ON APPEAL FROM THE HIGH COURT OF JUSTICE
HHJ McMULLEN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
| The Queen (on the application of OM acting by her Litigation Friend, the Official Solicitor)
|- and -
|Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Eleanor Grey QC and Julie Anderson (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 11 July 2011
Crown Copyright ©
Lord Justice Richards :
The appellant's mental health
"33. Throughout the whole period of her imprisonment and detention the Claimant has demonstrated the effects of her psychotic illness by self harm, difficult relations with others and attempted suicide. … In short the Claimant has been under supervision in prison and detention and has been transferred from both to hospital as a result of self harm throughout the almost three years of her remand, imprisonment and detention.
34. Dr Olajubu, specialist registrar in forensic psychiatry gave his report on 29 May 2008 for the purposes of sentencing at Snaresbrook. He confirmed his diagnosis of recurrent depressive disorder and emotionally unstable personality disorder but this was not of such a nature as would fulfil the criteria for treatment under the Mental Health Act 1983. … [I]f the Claimant was sentenced to imprisonment 'she could continue to receive ongoing psychiatric follow up from the prison "In Reach" team and individual psychological interventions as deemed appropriate'. This report was extant at the time of the deportation decision. The Defendant's officials plainly knew of it ….
35. Professor Katona made the first of a series of reports on 30 April 2009. He agreed with the diagnosis of Dr Olajubu and disagreed with findings of previous immigration Judges … refusing bail on the ground that the Claimant is better off in detention. He gave his opinion that her health was likely to deteriorate in response to continued detention. She was not suitable for treatment under the Mental Health Act 1983. By 21 September 2009 her condition had deteriorated considerably and she would now benefit from hospital treatment. He recommended transfer under section 48 of the Mental Health Act. The deterioration was due to detention. On 10 October 2009 his opinion was that the Claimant had significantly deteriorated to the extent that she was no longer able to conduct her proceedings and she should be transferred to hospital under section 48.
36. Dr Shah acting consultant at Bedfordshire and Luton Mental Health and Social Care Partnership NHS Trust on 21 February 2010 acknowledged the diagnoses previously given of Doctors Mann, Olabuju and Professor Katona. The Claimant was admitted to Dr Shah's care because she attempted to hang herself. Professor Katona again examined her and gave a report dated 1 March 2010. He noted her continued deterioration due to her continued detention and reiterated his opinion that she should be transferred under section 48.
37. Nurse Munday examined the Claimant at hospital, where the Claimant was being held. … She gave her opinion that her health problems could not be met adequately in her current setting i.e. at Yarl's Wood. She assessed a risk of harming children on grade 3 within a risk of 0 to 3. She was at risk of suicide, deliberate self harm and other offending behaviour at 2 giving her a summary risk to herself of 2 and risk to others of 3. That is why on 15 March 2010 Dr Ratnayake consultant psychiatrist at Bedfordshire leading a team of himself, another consultant psychiatrist and Nurse Munday decided that the Claimant's needs were met at Yarl's Wood where she would be under constant observation. Hospital admission would not provide management different to that. She was discharged back to Yarl's Wood.
38. On 23 March 2010 Professor Katona considered this report and other materials and disagreed with it to some extent. Professor Katona pointed out that the opinion of Dr Ratnayake as to the best place for constant supervision was disputed by Dr Shah, Mr Kupshnik and Ms Munday all of whom recommended psychological intervention in a secure in-patient setting."
The relevant policy framework
"Certain persons are normally considered suitable for detention in only 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 accommodation or elsewhere:
- those suffering from serious medical conditions or the mentally ill …."
"The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in 'very exceptional circumstances' along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
The judge's findings
The issues in the appeal
The application of the policy
The application of the principles in Hardial Singh
The "fresh claim" issue
Lord Justice Hughes:
Lord Justice Ward :