absence on 14th September 1995.
5.	In September 2004 the claimant was arrested for theft.  A note dated 28th September 2004 by an Immigration Officer records that throughout his detention in police custody the claimant had been 
“obstructive and caused disturbances, swallowing coins, banging his head on the wall and injuring his arm.”
6.	The Claimant’s first criminal conviction in the United Kingdom was on 18th July 1995 when he was fined £80 for theft.  Thereafter, he has been convicted on numerous occasions for a variety of offences, mostly theft, but also for failing to surrender, threatening and disorderly behaviour, handling, deception, possessing heroin and cannabis and assaulting a constable.  Many of these offences were committed while the Claimant was on bail.
7.	On 14th January 2004 the Claimant was convicted of eleven offences for which he was sentenced on 12th March 2004 to 33 months’ imprisonment.  On 27th July 2006 he was served with a notice of intention to make a deportation order, and after the expiration of his sentence of imprisonment on or about the 28th July 2006 he was kept in detention under the Immigration Act 1971 (“immigration detention”).
8.	During the Claimant’s detention in 2006 his medical records show numerous instances of self harming behaviour : swallowing razor blades, cutting himself with a scalpel, attempted hanging and overdosing.  At one stage his behaviour was so extreme that he had to be restrained in a body-belt.
9.	On 5th February 2007 the Claimant’s appeal against the decision to make a deportation order against him was dismissed, and his appeal rights were formally exhausted on 5th March 2007.  On 4th April 2007 he was served with a deportation order.  He refused to complete an Emergency Travel Document (ETD) interview, and was served with a notice under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 warning him to comply with the ETD process or face prosecution.
10.	On 23rd May 2007 the Claimant was released on AIT bail with reporting conditions.  After reporting twice he failed to report again and he next came to the attention of the Defendant’s Criminal Casework Directorate (CCD) on 21st September 2007 when CCD was told that the Claimant was due to be released from HMP Wandsworth having completed a sentence of 112 days’ imprisonment having been convicted on 19th June 2007 of theft and assaulting a constable.
11.	On 21st September 2007 the Claimant’s second period of immigration detention began, and it continues to date.  Initially, the Claimant remained at HMP Wandsworth, but on 15th November 2007 he was transferred to Colnbrook Immigration Removal Centre (IRC).  While at Colnbrook his behaviour became more disturbed, and on the 9th December 2008 he was transferred from Colnbrook IRC back to HMP Wandsworth.
12.	In a letter dated 31st October 2008 to the CCD team the Claimant’s solicitors challenged the lawfulness of the Claimant’s continued detention.  At that stage, they did not have full instructions and their primary concerns were the length of detention and the lack of any information as to when removal might be effected.  That changed when they received information that the Claimant had been returned to prison.  In a letter dated 17th December 2008 to UKIS they said:
“We have received reports that our client has been seriously self-harming.  We are concerned about his welfare.
Please respond to this letter as a matter of urgency confirming:
1.	the UKBA’s knowledge of any incident that our client was involved in that led to him being moved to prison accommodation;
2.	where our client is currently detained, and whether he is detained under immigration powers; and
3.	if he is detained under immigration powers, whether consideration has been given to the issue of whether our client is fit to be detained given his mental health problems/self harm, and if such consideration has been given, disclosure of any documents relating to that process.”
13.	The response is contained in a letter dated 13th January 2009.  Having acknowledged receipt of the letter dated 31 October 2008, CCD’s letter continues:
“The reason [the Claimant] was moved to HMP Wandsworth on 9 December 2008 was because he was deemed a Prominent Nominal, which is a level reserved for only the most troublesome of detainees.  [The Claimant] in his time at Colnbrook was described as very non-compliant, intimidating and aggressive to staff members, disruptive and would encourage non-compliance in other detainees.  [The Claimant] will be able to be managed more effectively in a prison environment.
[The Claimant] is currently held in HMP Wandsworth under detained under Schedule 3 to the Immigration Act 1971 because he is subject to a deportation order requiring him to leave the United Kingdom.
[The Claimant] was medically assessed when he was received at Colnbrook and deemed fit to be detained at the facility.  He was identified as a self-harmer and was at various times on constant watch or 3 times an hour observation.
I have requested a psychiatric evaluation from HMP Wandsworth.”
14.	It would appear that no psychiatric evaluation was requested from HMP Wandsworth, or that if one was requested it was not provided.  In response to a chasing letter from the Claimant’s solicitors, CCD replied on 27th February 2009:
“I have still not received the psychiatric report from HMP Wandsworth, but have re-requested it and will endeavour to obtain [it] as soon as possible.”
15.	In a letter dated 13th March 2009 the Claimant’s solicitors referred again to the earlier correspondence and said:
“The Secretary of State’s published policy on detention, the Enforcement Instructions and Guidance, is clear at 55.10 that those suffering from mental health problems are unsuitable for detention and should not normally be detained in immigration removal centres or elsewhere.
In the light of the above, please answer the following questions:
1.	does the above mean that our client was last assessed as being ‘fit to be detained’ when the decision to detain him under immigration powers was taken in September 2007?
2.	since September 2007, on what dates was he assessed by a psychiatrist?  We request disclosure of any reports from psychiatrists and any reviews of our client’s detention that were carried out on the basis of those assessments.
3.	have you now received a psychiatric assessment from HMP Wandsworth? If you have we request disclosure of it.”
16.	In the absence of any substantive response to this letter, the Claim Form in those proceedings was issued on 22nd April 2009.  When the matter came before HH Judge Vosper QC on 1st July 2009 there was still no psychiatric evaluation of the Claimant.
17.	Following the grant of permission by Laws LJ matters have moved on.  The Claimant’s solicitors served a Part 18 Request for further information on 28th January 2010.  In that request they asked for details of any referrals made by the Defendant to psychiatrists in respect of the Claimant for both periods of detention (28 July 2006 to 23 May 2007 and 21st September 2007 to date).  In response the Defendant referred to paragraph 24 of a witness statement dated 14th January 2010 of Sirajul Islam, a caseworker in the CCD.  In paragraph 24 of his witness statement Mr Islam said:
“24.  A psychiatric report was requested for the Claimant by the Defendant on 7th May 2009 whilst the Claimant was in prison.  On 5th January 2010, the Defendant contacted the prison health team and a request was made for the Claimant to be assessed by a psychiatrist.  The Defendant is awaiting the psychiatric report.”
18.	It will be noted that there is no reference in the witness statement to the requests that were said to have been made and re-made on behalf of the Defendant in January and February 2009, and no explanation is given as to why there was no response to the request in May 2009.  In a letter dated 7th December 2009 Mr Islam had told the Claimant’s solicitors that “…we will also be arranging for [the Claimant] to have a psychiatric assessment to determine his fitness to be detained.”  It would seem that no request was made until nearly a month later, on 5th January 2010.
19.	On 3rd February 2010 the Claimant’s solicitors filed and served an unsigned report from Dr David Bell, a Consultant Psychiatrist.  Dr Bell’s signed report is dated 10th February 2010 and it is supplemented by an Addendum and a Further Addendum.  Dr Bell diagnosed the Claimant as suffering from a personality disorder.  In paragraph 4 of his conclusions he said:
“ 4.  Personality disorder is not classified as a mental illness.  However, since the changes brought about by the Mental Health Act 2007, the attitude of the psychiatric professions to the distinction between mental illnesses and disorders such as personality disorder is less rigid.  It should also be noted that many individuals with personality disorder are prone to develop, particularly if placed under stress, acute mental illness.  The document ‘Personality disorder: No longer a diagnosis of exclusion’ published by the Department of Health in 2003, had a major impact on services for patients suffering from personality disorder.  This document embodied the recognition that those suffering from personality disorder should be entitled to have psychiatric treatment, where such treatment can be helpful to them.  There had been a tendency previously for the psychiatric system to exclude patients suffering from personality disorder from obtaining appropriate psychiatric help.”
Having referred in paragraph 5 of his conclusions to the widespread recognition that indefinite detention is, from a psychiatric point of view very harmful, he adds:
“In my view being detained in Wandsworth is having a very deleterious effect upon [the Claimant’s] psychiatric state.  In my view the circumstances of detention materially contribute to the repetitive cycle of serious self-harm and increase the risk of his becoming acutely mentally ill.  During his time at Colnbrook he seemed to make some progress and this was a stabilising period for him.  However his self-harm has escalated during his detention at HMP Wandsworth.”
20.	In paragraphs 9 and 10 of his conclusions Dr Bell says:
“9.  I have been specifically asked if the conditions at HMP Wandsworth have contributed to the escalation of disturbed behaviour, self harm and suicide attempts.  It is clear to me that this is the case.  It is clear to me that there is not at HMP Wandsworth an appropriate facility for the treatment of personality disorder of this nature, especially when there is such a high risk of serious self harm and completed suicide.  From the records there is clearly a pattern of his being transferred to psychiatric care on an acute basis and then being transferred back to HMP Wandsworth without any continuity of care and this is very damaging from a psychiatric perspective.  Continuity of care is one of the cornerstones of appropriate management of Personality Disorder.  As I understand it there is not available to [the Claimant] at HMP Wandsworth the regular contact with skilled psychiatric personnel that he requires.  I did not visit the psychiatric facilities at HMP Wandsworth and it would be helpful to me to have an account of the facilities available.  However, it is usually the case that such facilities in prisons cater for acute conditions such as a psychosis and this is not an appropriate context for the management of personality disorder.
10.	[The Claimant] should either be admitted to a secure unit or admitted to an open unit on a voluntary basis.  It would be for the responsible psychiatrist to decide how admission to a secure unit would be achieved, but the options would be: 1) Use of the Mental Health Act, under a civil section for assessment or treatment, or 2) Transfer from prison under a transfer section – but I do not know whether this part of the Act applies to immigration detention.  It is obviously mostly used for those on criminal sentences.  It used to be that Personality Disorder was excluded – or at least avoided – as a qualifying justification for application of  the Mental Health Act civil sections but that is no longer so, if the disorder is of sufficient severity and poses a risk to self or others; [the Claimant] will probably fulfil these criteria.  However he may not need to be detained against his will for a prolonged period and the responsible psychiatrist will monitor the situation and make this decision.  Voluntary admission to an open unit might be a viable alternative to admission to a secure unit under the Mental Health Act, again the admitting responsible psychiatrist will make the decision.”
In paragraph 18 he warned that:
“In the current situation, that is while he continues to be detained at HMP Wandsworth, he is very likely to continue with frequent self harm/suicide attempts.  A real possibility is that the eventual outcome will be suicide.”
21.	On 21 January 2010 the Claimant was transferred to Colnbook IRC from HMP Wandsworth, but he was transferred back to HMP Wandsworth on 12th February 2010 because of his disturbed behaviour.  Dr Bell explained in the Further Addendum to his report dated 22nd February 2010 that the Claimant’s disturbed behaviour:
“…..can only be understood within the context of the psychiatric disturbance that he suffers from and which I have detailed in my report.  I wish to stress that these disturbed outbursts do not result from a reasoned wish to cause disturbance but result from the combination of his disturbed mental state and the contexts which trigger outbursts of disturbed behaviour.  It is clear to me that he cannot control this behaviour but that in a more appropriate context (namely, where appropriate psychiatric care is available) they (the outbursts) can be managed in an appropriate manner.  It is completely inappropriate to try and manage this behaviour in a disciplinary manner; such an approach would in my view make matters substantially worse.”
22.	The Defendant’s response to the evidence of Dr Bell was not filed until shortly before the hearing of the Claim for Judicial Review began on 1st March 2010.  In a letter dated 25th February 2010 Dr Levy, a psychiatrist at HMP Wandsworth said that he had been asked to comment on (1) the Claimant’s suitability for being detained in HMP Wandsworth and (2) the “regularity” of him being seen by the mental health services in the prison.  Dr Levy had been provided with a copy of Dr Bell’s report.  In what is described as a “non-commissioned clinical update” Dr Levy says that:
“Impression: It is quite likely that [the Claimant] suffers from a Personality Disorder of a Cluster B construct (predominantly Borderline) which is a Mental Disorder within the meaning of the Mental Health Act 1983 (amended 2007).  However, given the intervening periods of stability during his prison tenure, the context of his deliberate self harm and his inconsistent presentations, it is unlikely that this is of a degree that warrants urgent treatment in hospital
Suitability for detention in prison : Given the remit of our functioning as part of the mental health services within the prison, it is not appropriate for us to comment on his suitability for detention in prison.  However, given his clinical needs, he is being regularly seen by a member of the Prison Inreach Team as part of the ACCT review process.  There are also psychological services within the prison as part of the Forensic Therapies Unit, that could cater for his psychological needs, and [the Claimant] agreed to work with them, at interview.  I will be referring him for CBT (cognitive and behavioural therapy) with the above team.  Dr Walters has kindly agreed to make a referral to a specialised Personality Disorders Unit, for a collateral assessment to advise on his suitability for inpatient treatment.”
23.	It will be noted that Dr Levy does not comment on the Claimant’s suitability for detention in prison, nor does he respond to Dr Bell’s conclusion that the Claimant’s detention is having a very deleterious effect upon his psychiatric state : materially contributing to the repetitive cycle of self harm and increasing the risk of him becoming mentally ill.  Dr Levy’s conclusion is not that the Claimant is not suffering “from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital” (see s.3(2)(a) or the Medical Health Act 1983 as amended), it is merely that it is unlikely that the Claimant’s disorder is  “of  a degree that warrants urgent treatment in hospital” (emphasis added).
24.	On receipt of Dr Levy’s report Mr Islam said in a letter dated 26th February 2010 to the Claimant’s solicitors that he remained “satisfied that [the Claimant’s] detention is appropriate and that he is fit to be detained in the prison estate”.  Dr Bell responded to Dr Levy’s report in a Further Addendum.  Adhering to the views expressed in his previous report, he said that the Claimant’s detention in his cell for 23 hours of the day was
“extremely harmful to his mental state and suggests that he is not being treated in a manner appropriate to his psychiatric disorder.”
25.	The Defendant’s policy approach to immigration detention is currently contained in Chapter 55 of his Enforcement Instructions and Guidance (EIG).  Wherever possible, alternatives to detention are used (para 55.1.1).  Para 55.3.1 states that all relevant factors must be taken into account when considering the need for initial or continued detention.  Relevant factors include:
•	What is the likelihood of the person being removed and, if so, after what timescale?
•	Is there any evidence of previous absconding?
•	Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
•	Is there a risk of offending or harm to the public (this requires  consideration of the likelihood of harm and the seriousness of harm if the person does offend)?
•	Does the subject have a history of physical or mental ill health?
26.	Paragraph 55.10 is headed “Persons considered unsuitable for detention”, and states that:
“Certain persons are normally considered suitable for detention only in very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere.  Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control.  In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention or elsewhere:
•	Those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team;”
27.	The EIG replaced the Defendant’s Operations Enforcement Manual (OEM) in March 2008.  The relevant policy in Chapter 38 of the OEM was the same as the policy in paragraph 55.10 of the EIG, with one exception.  The advice relating to CCD cases was added to paragraph 55.10 when the EIG was amended in September 2008.
28.	Mr Islam produced as an exhibit to his witness statement copies of the Claimant’s monthly detention reviews from December 2008.  A number of the earlier reviews are missing, and it is unclear whether they were carried out.  Only three reviews refer to the Claimant’s mental state.  In the review dated 18th October 2007 it was said that the Claimant “has been diagnosed with multiple personality disorder which cannot be enough to section someone under the Mental Health Act”. That comment was repeated in the review dated 27th November 2007. Thereafter, although there are references to the Claimant’s violent and disruptive behaviour and to his self harming, there is no reference to his mental state until the most recent review dated 17th February 2010, which refers to the submission by the Claimant’s solicitors of Dr Bell’s report, and comments:
“A significant risk of absconding and re-offending if at large although the length of detention is significant and there are clear mental health issues.  I agree that the inherent risks outweigh the presumption to liberty and the risk he presents meets the exceptional criteria for detaining those with mental health needs.  There will be support in HMP Wandsworth and provision to transfer him to hospital if necessary. ”
29.	This is the first, and only, occasion on which the Defendant’s officials authorising continued detention expressly considered in the monthly reviews whether the risks of releasing the Claimant met “the exceptional criteria for detaining those with mental health needs.”
30.	Finally, by way of background, Mr Islam’s witness statement set out in some detail the Defendant’s attempts to persuade the Algerian authorities to issue an ETD.  When dealing with “The prospects of removing the Claimant” he confirmed in paragraph 15 of the witness statement “that every step will be taken to secure an ETD.”  However, his witness statement does not give any indication as to the time within which the Defendant anticipates that it will be possible to remove the Claimant.
The Claimant’s grounds
31.	The Claimant challenged the lawfulness of his detention on two principal grounds :
(1)	the Defendant had failed to have regard to a material consideration, namely the policy now contained in Chapter 55 of the EIG that those who are mentally ill should be detained only in very exceptional circumstances; and
(2)    that by the time the Claim Form was issued the continued detention of the Claimant had become unreasonable applying the principles derived from the judgment of Woolf J in R v Governor of Durham Prison ex parte Singh (1984) 1 WLR 704 (“Hardial Singh”). 
32.	The Claimant also challenged the Defendant’s decision to detain him in prison rather than within an IRC.  However, Mr Husain QC fairly acknowledged that the evidence of the Claimant’s disturbed and disruptive behaviour when considered together with Dr Bell’s evidence made it clear that, whatever else may be said, the Claimant is not suitable for detention within an IRC.  An IRC would have neither the psychiatric nor the disciplinary resources to deal with the problems posed by the Claimant.

Discussion
33.	The Judge refused the Claimant permission to challenge the lawfulness of his first period of immigration detention from July 2006 until he was released on AIT bail on 23rd May 2007 on the basis that the challenge to this period of detention was well out of time, the Claim Form having been issued on 22nd April 2009, nearly two years after bail was granted.  In my judgment, he was right to do so.
34.	I readily accept Mr Husain’s submission that an intervening period of liberty may not be sufficient to amount to an effective break in the continuity of a period of detention for the purpose of assessing the reasonableness of its duration in accordance with Hardial Singh  principles, but I have no doubt that there was an effective break in this case.  A challenge to the lawfulness of the Claimant’s detention made promptly after his release on bail in July 2007 would have been doomed to failure : on the face of it, the system had worked, the AIT had considered the reasonableness of keeping the Claimant in detention and had ordered that he should be released on bail.
35.	The break in the continuity of the Claimant’s immigration detention was not simply the result of his release on bail.  Having been released, he very soon committed further offences, was convicted and sentenced to 112 days’ imprisonment.  His second period of immigration detention did not commence until that sentence had been completed.  Had the claimant complied with his bail conditions and not re-offended he would, presumably, still be on AIT bail.  His own conduct, following his release, led to a new period of immigration detention beginning in September 2007.
36.	Moreover, it must be recognised that there was little point in the Defendant taking any active steps to try to arrange deportation while the Claimant was exercising his right to appeal against the decision to deport him.  The Claimant’s appeal rights were not exhausted until 5th March 2007.  Shortly, afterwards, on 21st March, the Claimant refused to cooperate with the ETD process.  A Deportation Order was served on 4th April, and about 6 weeks’ later he was released on bail on 23rd May 2007.
37.	It was far too late in April 2009 to challenge the lawfulness of a period of detention that had finished nearly two years’ earlier, but it does not follow that the circumstances of that (lawful) detention are irrelevant for the purpose of considering the reasonableness of the second period of detention in accordance with Hardial Singh principles.  Mr Husain pointed to a letter dated 18th August 2006 from the Claimant’s former solicitors in which they referred to the fact that he was on continuous suicide watch, to the fact that there had been a number of serious self harm incidents requiring hospitalisation, and contended that the Claimant was not suitable for detention in HMP Brixton.  For his part, Mr Singh on behalf of the Respondent referred to a number of entries in the Claimant’s medical records in 2006 which described the Claimant as having some kind of personality disorder, but to there being “no evidence of mental illness”.
38.	While there was ample evidence that the Claimant suffered from some form of personality disorder and was prone to self harm, I do not consider that the decision to re-detain him in September 2007 was unlawful.  All of the other indications, including previous absconding, failure to comply with bail conditions, and risk of re-offending, pointed strongly in favour of detention, and at that stage, however “mental illness” is defined (see below), the Claimant’s mental state  did not appear to be so serious as to make it inappropriate to detain him.  He was considered to be suitable for transfer from prison to Colnbrook IRC in November 2007.
39.	Although the Claimant’s medical records for 2007 are sparse, it would appear that by December 2008 his condition had deteriorated to such an extent that he was moved to HMP Wandsworth because he was deemed to be a “Prominent Nominal”, a level reserved for “only the most troublesome of detainees”.  By the beginning of January 2009 there can be no doubt that the Defendant was on notice of the need to assess the Claimant’s mental health because of : (a) the reasons for his return to prison; (b) his Solicitor’s letter questioning whether he was fit to be detained “given his mental health problems/self harm”; and (c) the Defendant’s response, which was repeated in subsequent correspondence, that a psychiatric evaluation had been requested.
40.	Mr Singh submitted that the policy in para. 55.10 of the EIG referred to those who were “mentally ill”.  He referred  to the Claimant’s medical notes in 2006 which had stated that while the Claimant had a personality disorder, there was no evidence of mental illness.  In these circumstances, he submitted that the Defendant was not required to engage with the policy that the mentally ill should be detained only in very exceptional circumstances.
41.	It is true that in the detention reviews in September and November 2007 the official authorising continued detention recognised that the Claimant had been diagnosed with multiple personality disorder, but said that this “cannot be enough to section someone under the Mental Health Act”.  This might suggest that a distinction was being drawn between personality disorder and mental illness for the purpose of the then current policy in Chapter 38 of the OEM.  The Mental Health Act 2007, which changed the way in which the Mental Health Act 1983 defined mental disorder had received the Royal Assent on 19th July 2007, but was not then in  force.  When the 2007 Act came into force in November 2008 the policy, by this time contained in the EIG, was not altered to reflect the new definition of mental disorder.  The Explanatory Notes to the 2007 Act published by the Department of Health and the Ministry of Justice had explained that the new, single definition of “mental disorder” included “mental illnesses such as schizophrenia, bipolar disorder, anxiety or depression, as well as personality disorders, eating disorders, autistic spectrum disorders and learning disabilities”.
42.	Whatever the position may have been prior to the coming into force of the 2007 Act, I have no doubt that the Defendant’s policy advice in Chapter 55 of the EIG does not distinguish between mental illness and personality disorder, such that it applies to those persons whose mental disorder is the former but not to those persons whose mental disorder is the latter.  The policy is administered by officials who are not medically trained, and who would not have the expertise to distinguish between those who suffer from a mental illness and those who suffer from a personality disorder.  The policy is expressed in general terms : “Does the subject have a history of physical or mental ill health?”  Is the detainee one of “those suffering from serious medical conditions or the mentally ill?”.   When the policy is considered in the context of the relevant statutory framework, references to those who are mentally ill are references to those who suffer from mental disorder as defined in the amended 1983 Act.
43.	The distinction drawn in the Defendant’s Detailed Grounds and in Mr Singh’s oral submissions between mental illness and personality disorder is an ex post facto attempt to justify the CCD’s inexcusable delay between January 2009 and February 2010 in obtaining a psychiatric assessment of the Claimant.  It is to be noted that CCD’s response to the Claimant’s solicitor’s letter dated 17th December 2008 was that a psychiatric evaluation had been requested.  There was no denial that an evaluation was required on the basis that the Claimant’s medical notes showed that he suffered from a personality disorder rather than a mental illness.  The later requests for a psychiatric evaluation do not make any such distinction. The most recent detention review merely refers to “the exceptional criteria for detaining those with mental health needs.”
44.	Mr Husain rightly accepted that merely because there was a failure to consider the policy now contained in para. 55.10 of the EIG after the Defendant had been put on notice in January 2009, it did not follow that the Claimant’s detention was unlawful from January 2009.  In the Detailed Grounds of Defence it was submitted that even if the Defendant had erred in failing to consider the policy of detaining the mentally ill only in exceptional circumstances, the Court could be satisfied on the balance of probabilities that this Claimant would have been detained even if the policy had been taken into account.  In view of the Claimant’s high risk of absconding and re-offending, and the ability to adequately treat his mental condition while in detention, there were very exceptional circumstances which justified his detention.
45.	This submission was based on the decision of Davis J in R (on the application of Abdi and Others v Secretary of State for the Home Department [2008] EWHC 3166 (Admin).  Davis J found that the Defendant in operating a policy which applied a presumption in favour of detaining foreign national prisoners (FNPs) had acted unlawfully, but also concluded that if the Defendant could show, on the balance of probabilities, that the Claimant would in any event have been detained applying Hardial Singh principles, the fact that an unlawful policy was being operated would not make the detention lawful.
46.	The Detailed Grounds of Defence are dated 14th January 2010.  On 19th February 2010 the Court of Appeal dismissed the Claimants’ appeals against the decision of Davis J, and allowed the Secretary of State’s cross appeal : R (on the application of WL) and another v Secretary of State for the Home Department [2010] EWCA Civ 111.  Giving the judgment of the Court, Stanley Burnton LJ dealt in paragraphs 89 and 90 with the position where a decision  to detain had been made (as it was in the present case) under sub-paragraphs (2) or (3) of paragraph 2 of Schedule 3 to the 1971 Act : 
“89…… In these cases there is no lawful authority to detain unless a lawful decision is made by the Secretary of State.  The mere existence of an internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than, the published policy will not render a decision to detain unlawful.  It must be shown that the unpublished policy was applied to him.  Even then, it must be shown that the application of the policy was material to the decision.  If the decision to detain him was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful.  Once again, however, once a decision to detain lawfully has been made, a review of detention that is unlawful on Wednesbury principles will not necessarily lead to his continued detention being unlawful. 
90.	For completeness, we would add that the test of materiality may not be precisely the same as in the context of an application for a quashing order in judicial review.  In that context, a court, faced with a judicial review claim made promptly following the original decision, would be likely to quash a decision, and require it to be retaken, even if the evidence showed only a risk that it might have been affected by the illegality.  However, in the context of a common law claim in tort, which is concerned not with prospective risk, but actual consequences, we think it would be entitled, if necessary, to look at the question of causation more broadly, and ask whether the illegality was the effective cause of the detention (see e.g. Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360, 1374; and the discussion of “Causation in Law” in Clerk & Lindsell Torts 19th Ed. Paras 69-71) ”
47.	Since the Court concluded that the secret policy, although it was unlawful because it conflicted with the Defendant’s published policy, was not a material cause of the Appellants’ detention (para 48(5)), the issue of damages did not arise.  The Court nevertheless made some comments on this issue in paragraphs 91-96 of the judgment, having first observed that
“There appears to be little authority on the proper approach to the assessment of damages in a case where the actual detention was unlawful, but where a lawful decision might have produced the same result.” (para 91)
48.	The Court referred to the decision in Roberts v Chief Constable of Cheshire (1999) 1 WLR 662 and said (paragraph 92) that it appeared
“to be authority that the mere fact that a lawful decision would have led to the same consequence is not necessarily a reason for limiting the award to nominal damages.”
49.	However, Roberts is distinguishable because the requirement of periodic review was a mandatory statutory precondition to the continuation of the Claimant’s lawful detention in that case : see paragraph 86 of the Court’s judgment in WL.  In the present case, it is not suggested that there is a breach of any of the requirements of Schedule 3 to the 1971 Act.  There is statutory authority to detain the Claimant.  The challenge is confined to the manner in which that statutory authority has been exercised : whether the Defendant had regard to one of his own non-statutory policies.  In paragraph 96 of its judgment in WL the Court said:
“96.  If we had to decide the matter, we would not necessarily regard ourselves as precluded by Roberts from considering, for the purposes of assessing damages, whether an unlawful detention had in practice caused any real loss.  If, on the evidence, it was clear that, even assuming a lawful consideration, there was no realistic possibility of a different decision having been reached, and no realistic possibility of earlier release, then we do not see why that should not be reflected in an award of nominal damages only.  However, on the view we have taken on the issue of causation, such a set of facts in the present context would mean that there was no liability at all, so that the issue of damages would not arise.”
50.	Mr Husain, relying on paragraph 89 of the Court’s judgment in WL submitted that it was necessary for the Defendant to demonstrate not merely that the Claimant would have been detained, but that his detention was “inevitable”  if the policy relating to the detention of the mentally ill had been applied in his case. Mr Singh submitted that detention would have been inevitable in any event.
51.	In view of the unusual circumstances of this case, it is unnecessary to resolve the question raised in paragraphs 90 and 96 of the Court’s judgment in WL.  There is no need for a mandatory order requiring the Defendant to make arrangements for a psychiatric evaluation of the Claimant.  A report has been obtained from Dr Levy, and the Defendant has agreed to obtain a further report (see below).  It is unnecessary to decide whether, in order to defeat the Claimant’s claim for damages for his unlawful detention, the Defendant would have to establish that the Claimant’s detention was probable, or inevitable, if proper consideration had been given to his mental state.
52.	The Claimant’s past record of failing to comply with bail conditions, absconding and re-offending was so bad by January 2009 that he would inevitably have been detained whether in prison, or if his mental condition was found to be so serious as to make that inappropriate, compulsorily for treatment in a secure unit in hospital.  It is clear from Dr Bell’s report (see paragraph 20 above) that voluntary admission to an open unit would not have been a realistic option, at least initially.  It might have become a possibility after compulsory treatment.  When the Claimant was temporarily released to hospital from immigration detention in December 1994 he absconded from the hospital within 15 minutes of arriving, and a few months later was arrested for pick-pocketing.  If the Claimant had simply been released it is inevitable on his own evidence that the cycle of breaching bail conditions, absconding and re-offending, followed by imprisonment would have begun again within a very short time.  The only realistic choice in the present case in January 2009 was between detention in prison and detention in a secure hospital unit.
53.	Turning to the lawfulness of the Claimant’s continuing detention, it is common ground that the principles in Hardial Singh should be applied.  The Judge’s conclusions that the risk of absconding was high (para 32 judgment), and that the risk of further offending was so high as to be almost inevitable (para 33) were plainly correct.  The Judge was also entitled to conclude that although there was some co-operation on the Claimant’s part, “total co-operation is still to some extent lacking” (para.38).
54.	The Judge concluded that the Defendant had acted with reasonable expedition in attempting to arrange the Claimant’s removal (para.39).  Mr Husain referred in his skeleton argument to a number of delays and failures to pursue obvious lines of enquiry.  None of these failings are explained in Mr Islam’s witness statement, and it is difficult to see why a number of steps that he says he now proposes to take could not have been undertaken some months ago.  Mr Singh submits that the criticisms of the Defendant’s conduct made on behalf of the Claimant represent a counsel of perfection : while more might well have been done, the Defendant has complied with his obligation to act with reasonable diligence and expedition.
55.	While there is some force in both the Defendant’s criticisms of the Claimant’s lack of co-operation, and the Claimant’s criticisms of the lack of any real urgency in the Defendant’s attempts to remove the Claimant, these factors are of less significance.  Despite the very obvious risk of absconding and re-offending there were, when the matter first came before us on 1st March 2010, three principal factors which caused us concern as to whether the Claimant’s continued detention was lawful:
(1)  The length of detention, the Claimant had been in immigration detention for over 29 months since 21st September 2007.
(2)  Despite the length of detention there was still no end in sight.  Mr Islam’s witness statement did not give any indication as to the timescale within which the Claimant’s removal to Algeria might be possible.
  (3)  On the basis of Dr Bell’s evidence, the adverse effect of continued, open   ended detention on the Claimant’s mental health.  While the Claimant’s mental health is not the sole consideration, Dr Levy’s report had not engaged with Dr Bell’s conclusion that continued detention in prison was seriously harmful to the Claimant’s mental health.  He appeared to have equated the Claimant’s position with that of a convicted prisoner who had been sentenced to a term of imprisonment.  In such a case it would not be for Dr Levy to comment on the prisoner’s suitability for imprisonment.  But the present case is wholly different.  The Claimant is not a convicted prisoner, and the question for the psychiatrist is whether, given the Claimant’s mental state, he should continue to be detained in prison.  Dr Levy did not answer this question.
56.	In these circumstances, we adjourned the hearing of the Claim for Judicial Review until 23rd March 2010 and requested the Defendant to file and serve further evidence dealing with two matters:
(1)	a supplementary psychiatric report responding to Dr Bell’s report;  and
(2)	  updated information as to the prospects of removing the Claimant to Algeria, including information as to the steps being taken by the Foreign and Commonwealth Office to liaise with the Algerian authorities regarding the procuring of an ETD for the Claimant.
57.	Prior to the resumed hearing on 23rd March 2010 the Defendant filed and served:
(1)	A further medical report in the form of a letter dated 15th March 2010 from Dr Levy; and
(2)	a witness statement dated 18th March 2010 of Mr Coy, a Senior Executive Officer in the CCD.
Dr Bell provided a short commentary dated 22nd March 2010 on Dr Levy’s further report.
58.	Having made it clear that he had not received the Claimant’s medical records, prior to 8th December 2008, Dr Levy provided further details about the mental health services available within HMP Wandsworth.  He said that the Claimant had been referred to the Millfields Personality Disorders Unit (“the Unit”) on 1st March in order to assess the nature of his personality disorder in a comprehensive manner, as well as his suitability for treatment.  We were told by Mr Singh that the Unit had not yet seen the Claimant, but that Dr Levy was attempting to contact the referrals co-ordinator at the Unit in order to establish when the Unit would be able to do so.
59.	Unfortunately, Dr Levy still felt that as part of the Prison Inreach Team, it was inappropriate for him to comment on the Claimant’s suitability for continued detention in prison.  He said that if the Defendant wanted a comprehensive psychiatric report commenting on that issue he should consider commissioning a report from a psychiatrist outside the prison system.  Dr Levy said that:
“the issue of whether [the Claimant] should be admitted to a secure unit or as an inpatient on an open ward…would be guided by the assessment of the Unit.”
He also said “one of the primary considerations” in the decision making process would be the risk of absconding, which he was unable to assess without access to the Claimant’s earlier medical history.
60.	Mr Singh told us that the Defendant would ask an expert to provide an opinion within 14 days from 24th March on (a) the suitability of the Claimant’s continued detention in prison, and (b) whether he should instead be transferred to hospital for treatment, for example under section 48 of the Mental Health Act 1983.  This opinion will be provided within 14 days whether or not an assessment from the Unit is available.
61.	If the expert’s opinion is that a transfer direction should be given under section 48, then the Defendant will ask a second medical practitioner to provide an opinion within 7 days from the date of the expert’s opinion as to whether the requirements of section 48 are met.  Those representing the Claimant submitted that the two periods of 14 days and 7 days should be reduced to 7 and 3 days respectively.
62.	In the meantime, we were informed that the Claimant had been referred to the Forensic Therapies Unit at HMP Wandsworth, and had been seen by a clinical psychologist with a view to initiating cognitive behavioural therapy.  He has also been allocated to the caseload of a Forensic Psychiatric Nurse within the Prison Inreach team for regular follow up of his mental health needs, and he is being seen by a Consultant Forensic and Addictions Psychiatrist for his substance misuse needs.  The Claimant continues to be compliant with the treatment that is offered to him, he is under special observation given his history of deliberate self harm, but there have been no episodes of self harm since Dr Levy’s first report dated 25th February 2010.
63.	Mr Coy did not join the Home Office until 5th October 2009, when he became responsible for the investigations carried out by the CCD’s Investigation and Documentation Team (IDT).  He referred to a meeting on 21st January 2010 between himself and a representative of the Foreign and Commonwealth Office (FCO), Ms Snell, who has responsibility for liaising with Consular officials of the Peoples Democratic Republic of Algeria, at which the Claimant’s case (among other matters) was discussed.
64.	Ms Snell raised the Claimant’s case (among other matters) at a meeting with officials of the Algerian Consulate on 12th February 2010.  In a letter dated 18th March 2010 to Mr Coy she explained that following that meeting she had telephoned the Deputy Consul on 23rd February and 17th March to enquire about the progress of the application for an ETD for the Claimant.  He had said that some of the information supplied by the Claimant in the ETD application had been inaccurate.  She explained to the Deputy Consul that Mr Coy had produced
“….a pack of evidence relating to [the Claimant].  This pack includes [the Claimant’s] passport number and the date and place of issue of the passport.  The Deputy Consul said that he would send this to Algiers as soon as he received it.  He estimated that with this information, it would take about 1 – 3 months for an ETD to be issued.
The Deputy Consul also requested that a new application for an ETD be submitted along with this pack of evidence.”
65.	Mr Coy’s witness statement confirmed that the pack of evidence, comprising a report prepared by him together with accompanying documents, had been sent to the Algerian Consulate.  Having said that it was for the Algerian authorities to decide whether they would issue an ETD, he said that in his opinion:
“….the documents show beyond reasonable doubt the nationality and identity of the Claimant.  It appears from the initial reaction that the Algerians are of the same opinion.  It is therefore anticipated that an ETD is likely to be issued within the next 1 to 3 months.  Subject to the ETD being issued, the Claimant will be removed from the UK to the Peoples Democratic Republic of Algeria.”
66.	Mr Coy’s evidence tends to confirm Mr Husain’s submission that the Defendant did not act with due diligence in this case.  The documents accompanying Mr Coy’s report have all been available to the Defendant for many months, and in some cases years.  All that was required, when it became clear that there was not going to be full cooperation from the Claimant, was for an official within the CCD, such as Mr Coy, to prepare a report drawing the threads together on the basis of information that was already available to the Defendant.
67.	Having said that, there is now a real prospect that the Defendant will be in a position to return the Claimant to Algeria within the next three months.  Mr Husain submitted that the period of 1 - 3 months mentioned in Ms Snell’s letter would begin to run from the date when the pack of evidence was received in Algiers, but the Deputy Consul had assured Ms Snell that he would send the pack to Algiers as soon as he received it.  Thus, even if belatedly, one of our major concerns on the 1st March has been resolved : there is now an end in sight to the Claimant’s lengthy detention.
68.	In these circumstances, and bearing in mind the fact that the length of the Claimant’s detention has been due, at least in part, to his non-cooperation, I am not persuaded that his continued detention is unlawful. However, the Defendant should not be complacent.  Despite the Claimant’s poor criminal record and propensity to abscond, this is a finely balanced case.  The Claimant has now been in immigration detention for 30 months.  The Defendant could, and should, have acted with greater diligence during that period.  It is important that the Claimant and his solicitors are kept fully up to date as to the progress of the new ETD application in the monthly reviews of the Claimant’s detention.  If it appears that the timescale for removal given in Mr Coy’s witness statement is unlikely to be adhered to, the Defendant should promptly and carefully review the lawfulness of continued detention in this case, and if detention is to be continued, provide a detailed justification for that decision in the next review.
69.	That leaves the question : where should the Claimant be detained, in prison or in a secure unit?  Unlike Dr Levy we do have information about the Claimant’s past record of absconding, and it is clear that, at least initially, the Claimant could be released from prison only if he was released for the purpose of being admitted to a secure unit.  The Defendant’s inexcusable delay in making arrangements for a psychiatric assessment of the Claimant is a matter of grave concern, but as matters now stand it is proposed that an expert report which addresses Dr Bell’s, as yet unanswered, concerns will shortly be obtained and if necessary it will be followed by a second opinion.  While I understand the desire of those representing the Claimant for greater urgency, I do not consider the timetable belatedly proposed by Defendant is unreasonable.  In these circumstances there is no need at present for a mandatory order requiring the Defendant to make any further arrangements for a psychiatric assessment of the Claimant.
Conclusion
70.	Although this is a very troubling case, I have come to the conclusion that in the light of the further information now available to this Court this claim should be dismissed.

Lady Justice Arden:
71.	I agree.
The Master of the Rolls:
72.	I also agree.