England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Tuesday, 5th November 2002

Tuesday, 5th November 2002

1. MR JUSTICE MAURICE KAY: The claimant, to whom I shall refer as S, is 52 years of age. He has a history of offending which goes back over 30 years. The more recent court appearances were as follows. On 31st August 2001, in the magistrates' court, he was convicted of four offences of harassment and one of breach of a restraining order. He received concurrent sentences of four months' imprisonment. There was at the time a professional concern about his mental state, but the court refused to adjourn for psychiatric assessment and passed a sentence which resulted in his immediate release because of the time he had spent remanded in custody.
2. On 31st October 2001, in the St Albans Crown Court, he was again convicted of breach of a restraining order. This time a sentence of 18 months' imprisonment was passed. Again the court decided not to adjourn for psychiatric reports, although it had information suggesting that S suffers from a mental illness.
3. On 19th June 2002 he was automatically released on licence at the halfway stage of his sentence. That licence period was due to expire on 3rd November 2002. On 3rd August 2002 he was admitted to St Ann's Hospital in Tottenham. On 5th August he indicated a refusal to remain there voluntarily. An approved social worker made an application under section 3 of the Mental Health Act 1983, supported by the written recommendations of two appropriate medical practitioners. S therefore became detained in hospital for treatment under compulsory powers.
4. Section 3(2) of the 1983 Act provides that:

"An application for admission for treatment may be made in respect of a patient on the grounds that -

(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section."

5. The diagnosis in the case of S is that he has a bipolar affective disorder. This requires a regime of medication. It seems that between his release from prison on 19th June and his admission to hospital on 3rd August, there came a point when he was not complying with that medication regime. This had led to bizarre behaviour, including an act of indecent exposure. By reason of the section 3 order, the hospital managers had authority to detain S for a period up to six months in the first instance. In the event of his going absent without leave from the hospital, he would be subject to a power to take him into custody and return him to hospital pursuant to section 18.
6. On 6th August the probation officer responsible for the supervision of S's licence made a formal request for the revocation of that licence. On 7th August that request was endorsed by two senior probation officers. The report contained in the request outlined the history and the lapse in the taking of medication. It also referred to an incident at S's brother's place of employment at the end of July or the beginning of August when S had been physically and verbally threatening to staff. The request concluded with a recommendation in these terms:

"Given the above deteriorating developments, S's lack of co-operation in complying with his medical treatment I have grave concerns about his intentions and the risk this may pose to the public and himself, therefore I request an immediate recall."

7. In that document there is no mention of S's presence in St Ann's Hospital or his status under section 3. The natural inference is that the probation officers who made or endorsed the request did not know what had taken place at St Ann's Hospital in the preceding days.
8. A request for revocation and recall to prison is processed by the Sentence Enforcement Unit of the Prison Service. By section 39 of the Criminal Justice Act 1991 the Secretary of State may revoke a licence and recall a person to prison either upon the recommendation of the Parole Board, or on his own initiative where there is no imminent meeting of the Parole Board. That right to act on his own initiative is stated in section 39(2) to arise where it appears to the Secretary of State:

"...that it is expedient in the public interest to recall that person before such a recommendation [to the Parole Board] is practicable."

9. Where the Secretary of State uses that power, he is obliged then to refer the matter to the Parole Board. It seems from the documents before me that before the Secretary of State made any decision on the probation officer's request, the Sentence Enforcement Unit became aware that S was now a section 3 patient. I say that because of a document in the bundle which is in the form of an internal memorandum. It states:

"Since Recall request received, Probation Service has informed us that S has been sectioned under the Mental Health Act. He is held at St Ann's Hospital in Tottenham.

A Section order takes precedence over a Recall but Probation would like him recalled in order to have this in place when he is released in case another incident takes place or if he absconds from the hospital."

10. Pursuant to the request the Secretary of State revoked the licence on 8th August and recalled S to prison. His reasons for that decision are set out in a document in the following terms:

"You have been recalled to prison because you have breached conditions 5 (vi) of your licence in the following ways:

It has been reported by London Probation Service that you have failed to be of good behaviour, not commit any offence and not take action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community, in that, your pattern of behaviour in not co-operating with medical staff in taking your medication has led to serious concern about your unacceptable behaviour. It has been reported that you have continued to make numerous telephone calls of a threatening nature to your brother's place of employment... Furthermore, the Council solicitor has reported to your supervising officer that you were at the Town Hall on 31 July 2002 and 2 August 2002 and were very physically and verbally threatening to the staff there, including threats to kill.

In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."

11. It will be observed that in those reasons there is no reference to S's presence at that time in St Ann's Hospital or to his section 3 status. Either the information which was within the system had not made its way to the decision maker, or it was not treated as a matter of particular significance. The evidence before the court from Mr A'Court at Prison Service Headquarters implies the latter. His witness statement says:

"It was thought by the Prison Service that in the particular circumstances the section 3 treatment order should take precedence over any recall to prison, and therefore there was no intention to physically require the claimant to return to prison while he was receiving appropriate treatment at St Ann's Hospital. The claimant had, however, breached his licence, and so it was appropriate to recall him notwithstanding his admittance to hospital. As the recall was independent of the section 3 order, there was no need to consult with St Ann's medical staff before the recall was made. Further, it was important to have the recall in place as the claimant was considered a risk, and, should he then be released by the hospital before his automatic release date from prison, the Prison Service would consider it necessary to detain him. This is the duty of the defendant notwithstanding a section 3 treatment order, and may well take into account matters not directly connected with that order."

12. On 9th August 2002, S, who knew nothing of the Secretary of State's decision, absconded from St Ann's Hospital. On the following day, 10th August, he was arrested by police. It seems that their initial intention may have been to return him to St Ann's Hospital, but in the event he was returned to the custody of the Prison Service at Pentonville. Until he was recalled and taken to Pentonville, S knew nothing of the decision of the Secretary of State to revoke his licence and recall him. Once he had been so informed and had had the benefit of legal advice, he indicated that he wished to exercise his right to make written representations pursuant to the Criminal Justice Act. Those written representations were eventually submitted by S's solicitor on 30th September. On 9th October the Parole Board rejected the representations and confirmed the decision of the Secretary of State. The reasons given by the Parole Board are in these terms:

"The panel considered the claim by S's solicitors that the revocation of S's licence was unlawful. The Board is acting under a reference to it by the Secretary of State and regards any issues over the legality of the recall as a matter for him, not the Parole Board.

The Board accepts the Probation Service's description of S's harassment of his brother...and considers S's liberty would present an unacceptable risk of a further offence being committed. Hence his representations against recall are rejected."

Again it will be seen that the reasons given do not engage with the implications of S's status under section 3 of the Mental Health Act.

13. It seems from the way in which the Parole Board panel expressed itself that it was aware of the arguments about section 3, as indeed it must have been from the written representations. However, it decided that such matters were more matters for the Secretary of State and it deferred to him over matters of legality. That perhaps explains why, at the hearing before me, whilst the Secretary of State was represented by counsel, the Parole Board took no part in the proceedings.
14. On 18th October 2002 an application for permission to apply for judicial review was lodged. When the papers came before me I granted permission and directed an expedited hearing to take place before 5th November, which is the date the Prison Service were by then giving as the release date following recall. In the event, and with the co-operation of all concerned, it was possible for the hearing to take place on 1st November. At the conclusion of that hearing, I announced that S's application had succeeded and I made quashing orders enabling him to be released that day. He remains liable to return to St Ann's Hospital under the Mental Health Act section 18. I therefore now give reasons for that decision.
15. The procedures under the Mental Health Act and the Criminal Justice Act are separate, and no attempt is made in the legislation to integrate them or cross refer them, save in an insignificant way. However, the evidence is that detention under section 3 normally takes precedence. That is what one would expect, at least as a starting point. After all, the basis of section 3 is that two approved medical practitioners have certified not only that the person's condition is such that it is "appropriate for him to receive treatment in hospital", but also that "it is necessary for the health and safety of the patient, or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section." In the face of those certified expert opinions, it is hardly surprising that normally section 3 "takes precedence over a recall." All the more so when opinions are of such recent origin.
16. In my judgment, the first flaw in the approach of the Secretary of State was to proceed without any reference to or consultation with the doctors at St Ann's. Mr A'Court's suggestion that the initial intention was not to enforce the recall to prison "while he was receiving treatment at St Ann's," but that "it was important to have the recall in place as S was considered a risk, and, should he then be released from the hospital before his automatic release date from prison, the Prison Service would consider it necessary to detain him", does not stand up to analysis. Not only was it absent from the stated reasons of the Secretary of State, it underlines the need to have consulted the doctors at St Ann's to see whether there was any likelihood of an imminent release.
17. The second and related flaw in the Secretary of State's approach is that being on notice that the doctors had certified that it was necessary that S should receive medical treatment in hospital, and that it could not be provided otherwise than by way of detention under section 3, it was incumbent upon the Secretary of State to consider a transfer back to St Ann's Hospital, following the arrest of S, pursuant to section 47 of the Mental Health Act, as soon as he learned that S was now in Pentonville. However, there is no evidence that that was considered. If it had been, it would have again necessitated consultation with those at St Ann's, but there was none. The first contact appears to have been a letter from the senior medical officer at Pentonville to the consultant psychiatrist at St Ann's on 30th October, two days before the court hearing. It seems that S was kept in the health centre in Pentonville until mid September. A note on 14th August referred to the intention of a consultant forensic psychiatrist at Pentonville to discuss the case with his opposite number at St Ann's, but this does not appear to have been done. There was a case conference in Pentonville on 12th September, but no one from St Ann's was invited.
18. I accept that there was some improvement in S's condition in the health care centre in Pentonville as time passed. It seems that on 7th October the Pentonville psychiatrist concluded that "there was no longer any need to transfer him to hospital." That implies that there had been a perceived need prior to that date, but nothing was done about it. All this leads me to the conclusion that neither on 8th August, when S was still in St Ann's under section 3, nor subsequently did the Secretary of State, or in due course the Parole Board, take into account what undoubtedly should have been taken into account, namely the views of the treating clinicians at St Ann's. Without doing so, they were unable properly to consider why the usual procedure that section 3 takes precedence should be overridden in the circumstances of this case. Instead of addressing current material considerations, emphasis was misplaced on the hypothesis or contingency that St Ann's might discharge S before his prison release date.
19. For all these reasons, I consider that the decisions of the Secretary of State and of the Parole Board were legally flawed and have to be quashed.
20. The application for judicial review raised a second issue. The original licence expiry date was to be 3rd November. After S had been returned to Pentonville, the Prison Service decided that this licence expiry date should be put back to 5th November on the ground that S had been unlawfully at large on 9th and 10th August. The case for S is that until his arrest on 10th August, he did not know anything of the Secretary of State's decision to revoke his licence and recall him to prison, and that he therefore was not unlawfully at large, at least in relation to his sentence of imprisonment.
21. The case for the Secretary of State is that he was unlawfully at large from the moment when the Secretary of State signed the revocation and recall and that S's ignorance of it was irrelevant. That is a proposition that I am unable to accept. It would mean that S would have been unlawfully at large even when he was being detained in St Ann's pursuant to section 3. Any extension of his sentence by reference to a period "unlawfully at large" would have to be based on statutory authority. On behalf of the Secretary of State it is suggested that this is to be found, perhaps by analogy, in section 50(4) of the Mental Health Act, but as that only applies where a transfer direction has been made under section 48, it can have no application to this case. There is no room for deprivation of liberty by analogy. The alternative basis is suggested to be section 49(2) of the Prison Act 1952, but I reject this on the basis that, in my judgment, it does not apply to a time when the person does not know that his licence has been revoked. If, contrary to my earlier holding, S had been lawfully recalled to prison, his licence expiry date would have remained 3rd November 2002.
22. MR KOVATS: My Lord, on behalf of the Secretary of State, I would respectfully ask for permission to appeal. This case raises an important point about the interrelationship of three statutes, the Mental Health Act 1983, the Criminal Justice Act 1991 and the Prison Act 1952. My Lord, the Secretary of State is particularly concerned about the point on the calculation of being unlawfully at large, and is concerned, for example, that somebody who fled the country and was unaware that his licence had in fact been revoked might, on the basis of this judgment, be able to say that he was not unlawfully at large.
23. My Lord, for those reasons we do ask for permission to appeal.
24. MR JUSTICE MAURICE KAY: Your concern is more the postscript than what preceded it, is it?
25. MR KOVATS: Yes.
26. MR JUSTICE MAURICE KAY: Is that right, that you are more concerned with that point?
27. MR KOVATS: Concerned with both, but in particular with the latter point, yes.
28. MR JUSTICE MAURICE KAY: Yes. Mr O'Brien?
29. MR O'BRIEN: My Lord, so far as the principal issue is concerned, the Home Office's own evidence supported your Lordship's reasoning, that is about the precedence and the fact they had not taken any note of that, so --
30. MR JUSTICE MAURICE KAY: It seems to me, as far as the main issue is concerned, that in the event it has been decided very much on the facts of this case. It is not a decision to the effect that where there is a section 3 order there can never be a recall to prison, and I do not propose to grant permission to appeal in relation to the main issue.
31. But what do you say about the second issue?
32. MR O'BRIEN: My Lord, so far as that is concerned, clearly it is a new point and it relates to the relationship between the effect of the 1991 Act giving release. My Lord, one of the issues that was before your Lordship was the fact that the Prison Act provisions were separate from the 1991 Act. The 1991 Act provided for a specific date of return as opposed to the Prison Act, which envisaged someone having been released temporarily during the course of a term of imprisonment, whereas here, someone on licence is given a specific date when their licence expires and the power to recall ends.
33. There is nothing in the 1991 Act which suggests that that can be extended. That is a matter which the Secretary of State has chosen to interpret the powers under the 1991 Act. In my submission, this point only arises because of the way the Secretary of State chooses to add to his powers under the 1991 Act.
34. MR JUSTICE MAURICE KAY: Thank you.
35. MR O'BRIEN: In my submission, this point is the Secretary of State's own making and does not arise from your Lordship's judgment.
36. MR JUSTICE MAURICE KAY: Thank you. Mr Kovats, I shall give you permission limited to that point. I take the view that the proper course is for the legislation to address the matter because of the various ways in which it may arise, but I appreciate the Secretary of State's concern and give you permission limited to that.
37. MR O'BRIEN: Thank you.
38. MR KOVATS: Thank you.
39. MR O'BRIEN: My Lord, I ask for my costs.
40. MR KOVATS: I do not resist that, my Lord.
41. MR JUSTICE MAURICE KAY: Summary assessment.
42. MR O'BRIEN: No, my client is publicly funded. I need a detailed assessment in any event.
43. MR JUSTICE MAURICE KAY: Yes, certainly, and you may have your costs subject to detailed assessment.
44. MR O'BRIEN: Your Lordship might like to know that when my client was released on Friday, he was not taken to St Ann's. The Prison Service did not make any arrangements. They say that St Ann's chose not to, and St Ann's deny being contacted by the Prison Service, so my client is at the moment in neither place.
45. MR JUSTICE MAURICE KAY: Does he have aspirations to go to --
46. MR O'BRIEN: I think arrangements are being made.
47. MR JUSTICE MAURICE KAY: Obviously not Pentonville.
48. MR O'BRIEN: Arrangements are being made, my Lord.
49. MR JUSTICE MAURICE KAY: Yes. That is interesting. Thank you both very much.