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Cite as: 138 BMLR 44, [2014] WLR(D) 183, (2014) 138 BMLR 44, [2015] 2 WLR 256, [2014] EWCA Civ 553, [2015] QB 385, [2015] 1 QB 385

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		Neutral Citation Number: [2014] EWCA Civ 553
		Case No: C1/2013/2111

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DINGEMANS J
[2013] EWHC 1784 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL

1 May 2014

B e f o r e :

LORD JUSTICE JACKSON
LORD JUSTICE PATTEN
and
SIR STANLEY BURNTON
____________________

Between:

	The Queen on the application of DALE LEE-HIRONS	Appellant
	- and -
	THE SECRETARY OF STATE FOR JUSTICE	Respondent
	- and -
	PARTNERSHIPS IN CARE LTD	Interested Party

____________________

John McKendrick (instructed by Stephens Scown Solicitors) for the Appellant
Martin Chamberlain QC (instructed by Treasury Solicitor) for the Respondent
Sonia Hayes for the Interested Party
Hearing date : 8 April 2014
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Stanley Burnton :

Introduction

This is an appeal by Dale Lee-Hirons, to whom I shall refer as the Appellant, against the order of Dingemans J dated 28 June 2013 dismissing his claim for judicial review against the Respondent, the Secretary of State for Justice. It raises significant questions as to the procedure to be followed when a person is recalled by the Secretary of State to be detained in a hospital under the power conferred by section 42(3) of the Mental Health Act 1983. The Appellant contends that his recall was effected unlawfully, and that his subsequent detention was unlawful. He claims damages for false imprisonment or pursuant to the Human Rights Act 1998. As I have already mentioned, the Judge dismissed his claim, holding that the decision of the Secretary of State and the Appellant's detention were lawful.

The Facts

I can take the background facts and those relating to the Appellant's conditional discharge from the Judge's clear judgment.

"8. The Claimant was born on 23 August 1966. He has 61 convictions for a variety of offences. The majority involve theft, fraud and offences against property. He has two convictions for arson. In December 2003 he had been informally admitted to hospital. He was discharged in February 2004 with a diagnosis of mania with possible schizophrenic features.

9. In March 2004 he was admitted to hospital again. He was then reported (as appears from summaries set out in various reports) to have had a chronic fixed delusion of a snake being in his spine because of his past sins. He showed aggression towards staff and other patients. On discharge his diagnosis was chronic paranoid delusional disorder, amphetamine and cocaine misuse, and a sociopathic personality disorder.

10. The relevant conviction was on 10 November 2006 when the Claimant was convicted of arson and burglary. He had burgled a charity shop to steal money, and then he had set the shop alight. When he was sentenced by the Crown Court a hospital order and a restriction order were made, pursuant to sections 37 and 41 of the Mental Health Act.

…

15. On 27 January 2008 the Claimant applied to the First Tier Tribunal for discharge from the hospital from the First Tier Tribunal.

16. On 18 March 2008, after hearing evidence, the First Tier Tribunal decided that the Claimant was suffering from a mental disorder which made it appropriate for him to be liable to be detained in a hospital for medical treatment. The Tribunal decided that it was necessary that the Claimant should receive such treatment. The Tribunal was satisfied that appropriate medical treatment was available and that it was appropriate for the Claimant to remain liable to be recalled. The Tribunal addressed the evidence and accepted (paragraph 11) that the Claimant met the diagnostic criteria for antisocial personality disorder and continued to exhibit a number of psychopathic features including lack of remorse, an inability to appreciate his impact on others and was quick to anger. It was noted that his personality disorder was exemplified by overly grandiose behaviour, and the Claimant's belief that his poetry would be a worldwide bestseller was recorded (paragraph 14). The Tribunal noted a conflict of evidence between experts and concluded that the Tribunal was not satisfied that the Claimant had a mental illness, but were sure that he suffered an antisocial personality disorder.

17. On 11 November 2009 the Claimant was transferred to Cheswold Park Hospital and the Responsible Clinician ("RC") became Dr Nimmagadda.

18. On 12 April 2010 the Upper Tribunal set aside the judgment of the First Tier Tribunal. This was because that part of the First Tier Tribunal's decision which had held that the Claimant would benefit from continued treatment, was not sufficiently reasoned. The matter was remitted back to the First Tier Tribunal for determination.

19. On 24 August 2011 the First Tier Tribunal gave judgment. …

20. The Tribunal held that "notwithstanding earlier diagnoses we are not satisfied that [the Claimant] has paranoid schizophrenia". However the Tribunal also held that the Claimant had an antisocial personality disorder. The Tribunal was satisfied that treatment could be provided, but also took the view "… that it may be possible for [the Claimant] to be treated in the community on a Conditional Discharge. Approved accommodation and the supervision of a social supervisor and RC are essential". The proposed conditions were then set out.

21. In preparation for his conditional discharge a HCR-20 risk assessment at Cheswold Park was updated in April 2012. After making various comments about offences it was noted that drugs and alcohol led to involvement in offending behaviour. It was also recorded that "although his mental health diagnosis had been disputed, it was found that a deterioration in mental state was related to an increase in risk behaviours related to violence".

22. It appears, from the decision of the First Tier Tribunal dated 27 April 2012, that Dr Nimmagadda and others worked very hard to ensure that the conditions could be implemented for the Claimant. The Tribunal heard evidence from Mr Ian Hart and Mr Joe Costelloe of Langley House Trust ("LHT") about the regime for persons suffering from personality disorders such as the Claimant. After careful assessment LHT had offered a place to the Claimant. Mr Hart and Mr Costelloe were questioned by Dr Nimmagadda about the proposed arrangements, and Dr Nimmagadda then said that he agreed that the Claimant should be conditionally discharged to LHT.

23. The Tribunal specifically recorded that "we have formed a very high opinion of Mr Hart and Mr Costelloe". The Tribunal also noted that "if [the Claimant] breaks house rules and can no longer be allowed by his social supervisor to be at Longcroft [the Claimant] can be recalled to hospital". After thanking Dr Nimmagadda and his team the Tribunal gratefully acknowledged "… the work done by Mr Hart, Mr Costelloe and Mr Hoyle in enabling us to implement the deferred CD. Without the outstanding and skilled efforts of all of the above [the Claimant] would probably still be detained in hospital".

24. The Claimant was conditionally discharged from Cheswold Park Hospital to LHT on 11 June 2012. His social supervisor was Mr Hart. His RC was Dr Omar."

The recall of the Appellant

The decision to recall the Appellant was made by David Elliott, of the Mental Health Casework Section in the NOMS Public Protection & Mental Health Group of the Ministry of Justice. He was Head of Casework Team Two, and as such was responsible for discharging the powers of the Secretary of State in relation to restricted patients. He was contacted by telephone by Mr Hart, the Appellant's social supervisor, on 19 July 2012 and informed that there were concerns in relation to the Appellant. Mr Elliott made a full note of their conversation, and it is clear that he was given a very full report.

Mr Hart produced a detailed report on the Appellant, either before or shortly after his conversation with Mr Elliott, and following their conversation it was emailed to Mr Elliott at 14.57 on 19 July 2012.

"T/C discussion with Social Supervisor, Ian Hart, followed up with a letter/report with medical evidence, requesting formal recall. The Social Supervisor reports, in liaison with the RC Dr Omar, that the patient is presenting with clear evidence of a delusional disorder, refusing medication and staff have reported in the last 24 hours that the patient has presented in a bizarre manner characterised by him sitting in the office and ranting/swearing. Following an urgent assessment, Social Supervisor reports that the patient's presentation has become much more unpredictable, he appeared distracted and guarded, he does not show any insight into the fact that this mental health does not appear to be very solid, he flatly denies any mental illness and it was clear that his mental health was deteriorating. The patient was ranting about his regional commissioner Andy Jones, blamed him for everything that had happened to him and informed the care team members that if Andy Jones turned up at his CPA next week that he would assault him. The Social Supervisor and RC have discussed the possibility of an admission to a local psychiatric facility for assessment and possible treatment, however, the use of a informal/voluntary admission is not assessed as appropriate due to the patient indicating that he would not comply and would abscond. The RC and Social Supervisor have considered the risks associated with the patient and have assessed the likelihood of him absconding and consuming alcohol and illicit substances as high; there is evidence to indicate that the patient is thinking about the victim and, whilst the patient has stated that he will not contact her, he has also stated that they are to be together. A bed has been found/confirmed in medium secure Chevington Ward, The Spinney, Everest Road, Atherton, Manchester M46 9NT and I am satisfied that there is clear evidence of a deterioration in the patient's mental health, that an increased risk to the public is being presented and the patient is non-compliant with his medication and the requirements of his supervision in the community. Recall actioned."

As appears from that note, Mr Elliott also received a written report of Mr Hart, sent by email, which included the information as to the Appellant's mental health set out in the note. For present purposes, it is sufficient to note that Mr Hart's report concluded:

"All three of the professional disciplines involved in the care of [the Appellant] are of the opinion that there has been a deterioration in his mental [health] and reluctantly believe that the only option is to consider a recall under the Mental Health Act 1983 (as amended 2007)."

Having received this information from Mr Hart on the telephone and in the written report, Mr Elliott decided that the Appellant should be recalled to hospital. At 1600 hours on 19 July 2012 he sent a formal signed recall warrant for the Appellant. The warrant was headed "Warrant recalling patient conditionally discharged". It stated that in pursuance of section 42(3) of the Mental Health Act 1983 the Secretary of State recalled the Appellant to The Spinney, a hospital managed by the Interested Party. The warrant gave no reason for his recall.

The warrant was executed at 18.23 on 19 July 2012. The Judge found that when it was executed Mr Hart informed the Appellant that he was being recalled because his mental health had deteriorated.

On 24 July 2012 NOMS wrote to Dr Omar at The Spinney, enclosing a copy of the warrant and stating that he, Dr Omar, should inform the Appellant in full as soon as possible after his admission, and in any event within 72 hours, of the reasons for his recall. Dr Omar had been the Appellant's responsible clinician ("RC") while the Appellant had been on conditional discharge in the community following his conditional discharge.

On the day after recall, the Secretary of State referred the Appellant's case to the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health). It was common ground before the Judge that from November 2012, when the Tribunal first met to consider his case, the issue whether he should continue to be detained was for the First-tier Tribunal. On 11 February 2013 the Tribunal decided that the Appellant was properly detained.

On 3 August 2012, just over 2 weeks after his recall, the Appellant met with his new Responsible Clinician, Dr Kasmi, who read to him a copy of Mr Hart's report.

The statutory provisions

The power of the Crown Court to order that a convicted person be admitted to and detained in a hospital is conferred by section 37 of the Mental Health Act 1983 ("the MHA"). So far as is relevant, it provides:

"(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, …, the court may by order authorise his admission to and detention in such hospital as may be specified in the order ….

…

(2) The conditions referred to in subsection (1) above are that—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.

…"

The Crown Court may, in addition to making a hospital order, make a restriction order under section 41:

"(1) Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section ... ; and an order under this section shall be known as 'a restriction order'."

For present purposes, the relevant effect of a restriction order is that if the patient is conditionally discharged (as the Appellant had been), the Secretary of State has power under section 42(3) to recall him to a hospital in which he will be detained. Section 42(3) is as follows:

"(3)The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."

It is this power that the Secretary of State purported to exercise on 19 July 2012.

The provisions of the MHA have to be considered together with Article 5 of the European Convention on Human Rights:

"Article 5 Right to liberty and security

1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

….

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4 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.

5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."

The Secretary of State's policy

The statutory provisions were supplemented by document HSG (93) 20, issued by the Department of Health in April 1993 and addressed to health authorities, setting out "Revised procedures … for informing restricted mentally disordered patients recalled to hospital under Section 42(3) of the Mental Health Act 1983 of the reason(s) for their recall". The background was described as follows:

"Patients in the above categories may be conditionally discharged by the Home Secretary and, in some cases, by a Mental Health Review Tribunal (MHRT). The Home Secretary retains the power to recall the patient to hospital by warrant under Section 42(3) of the Mental Health Act 1983. A patient who has been conditionally discharged could be recalled because those responsible for supervising him/her in the community and/or the Home Secretary are concerned about the patient's mental condition and/or possible danger to the public. Re-admission to hospital should be by arrangement with the receiving hospital and the local social services department. The person responsible for taking the patient back to the hospital could be a police officer, probation officer, nurse, approved social worker or any other person authorised by the hospital managers."

The procedures stipulated in the circular were as follows:

1.1 A patient recalled to hospital may be in an excitable and nervous state. There are obvious difficulties in asking the person escorting the patient to hospital to give a full account of the consideration which have led to the decision to recall. Accordingly, a three-stage procedure should be applied:

Stage 1: The person returning the patient to hospital should inform him/her in simple terms that he/she is being recalled to hospital by the Home Secretary under Section 42(3) of the Mental Health Act 1983 and that, to the extent that this is possible, a further explanation will be given later. The reason(s) for recalling the patient should be explained to the nearest relative, if one is available, within 72 hours.

Stage 2: An explanation should be given to the patient of the reason(s) for his/her recall as soon as possible after re-admission to hospital and in any event within 72 hours. This should be done by the responsible medical officer or deputy, an approved social worker, or an appropriate administrator representing the hospital managers. The person giving the explanation should ensure, as far as the patient's mental condition allows, that the patient understands the reason(s).

Stage 3: A written explanation of the reason(s) for recall should be provided for the patient within 72 hours of being re-admitted to the hospital. Written information on the reason(s) should also be given to the patient's nearest relative (subject to the patient's consent).

1.2 The responsible medical officer should inform the patient's supervising officer (social worker or probation officer) in the community, the key worker attached to the patient under the Care Programme Approach and a member of the patient's family who accepts responsibility (or a legal representative) of the reason(s) for recall. In the interests of co-ordination and longer-term care programme planning (HC(90)23), it may also be necessary to inform (or otherwise involve) other agencies who are concerned with patients care.

Also in April 1993 the Department issued a circular, LAC(93)9, in substantially the same terms, addressed to local authorities.

The parties' contentions

The Appellant contends:

(1) The Secretary of State was under a duty to provide his written reasons for the recall of the Appellant when the warrant was executed but failed to do so. Oral reasons do not suffice.

(2) The oral reasons given to the Appellant when the warrant was exercised were inadequate.

(3) The reasons given to the Appellant orally were not the Secretary of State's reasons.

(4) The consequence of any of the above failures of the Secretary of State rendered the recall and consequent detention of the patient unlawful.

The Secretary of State disputes each of the above contentions.

The judgment below

The judge rejected each of the Appellant's contentions. Relying on the authorities concerning arrest for a criminal offence, he held that reasons for the recall of a patient had to be given when he is recalled, but it was sufficient for them to be given orally, and that the reason given to him when the warrant was executed was adequate and was, in summary, the Secretary of State's reason. He dismissed the Appellant's claim.

Discussion

Issue (1) Was the Secretary of State under a duty, at common law or under Article 5, to give his reasons for recalling the Appellant in writing?

In deciding that the Secretary of State was not bound to provide his reasons for recalling a patient in writing at the time of recall, the judge placed reliance on the judgments of the House of Lords in the great case of Christie v Leachinsky [1947] AC 573. The Appellate Committee held that an arrest without warrant can be justified only if the charge is made known to the person arrested when he is arrested. Viscount Simon summarised the law at 587 as follows:

"(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false
imprisonment.

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

(5) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

(6) The person arrested cannot complain that he has not been
supplied with the above information as and when he should be,
if he himself produces the situation which makes it practically impossible to inform him, e.g. by immediate counter-attack or by running away."

As can be seen, there is nothing in this summary to suggest that written reasons are required in order to effect a lawful arrest. The judge considered that there is a valuable analogy between arrest for a criminal offence and the recall of a conditionally discharged patient.

For the Appellant, Mr McKendrick relied on the judgments of Brooke and Sedley LJJ in R (Wooder) v Feggetter and another [2002] EWCA Civ 554 [2003] QB 219, and submitted that the Judge was wrong not to have followed the decision in that case. It concerned the exercise by a second opinion appointed doctor, generally referred to as a SOAD, of the power under section 58(3)(b) of the MHA to certify that treatment to which a patient has not consented should nonetheless be given. The claimant, a detained patient, sought judicial review, contending that fairness required he be given the SOAD's "written and adequate reasons" when certifying, so that he could address them, and that no reasons for the certificate had been given. The respondents contended that there was no duty to give reasons at all. The Court of Appeal held that a patient is entitled to receive adequate reasons in writing. Brooke LJ held that the decision of the SOAD was sufficiently important for reasons to be required:

"25. I have no hesitation in holding that a decision to administer medical treatment to a competent non-consenting adult patient falls into this category [of decisions for which reasons must be given to the person affected by it]. Parliament recognised the importance of giving reasons both when a patient is first detained for medical treatment for his disorder (which may be non-consensual: see section 63) under section 3 of the 1983 Act and when a Mental Health Review Tribunal makes a decision affecting a patient (see rule 23(2) of the Mental Health Review Tribunal Rules 1983). With the coming into force of the Human Rights Act 1998 the time has come, in my judgment, for this court to declare that fairness requires that a decision by a SOAD which sanctions the violation of the autonomy of a competent adult patient should also be accompanied by reasons. The fact that the critical decision is made by a doctor in the exercise of his clinical judgment and not by a tribunal following a more formal process, cannot, in my judgment, be allowed to diminish the significance of the doctor's decision."

In relation to the form in which reasons should be given, he said:

"29. The law will not require a SOAD to dot every 'i' and cross every 't' when giving reasons for his opinion. So long as he gives his reasons clearly on what he reasonably regards as the substantive points on which he formed his clinical judgment, this will suffice. Any concerns MHAC and SOADs may have about SOADs being exposed to the bother of expensive and time-consuming litigation should be mitigated by the consideration that any legal challenge will require the permission of the court. Unless a patient can show a real prospect of establishing that a SOAD has not addressed any substantive point which he should have addressed, or that there is some material error underlying the reasons that he gave, the court will not grant permission. If on the other hand a patient can demonstrate either of these matters to the satisfaction of a court, I can see nothing unreasonable in allowing a legal challenge.

…

33. The reasons should be prepared and disclosed to the patient as soon as practicable. Mr Fitzgerald did not pursue to the end his argument that this process must necessarily always precede the administration of the sanctioned treatment. It is only necessary to consider the facts of a case like Wilkinson (see [2001] EWCA Civ 1454 at [4]; [2002] 1 WLR 419) to understand that it may not always be appropriate to delay treatment once the SOAD's certificate has been given.

34. For these reasons I would be disposed to grant a declaration that fairness demands that a SOAD should give in writing the reasons for his opinion when certifying under section 58 of the Mental Health Act 1983 that a detained patient should be given medication against his will, and that these reasons should be disclosed to the patient unless the SOAD or the RMO considers that such disclosure would be likely to cause serious harm to the physical or mental health of the patient or any other person. …"

Sedley LJ said:

"49. Given the present divergences between the common law and the Convention, I think care is required, for reasons which this appeal illustrates, in mapping the route by which their respective standards and controls are to be imported into public law functions. In a generation's time, when the Convention rights have become second nature to lawyers (as the innovative principles of modern criminal law became second nature to them in the course of the nineteenth century) the difference between the two methods of rapprochement will probably cease to matter. For the present, for the reasons given by Lord Justice Brooke, I agree that both the common law path, by way of incremental development, and the Convention path, by way of art. 8, take Mr Fitzgerald home on his principal argument that the patient is entitled, not as a matter of grace or of practice but as a matter of right, to know in useful form and at a relevant time what the SOAD's reasons are for his opinion on the RMO's proposal to override his will."

Potter LJ said that he "agreed with the judgment of Brooke LJ and the observations of Sedley LJ on the duty to give reasons".

I do not think that the Judge was bound to follow the decision in Wooder so as to hold that the reasons for recall must be given in writing. There was no issue before the Court of Appeal in that case as to the form in which reasons had to be given. The issue was rather whether reasons should be given at all. It is significant that in neither paragraph 25 nor in paragraph 29 of his judgment did Brooke LJ refer to writing, and although in paragraph 33 he stated that the reasons for the giving of the certificate should be prepared as soon as practicable, he did not seek to explain why oral reasons would be insufficient. I accept that when in paragraph 49 Sedley LJ referred to the requirement to give reasons "in useful form" he had in mind written reasons, but his "observations" were obiter. A declaration was given that the reasons must be in writing, but that was because the declaration sought by the claimant was in those terms, and no argument was addressed as to the form in which reasons should be given.

Moreover, there are contextual differences between the exercise of the power of recall and the issue of a certificate by a SOAD. A patient who is to be the subject of such a certificate is necessarily already detained in a hospital. There is unlikely to be the kind of urgency that may apply to a decision to recall a patient. The SOAD himself, and if not the Responsible Clinician ("RC") will be available to give the reasons to the patient. In contrast, the decision to seek a recall may be made as a matter of urgency by a police officer, who of course will not be medically qualified, as where a conditionally discharged patient is found to be about to commit arson, or at risk of injuring himself or others, and this may happen at any time of day or night; or it may be made by a social worker. Practical considerations militate against a requirement of written reasons as opposed to an oral explanation. Furthermore, I do not think that the advent of email and word processors justifies a stricter rule requiring writing.

It is also significant that Article 5.2 does not require written reasons for apprehension, and does not distinguish between arrest on suspicion of a criminal offence and detention in circumstances such as those in the present case. In X v UK (1982) 4 EHRR 188, the patient had been conditionally discharged and recalled. The circumstances of his recall were described by the European Court of Human Rights as follows:

"23. On Friday, 5 April 1974, … the applicant's wife visited the probation officer and told him that the applicant's condition had not, for a long time, been as she had described in her previous progress reports. On the contrary, she said, he remained deluded and threatening, using obscene language, accusing her of loose morals, and drinking quite heavily. She told the probation officer that she had reached the end of her endurance and intended to leave her husband the following day, but was afraid to stay in the house with him that night.

The probation officer alerted the responsible medical officer at Broadmoor. The medical officer was aware of X's previous history, including his record of impulsive and dangerous conduct under stress; he also had copies of the psychiatric reports prepared on X during the latter's period of conditional release. In consequence, the doctor became alarmed at the possibility of a recurrence of violent behaviour by X, especially if X came to know of his wife's intention to leave him. The doctor did not judge it necessary to seek to have the wife's complaints verified since it was in his view sufficient that the complaints had been made and that the probation officer found them credible. The doctor therefore referred the matter to the Home Secretary who, acting on his advice, ordered the applicant's immediate recall to Broadmoor Hospital in pursuance of section 66(3) of the 1959 Act.

24. On the afternoon of the same day, shortly after his return home from work, X was taken into custody by the police. There is no evidence as to what exactly the police said to the applicant on detaining him. X maintained that he received no explanation other than the warrant order itself. The Government referred to the usual procedure then applied in cases of this kind whereby the person concerned was simply informed that he was being recalled to Broadmoor by the Home Secretary. X was detained overnight and escorted back to Broadmoor Hospital on the following day.

25. According to the applicant, on his arrival at the hospital he was not given any explanation for his recall, although he inferred from interviews with the responsible medical officer some time after his readmission that it had something to do with complaints from his wife.

The Government maintained that immediately on X's return to Broadmoor the responsible medical officer sought to explain to him the reasons for his recall, and in particular the fears and anxieties expressed by his wife. However, since X was at this time extremely resentful, disturbed and suffering from delusions, it is possible, so the Government submitted, that he did not fully understand or appreciate the explanations afforded to him.

26. On the Saturday morning before being escorted back to Broadmoor, X had instructed solicitors to apply for a writ of habeas corpus on his behalf."

It appears that no reason for his recall was given to X when he was detained by the police. Nonetheless, the Court found that there was no breach of Article 5.1, because the Secretary of State had sufficient substantive reasons to recall him:

"44. ….

In such circumstances, the interests of the protection of the public prevail over the individual's right to liberty to the extent of justifying an emergency confinement in the absence of the usual guarantees implied in paragraph 1 (e) of Article 5 (art. 5-1-e) (see paragraph 41, third sub-paragraph, above). On the facts of the present case, there was sufficient reason for the Home Secretary to have considered that the applicant's continued liberty constituted a danger to the public, and in particular to his wife.

46. While these considerations were enough to justify X's recall as an emergency measure and for a short duration, his further detention in hospital until February 1976 must, for its part, satisfy the minimum conditions described above (at paragraph 40). These conditions were satisfied in the case of X: having examined X after his readmission to Broadmoor, the responsible medical officer was of the opinion that he should be further detained for treatment. This opinion was maintained until December 1975 when an improvement in his condition was noted; up till then the medical reports indicated that he continued in a psychotic state (see paragraph 30 above). Like the Commission (see paragraph 96 of the report), the Court has no reason to doubt the objectivity and reliability of this medical judgment.

47. In conclusion, there was no breach of Article 5 par. 1 (art. 5-1)."

The Court addressed X's contention that there had been a breach of Article 5.2 (the duty to give reasons) at paragraphs 65 and 66:

"65. The Government contended that the term "arrested" in Article 5 par. 2 (art. 5-2) is not appropriate to describe the conditions under which a restricted patient may be recalled to a hospital. In their submission, the words "of the reasons for his arrest and of any charge against him" suggest that this provision refers to arrest for a criminal charge. The Commission disagreed with this interpretation which, it pointed out, would have the effect of limiting the protection of paragraph 2 to arrests coming under paragraph 1 (c) (art. 5-1-c).

Not only did the respective arguments advanced differ as to the applicability of paragraph 2 (art. 5-2) to X's situation, but they were also in conflict as to whether it had been complied with in the circumstances. In the Government's view, the reasons given to the applicant and subsequently to his solicitors were sufficient to satisfy any obligation arising by virtue of Article 5 par. 2 (art. 5-2). The Commission, on the other hand, was unanimous in concluding that whatever may have been said to X himself, there could have been no justification for withholding from his solicitors an official and detailed explanation; the vague statement from the Home Office (see paragraph 27 above) could not constitute the information necessary to make effective use of the right ensured by Article 5 par. 4 (art. 5-4).

66. The Court does not consider that it has to settle this double conflict of opinion, especially since the facts of the case are not entirely clear on the points in issue (see paragraphs 24-27 above). The Court would point out in the first place that the need for the applicant to be apprised of the reasons for his recall necessarily followed in any event from paragraph 4 of Article 5 (art. 5-4): anyone entitled - as X was (see paragraph 54 above) - to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty. The Court further notes that at the close of the first hearing before the Divisional Court, the application for a writ of habeas corpus was adjourned because the Divisional Court itself felt that more information was required before any decision could be arrived at (see paragraph 26 in fine above). At the adjourned hearing on 21 June 1974, since the detention was apparently legal, the onus was effectively on X to show that the Home Secretary had acted unlawfully in exercising his statutory discretion. However, it is clear from the evidence that lack of information as to the specific reasons for the recall, a matter almost exclusively within the knowledge of the Home Secretary, prevented X's counsel, and thus the Divisional Court, from going deeper into the question (see paragraph 56 above). Consequently, the complaint under paragraph 2 (art. 5-2) amounts, in the particular circumstances, to no more than one aspect of the complaint that the Court has already considered in relation to paragraph 4 (art. 5-4); there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue (see, mutatis mutandis, the above-mentioned Deweer judgment, pp. 30-31, par. 56 in fine, and the Dudgeon judgment of 22 October 1981, Series A no. 45, par. 69).

Thus, Article 5 requires that the patient must be "promptly and adequately informed of the facts and legal authority relied on to deprive him of his liberty", but it does not require that information to be given to the patient immediately when he is detained. This duty is intended to be satisfied by providing an explanation for the recall within 72 hours as stipulated in HSG (93) 20. In X the applicant succeeded in establishing a breach of Article 5.4 because there was no court or tribunal with power to direct his release if it considered that his detention was unnecessary: at the time the powers of the Mental Health Review Tribunal were advisory only, and the decision whether or not to discharge the patient was made by the Secretary of State.

In the later case of Van der Leer v The Netherlands (1990) 12 EHRR 567, the Court held that the obligation imposed by Article 5.2 extends to the detention of patients. The facts of that case were striking. The applicant was a voluntary patient in a hospital. Unknown to her, an application was made to the Cantonal Court for her compulsory confinement in the hospital. The Cantonal Court acceded to that application. The applicant was not informed of the proceedings or of the order made by the Cantonal Court or of the reasons for it when it was made, and only learned of the order 10 days later. The proceedings before the Cantonal Court did not comply with domestic law, since there was no justification under that law for her not being given notice of the application, as required by the law of the Netherlands, so as to enable her to make representations to that Court. There was for this reason a breach of Article 5.1. The Court said:

"23. Notwithstanding the requirements of the Mentally Ill Persons Act, the Cantonal Court judge failed to hear Mrs van der Leer before authorising her confinement, although the legal conditions under which such a hearing might be dispensed with were not satisfied. At the very least he should have stated, in his decision, the reasons which led him to depart from the psychiatrist's opinion in this respect. The Government accepted this.

There has therefore been a violation of Article 5 § 1 (art. 5-1) in this regard."

In relation to Article 5.2, the Court said:

"29. Having found that Article 5 § 2 (art. 5-2) is applicable, the Court must determine whether it has been complied with in this case.

30. The applicant was in hospital to receive treatment as a "voluntary" patient. It was not until 28 November 1983 that she learned, when she was placed in isolation, that she was no longer free to leave when she wished because of an order made ten days previously (see paragraphs 9 and 10 above). The Government did not contest this.

31. It therefore appears that neither the manner in which she was informed of the measures depriving her of her liberty, nor the time it took to communicate this information to her, corresponded to the requirements of Article 5 § 2 (art. 5-2). In fact it was all the more important to bring the measures in question to her attention since she was already in a psychiatric hospital prior to the Cantonal Court judge's decision, which did not change her situation in factual terms.

Accordingly, there has been a violation of Article 5 § 2 (art. 5-2)."

Thus, the fact that the applicant had not been informed of the reasons (or even the fact) of her detention when the order for her detention was made did not amount to a breach of Article 5.

I conclude, therefore, that Article 5.1 does not require the reasons for the detention of a patient to be given to him when he is detained; a fortiori it does not require those reasons to be given in writing when the patient is detained. Article 5.2 requires those reasons to be adequately and promptly given to him following his detention.

Issue (2) Was the reason given to the Appellant when he was detained adequate?

I have found this issue more difficult. The reason found by the judge to have been given to the Appellant when he was detained was simply that his mental health had deteriorated.

As Mr Chamberlain QC pointed out, it cannot be said that the statement that the Appellant's mental health had deteriorated conveyed nothing. Deterioration in mental health is not the only ground for recall. The Ministry of Justice has published guidance on policy on recalls in its document "The recall of conditionally discharged restricted patients". At paragraph 4 it sets out a summary of the effect of the case law, and states, among other matters:

"There is no need for the patient's mental health to have necessarily deteriorated in order to justify recall. If a patient has a mental disorder and is presenting an elevated risk linked to that disorder that warrants detention in hospital then the patient can be recalled. In such a case the criteria for detention would be met because the disorder was of a nature (rather than a degree) that warranted detention in hospital and this is necessary for the protection of other persons."

The correctness of this statement was not challenged by Mr McKendrick.

If the only information provided to the Appellant had been that he was recalled because his mental health had deteriorated, it would have been insufficient to satisfy the requirements of Article 5.2 or of common law. I would have rejected a contention that it satisfied the duty of the Secretary of State to give reasons for the Appellant's recall. However, the Secretary of State does not submit that his duty is so restricted. He has accepted, in HSG (93) 20 and LAC(93)9, an obligation to provide to the patient an explanation for the recall as soon as possible after re-admission to hospital, and in any event within 72 hours, and a written explanation within 72 hours. In my judgment, this obligation satisfies the requirements of Article 5.2.

It is instructive in this connection to refer to the judgment of the European Court of Human Rights in Fox, Campbell and Hartley v UK (1990) 13 EHRR 157. The case concerned the arrest of suspected terrorists. The Court referred to the circumstances of their arrest in paragraphs 40 to 43 of the judgment:

"40. Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 13, § 28). Whilst this information must be conveyed "promptly" (in French: "dans le plus court délai"), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.

41. On being taken into custody, Mr Fox, Ms Campbell and Mr Hartley were simply told by the arresting officer that they were being arrested under section 11 (1) of the 1978 Act on suspicion of being terrorists (see paragraphs 9 and 13 above). This bare indication of the legal basis for the arrest, taken on its own, is insufficient for the purposes of Article 5 § 2 (art. 5-2), as the Government conceded.

However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations (see paragraphs 9, 10, and 14 above). There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation.

42. Mr Fox and Ms Campbell were arrested at 3.40 p.m. on 5 February 1986 at Woodbourne RUC station and then separately questioned the same day between 8.15 p.m. and 10.00 p.m. at Castlereagh Police Office (see paragraph 9 above). Mr Hartley, for his part, was arrested at his home at 7.55 a.m. on 18 August 1986 and taken to Antrim Police Station where he was questioned between 11.05 a.m. and 12.15 p.m. (see paragraph 13 above). In the context of the present case these intervals of a few hours cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 § 2 (art. 5-2).

43. In conclusion there was therefore no breach of Article 5 § 2 (art. 5-2) in relation to any of the applicants."

Thus, so far as Article 5 is concerned, adequate reasons do not have to be given when a person is detained. A failure to provide adequate reasons promptly thereafter will result in a breach of Article 5.2, but not of Article 5.1.

HSG (93) 20 gives sensible reasons, at paragraph 1.1, why in many cases it will be impracticable to give the patient the full reasons for his recall when the warrant for his recall is executed. Apart from his mental condition, the warrant may not be executed by someone, such as a police officer, who is able to give a sensible explanation of the reasons for recall. I do not think that the common law requires more to be given to a patient when the warrant is executed than was given to the Appellant in this case. The obligation to provide a written explanation within 72 hours satisfies the duty under Article 5.2 and also, if complied with, ensures that the patient understands the full reasons for his recall, is able to instruct a solicitor if he wishes to challenge the decision by judicial review or habeas corpus proceedings, can discuss those reasons with his RC, and can prepare for the tribunal hearing that is to consider his case as a result of the exercise by the Secretary of State of his duty to refer the patient's detention to the tribunal.

In the present case, the Secretary of State did not comply with his duty to provide adequate reasons within 72 hours. The reasons for his failure to do so were not good reasons. As mentioned above, on 24 July 2012 the Ministry wrote to Dr Omar at The Spinney enclosing a copy of the warrant and asking him to inform the Appellant as soon as possible and in any event within 72 hours of the reasons for his recall. This letter was sent more than 72 hours after the Appellant's readmission. To make matters worse, Dr Omar did not work at the Spinney: as mentioned above, he had been the Appellant's supervising community RC; and in any event the letter did not include the reasons for the Appellant's recall. The Appellant was not given the full reasons for his recall until 3 August 2012, over 2 weeks after his recall, when he saw Dr Kasmi, his RC, who read Mr Hart's report to him and discussed it with him.

There was thus a clear and admitted breach by the Secretary of State of his policy to provide an adequate explanation of recall within 72 hours at most, and similarly a breach of Article 5.2. However, these breaches did not render unlawful what was, in my judgment, originally a lawful recall. As has been seen, a failure to comply with Article 5.2 does not of itself constitute a breach of Article 5.1. At common law, a breach of a public law duty renders a detention unlawful if it affects the decision to detain. In the leading authority, the decision of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245, Lord Dyson JSC (with whose reasons in this respect the majority of the Court agreed) said:

"66. … A purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context, there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires: see Boddington v British Transport Police [1999] 2 AC 143, 158D-E.

67. Mr Beloff submits that there are inherent problems in what I consider to be the correct and principled approach. First, it fails to take account of the nature or extent of the public law error. For example, he suggests that it treats for the purposes of liability as equally unlawful a decision to detain made by an official one grade lower than that specified in the detention policy (but which is otherwise unimpeachable) and a decision to detain for which there is no statutory authority at all. Secondly, it allows what is in essence a public law challenge to be made under the guise of a private law action without any of the procedural safeguards which apply in a judicial review application. In particular, the normal time limits for judicial review proceedings are circumvented. Thirdly, judicial review is a discretionary remedy. A minor public law error may result in no substantive relief being granted at all in judicial review proceedings, whereas a claimant can bring proceedings for false imprisonment as of right.

68. I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."

Thus, as in Lumba, a decision made in the application of a secret policy other than and inconsistent with that published by the Secretary of State was unlawful, and the consequent detention itself unlawful. Similarly, in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 [2011] 1 WLR 1299, the failure of the Secretary of State to conduct periodic reviews of the detention of the appellant, as required by her published policy, rendered his continuing detention unlawful. A failure timeously to provide full reasons for a lawful detention does not of itself affect the decision to detain or to continue to detain; it does not therefore render the detention unlawful at common law, any more than it does under the Convention.

It is significant that the first letter from the solicitors acting for the Appellant complaining of his detention, dated 13 August 2012, took no issue with the delay in giving the Appellant the reasons for his recall, or the form of adequacy of those reasons, but challenged whether there was substantive justification for his recall. The issue was described as follows:

"The decision to recall was made on the basis that there had been a relapse in mental illness, namely his psychotic disorder. This basis of recall is unlawful as two successive tribunals have concluded that he does not suffer from a psychotic illness and as such there cannot be relapse of a condition that has already been found by the tribunal not to have existed."

It seems, therefore, that even the brief reason given to the Appellant when he was recalled sufficed to enable him to instruct his solicitors to challenge his detention. The claim for judicial review was commenced on 22 October 2012, and the grounds consisted principally in the contention that there were no substantive grounds for the recall of the appellant, i.e., that his mental health had not justified his recall. This ground was rejected by the Judge and has not been pursued before this Court.

I understood Mr McKendrick at one point in his submissions to accept that a breach of the duty of the Secretary of States to comply with the policy published in HSG (93) 20 did not render the Appellant's detention unlawful so as to give rise to a claim for damage for false imprisonment. In my judgment, he was right to do so.

(3) Were the reasons given by the Secretary of State his true reasons?

As explained in his skeleton argument, Mr McKendrick's contention is that the reasons for the Secretary of State's decision to recall the Appellant were those set out in Mr Elliott's note and Mr Hart's report, and not what the appellant was told, namely that his mental health had deteriorated.

There is nothing in this point. What the Appellant was told by Mr Hart when he was recalled was no more, and intended to be no more, than a brief explanation, with the detailed explanation to follow.

(4) The consequences of the Secretary of State's failures

For the reasons I have given, the Secretary of State's failure to comply with HSG (93) 20, and his late provision to the Appellant of adequate reasons for his recall, did not render his recall or his subsequent detention unlawful.

(5) Conclusion

It follows that I would dismiss the appeal.

As a postscript, I mention that the practice of the Secretary of State in relation to recall has changed. It is now his practice to include in the warrant a brief reason for recall, and a reminder is given to the person executing the warrant to explain the reason at the time of execution.

Lord Justice Jackson:

I agree that this appeal must be dismissed for the reasons given by Sir Stanley Burnton.

The modern practice is to include brief reasons for the individual's recall in the warrant. That is a good practice. If it had been in place in July 2012, the warrant in this case would have included brief reasons for the appellant's recall and the present problems would have been avoided. Nevertheless, in agreement with paragraphs 21 to 36 of Sir Stanley's judgment, I am unable to say that the absence of written reasons made the detention of the appellant unlawful.

The next issue concerns the adequacy of the reason stated to the appellant, namely that his mental health had deteriorated. Not only was that reason laconic, but it was not backed up as it should have been by fuller written reasons within 72 hours. Indeed the full reasons were not disclosed to the appellant until 3^rd August. Ultimately I have been persuaded by the reasoning of Sir Stanley Burnton that these features do not render the appellant's detention unlawful. Nevertheless this case is close to the line and I only reach that conclusion after hesitation.

Lord Justice Patten

I agree that the appeal should be dismissed for the reasons given by Sir Stanley Burnton.