England and Wales High Court (Administrative Court) Decisions

KB & Ors, R (on the applications of) v Mental Health Review Tribunal [2002] EWHC 639 (Admin) (23rd April, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 April 2002

Mr Justice Stanley Burnton:

The Claimants

1. Each of the Claimants is or was a patient detained under powers conferred by the Mental Health Act 1983 (“the Act”). They are referred to in this judgment by their initials. Each of them applied to a Mental Health Review Tribunal for the review of their detention. KB, MK, JR and TB made their applications to the Mental Health Review Tribunal for the South London and South and West Region (to which I shall refer as “South London”); GM, LB, PD and TB made their applications to the Mental Health Review Tribunal for the North London and East Region (“North London”).
2. In each case, the hearing arranged by the Tribunal was repeatedly adjourned.
3. PD was detained under section 2. His application was ultimately arranged to take place over 4 weeks after his application had been made. The Mental Health Review Tribunal Rules (“the Rules”) require the hearing of such an application to be fixed for a date no more than 7 days after the Tribunal’s receipt of the application.
4. KB, LB, GM and JR had been detained under section 3 of the Act. The hearings of their applications for the review of their detentions took place between 9 weeks 5 days (in the case of KB) and over 22 weeks (in the case of JR) after the dates of their respective applications. LB’s case did not in the event go before a Tribunal, because her Responsible Medical Officer (“RMO”) discharged her just over 8 weeks after her application, but still 3 weeks before the expected date of the hearing of her application. GM was discharged by the Tribunal; JR and KB were not.
5. MK was detained pursuant to an order made under section 37 of the Act on 17 July 2000 by the Crown Court, as varied on appeal, following proceedings under the Criminal Procedure (Insanity) Act 1964. She had been accused of arson with intent to endanger life. Her application for her discharge was eventually heard 9 weeks and 4 days after she made her application. She was discharged.
6. TB was convicted of two offences of indecent assault in 1999 and made subject to detention under section 37 and to a restriction order under section 41 of the Act. He made an application to the Tribunal on 11 July 2001. Following 2 cancellations, by 8 January 2002 no date for a hearing had been set, and proceedings for judicial review were begun. A hearing was set for 16 January 2002, but at the beginning of the hearing his solicitor applied to withdraw the application, and his application was granted. The time between application and hearing was 27 weeks.
7. These seven cases were ordered to be heard together by Munby J as lead cases thought to be representative of a number of cases in which mental health patients have sought judicial review following alleged delays to the hearings of their applications by the Tribunal.

The claims in these proceedings

8. The basic complaint of the Claimants concerns the delay between the making of their applications and the dates of the effective hearings of their applications before the Tribunal. Delays in Tribunal hearings may result in the unjustified detention of patients who, if their cases had been considered earlier, would have been discharged. Even when discharge is not directed (and it is only in a relatively small percentage of cases that the Tribunal directs discharge), the delay prolongs the period of uncertainty for the patient. Cancellations of hearings, particularly if repeated, have other consequences: distress and disappointment for the mentally vulnerable patient, the risk of damage to his or her relationship with the psychiatrists and staff of his or her hospital, loss of trust in the tribunal system, and the waste of scarce resources, as where a RMO or an independent psychiatrist witness cancels a clinic to accommodate a Tribunal hearing which in the event is cancelled shortly before it is due to take place. The effect of cancellations is described by a consultant forensic psychiatrist at South London and Maudsley NHS Trust in a letter dated 27 November 2001:

“I can confirm that I have had a number of cancelled tribunals over the last month. The clinical team and myself have generally been advised of a cancellation the day prior to the tribunal taking place. Whilst this can be wasteful of professionals’ time, it does have a marked detrimental effect on the patient’s state of mind.

Clearly a tribunal can be as highly stressful process for the patients and much of the anxiety they experience is anticipation of the tribunal. For it to be cancelled at the last moment leaves them feeling upset, cheated and resentful. On one occasion I have been accused of (deliberately) sabotaging their (hoped for) discharge and on other occasions the independence of the review tribunal has been questioned.”

9. Article 5 of the European Convention on Human Rights provides, so far as relevant:

“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 ….

4. Every one 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 [à bref délai] by a court and his release ordered if the detention is not lawful.”

10. In England and Wales, the decision required by Article 5.4 as to the lawfulness of a mental patient’s detention is entrusted to the Mental Health Review Tribunal. (The decisions of the Tribunal may be the subject of judicial review, but that is irrelevant for present purposes.) The Claimants contend that their rights to a speedy determination of the lawfulness of their detentions were infringed, by reason of the cancellations of their hearings and the delays before effective hearings could take place.
11. In addition, PD claims that the failure to hold a hearing in his case within 7 days of the Tribunal’s receipt of his application was unlawful by reason of the breach of rule 31 of the Rules.
12. Some of the claim forms in these cases contain claims for declarations that individual cancellations of hearings were unlawful. These claims would require the Court to examine the decision of the person responsible for each cancellation. It is apparent that in many cases the cancellation was inevitable, for reasons that appear below, and after discussion the Claimants agreed not to seek such declarations.
13. The claims before me include claims for damages for infringement of the Claimants’ Convention rights. It was agreed during the course of the hearing that all questions of damages should go over to be determined, if necessary, in the light of my judgment on the issue of infringement.
14. The earliest application that is the subject of these proceedings was made in March 2001 and the latest in October 2001. The last effective hearing was in January 2002. It follows that the delays with which this judgment is concerned occurred in the North and South London regions between March 2001 and January 2002.

The Legislative Framework

15. Most of the relevant provisions of the Act and of the Rules were summarised in paragraphs [11] to [25] of the judgment of Lord Phillips MR in R (C) v London South and West Region Mental Health Review Tribunal [2001] EWCA Civ 1110, [2002] 1 WLR 176, and it is unnecessary for me to repeat them. That case was concerned with an application made by a patient detained under section 3. In the case of a section 2 patient (who may be detained for not more than 28 days under that section), Rule 31 requires the Tribunal to fix a date for a hearing of an application within 7 days of receipt of his or her application.
16. Section 37 of the Act confers powers on the Crown Court and a Magistrates’ Court to make a hospital order for the admission and detention of a mentally ill person who is convicted of an imprisonable offence other than one the punishment for which is fixed by law. By section 40, a hospital order authorises detention for an initial period of 6 months, which may be renewed indefinitely without an order of the Court.

“The position of a person admitted to hospital pursuant to a hospital order is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say over his disposal.”

(R. v. Birch (1989) 11 Cr. App. R (S) 202 at 210, Court of Appeal.)

17. Under section 41 of the Act, the Crown Court may make a restriction order in respect of such persons on the ground that “it is necessary for the protection of the public from serious harm” to do so. A restriction order applies special restrictions to the patient (who is a “restricted patient”), relating to the duration renewal and expiration of liability to detention, to powers of discharge, to leave and to transfer. The Home Secretary has special powers in respect of such patients, conferred by section 41(3) and (5).
18. A patient liable to detention under either section 2 or section 3 of the MHA may be discharged under section 23 MHA by his or her RMO, the managers of the hospital or his or her nearest relative.
19. A patient liable detention to under section 37 but not subject to a restriction order under section 41 may be discharged by his or her responsible medical officer or the hospital managers, but not by his or her nearest relative.
20. A restricted patient cannot be discharged by his or her RMO, the hospital managers or the nearest relative without the consent of the Home Secretary. By section 42 the Secretary of State may discharge such a patient at any time, whether absolutely or conditionally. The Secretary of State may also direct that the restriction order shall cease to have effect, in which case the patient is treated as if subject to a section 37 order without restriction made on the date the restriction order ceased to have effect.
21. Mental Health Review Tribunals are now established under Section 65 of the Act. There is one Tribunal for each region of England, and one Tribunal for Wales. There are four regions in England: North London; Trent and Northern and Yorkshire; South London; and West Midlands and North West. Each region has a regional Chairman who is responsible for the tribunal members in his or her region.
22. Tribunal members, including the Chairmen, are appointed by the Lord Chancellor. Each panel consists of a legally qualified member, a medical member and a third member, often referred to as the “lay member”, appointed from persons having experience in administration, knowledge of social services or such other qualifications as the Lord Chancellor considers suitable. In practice, the medical members are consultant psychiatrists. The constitution of a panel is determined by the Chairman. The legal member of a Tribunal hearing an application or reference relating to a restricted patient must have been approved for that purpose by the Lord Chancellor.
23. The remuneration and conditions of service of Tribunal members are decided by the Department of Health. Departmental responsibility for the funding of their payment and for the provision of the staff and accommodation of the Tribunal similarly rests with the Department of Health.

Applications to the Tribunal

24. As mentioned above, Rule 31 of the Rules provides that on receipt of a section 2 application the Tribunal shall fix a hearing to take place within 7 days of receipt of the application. Rule 32 provides that in the case of section 2 application, on receipt of notice of an assessment application or a request from the tribunal whichever is earlier, the responsible authority (i.e., the hospital management) will provide the Tribunal with such of the admission papers, “Part A” information (see below) and such medical and social circumstances reports “as can reasonably provided in the time available”.
25. A patient liable to detention under section 3 has a right to apply to the tribunal when admitted to hospital under section 3 (i.e., in the first 6-month period of detention). If the liability to detention of a section 3 patient is renewed for a further 6 months after the initial period the patient has a further right to apply during the second 6-month period. If liability to detention is further renewed under section 3, the patient has the right to make an application in each period of 12 months of renewal.
26. Patients detained under section 37 do not generally have a right to make an application to the tribunal in their first 6-month period of detention following the imposition of the order by a Court. They do have a right to apply in the second six-month period of their detention, and at annual intervals thereafter.
27. Neither the Act nor the Rules lay down a specific time period within which a hearing of a section 3 or section 37 application must be heard. However the Rules set out a sequence of actions following on receipt of an application and leading to a hearing which affect the timing of any tribunal hearing, including the requirements that:

(a) On receipt the tribunal is to send notice of the application to the managers of the hospital (Rule 4).

(b) The responsible authority is then, as soon as possible and within 3 weeks in any case, to send a statement (Part A statement) to the tribunal with prescribed information, an up-to-date psychiatric report and an-up-to-date social circumstances report insofar as it is practicable to provide it (Rule 6).

(c) The tribunal is to give at least 14 days notice of the date, time and place fixed for the hearing or such shorter time as all parties may consent to (Rule 20).

28. By section 70 of the Act, a restricted patient may apply to the Tribunal in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order. By section 71 the Home Secretary may refer the case of any restricted patient to the tribunal at any time and is required to refer the case of any patient whose case has not been considered by a tribunal for 3 years and of any patient treated as subject to a hospital order and restriction order under section 5(1) of the Criminal Procedure (Insanity) Act 1964 who has not applied to a tribunal in the six months beginning with the date of the order.
29. In one circumstance specific time limits apply to the listing of tribunal hearings for restricted patients. A restricted patient who has been conditionally discharged and is subsequently recalled must have his case referred to the tribunal within a month of his return to hospital under section 75(1) and thereafter by rule 29 (cc) of the Rules, introduced by S.I 1998 No. 1189, the tribunal must fix a date for the hearing of the reference not later than 8 weeks nor earlier than 5 weeks from the date of receipt of the reference.
30. Additional procedural steps, which may impact on listing, are required in the case of a tribunal application concerning a restricted patient. In particular, the relevant reports and statements must be sent to the Home Office and the Home Secretary is given up to 3 weeks to send to the Tribunal a statement (Rule 6).

The issues

31. As is apparent, it is not possible to have an effective Tribunal hearing immediately after a patient makes an application for the review of his detention. A number of steps, referred to above, have to be taken before an effective hearing can take place before a tribunal that “is in a position, adequately and fairly, to adjudicate on the issues before it”: c.f. R (C) v London South and West Region Mental Health Review Tribunal at paragraph [51]. One question to be considered is: assuming reasonable availability of resources and a reasonably efficient administrative system, what period of time between application or reference to the Tribunal and effective hearing is ordinarily consistent with a speedy decision? What is a speedy decision in any case will depend on a number of factors, including the nature and importance of the subject matter of the case, the complexity of the issues, the preparation required before the hearing, and the evidence to be considered. Factors extraneous to the particular case may also be relevant, such as a sudden increase in similar applications, or the intervention of a holiday period. However, in my judgment the fact that a patient’s case is perceived to be unmeritorious does not deprive him of his right to a speedy hearing; and similarly, if there is unjustified delay before the hearing, the fact that his case is belatedly held to be unmeritorious does not excuse the infringement of that right.
32. The issues before Mental Health Review Tribunals are probably the most important issues decided by any tribunals. The Tribunals make decisions as to the compulsory detention and treatment, and thus the liberty, of the individual. A wrong decision may lead on the one hand to the unnecessary detention of a patient, and, at the other extreme, to the release of a patient who is a danger to himself and may present a risk to the public. A patient will be the victim of a wrongful decision to detain him. Conversely, however, he may also suffer from a mistaken decision to direct his discharge. (On this, see the 1994 Report of Jean Ritchie QC, Dr Donald Dick and Richard Lingham on the case of Christopher Clunis.) The decisions of the Mental Health Review Tribunals are as intrinsically important as many of those of the Crown Court. Their importance is reflected in the different wording of Articles 5.4 and 6 of the Convention. Article 5.4 requires that the lawfulness of the detention of a patient “shall be decided speedily”, whereas Article 6 requires a hearing of a trial in a civil or criminal case only “within a reasonable time”. This difference should be borne in mind when considering the authorities on delay in the context of Article 6. The importance of tribunal decisions in restricted cases is reflected in the qualifications required by the Lord Chancellor of the legal member, who is almost always a Circuit Judge, a Queen’s Counsel and Recorder, or one of the Tribunal Chairmen.
33. As has been seen, in the case of an application by a section 2 patient, domestic law has answered the question “What is a speedy hearing?” by requiring a hearing within 7 days, and it has not been suggested before me that a decision given within that time is not speedy. That period of 7 days must of course be compared with the maximum period of detention under section 2 of 28 days: that maximum requires a very short period between application and decision if the right to independent review of the legality of detention is to be meaningful.
34. Most applications to Tribunals are made by section 3 patients. Domestic law provides no quantified time limit in relation to them. The requirements of Article 5.4 were considered by the Court of Appeal in R (C) v London South and West Region Mental Health Review Tribunal, referred to above. In that case, the central issue considered by the Court was stated by Lord Phillips Mr to be:

“45 … Does the nature of the inquiry that has to be carried out on an application by a patient detained under section 3 of the 1983 Act, when coupled with the inevitable exigencies of an efficient listing system, justify the practice of allowing an eight-week period between application and hearing in every case?”

35. Lord Phillips MR continued:

“51 …, the decision of the tribunal will be determinative of the patient’s fate for the next six months. However urgent the patient’s demand for a hearing may be, I consider that such time can properly be allowed as is reasonably necessary to ensure that the tribunal is in a position, adequately and fairly, to adjudicate on the issues before it. How long is likely to be needed for this?

52 Rule 6, to which I have already referred, grants to the responsible authority a maximum of three weeks within which, and as soon as practicable, the authority is to send to the tribunal the statement that contains the majority of material relevant to its decision. In particular, the statement has to include an up-to-date medical report including the relevant medical history and a full report of the patient’s medical condition.

53 Mr Thorold did not suggest that a maximum of three weeks for providing this information was unrealistic. He submitted, however, that there was no justification for allowing a period of at least five weeks to elapse after the provision of this information before the hearing. He pointed out, with some force, that the result of this was that the medical report would not be up-to-date, but out of date by the time of hearing and would have to be supplemented, orally or in writing, by the responsible medical officer.

54 Miss Lieven pointed to the requirement that the patient be examined by the medical member of the tribunal before the hearing (see rule 11). She submitted that this would normally occur after the provision of the statement under rule 6; that is plainly correct. Miss Lieven went on to attempt to paint a picture of a plethora of other activities which might fill the five-week gap before the hearing: (a) giving notice of the proceedings to other interested parties (rule 7); (b) instructing representatives (rule 10); (c) disclosure of documents (rule 12); (d) further directions (rule 13).

55 To these Mary Kane added in her statement the possibility that a patient might be transferred to a new institution and a different responsible medical officer.

56 While these are possible incidents of an individual case, I am not persuaded that they inevitably call for a further period of five weeks or more after the delivery of the statement. The time reasonably needed after delivery of the statement before the hearing can take place is likely to turn very much on the manner in which the patient, and the patient’s advisers, will wish to respond to the statement. If they require the patient to have an independent psychiatric assessment, more time will be needed than if they do not.

57 Where, as in the present case, a patient is represented from the outset by solicitors experienced in mental health work who are requesting an early hearing date, I can see no reason why that request should not be capable of accommodation, subject to the exigencies of listing, to which I now turn.

58 Miss Lieven sensibly conceded that some applications would need longer preparation than others, but she submitted it was impossible to identify which these were at the stage of fixing the hearing date. She also submitted that any attempt to differentiate when fixing hearing dates would unfairly discriminate against those applications given the more distant hearing date. She submitted that such discrimination might violate article 14 of the Convention. I cannot accept this submission. To allocate hearing dates according to the amount of time needed to prepare for the hearing could not conceivably constitute unlawful, or indeed any, discrimination. Whether this could be achieved in practice is another matter.

59 The earlier a hearing date is fixed, the more difficult it is likely to be to estimate the time that will be needed to prepare for the hearing. In this case, the date was fixed 11 days after the date of making the application. It seems to me that a more informed stage at which to fix a date would be after receipt of the statement required by rule 6, when the scope of the remaining activities that would need to take place before the hearing would be clear. At all events, in the absence of cogent evidence, and there is none, I cannot accept that it is impossible to tailor lead times inside the eight-week target to suit particular cases.

65 I do not consider lawful a practice which makes no effort to see that the individual application is heard as soon as reasonably practicable, having regard to the relevant circumstances of the case. Such a practice will inevitably result in some applications not leading to the speedy decision required by article 5(4). The present case is an instance of this result.”

36. The Court of Appeal held that the practice of providing for the uniform listing of section 3 applications 8 weeks after receipt was unlawful.
37. It follows from the judgment in C that the listing of cases must be considered on an individual basis. In the ordinary way it should be practicable for Tribunal hearings in section 3 cases to take place within 8 weeks of the application. There will be cases in which, because, for example, of their particular complexity, or the unavailability of a witness, a hearing cannot take place within 8 weeks: but they should be out of the ordinary. In May 2001 the Tribunal for North London Region adopted the policy of listing section 3 cases 5 weeks from notice of application and restricted cases 15 weeks from notice of application. Margaret Burn, the Head of the Mental Health Review Tribunal Secretariat of the Department of Health, states:

“Experience has shown that it is impractical in most cases for medical reports to be prepared and the Claimant’s legal team to be ready before the expiry of 4 weeks.”

This evidence gives an indication of the period that could practically be achieved between application and effective hearing in these cases.

38. As can be seen, in none of the cases before me was an effective hearing held within an 8-week period, let alone a 5-week period. Delay was caused by cancelled hearings. In any sensibly managed judicial system there are bound to be adjournments and cancelled hearings for a number of reasons: the illness of a judge or the unavailability of a necessary witness, the over-running of an earlier hearing, or the need to accommodate an urgent case. The postponement of a hearing for such reasons does not necessarily involve any infringement of the rights of a citizen party under Article 5 or Article 6. In Dyer v Watson [2002] SLT 229 the Privy Council considered the analogous issue of the right under Article 6 of the citizen accused of a criminal offence to a fair and public hearing of his case within a reasonable time. Lord Bingham of Cornhill said, at 242:

“[55] The third matter routinely and carefully considered by the (European) court is the manner in which the case has been dealt with by the administrative and judicial authorities. It is plain that contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic underfunding of the legal system. It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system. Thus it is not objectionable for a prosecutor to deal with case according to what he reasonably regards as their priority, so as to achieve an orderly dispatch of business. It must be accepted that a prosecutor cannot ordinarily devote his whole time and attention to a single case. Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise, or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increases by a sudden and unforeseen surge of business. There is no general obligation on a prosecutor, such as that imposed on a prosecutor seeking to extend a custody time limit under section 22(3)(b) of the Prosecution of Offences Act 1985, to show that he has acted “with all due diligence and expedition”. But a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time requirement, and the authorities make clear that while, for the purposes of a reasonable time requirement, time runs from the date when the defendant is charged, the passage of any considerable period of time before charge may call for greater than normal expedition thereafter.”

39. Thus isolated cases in which cases are heard after the date when they could in practice have been heard do not necessarily involve an infringement of Convention rights. The Tribunal and the Secretary of State point to the exigencies that must be accommodated by the Tribunal system: the need to accommodate urgent hearings of section 2 applications, which must be given priority over section 3 hearings; an earlier case over-running; the listing difficulties caused by the very high proportion (near 50 per cent) of applications that are withdrawn, often at a late stage or even at the hearing itself; the large numbers of venues, since all hearings take place at the detaining hospital; and other matters referred to in the evidence. They contend that delays and cancellations of hearings caused by such matters do not involve any breach of Article 5.4.
40. Against this, the Claimants contend that their cases are not isolated but typical; and that on the specific facts of their individual cases the delays they suffered cannot be justified. The thrust of their claims is that the Tribunal system did not provide and was not capable of providing speedy reviews of the lawfulness of their detentions, and that such delays as they suffered were not exceptional, but due to systemic inadequacies, and in particular the under-resourcing and, to a lesser extent, inefficiencies in the administration, of the Mental Health Review Tribunal system. They contend that they had an absolute right to a speedy hearing of their applications, and that the State must so arrange its affairs and provide the resources necessary to satisfy that right.
41. The Tribunal and the Secretary of State accept that there are some inadequacies in the system. There are, in particular, shortages of medical members and administrative staff. They do not dispute that the Convention requires the State to establish and to maintain a system that does in the ordinary way provide speedy hearings. However, they point out that temporary shortages of personnel and inadequacies of resources do not involve responsibility under the Convention, provided the State takes effective steps to remedy them. They referred me to the judgments of the European Court of Human Rights in Buchholz v Federal Republic of Germany (1980) 3 EHRR 597, where delay in the hearing of civil proceedings was due in part to a backlog of cases waiting to be heard. The Court found that that backlog was recent and exceptional, and that the remedial action taken by the Government of Germany demonstrated that it was “fully conscious of their responsibilities in the matter” and was sufficient in the circumstances. Accordingly, the Court found that the delays attributable to the competent courts did not exceed a reasonable time within the meaning of Article 6.1.
42. That case should be contrasted with Zimmermann and Steiner v Switzerland (1983) 6 EHRR 17, in which the measures taken by the Swiss Government to remedy the backlog of cases were considered to be insufficient, with the result that a breach of Article 6.1 was established. It is noteworthy that one of the matters relied upon by the Swiss Government was that the applicants’ cases had to be delayed in order to give priority to more urgent cases. The Court stated:

“29 The Court would point out in the first place that the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6(1), including that of trial within a ‘reasonable time’. Nonetheless, a temporary backlog of business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind.

Methods which may fall to be considered, as a provisional expedient, admittedly include choosing to deal with cases in a particular order, based not just on the date when they were brought but on what is at stake for the persons concerned. However, if a state of affairs of this kind is prolonged and becomes a matter of structural organisation, such methods are no longer sufficient and the State will not be able to postpone further the adoption of effective measures.”

43. The decisions of the Court in Winterwerp v The Netherlands (1979) 2 EHRR 387 and E v Norway (1990) 17 EHRR 30 were considered by the Court of Appeal in C, and it is unnecessary for me to do so.
44. In the present cases, the Tribunal and the Secretary of State contend that they are doing all that reasonably can be done to remedy the situation in relation to Mental Health Review Tribunals.
45. Normally, the question whether the Government allocates sufficient resources to any particular area of state activity is not justiciable. A decision as to what resources are to be made available often involves questions of policy, and certainly involves questions of discretion. These are matters for policy makers rather than judges: for the executive rather than the judiciary: c.f. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898, 906D-F; see too the speech of Lord Slynn of Hadley in R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418 at 439A-B, and the judgment of Moses J in Hooper v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) at paragraph 100. However, as has been seen, when issues are raised under Articles 5 and 6 as to the guarantee of a speedy hearing or of a hearing within a reasonable time, the Court may be required to assess the adequacy of resources, as well as the effectiveness of administration; and it is common ground that the Court must do so in the present cases.
46. It is at this point that I must mention an important qualification. In general a court is ill-equipped to determine general questions as to the efficiency of administration, the sufficiency of staff levels and the adequacy of resources. It is one thing to instruct a team of management consultants to go out into the field to study and to report on the efficiency and adequacy of the Tribunal system and its practices; it is another to expect a judge, in the confines of a 2-day hearing, to reach sensible and reliable conclusions as to whether, for example, the practice of allocating hearing dates before it is known whether a panel will be available is an aid or a hindrance to speedy hearings. Not only is the time available to the Court limited: so is the evidence; and such expertise as the judge may have is, notwithstanding the title to this Division of the High Court, legal, rather than administrative.
47. In my judgment, the correct approach in a case that raises issues of this kind is, first, to consider whether the delays in question are, on the face of it, inconsistent with the requirement of a speedy hearing. If they are, the onus is on the State to excuse the delay. It may do so by establishing, for example, that the delay has been caused by a sudden and unpredictable increase in the workload of the tribunal, and that it has taken effective and sufficient measures to remedy the problem. But if the State fails to satisfy that onus, the claimant will have established a breach of his right under Article 5.4.
48. This approach is consistent with the judgment of the European Court of Human Rights in Koendjbiharie v The Netherlands (1990) 13 EHRR 820, an Article 5.4 case relating to the detention of mentally ill person. The Court stated, at paragraphs 29 and 30 of its judgment:

“29 On the face of it, a lapse of time of more than four months appears incompatible with the notion of speediness. This impression is strengthened by the fact that, when amending national law, the Dutch legislature set at three months the period exceptionally available to a court which, like the Court of Appeal in this case, is considering the possibility, after a first hearing, of refusing the extension, but deems it necessary to obtain additional information.

A more detailed study of the facts of the case does not dispel this impression: quite the contrary. The Court of Appeal was evidently not slow to initiate the examination of the application – lodged on 17 May, the court considered it on 4 June – but it is legitimate to question its decision to adjourn the proceedings until 17 August. The Government supplied no information capable of justifying it. Nor did it provide any explanation why the Court of Appeal took more than one month after the hearing to draft a brief order.

30. The Court, accordingly, finds a failure to comply with the requirement of ‘speediness’ laid down in paragraph 4 of Article 5 of the Convention.”

See too Musial v Poland (2001) 31 EHRR 29, in which the Court found that the Government of Poland had “failed to show that there were in this case such exceptional grounds as could justify the period (of delay) in question”: see paragraph 48 of the judgment.

49. I consider below the resourcing of the Tribunals. I shall focus in particular on the two factors that seem to me on the evidence to have been most productive of the delays in the cases before me: the adequacy of Tribunal staff and the lack of medical members. I shall refer briefly to the administration of the Tribunals, in so far as it seems to me necessary to do so in order to determine the claims before me. I shall also refer to some of the evidence concerning delays generally. Inevitably, some evidence cited by me comes under more than one heading, and must be borne in mind when considering all of the matters to which it refers. Against the background of the evidence and my findings as to the resourcing and administration of the tribunals generally, I shall consider the individual cases before me.
50. In assessing the generic evidence, I shall pay particular regard to the reports of the Council on Tribunals and to the report of the review of tribunals by Sir Andrew Leggatt entitled “Tribunals for Users”, published in March 2001. The Council has considerable relevant experience and expertise, and Sir Andrew’s report contains much valuable information and comment on the system as he and his colleagues found it relatively recently. I appreciate that the facts of the particular cases before me, and of others in evidence, may be atypical, and I consider them in the light of the generic evidence.
51. I must also consider the pressure of work on the Tribunals. As indicated above, a temporary or recent increase in workload may result in delays that are in no way the fault of the State, and do not involve any infringement of Convention rights. An increase that has been obvious for some time on the other hand requires the State to take adequate measures to assure compliance with Article 5.4 if it is not to be in breach.

The workload of the Tribunal

52. In 1990, 7,650 applications were made to the Tribunal. 4,570 applications were heard. In 2000, there were 20,421 applications, with 11,535 proceeding to a hearing. Thus the number of applications has increased by about 270 per cent over 10 years; and the number of hearings has increased by about 250 per cent. The rate of increase of applications has been erratic, ranging from 5 per cent to 17 per cent a year, with an average of 10 per cent over the last 5 years.
53. It can be seen that the proportion of ineffective applications is very high, and was similar in 2000 to 1990. There are several reasons for the large number of ineffective applications: they include discharge by the RMO before the hearing date; a change of mind by the patient; a deterioration in his or her condition; recognition that an application is hopeless; and a desire to make a fresh application, at a later date, with a hoped-for better chance of success. The reasons are not important: but it must be appreciated that the system has to cope with considerable uncertainty, at least initially, as to whether any particular application will require an effective hearing.
54. There are other factors that have added to the pressures on Tribunals that have to be taken into account. First, tribunal hearings take place at the hospital or other institution where the patient is detained. This limits the ability of the Chairman to list cases to be dealt with by the same tribunal on the same date. There has for some time been a move towards detaining patients in smaller units. This has resulted in a requirement for more tribunal panels, and therefore more tribunal members. There are now approximately 181 hospitals in which a person can be detained and 244 independent sector nursing homes able to take patients under the Act. The decision of the House of Lords in R v. Bournewood Community and Mental Health NHS Trust, Ex parte L. [1999] AC 458 led to a less predictable increase in applications. The “supervised discharge” provisions of the Mental Health (Patients in the Community) Act 1995 were predicted to lead to an increase in workload (see paragraphs 1.43 and 1.44 of the Council on Tribunals’ Annual Report for 1995/96), but would seem not to have done so (see the Annual Report of the Mental Health Review Tribunal for 1996 at paragraph 1.4).
55. Another factor contributing to an increased workload is the increase in specialist legal representation of patients.
56. I bear the increase in the workload of the Tribunals in mind in reaching my conclusions. Clearly, for example, the State could not be held immediately responsible for delays caused by the unexpected increase of the annual level of increases to 17 per cent. But while the level of increase and its pattern have not been predictable, there has in fact been a significant increase year on year for some time. While the level of increases in particular years may have been surprising, the general level of increases should not have been. In addition, measures taken by the government had predictably added to the workload of the tribunals: I refer to the moves to smaller hospitals and to “care in the community”. The State should have taken the likelihood of continuing increases in applications, as well as the experience of actual increases, into account in deciding on the allocation of resources to the Tribunals.

General evidence relating to delays

57. The 1997/98 report of the Council on Tribunals concluded:

“We intend to continue to monitor closely the working of the MHRT Service in the coming year, and will be looking for commitment from the Department of Health to ensure that the MHRT Secretariat is properly funded and resourced. Our anxieties about this tribunal system remain, and we hope that the Department will focus its attention of the development of a clear strategy for tackling the problems within the MHRT Service which, in our view, have existed for far too long.”

58. The Mental Health Review Tribunals Secretariat Strategic Plan 2000-2002 states:

“By the end of 1998 the Mental Health Review Tribunals recognised that the year on year increases in applications had placed such pressure on their services that we were no longer able to deliver our core business with consistency.”

59. In 1999 the Council on Tribunals produced a special report on the Mental Health Review Tribunals. It stated, at paragraph 2.13:

“A proper planning strategy and system would enable MHRTs to tackle a number of other areas where there are still unresolved problems. The increasing workload, and lack of additional resources to deal with the numbers of extra cases, has had a negative impact on the extent to which the tribunals are meeting the target times for hearing appeals. We acknowledge and applaud the fact that a number of work-streamlining measures relating to MHRTs have been put in place, which have had the result that some areas are now meeting some of the targets for hearing appeals. However, it must be recognised that the point will arrive soon where efficiency savings will have been maximised and further improvements may not be possible without an injection of additional resources.”

60. The Council’s Annual Report for 1998/99 referred to the unpredictable increase in the number of applications. It added:

“2.115 There has been a substantial effort to eliminate the delays which have for too long beset the system. This has entailed many additional sittings and is a tribute to the commitment of tribunal members and staff. As at April 1999, the target times of 8 weeks for cases involving unrestricted patients and 20 weeks for restricted patients were being met for the first time in a very long while. We earnestly hope that this can be sustained.”

61. The Annual Report of the Mental Health Review Tribunal for 1997/98, published some time after March 1999, stated that generally the waiting time before hearings exceeded the target of 8 weeks for non-restricted hearings. By March 1999 average waiting times for non-restricted cases varied between the regions from 10.3 to 15.2 weeks, and for restricted cases from 14.4 weeks to 38.7 weeks. The Report contains comments from the Regional Chairmen. They all referred to the increase in unclerked hearings, a matter commented upon adversely by the Council on Tribunals. Mr Christie, the Chairman of the Mental Health Review Tribunal for the North London Region, referred to the loss of staff in the North London office. He stated that in 1997/98 average waiting time was 14 weeks; in mid-1998 this had been reduced to 11 weeks, but by March 1999 it had again increased to 13 weeks. The Regional chairman of West Midlands and North West Region, John Wright, referred to the increase in applications from 3,596 in 1997 to 4,289 in 1998, to the enormous increase in hearings (1183 in 1998, 2,185 in 1999), and to the fluctuations in waiting times, which by March 1999 had reached 14 weeks for non-restricted cases. He referred to staff shortages, with indoor clerks having to be used to clerk hearings. The Chairmen of the Mental Health Review Tribunal for Wales for the period referred to the “burdens that have been all but intolerable for a loyal and hard-working staff”, but added, “A sympathetic Welsh Office however enabled us to recruit staff”. The latter comment was not matched by similar comments by the Chairmen of the English Tribunals. The Tribunal for Wales has a relatively small workload: some 5 per cent of all non-restricted applications in England and Wales in 1998, as against North London’s 29 per cent. The English Tribunals seem to have recruited casual staff: see page 62 of the Report.
62. In a letter dated 27 November 2001, a consultant forensic psychiatrist at East London and the City Mental Health NHS Trust stated that in the last year, he could recall only two tribunals which had been completed at a first attempt, and one patient had had three tribunals cancelled for various reasons before a hearing was able proceed. Barnet, Enfield and Haringey NHS Trust stated, in a letter dated 28 November 2001, that their impression was that about 15 to 20 per cent of hearings were postponed. West London Mental Health NHS Trust, in a letter dated 7 December 2001, stated that the tribunal cancelled at least 31 per cent of all listed hearings during 2001 at their Ealing site, representing 18 per cent of all cases and references made by their patients during that period. These figures are not representative of the situation throughout their region, however: generally in North London region there were only 425 cancellations due to a lack of a tribunal between September 2000 and August 2001, whereas 6550 applications were made in that period.
63. The Leggatt Report stated:

“4 We have been informed that there are serious problems of delay in MHRTs. Statutory time limits for hearings exist in relation to cases involving Section 2 and Section 75 of the 1993 Act. But departmental targets for other cases are not being met and many patients are discharged without ever having a hearing. (Of course, even if targets were met the condition of some patients would improve to the extent that they would no longer require the detaining order and will accordingly be discharged by the Responsible Medical Officer (RMO). The (Department of Health), however, has disputed this claim, and has indicated that, apart from a handful of cases received and listed around bank holidays, all cases in all regions have been within the statutory or recommended time limits. Removal of a case from the list, resulting in a hearing taking place outside the statutory time limit, is only possible on the direct authority of the Regional Chairman.”

64. It appears from the reports of the Council on Tribunals referred to above that the problems of the Tribunals existed for some time before 1998. Steps recently taken to alleviate or to remedy these problems must be assessed in the light of that fact.

Tribunal members

65. There has been a shortage of medical members of the Tribunal for some time. The Annual Report of the Mental Health Review Tribunal for 1997/98 stated: “The shortage of medical members is a continuing constraint to efficient delivery of the service.” Margaret Burn states that when she joined the Secretariat in October 1998, the problem was particularly severe in the North and South London regions (i.e., the regions concerned in the instant cases), and that:

“The situation has improved substantially in South London, but in North London, where one third of all MHRT work is done, the shortage of medical members remains severe. The fact that resources are stretched in this way means that the Tribunal offices in these regions struggle to find sufficient panels to hear all the applications ready to be heard. This problem is exacerbated by the need to hear applications brought by patients detained under section 2 MHA within the statutory period of 7 days form the date the application is received.”

She added that because of the shortage of medical members, the hearings of section 3 applications are disrupted in order to accommodate section 2 applications.

“In the worst cases, a medical member who is re-assigned (to a s. 2 application) may have been due to hear three s. 3 cases at one hospital, which all have to be cancelled.”

66. The statistics before me indicate that delays due to cancellations are regular occurrences, particularly in the North London region. In the year from September 2000 to August 2001, in the four English regions there were a total of 470 cancelled section 3 hearings. Of these, 358, or 76 per cent, were caused by the lack of a member (generally the medical member) of the Tribunal. North London had 277 cancelled section 3 hearings and 139 cancelled section 2 hearings, all of which were due to the lack of a member (again, generally the medical member). The situation is not improving. In September and October 2001 alone, 140 section 3 hearings were cancelled by North London, because of the lack of a member (usually medical) of a panel. In those months there were about 600 hearings in North London, so that about 1 in 5 hearings was cancelled owing, to the lack of a tribunal, and generally the medical member. Nationally, 204 section 3 hearings were cancelled in those months, 160 owing to the lack of a member, and generally the medical member. As can be seen, the great majority of these were in North London region.
67. In a letter dated 11 July 2000, Mr Christie stated:

“The fact is … that there are just not enough medical members to go round. We cannot cover the current caseload. … I need probably 20 to 25 new medical members to meet the current task.”

He said, at paragraph 11 of his witness statement in the case of JR:

“I have repeatedly raised with the MHRT Secretariat the problems caused by the shortage of members, particularly medical members, and by the administrative difficulties with the office in my regions. The problems became acute three years ago but even prior to 1998 there were similar difficulties.”

68. In a letter dated 8 October 2001, Huntercombe Manor Hospital in Maidenhead complains that they experience multiple cancellations, always at very short notice. The hearing of a patient’s application, adjourned with a direction that it be heard the following week, i.e. by 14 September 2001, had yet to be heard. In a letter dated 9 October 2001, the MHA Administrator of Buckinghamshire Mental Health NHS Trust stated that since April 2001 they had scheduled 33 hearings, 13 of which had been cancelled due to a lack of a tribunal member or members, 12 where the patient became informal before the hearing, in some of which the patient came to be discharged after 1, 2, 3 or even 4 cancelled hearings, and 8 (i.e., less than 25 per cent) which actually took place. In a letter dated 9 October 2001, Brent, Kensington & Chelsea and Westminster Mental Health NHS Trust stated that 2 section 2 patients had been denied the right to independent review because no hearing was arranged within the statutory 7 days or before the expiration of their 28 days.
69. Since Margaret Burn joined the Secretariat, she has worked with the Lord Chancellor’s Department to address the problem caused by the shortage of medical members. She states:

“When we want to recruit new panel members, the Department of Health puts in a bid to the Lord Chancellor’s Department specifying the number of members required in each of the four regions. The Lord Chancellor’s Department then organises a recruitment campaign. In the last 3-4 years, we have been unable to recruit the required number of medical members to match the rise in workload.”

Since she took up her post, the Department of Health has put in a bid for more medical members at least once a year and she arranges a recruitment campaign every year. There are now 814 medical members, including newly-appointed members who have not completed their induction process, as against 550 in 1999.

70. Under the terms on which members are appointed by the Lord Chancellor, they are offered a minimum of 15 sitting days a year, and may be required to sit for up to 30 days. If members wish they may sit for more than 30 days: up to 50 days, if they are still in practice or otherwise working, and up to 70 days if they are retired. If members wish to sit for more days than these maxima and their regional Chairman supports their request, the Lord Chancellor is requested to enlarge the maximum applicable, and normally does so. Recently, extended appointments, of members permitted to sit for 140 days per year, have been offered, but only six such appointments have been made.
71. At some stage the Lord Chancellor reduced the retirement age of medical members from 70 to 65. This exacerbated the shortage. In June 2001 the Lord Chancellor raised the retirement age for medical members from 65 to 70. The Lord Chancellor may grant an individual extension up to the age of 75.
72. There is a national shortage of psychiatrists, and in particular of consultants. As at September 2000, there were 371 vacancies for consultant psychiatrists with in the NHS out of a total of 3,187 posts. The statutory requirement is that the medical members must be simply registered medical practitioners. The Lord Chancellor invariably requires that the medical member be a consultant, on the basis that he or she will have to assess the professional opinions of other consultants. Nonetheless, only 5 per cent of consultant psychiatrists apply to become members. The evidence before me, although it cannot be said to be a comprehensive survey, indicates that most of those who do not apply are deterred by the commitment involved, having regard to their existing commitments. However, out of 187 who responded to a questionnaire sent out by the Chairman of the London Division of the Royal College of Psychiatrists, 54 gave money as the reason for not becoming a tribunal member, as against 55 who stated that money was not an issue. There was surprisingly some ignorance as to the possibilities of becoming a tribunal member and of the work involved. Only two of the respondents were active tribunal members, and their comments were described as “considerable and negative”. A number of retired and semi-retired consultants felt that they had been unfairly excluded: they presumably had ceased to be members when the Lord Chancellor reduced the retirement age to 65.
73. That pay is a relevant issue is borne out by the Leggatt Report:

“11. MHRT panels consist of a legally qualified chairman, a medical member, and a lay member. Particular difficulties have been reported with the recruitment of medical members. This is thought to be at least in part because of the low fees paid. We have received suggestions in discussion with tribunal members that they are less well paid than members of other tribunals. A shortage of medical members contributes to difficulties in listing cases, which in turn increases delay. The (Department of Health) has recently conducted a full review of fees. The new fee structure was announced in October 2000 and represents a package that is expected, over two years, to bring MHRT fees to parity with those paid to members of the Pensions Appeals Tribunal. We welcome this development …” (Page 160)

6.47 …, it seems likely that the comparative weight and responsibility of some posts, and the market rated for the skills which they require, are being underestimated in the current arrangements. The most glaring example of this has been in the MHRTs. These take some of the most responsible decisions in the whole of the Tribunals System, often on complex and uncertain professional evidence. Yet the rates offered have for some time compared badly with posts in the ordinary courts, and with some other tribunals. When we began work, Chairmen were paid £245.70 a day, compared with £349.52 for Recorders and £327 for part-time Appeals Service legal members. We were also told of widespread difficulties in recruiting medical members. Whilst there is a general shortage throughout the National Health Service, and there are probably a number of other factors, such as the perceived low status of MHRT service, the rates of pay have done nothing to help. The (Department of Health) has recognised this problem and has recently announced substantial changes. We welcome that. But these figures show what can happen to rates of pay for a tribunal with a peculiarly difficult and responsible task, in the current uncoordinated system.” (Page 81)

74. As mentioned above, the Leggatt Report was published in March 2001. In April 2001 fees for Tribunal members were increased. It is to be hoped that the increases in pay will lead to increased recruitment. However, because of the need for training and induction, it takes about a year from recruitment of a medical member to his or her being available to serve on a panel. It follows that recruitment following the April 2001 pay increases would not have affected the cases before me. I find that the lack of medical members that caused cancellations in these cases was due in part to the previous inadequate rates of pay.
75. Whether there are other steps that could and should be taken by the Government to increase the numbers of medical members is not something on which I am able to comment. Suggestions have included abolishing the requirement that the medical member be a consultant. Clearly, increasing the numbers of practising psychiatrists of itself would help. It may well be that some shortage of medical members is and was inevitable: but not the shortage that was experienced in the period I have to consider. It is sufficient for me to find, as I do, that, even taking into account the increase in the volume of applications to tribunals, the State has not established that the shortage of tribunal members has occurred notwithstanding its implementing adequate practical measures to minimise that shortage. The shortage of medical members was apparent before 1998, yet their pay has only recently been increased. There is no evidence of effective steps being taken to remedy the shortage before Margaret Burn took up her post, and no evidence that there has been a comprehensive enquiry as to the reasons why so few psychiatrists have been recruited, or any determination of the steps required to be taken by central government to address their reluctance to become members. I am similarly not satisfied that the shortage of appropriately qualified legal members for restricted cases has occurred without responsibility on the part of the State: indeed, there is no evidence before me on which I could find that the government has taken appropriate remedial action.

Tribunal staff

76. Michael Christie stated in his witness statement in the case of JR:

“10. I am concerned about the degree of pressure placed upon the Tribunal office staff in my region. At times last year, the office was very short staffed. The pressure they are under often results in our not keeping staff for as long as we would like to. The overall result is that the service we offer is not of as high a standard as I would wish….”

77. Mary Kane, the Regional Chairman of the South London Tribunal, stated in her witness statement in the case of KB:

“8. There is a very high turnover of administrative staff in the Tribunal office in my region. This inevitably means that inexperienced staff are handling the listing of cases. New staff receive limited training in listing procedure from the business manager and the other more experienced staff. However, all the office staff work under a great deal of pressure, due to the high volume of work and the fact that they are faced with competing demands from all sides. There is therefore very little time for proper training. At any one time, there is likely to be a number of temporary staff employed on a casual basis. If the staff were of a higher grade and/or received higher salaries, it is likely that they would stay with us for longer, and also that we would attract applicants of a higher calibre. The permanent staff in my office are mainly very hard-working and have to cope with a great deal of pressure. If we had more staff and were able to keep experienced staff, this would alleviate some of the pressure on current members of staff.

9. The lack of proper funding and of proper and fully staffed administrative support for the MHRT was identified some years ago and has been constantly brought to the attention of the Secretariat, the Department of Health, and thus the Minister, not only by the Regional Chairs since to my knowledge at least September 1998, but also by the Council on Tribunals in its Annual Report for several years.”

A high turnover of staff is of course an indication that conditions of work are unsatisfactory: due, it would seem, to the pressure of the work and the lack of training.

78. Mary Kane has to have correspondence from RMOs and patients’ representatives addressed to her at, and answered from, home. She states that correspondence is not always dealt with promptly “because the Tribunal office is under-resourced and the staff are often inexperienced”. She has no full-time secretarial support but uses a Department of Health typist “when she is available”.
79. The concerns of the Council on Tribunals about staffing levels appeared in its reports as long ago as in its Annual Report for 1994/95:

“2.64 The Department’s initial response to our concerns about staffing levels at the Regional Offices made clear that, although they were acutely aware of the pressures faced by the offices, it had not been possible to increase staffing levels because of public expenditure constraints. They subsequently assured us that, despite a requirement to make substantial reductions in their headquarters staffing levels over the two years to 1997, MHRT staffing levels would be maintained during 1995/96 and there would be no arbitrary percentage cut in MHRT resources without taking proper account of the pressures the service had to bear.”

The 1995/96 Annual Report of the Council stated:

“1.35 We were consulted during the year on two Reports commissioned by the Department of Health concerned with the functioning of the Mental Health Review Tribunals’ Secretariat in England. The Reports were made at a time when at least two of the four MHRT Regional Offices are seen to be working under intolerable pressure; when some tribunal hearings are taking place without support from a hearing clerk; and when there has been a notable deterioration in the time taken to hear unrestricted cases. It is clear to us that these problems have come about primarily because the MHRT Service has not been given the resources it needs to handle an ever increasing work load. …

1.39 We are in regular contact with the staff of the MHRT Secretariat on a variety of matters throughout the year, some of whom we meet in the course of our visits to tribunals. We remain impressed by the unswerving commitment of the staff of the Secretariat in all areas of their work in support of the MHRTs, particularly in the face of a sustained increase in workloads over many years and the need to ensure that hearings are not unduly delayed. But is now evident that the staff in the two London Regional Offices are working under intolerable pressure and that delays in the hearing of cases are once again at unacceptable levels.

1.41 There is no doubt in our mind that these problems have been caused primarily by the Department’s failure to increase staffing levels in line with a sustained increase in workloads. The rate of increase in new applications and hearings has been substantial. Since 1992, when the fourth Regional Office was established in London, the number of new applications has risen steadily from 9,500 to 13,000 in 1995, an increase of about 40%. In the same period, the number of hearings has also risen by 40% from 5,000 to 7,000. Mr Patterson’s Report to the Department in June 1996 emphasised that staffing levels had not increased proportionately and that services were being maintained only by the commitment and good will of the staff within the Secretariat.”

80. The 1996/97 Annual Report of the Council stated, at paragraph 2.75:

“The news on resources was less encouraging. Officials explained that the NHS Executive had been required to make a 21 per cent reduction in its staff in 1996/97, and a further budget reduction was required in 1997/98. In both years they had managed to protect the MHRT Service from the same cuts. Although it had taken some effort on their part to resist the pressure, there would be no staff reductions this year within the MHRT Service. But it meant that the Service would not be given the staff increases recommended in the Patterson Report. …”

81. The Council’s Annual Report for 1998/99 stated, at paragraph 2.112:

“Over many years we have expressed serious concerns about the working of mental health review tribunals (MHRTs). We have drawn attention to unacceptable delays in listing and hearing cases, to pressures on administrative staff arising from lack of resources, to the need for training for tribunal members, and to the lack of central judicial direction which a Presidential system can provide. We have also had concerns about the confusion caused by the separate system of managers’ hearings, about the late submission of hospital reports, about the increasing incidence of unclerked hearings, about a shortage of medical members, about the inadequacy of tribunal accommodation, and about the capacity of the system to handle an increasing workload.”

82. The Leggatt Report stated, at paragraph 8 at page 159 (with my italics):

“The (Department of Health) is responsible for providing administrative and clerical support for the tribunal. This includes members’ pay and expenses, administration of cases, IT support, training, and clerks at hearings. It does not include accommodation, which is provided by individual Trusts and independent hospitals. Although we are aware that the DH has, in recent years, worked to improve the administrative support provided to tribunals, both in terms of central policy and local execution, nothing we saw suggested that the tribunal is seen as a high priority by the (Department of Health), still less by health authorities. A major problem is that a significant proportion of cases do not have a clerk. In busy hospitals, frequently having poor hearing facilities, and with many witnesses attending, the absence of a clerk clearly impedes the proper conduct of a tribunal’s business. In Wales, administrative and clerical support is provided by the National Assembly. We understand that clerks are provided in 95% of cases heard in Wales.”

83. To the extent that failures to provide speedy hearings are due to shortages of staff or pressure of work on them or on the lack of suitably trained staff, I am not satisfied that they are not due to matters that are the responsibility of the State under the Convention. The State has not established that it has taken appropriate action to ensure that the Tribunals are adequately staffed; indeed, to the contrary, it is clear that the Tribunals have not been adequately staffed. The increase in the workload of the Tribunals explains, and indeed to the extent that it has been unpredictable excuses, some staff inadequacies, but not to the extent experienced by the Tribunals.

Priority of section 2 hearings

84. In the best-ordered systems, it may occasionally be necessary to cancel or to adjourn a hearing in order to accommodate a more urgent case. While individual urgent cases and their timing may be unpredictable, that there will be such cases is entirely predictable, and they should if necessary be specifically catered for. However, the cancellation of section 3 hearings in order to accommodate section 2 hearings is not occasional but common. There is no slack in the system able to accommodate urgent cases without disrupting the hearings of less urgent cases. The principal cause is the shortage or resources. Mary Kane states:

“I and the other Regional Chairs do not like having to postpone one patient’s hearing in order that another’s may be heard. However, the need to ensure that a section 2 patient’s application is heard within the statutory seven-day period has necessitated this course of action. The way the Tribunal lists cases is constrained by the need to work within very limited resources, as to staff, finances and members.”

But she mentions that they may be unable to find a legal member, or even occasionally a lay member required to constitute a panel. The shortage of legal members is most felt in restricted cases, in which that member must normally be a Judge, a Recorder Queen’s Counsel or a Regional Chair. There are 22 Recorder QC’s allocated to London South. They are required to be available to sit for 30 days a year. The majority of them do not fulfil their commitment.

85. Even with the priority given to them, it has not always been possible to hear section 2 cases within the statutory time limit. A letter from the Chief Executive of the Institute of MHA Practitioners dated 24 November 2000 gave details of a significant number of hearings that took place outside that limit. In January 2001, following the admission of the Tribunal in Adebambo of the unlawfulness of a delay exceeding 7 days in a section 2 case, Mr Christie instructed members of the North London region that that could not be allowed to continue, and that therefore the replacement of section 3 hearings by section 2 hearings would be implemented from March 2001.
86. It is apparent that the frequency of cancellations of section 3 hearings in order to accommodate a section 2 hearing is due to the general lack of sufficient tribunals. I have already stated my conclusion that the Defendants and the Secretary of State for Health have not established that the lack of tribunal members has occurred by reason of matters for which the State is not responsible under the Convention.

Administration and listing

87. On the evidence before me, the principal causes of cancellations and delays are the shortage of tribunal members, particularly medical members, and shortage and lack of training of staff. Inadequate IT provision is a contributory factor. The Leggatt Report stated (page 161):

“15 IT provision is poor. Clerks are now equipped with lap-top computers, which contain listing information and basic case details, and which are used to type up written decisions. For those cases without the support of a clerk, no such information is available electronically. We understand that the (Department of Health) are in the process of supplying Regional Chairmen with lap-top computers to facilitate their monitoring of throughput and listing. There is no IT provision for tribunal members themselves.”

88. Two particular practices were criticised on behalf of the Claimants. The first is the practice of allocating a date for a hearing before the staff are able to identify which tribunal members, if any, will be available. The second is a failure to give priority to a case after cancellation of a hearing or hearings.
89. The evidence before me does not justify a finding that the practice of fixing a date before the members of the tribunal have been identified is a contributory cause of delays. In his judgment in C, Lord Phillips MR suggested that it would be preferable to fix dates after receipt of the statement required by rule 6, when it would be possible to ascertain from the papers what activities were required to be carried out before the hearing. That would involve consideration of the papers by trained staff, and it does not appear that Lord Phillips MR had before him evidence of the actual shortage of such staff.
90. With regard to prioritisation after cancellations, according to Mr Christie, the office staff are aware of the need to prioritise cases that have been cancelled, but that because of the shortage of members, and in particular medical members, it is difficult to ensure that a case that has had a cancelled hearing is definitely heard on the next occasion. It was only in the latter part of 2001 that his office staff began to mark in the diary where a case had been previously postponed. It is clearly necessary to give priority to an application according to the length of time since it was received by the Tribunal and any cancellation of hearings. The failure to note such postponements earlier contributed to the repeated cancellations in the cases of JR and GM.
91. A number of other suggestions for the administration of the Tribunals were made by the Claimants, such as the use of listing questionnaires and the giving of stringent directions, and it was suggested that such measures should already have been adopted. I am not satisfied that those measures would have made anything more than a marginal difference to the delays suffered in the cases before me. Listing questionnaires can be helpful, provided there are staff available to process them. The fundamental causes of delay are the shortage of members and the inadequacy of staff.
92. I can now turn to the individual cases before me.

Findings on the individual cases before me

PD

93. The Tribunal accepts that there was a breach of Article 5.4 in the case of PD. I shall nonetheless set out the facts in more detail, and make findings as to the cause of the admitted breach.
94. PD was detained under section 2 on 18 October 2001. His application was received by the North London Tribunal on 19 October. A hearing was fixed for Friday 26 October. It was cancelled because it was not possible to secure a full panel. The case was relisted for 5 November; this hearing was also cancelled, again owing to the unavailability of a panel. It was relisted, ignoring the suggestion of 9 November, for 12 November. That hearing too was cancelled for lack of a panel. A hearing was then fixed for 19 November, over 4 weeks after receipt of the application, and over 3 weeks in excess of the time permitted by rule 31. PD was discharged by his RMO on 16 November 2001, 4 weeks after his detention.
95. PD was deprived of his right to an independent review of his detention. The failure to secure that review was due to the shortage of tribunal members, for which the State is responsible. His rights under r 31 and Article 5.4 were infringed.

KB

96. By way of background KB was first detained on 8 September 2000. He immediately applied to the Tribunal for review of his detention. Judicial review proceedings were issued in order to obtain a hearing, which ultimately took place on 21 December 2000, 15 weeks after his application. His detention was continued.
97. He again applied to the South London Tribunal on 29 March 2001. On 8 April 2001 a hearing was fixed for 22 May 2001, just short of 8 weeks from the receipt of his application. At the time the Tribunal was operating an 8-week target period for hearings. The date of 22 May was regarded as provisional, and those concerned were normally given a period of 7 days to object to it, after which the Tribunal would confirm the date in writing. Due to an oversight, the Tribunal staff failed to confirm the date. On 23 April the Tribunal received an objection from the RMO stating that she and her Registrar would be on holiday on the 22 May. It was the practice to refer to the Chairman any application for an adjournment that would result in a hearing beyond the 8-week target. The staff cancelled the provisional date for the hearing without referring to her. On 10 May, 2½ weeks after the receipt of the RMO’s letter, a new date of 30 May 2001 was proposed by the Tribunal office. On 15 May, a further objection was received from the RMO, who had a full out-patient clinic scheduled for that date. On 18 May the Chairman authorised a change of date, to 5 June. The Claimant’s solicitors then requested an earlier date, because the Claimant was due to be on leave, under section 17, on the new date. The Chairman felt obliged to reject their request, because there were no panels available at the Claimant’s hospital at an earlier date (although there were several panels sitting at other venues). The hearing therefore ultimately took place on 5 June. KB was not discharged.
98. The period between the receipt of the application and the first date fixed for the hearing reflected Tribunal practice before the decision of the Court of Appeal in C. Given adequate availability of Tribunal members and staff, on the evidence before me, there is no reason why an earlier hearing could not have been held. The period between application and effective hearing was 9 weeks 5 days. I find, and indeed Ms Kane effectively accepts, that the failure to send out the letter confirming the first hearing date was due to the lack of sufficient staff and the lack of adequate training. The RMO’s objections to the 22 and 30 May were understandable, and it is difficult to fault the staff for accepting them. However, in the context of an application by a section 3 patient, 2½ weeks is an excessive time between receipt of an objection to a date and the fixing of a new date. That delay is likely to postpone a substitute date, and in this case was bound to postpone it beyond the 8 week target.
99. The delay before the effective hearing of KB’s application was not justified. KB did not receive a speedy hearing as required by Article 5.4.

LB

100. LB was initially detained under s 2. On 8 June 2001 her detention was continued under section 3. Her application was received by the North London Tribunal on 13 June 2001. The hearing was initially fixed for 12 July 2001, just over 4 weeks later. On 11 July, that hearing was cancelled because no medical member could be found. By letter dated 13 July LB’s solicitors were informed that the hearing would take place on 8 August. That hearing was cancelled by telephone on 7 August, again because no medical member could be found. By letter dated 9 August 2001 LB’s solicitors were informed that the hearing would be on 30 August, just over 11 weeks after the date of her application. On 10 August 2001, 8 weeks after her application, LB’s RMO discharged her.
101. LB was deprived of an independent review of her detention. The evidence indicates that with adequate tribunals LB’s detention would have been reviewed some 4 weeks after her application. The cause of the delay in an effective hearing was the shortage of medical members of Tribunals in the North London region. Her right to a speedy hearing under Article 5.4 was infringed.

GM

102. GM was detained under section 3 on 24 November 2000. His detention was renewed on 23 May 2001 until 23 November 2001. His application for the review of his detention was received by the North London Tribunal on 15 June 2001. By letter dated 25 June 2001, the Tribunal informed GM’s solicitors that the hearing of his application would be on 16 July. On 13 July (the Friday before the Monday of the hearing), his solicitors were informed by telephone that the hearing was cancelled due to the lack of a medical member. On 25 July, his solicitors were informed by telephone that the hearing would be on 6 August. On 3 August (again, the Friday before the Monday of the hearing), the hearing was cancelled again for lack of a full panel. The next date fixed was 4 September. It too was cancelled, this time on the previous day, due to the lack of a full panel. GM’s solicitors complained by letter dated 5 September 2001 that it was already 13 weeks since his application had been presented. Another hearing was fixed for 27 September. It too was cancelled due to the lack of a medical member: the medical member scheduled to hear the application was engaged in a case concerning a restricted patient that overran, and no substitute was available. A hearing was fixed for 18 October 2001; it took place and GM was discharged with effect from 15 November 2001 to permit aftercare arrangements to be put in place. The time between application and hearing was almost 19 weeks.
103. The basic cause of the delay in this case was the lack of tribunal members. It seems that the delay was exacerbated by a failure to give GM’s case the priority over other cases appropriate in view of the cancellations and time elapsed since the date of his application. He did not receive a speedy hearing of his application. His right to such a hearing under Article 5.4 was infringed.

JR

104. JR was detained under section 3 on 12 April 2001. His application to the North London Tribunal was received on 4 May 2001. The hearing was fixed for 6 June. It was cancelled on 5 June to accommodate a s 2 hearing for which the medical member was required. On 11 June 2001, JR’s solicitors were informed that a hearing would take place on 11 July. This hearing took place, but as a result of the last-minute receipt of a new report by the RMO, JR’s counsel applied for and was granted an adjournment to enable his independent psychiatrist to consider it. The Tribunal adjourned the hearing to 15 August 2001, and gave directions, including one that “Case to proceed on 15/8/01”. However, that hearing was cancelled on 14 August. The Tribunal records indicate that the reason was that the medical member was required for a section 2 hearing. The explanation given to JR’s solicitors was different, and indicates that his hearing was overlooked. On 15 August, his solicitors sent a letter before action to the Tribunal requesting a hearing by 22 August. A hearing was fixed for 6 September. It was cancelled on 5 September owing to the lack of a full panel, probably by reason of the unavailability of a medical member. Another hearing was arranged, for 21 September. It too was cancelled owing to the lack of a full panel, again probably because of the unavailability of a medical member. A hearing was arranged for 8 October 2001. It was effective. JR was not discharged.
105. Over 22 weeks had elapsed from the Tribunal’s receipt of JR’s application to the date of his effective hearing. If one leaves out of account the whole of the adjournment requested on 11 July (and I am not sure that it is appropriate to do so), the period was over 18 weeks. The basic reason was the lack of panel members. This was exacerbated by the need to accommodate section 2 hearings in circumstances where there was no panel able to take those cases without cancelling section 3 cases, and by the apparent failure to give appropriate priority to JR’s case once there had been excessive delay and a cancelled hearing.
106. JR did not receive a speedy hearing of his application for the independent review of his detention. His right under Article 5.4 was infringed.

MK

107. MK was detained under s 37. In September 2000 she had been set fire to a flat. She was arrested and charged with arson with intent to endanger life. She was found to be unfit to plead.
108. She applied to the South London Tribunal for the review of her detention on 11 June 2001. On 4 July, her solicitors were informed that her application would be heard on 2 August. On 1 August, the hearing was cancelled. A new hearing date was fixed, for 22 August. Her claim for judicial review was filed on 8 August 2001, seeking among other relief an order that a hearing be held within a reasonable time. The hearing date was moved forward to 17 August 2001, and her case was heard on that date. MK was discharged. 9 weeks and 4 days had elapsed since the date of her application.
109. Between 23 and 26 July 2001, 7 section 2 applications had been made to the South London Tribunal, all of which had to be heard within 7 days. The Regional Chairman had to cancel the 3 section 3 hearings due to take place on 2 August at the hospital where MK was detained so that the section 2 hearings could take place within the statutory time limit. The Chairman understandably and reasonably thought that she had no choice but to cancel MK’s and the other section 3 hearings. While such cancellations can occur without any infringement of Article 5.4, I read the Chairman’s statement in this case as attributing the cancellation of MK’s (and the other 2) hearings to a lack of sufficient tribunal members. Furthermore, the original period between application and first fixed hearing was 7½ weeks; and the period between cancellation and effective hearing over 2 weeks. MK’s right to a speedy hearing was infringed.

TB

110. TB is a restricted patient, detained under sections 37 and 41. His application for the review of his detention was made on 11 July 2001. There was then a standard target of 20 weeks for a restricted application. A provisional hearing date was fixed for 30 October 2001. On 29 October his solicitors were warned that the hearing might not go ahead, and the cancellation of the hearing was confirmed on the morning of 30 October itself. On 12 November, a new date, of 12 December, was given by the Tribunal. On 13 December, this was changed to 18 December. On 17 December, TB’s solicitors were informed by the Tribunal that no panel was available for the following day. Judicial review proceedings were begun on 8 January 2002, at which date no new date for the hearing of his application had been arranged. Six months had passed since he had made his application. A hearing was arranged for 16 January 2002, and was effective, and the Regional Chairman acted as chairman of the panel. However, at the hearing TB’s counsel asked and was given leave to withdraw his application on the basis of a change in his circumstances: his RMO had changed and he had been put on new medication.
111. The hearing fixed for 30 October was cancelled because of the lack of a legal member for the tribunal. The legal member due to participate in TB’s hearing was engaged in a part-heard case, and no other legal member could be found. No legal member could be found for 12 December, and subsequently no medical member for 18 December, by reason of the very limited number of medical members who are available to sit in Kent (where TB was detained). A legal member who might have been available sat on a section 2 case, which was given priority to TB’s. The eventual effective hearing took place 27 weeks after the date of the application, as against the 12 to 14 weeks that is, according to Mary Kane, “the earliest realistic time that a restricted case can be heard”. The effective cause of the delay was the shortage of medical and legal members for the tribunal. TB’s application did not receive a speedy hearing as required by Article 5.4, and his right to such a hearing was infringed.

The responsibility for the delays in hearings

112. Under Article 5.4, it is for the State to ensure speedy hearings of detained patients’ applications. The State must establish such tribunals or courts, and provide such resources, as will provide speedy hearings. It is therefore irrelevant to the question whether there has been an infringement of Article 5.4 which government department or other public authority was at fault. Miss Grey asked me, if I were minded to make a declaration that there had been an infringement of Article 5.4, to make clear in my judgment the respective responsibilities of central government and the tribunals themselves for the failure to provide speedy hearings, and I propose to do so.
113. I found the evidence of Margaret Burn, Michael Christie and Mary Kane very impressive. They are clearly doing all they can with the resources available to them. The regional Chairmen are required to work only 2 days a week, yet Mr Christie’s hours amount to a full 4 or 5 day week, and he in addition has his own solicitor’s practice. Mrs Kane also works the equivalent of a full 4 or 5 day week. The chairmen are paid for 2 days, and have to claim additional remuneration for the additional time they work on tribunal business. The Department of Health decides to what extent their claims should be paid. I was told that in practice Mrs Kane is paid for about 3 days a week (giving support to the adage that a part-time job is a full-time job at half-pay); other chairmen are normally paid for virtually all the time they work. The Chairmen are doing what they can with inadequate resources. Their staff are often working under very great pressure. The Chairmen are not responsible for the lack of tribunal members or the inadequacy of staffing. The evidence before me indicates that the basic responsibility for the delays experienced by patients is that of central government rather than of the regional Chairman or their staff.

Generally

114. I should like to express my appreciation to counsel for the extraordinarily helpful and efficient way in which they presented and summarised the extensive material before me in their skeleton arguments, and for the quality of their submissions.

The orders to be made

115. I shall ask counsel to make submissions on the orders to be made and any directions required in the light of my judgment.
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MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft and sets out my decision in each of these cases. I would like to express my appreciation to all counsel, not only for submissions during the course of the case but their careful reading of the draft judgment and the corrections I have received. There has been an order discussed.

MR GLEDHILL: Yes. There are some slight amendments to that. Before I deal with that, could I ask your Lordship to reiterate that there is an identification restriction in relation to each of the claimants. On the list outside two of them are identified by initial, the rest by name.

MR JUSTICE STANLEY BURNTON: Make it clear when this case is reported in any way, all of the applicants/claimants are to be referred by their initials and nothing is to be published in any way to be capable of identifying precisely who they are. I only noticed relatively yesterday the list gave their names. I took such steps, the office took such steps to remove names and put in initials but it was not totally successful.

MR GLEDHILL: In terms of the proposed draft order, there would be an additional proposed order in relation to costs, but there are also some amendments following discussion this morning. In particular, my learned friend, Miss Grey, who appears for the tribunal would prefer that the declaration be that their rights, the rights of the respective claimants were infringed as set out in the judgment, rather than identifying each particular breach as set out in the draft order.

MR JUSTICE STANLEY BURNTON: Hang on a moment. Which declaration are you referring to?

MR GLEDHILL: It will be the first, in effect the seven declarations under 2, 3, 4, 5, 6, 7 and 8. Her only concern was that your Lordship's judgment in effect exonerates the tribunal in effect from saying that it did what it did in difficult circumstances. Her concern, which I can understand is that the form of the formal declaration set out here, may seem to put the tribunal, as it were, back in it. From my point of view I do not mind whether it is a declaration of their rights were infringed as set out in the judgment. That serves our purposes so I take no point on the amendment.

MR JUSTICE STANLEY BURNTON: My instinct is against a declaration which takes one back to the judgment. This order should be self contained.

MR GLEDHILL: I can accept that. It must be said, in the course of your Lordships's judgment when dealing with each factual situation you did at the end, you made a declaration in relation to each particular case. But to put that in context at the end of your Lordship's judgment you said that the tribunal is doing what they can do in difficult circumstances. The judgment as a whole reflects the entirety of your Lordship's findings in a way that the declarations as set out here do not.

MR JUSTICE STANLEY BURNTON: If his declaration were to read: his or her rights under Article 5(4) of the Convention were as a result infringed. Would that not serve the purpose?

MISS GREY: That is very satisfactory that is what your Lordship has done in the body of the judgment. My concern is not to put in some summary fashion an inaccurate reflection of the many faceted aspects of responsibility that were discussed at much greater length in the judgment. Perhaps we could agree with that.

MR GLEDHILL: With one suggested addition in the case of PD, his rights under rule 31 were breached. That is the section 2 case, where there is an additional right granted by domestic law.

MR JUSTICE STANLEY BURNTON: I was not intending to comment on that.

MISS GREY: My Lord, I did not have any submissions to make on draft 2(a), it is only really 2(b) and the declarations thereafter which are covered by this discussion.

MR JUSTICE STANLEY BURNTON: It seems to me that the declaration should be in 2(b) the second sentence "rights under Article 5(4) of the Convention as a result were infringed" and there will be similar declarations in the other cases without ascribing responsibility.

MR GLEDHILL: That satisfies us.

In terms of directions as to future conduct, the view taken, certainly by the advocates, is that it would be helpful if your Lordship were to retain jurisdiction over the case because of the familiarity with it. There are still the issues to be resolved about damages, which include the points of principle as to precisely how you deal with damages under the Human Rights Act.

MR JUSTICE STANLEY BURNTON: It is a fascinating subject which I will be happy to deal with and it does make a lot of sense to deal with it. The problem is that I am not in the Administrative Court from now until the end of July. At the moment, I stop being in the Administrative Court at the end of term, 31st May. Next term I am in the Queen's Bench and the court of Criminal Appeal. That does not say that I could not be made available, there could be an exchange between Queen's Bench and Administrative Court.

MR GLEDHILL: The concern that we have is these are lead cases and there are various other cases backed up behind them, both at the LSC funding level and, as have already been lodged with the Administrative Court. The issues which arise in relation to the Human Rights Act assessment of damages are really Administrative Court matters.

MR JUSTICE STANLEY BURNTON: I understand. If I deal with these I shall sit in the Administrative Court. But in order for me to do so, it may be necessary for another judge to go to the Queen's Bench Division to take my place.

MR GLEDHILL: In terms of our preferences, if the matter goes off to July when your Lordship is back--

MR JUSTICE STANLEY BURNTON: I am not back, I am probably back in October. I think 11 should read "the claimant... lead cases to be listed for hearing, if possible, before me."

MR GLEDHILL: Yes.

MR JUSTICE STANLEY BURNTON: We will see what happens. If it is impossible you will get someone else. I will speak to listing.

MR GLEDHILL: Shall we, in that case, delete "on the first open date after 17th June" in case that then in effect removes your Lordships from the...

MR JUSTICE STANLEY BURNTON: If you can get this on before the end of May there will be no problem, I shall be able to deal with this case. At the moment you see you have to play with both 9 and 10, have you not? You have given yourself quite a long time in 9.

MR GLEDHILL: The concern there is that in relation to assessment of loss of chance, it may be that further evidence is needed to allow the court to assess, because if that is a head of damages that your Lordship on the law finds acceptable, then there will have to be an assessment on the individual cases as to whether they might have been released and what percentage chance they had of being released. Our concern is to assess that properly without additional evidence may be an impossible task. We are quite happy to give your Lordship difficult tasks but impossible tasks are another matter. That is why we put in that timetable.

MR JUSTICE STANLEY BURNTON: You better leave the timetable as it is. If you improve on it, you come back to me in default of agreement for variation of paragraph 10 and paragraph 11.

MR GLEDHILL: My Lord yes.

MR JUSTICE STANLEY BURNTON: But you cannot (inaudible) get me. And 15A, similarly, ought to read "shall if possible" I think.

MR GLEDHILL: Would your Lordship also add "if possible" to 16, which is the liberty apply.

MR JUSTICE STANLEY BURNTON: It ought to read: liberty to apply on notice if possible to make.

MR GLEDHILL: My Lord, in terms of your Lordship's availability we will take that into account and discuss it between the parties. My learned friend, Miss Grey, has a few other small comments about various parts of the draft order.

MR JUSTICE STANLEY BURNTON: I think the best thing is, once you have had a chance to digest what I have told you, is for solicitors and counsel's clerks to approach the Administrative Court listing and they will do what they can. Once you are in a better position to know how long it will take and when, I shall mention it to the office.

MISS GREY: My Lord, I have some very small points but it occurs to me that this discussion that in fact it might be useful if I were sent in by way of an agreed order after this mornings's hearing rather than relying on your Lordship to note them all.

In any event my points were simply on paragraph 12, the suggestion was there the skeleton argument should be exchanged. I was going to suggest that the claimant should serve theirs by Friday 7th June and the defendant's reply by Wednesday the 12th, rather than exchanging. In my submission, it does lead to a more focused in various sequential exchanges of skeletons.

MR JUSTICE STANLEY BURNTON: Shall we deal with that now?

MISS GREY: I do not understand that to be controversial.

MR JUSTICE STANLEY BURNTON: That seems to be sensible.

MISS GREY: Equally well, at paragraph 14, I had intended to suggest after the bracket saying "including where appropriate summary disposal", we add 'on the first available date 4 weeks after judgment', because by that time we may well be into the summer holidays and that makes it a little clearer that it does not have to be listed in the vacation break.

My Lord, the only other point was in paragraph 16 that the liberty to apply was intended to be both to the parties in the league and in the stayed cases for the avoidance of doubt.

MR JUSTICE STANLEY BURNTON: Those are all agreed. I would be grateful if counsel could amend this and give it to the Associate or to the Court Office an initialled copy.

MISS GREY: We will do that my Lord.

The only other point I had to make was that it comes to paragraph 9, I would wish to repeat the point that I made to my learned friend already, that we, for our part, do not accept the necessity of fresh psychiatric evidence in these sorts of claims or its need for commissioning to enable the Court to arrive at a just disposal of damages. There may well be points we wish to make, for instance, on the matter of costs. If that route is pursued by the claimants, I thought it best to raise that now, because the fact that we each agreed they should have that time to consider it, does not, as it were, indicate a consent to its necessity.

MR JUSTICE STANLEY BURNTON: You cannot say until you see the evidence, and nor can they I imagine.

MR GLEDHILL: The final issue is whether there should be an order of costs in any event in relation to claims. That is the application which we make, which I hope will not be controversial.

MISS GREY: I do not think we could resist an order for costs to be paid, by both, I would suggest the first and the second defendants, in any even. My Lord, I know that my learned friend does have a further submission to make.

MISS LAING: It is not a submission, it is an application.

MR JUSTICE STANLEY BURNTON: What do you say about costs?

MISS LAING: I agree with the position about costs.

MR JUSTICE STANLEY BURNTON: An order that the defendant and the interested party pay the costs of the claimants.

MISS GREY: We will work-out an appropriate wording, it should be the costs of issues relating to liability.

MISS LAING: My Lord, I do have an application to make. May I at the outset make it clear on behalf of the Department that your Lordship's findings about the cause of delay in these cases and responsibility and central government for them are accepted and we do not seek to challenge those.

I seek permission to appeal on a very narrow point that arises in relation to the section 3 cases only, that is KB, JR, GM and LB. It is a point that arises from paragraph 37 my Lord.

MR JUSTICE STANLEY BURNTON: Of the judgment?

MISS LAING: My Lord, yes. It is really the first two sentences of that judgment, where it appears that your Lordship is deriving from (inaudible), a principle that, in the ordinary way, tribunal hearings from section 3 cases should take place within eight weeks of the application.

MR JUSTICE STANLEY BURNTON: I thought that was factual in any event.

MISS LAING: Very shortly the point we seek to make, that conclusion does not follow the reasoning. The reason we say that is because what was being considered by the Court of Appeal in Sidi was the lawfulness of a blanket policy of all cases to be heard and within eight weeks of the date of the application.

The Court of Appeal did approach the matter on the basis that - you cannot have a blanket policy because the Strassburg cases show each case must be considered on its individual merits. What the Court of Appeal held was that policy was unlawful precisely because it failed in each case in its consideration on its merits as it warranted. However, we say it does not follow what the Court of Appeal say in C that 8 weeks is a bench mark (inaudible) that succeeded there is a breach of Article 5 (4).

MR JUSTICE STANLEY BURNTON: I would not say there is necessarily a breach, if you look at, look at the last sentence at paragraph 59, which I cite on the previous page.

MISS LAING: I follow that.

MR JUSTICE STANLEY BURNTON: I would just frankly was referring to that.

MR JUSTICE LANGLEY: Yes, there was not evidence in this case about what happened on the ground, what was being considered in the case was the policy. There were certainly submissions about the applicant about thing. My understanding is that there was not detailed evidence of what happens in practice. What was considered was a blanket open policy was called for or not.

MR JUSTICE STANLEY BURNTON: I understand.

MISS LAING: We simply say that the statement in the first two sentences of paragraph 37 is too wide, that we find the court and BC and on that point and that point alone that we would seek permission to appeal.

MR JUSTICE STANLEY BURNTON: In paragraph 37 I hoped I was dealing with the practicabilities of the matter rather than the matter of law and indeed, one notices, as I say May 2001 North London adopted a policy of listing within 5 weeks that the likely can, as a matter of practice. Certainly was not intending to lay down a principle of law there but deciding what was practical.

MISS LAING: The difficulty we see is that this is the first case in which this question is being considered at first instance. These sentences can be the same that 8 weeks is the benchmark, the period succeeded it follows there was a breach of Article 5(4). That is the concern and its without (inaudible), we seek permission on that point also. I do not know if I can assist any further, it is quite a narrow point.

MR JUSTICE STANLEY BURNTON: Frankly, more happily, amend the this text to make it clear that it was not proposition of law but simply to proposing the practicabilities of arranging an effective hearing.

MISS LAING: May be that will be a satisfactory way forward.

MR JUSTICE STANLEY BURNTON: If this was to read "in the ordinary way it is practicable for a tribunal hearings to take place within 8 weeks of the application", that would cater for your sorry - "it would be practicable for tribunal hearings to take place within eight weeks of the application" would that solve your problem?

MISS LAING: May I take instructions on that? (Pause).

I am grateful for that opportunity to take instructions, I think on the basis that your Lordship has made it clear in open court and by this amendment, your Lordship is not seeking to set out a rule of law in that sentence, we would be happy with that amendment. I am grateful for that.

MR JUSTICE STANLEY BURNTON: Just read back to me what I said I would say.

MISS LAING: I do not think I made an accurate note of it: "Following judgment...listing of so far as practicable on an individual basis".

MR JUSTICE STANLEY BURNTON: It would not be a bad idea to break the sentence.

MISS LAING: Perhaps one starts a new sentence: "In the ordinary way it would be practicable for the tribunal in section 3 cases to take place within 8 weeks of the application."

MR JUSTICE STANLEY BURNTON: Would anyone like to say anything else about that formulation?

MISS LAING: I wanted to say, in the ordinary way, it should be practicable.

MR JUSTICE STANLEY BURNTON: You are quite right, it should be. I am perfectly happy to say that and it will save you the cost of appearance in the Court of Appeal.

MISS LAING: I am more than happy with that result.

MR JUSTICE STANLEY BURNTON: I just ask the press and law reporters who have a copy of this judgment. There are copies available. There will be a typed up version available for collection from my clerk by 12.00, but meanwhile paragraph 37, which is about 10 pages in will read as follows:

"It follows from the judgment in C that the listing of cases must be considered so far as practicable on an individual basis. In the ordinary way it should be practicable for tribunal hearings in section 3 cases to take place." It reads: "follows from the judgment that the listing of cases must be considered on an individual basis." That is right Miss Laing, is it not?

MISS LAING: My Lord yes.

MR JUSTICE STANLEY BURNTON: "In the ordinary way it should be practicable for tribunal hearings and section 3 cases to take place within 8 weeks of the application."

MISS LAING: My Lord, I am very grateful for that. Perfected copies will be available from my clerk by midday.

MISS GREY: I am very grateful, thank you.