England and Wales High Court (Administrative Court) Decisions

Dillon v Secretary of State for the Home Department [2002] EWHC 732 (Admin) (27th March, 2002)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2002

Mr Justice GRIGSON:

The Facts:

1. This Claimant’s application is that a warrant, issued by the Secretary of State for the Home Department under section 3 of the Repatriation of Prisoners Act 1984 should be amended to substitute for the discretionary life sentence, with a tariff period of seven years, an order under section 37 of the Mental Health Act with a restriction order under section 41. Alternatively, to amend the warrant to remove the tariff period. It is necessary to set out the facts in a little detail.
2. The Claimant was born in England in 1967. By 1988 he had chosen to live in Sweden. In 1989 he was convicted in Sweden of serious sexual offences. He was sentenced to five and a half years imprisonment. He was released in August 1993. He committed a further serious sexual offence, which led to him being committed to some sort of psychiatric institution. He was deported from Sweden to the United Kingdom in January 1995. He then went to Denmark. On 2nd February 1995 he committed an offence of rape. He denied the offence but was convicted on 22nd December of that year.
3. The offence of which he was convicted was an aggravated form of rape set out in section 216(2) of the Danish Criminal Code:

“If the rape has been of a particularly dangerous nature or is in particularly aggravating circumstances the penalty may be increased to imprisonment for any term not exceeding 10 years.”

4. Section 33 of the Code provides:

“i) Imprisonment shall be imposed either for life or for a fixed period of not less than 30 days, nor more than 16 years.”

5. A life sentence under the Code is only available for murder. Again, under the Code, imprisonment is to be distinguished from detention, which is a less serious form of punishment.
6. By Section 34 parole is available at the expiration of two thirds of the term of imprisonment, the decision being at the discretion of the Minister of Justice or a person authorised by that Minister.
7. Section 49(2) provides:

“where considered expedient in view of the prisoner’s age, health or any other special circumstances, the Minister of Justice may decide that the person in question shall, either temporarily or for the remainder of his sentence be transferred to a hospital, to a suitable home or to an institution for special nursing or care.”

8. Section 70 provides:

“i) A person may be ordered to be placed in safe custody where:

a. he is found guilty of ...serious crime of violence.

a. it is apparent from the nature of the act that has been committed and from the information available concerning his character, with special reference to his criminal record that he poses an obvious danger to the life, body, health or liberty of others: and

a. the use of safe custody in place of imprisonment is considered necessary to avert this danger.

Furthermore a person may be ordered to be placed in safe custody where he is found guilty of rape .........”

And the subsidiary tests also apply.

9. Section 71 provides that when a safe custody order is made a coadjuter shall be appointed to assist the accused. The role of that person is to ensure that the order does not last longer than is necessary.
10. Section 16 of the Code provides that persons who are irresponsible, which I understand to mean, not responsible for the act, at the time of the act, on account of mental illness, are not punishable.
11. However, Section 68 provides power for the Court to make specific orders relating to a person ‘acquitted’ under section 16:

...the Court may decide on the use of other measures which it considers to be expedient for the prevention of further offences. If less radical measures such as supervision decisions on place of residence or work, addiction treatment, psychiatric treatment and so on are considered insufficient the Court may decide that the person in question shall be taken to hospital for the mentally ill or to an institution for severe mental defectives or that he shall be put into care suitable for the mentally deficient ...

Safe custody shall be possible under the conditions stated in Section 70 of this item.”

12. Section 69 provides:

“I) Where an offender was, at the time that the punishable act was committed in a condition resultant upon inadequate development or an impairment or disturbance of his mental abilities, although not of the character referred to in section 16 of this Act, the Court may, if considered expedient decide upon the use of any of the measures such as those referred to in the second sentence of section 68 above in lieu of punishment. Where the offender is committed to an institution, ... the order must not exceed one year in duration.”

The Finding of the Danish High Court of Justice

13. The High Court did not simply find the Claimant guilty of aggravated rape. He was found not to be insane at the time of the offence, but influenced by his very severe personality deviation.
14. The Court found that he was a person “embraced by section 69(i) of the Penal Code”. That is to say that the Court, if it considered it expedient, could use any of the measures set out in the second sentence of Section 68. In short terms, the Court inter alia could have committed the Claimant to a hospital for the mentally ill for a term of one year.
15. The Court then had available to it these sentencing options.

ii) a term of imprisonment of up to 10 years.

ii) a medical disposal under s. 69(i) and s.68.

ii) safe custody.

16. The Court imposed a sentence of safe custody. It is to be noted that the Court referred to that sentence as one of preventative detention.
17. The Court found:

i) That it was not possible to point to measures under Section 68(2) as being more appropriate than any just punishment.

ii) That the conditions for safe custody were satisfied.

I quote:

“Michael. Anthony. Dillon. presents such an obvious danger to the life, body health and freedom of other persons that the use of preventative detention is decided to be necessary from a medical point of view to prevent this danger - rather than ordinary imprisonment.”

Having been sentenced, the Claimant was sent to the Herstedvestes Institution. That institution is described in document G3 of the bundle as providing ‘preventative detention of psychopaths (for unspecified periods of time) and imprisonment psychopaths (for specified periods of time).”

18. The document states:

“The institution functions as a treatment institution under the Department of Prisons and Probation. The purpose of the institution is to receive, observe and treat ... inmates .... needing psychiatric treatment .... Finally the institution serves as an acute institution under the correctional service, thus receiving a number of inmates from other prisons .... whose situation in the institution concerned has come to a head making a transfer necessary.”

19. The Claimant did not stay at Herstedvester. He refused to co-operate with the authorities there. The doctors formed the view that “it would not be able to offer any treatment, neither psychotherapeutical nor medical ....” He was transferred first to Copenhagen Prisons and then to the State Prison at Horsens.
20. It follows from that history that a person sentenced to “safe custody” may be sent to an institution for treatment but then so may a person sentenced to imprisonment. A person sentenced to safe custody and sent to Herstedvester may be transferred from that institution into the ordinary prison system.
21. The purpose of safe custody is not to keep this offender safe. It is to keep the public safe from the offender. It is properly described as preventative detention. Although it is to be distinguished from a sentence of imprisonment and clearly is so distinguished in the Code in my judgment the distinction is that a sentence of imprisonment must be for a fixed period save in the case of homicide. There is no distinction as to the institution in which the offender is held. A person sentenced to “safe custody” may be held either in an ordinary prison or, if his condition requires it, in an institution where treatment is available.
22. There is machinery for ending the sentence of “safe custody” which is indeterminate.

“A decision to alter or finally terminate an arrangement made under Section 68-70 .... shall be made by Court Order upon the application of the Prosecuting Authority, the management of the institution, the coadjuter or the offender. An application on the part of the institution, the coadjuter or the offender shall be made through the Prosecuting Authority which must bring the question before the Court as soon as possible. Where the application .... is not upheld a fresh application may not be submitted within 6 months of the pronouncement of the Courts decision.”

23. The Claimant made an application to be repatriated to the United Kingdom. The relevant legislation is the Repatriation of Prisoners Act 1984, which seeks to put into force a Council of Europe Convention. The Convention requires as a condition precedent to repatriation the consent of the prisoner and of each state. It also requires that the receiving state under Article 9 (1) (a)

“ .........continue the enforcement of the sentence ........”

And under Article 10 (1)

‘In the case of continued enforcement, the administering State should be bound by the legal nature and duration of the sentence as determined by the sentencing State.”

Article 10 (2) states:

“If, however this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”

24. The Explanatory Report on the Convention states that the receiving state is bound by the legal nature as well as the duration of the sentence imposed. It recognises that the requirements of different States may well not exactly correspond. It states

    “the administering State may adopt the sanction to the nearest equivalent available under its own law provided this does not result in more severe punishment or longer detention.”

It goes on:

“The administering State thus continues to enforce the sentence imposed ... but it does so in accordance with the requirements of its own penal system.”

25. The Repatriation of Prisoner Act 1984 provides the machinery to effect the transfer. If all three parties consent the Secretary of State may issue a warrant which specifies the sentence to be served in the receiving State.
26. In a letter dated 10th September 1997 to the Danish Embassy the Home Office confirmed that the Claimant could be repatriated and the author of the letter expressed the view that if he was repatriated he would be treated as detained under Sections 37 and 41 of the Mental Health Act 1983, that is a hospital order with a restriction order.
27. That view did not prevail long. On 8th July 1998 in a second letter, the Home Office expressed the view that the Claimant would be treated as a discretionary Life Sentence Prisoner. Lord Bingham of Cornhill, then Chief Justice, was consulted and on 25th June 1998, in a letter to the Life and Parole Group of the Prison Service expressed these views:

“If this offender, with his record and these medical reports, had been convicted in an English Court of this rape on a plea of not guilty, the court would properly have imposed a sentence of life imprisonment. Under section 34 of the Criminal Justice Act 1991 I would expect the court to have specified a term of 7 years as the relevant part of the sentence to be served before consideration of release, basing itself on a determinate sentence of 12 years and specifying a period midway between one half and two thirds of that determinate sentence.

In expressing this opinion I assume that the English court would have rejected or felt unable to adopt the alternative of making an hospital order, and the specified term would have run from the date of incarceration on arrest for this offence.

If the offender is returned to this country, it would seem to me appropriate for his sentence to be administered as if the sentence imposed were that which, in my opinion, an English court would have imposed.”

28. On 6th July 1998 the Claimant was written to by the Prison Department and told in terms that if he sought repatriation, he would be held as a discretionary lifer. The letter says:

“The sentence which you are currently serving in Denmark is not compatible with English law and it will therefore be necessary for it to be adapted, should your transfer proceed, to one of life imprisonment.

Life sentence prisoners in England and Wales fall into two categories: mandatory lifers and discretionary lifers. Mandatory lifers are those who have been convicted of murder, for which the only penalty a judge may impose is life imprisonment; all other lifers are described as discretionary lifers. You will be treated as a discretionary lifer.

All life sentence prisoners in England and Wales are required to serve a minimum period in custody before they are eligible to be considered for release on licence. For discretionary lifers this minimum period is known as the ‘relevant part’ of the sentence. In your case it is likely that the ‘relevant part’ will be set at seven years. The time which you have already spent in custody in Denmark will count towards completion of this period.”

29. The Claimant was provided with other information as to the nature of the sentence. He was able to make an informed consent and did so - not once but twice - in July and again in August of that year. The appropriate warrant under the Act was drafted and signed on the 3rd October 1998.
30. He now seeks an order quashing the decision of the Home Secretary for the Home Department classifying him as a discretionary Life Sentence Prisoner with a tariff of 7 years and an order that the warrant be redrawn to authorise his transfer to a hospital under sections 37/41 of the Mental Health Act 1983.
31. He submits that the Secretary of State was wrong when he decided that the sentence most closely corresponding to the Danish sentence of ”safe custody” was a discretionary Life Sentence. He asserts that the views initially expressed by the Home Office, namely that the appropriate sentence on transfer was a Hospital Order are correct.
32. The question to be determined then is: what sentence most closely corresponds to the sentence of “safe custody” imposed by the Danish Court?
33. Mr. Gledhill, Counsel for the Claimant, argues “that the order of the Danish Court is made ‘in place of imprisonment’, relying on section 70(1) 3:

“The use of safe custody in place of imprisonment is considered necessary to avert this danger.”

34. He submits that “safe custody” is not punitive.
35. In my judgment that argument is wrong. Imprisonment, under the Danish Code, must be for a specified term save for those convicted of murder. The proper construction of section 70(1) 3 is to read the provision as in place of a determinate sentence of imprisonment. The whole purpose of section 70 is to provide the court with a sentencing option based not on the need for punishment alone but which recognises the danger that the offender presents to the public. It does not mean that the offender is not deserving of punishment. That situation is dealt with by Section 16, which did not apply to this Claimant. Section 70 powers may be used in respect of a person to whom section 16 applies if he presents sufficient danger to the public. But section 70 is also to be used when the offender would otherwise be sentenced to a term of imprisonment and punished where even the maximum term of imprisonment would may not be sufficient to afford proper protection to the public.
36. In any event that submission is inconsistent with the finding of the Sentencing Court. The Court referred specifically to “just punishment”.
37. Further that “safe custody” does contain a punishment element is illustrated by the fact that a “safe custody” offender may be transferred into the ordinary prison system - as happened to this Claimant, or indeed may start his sentence and serve the whole of it in the ordinary prison system.
38. There are further obvious differences between the safe custody sentence and an Order under the Mental Health Act. The principal purpose of a Mental Health Act Order under section 37 is to treatment of the offender. That is evident from the terms of the section and from the fact that if, having been committed to a hospital under that section, then if his disorder is not of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment, he must be discharged: (see section 73 Mental Health Act 1983). There is no provision for his transfer to prison where a man is the subject of an order under section 37.
39. There is no requirement for medical treatment in a sentence of safe custody, although there is provision for it. The position is very much closer to a prisoner in the United Kingdom, where he will serve his sentence in prison but, if his mental condition warrants it, may be transferred to hospital under section 47 of the Mental Health Act 1983.
40. It is true that section 41 allows the Court to impose a restriction order if necessary for the protection of the public but that does not alter the purpose of the Order under section 37.
41. Mr Gledhill raises two further points. He argues that the discretionary Life Sentence with a tariff period of 7 years is a more severe sentence than that of safe custody. He is right to assert that the tariff element represents the punitive part of the sentence.
42. I have rejected his submission that a “safe custody” sentence does not contain a punitive element. The Danish High Court does not specify what the sentence would have been had a determinate sentence been appropriate. It could be argued that it is in fact better for a prisoner to have at least some element of certainty about his sentence, which is present with the tariff recommendation but not present in the Danish sentence, which is open-ended.
43. Mr. Swift, counsel for the Secretary of State, argues that the setting of the tariff is no more than the adaption of the sentence as envisaged in Article 10 of the Convention and the explanatory note. I accept that submission. Further, the tariff period has in fact expired and, even if I had found in the Claimant’s favour, this is a matter which would have influenced the exercise of my discretion against the remedy.
44. Mr Gledhill points out that the Parole Board, having refused Parole, will only consider the Claimant’s position every two years unless the Home Secretary agrees to refer the case to the Parole Board earlier. Under the Mental Health Act scheme the patient has a right to apply to the Tribunal every 6 months. That, he submits, is closer to the position of a “safe custody” prisoner under the Danish regime.
45. In reply to that Mr Swift again relies upon Article 10 of the Convention. Again, I accept his submission. I refer to the letter of 6th July 1998 which states that:

“The sentence which you are currently serving in Denmark is not compatible with English Law and it will therefore be necessary for it to be adapted .... to one of Life Imprisonment.”

46. Mr Swifts submits that a discretionary Life Sentence does most closely correspond to “safe custody”. In my judgment that submission is correct. A discretionary Life Sentence is reserved for very serious offences as is “safe custody”. Such a sentence will only be passed when there are good grounds for believing that the offender will present a serious and continuing danger to the public. That is exactly the finding of the Danish High Court in respect of this Claimant. I have no doubt but that Lord Bingham of Cornhill was correct in expressing the view that an English Court faced with this Claimant would have passed a Discretionary Life Sentence.
47. In my judgment, it was plainly open to the Secretary of State to conclude that the appropriate sentence to include in the warrant was one to the effect that the Claimant should be treated as a discretionary Life Sentence prisoner. Indeed, I cannot see that he could reasonably have reached any other conclusion.
48. Mr Swift advances a further argument, indeed it was his first and I think preferred argument. He points to the fact that before the warrant can be issued and the repatriation effected each of the three parties must consent to its terms. The consent here was not only to the discretionary Life Sentence but also to the tariff. This Claimant’s consent was informed. He knew exactly what the position was.
49. Mr Swifts submits that those circumstance provide a complete answer to the Claimant’s application. Alternatively he submits that the fact the triparte consent is strong evidence in support of the Secretary of State’s submission that his discretion under section 3(1)(c) of the 1984 Act was exercised reasonably and lawfully. Further, that it goes directly to the exercise of discretion.
50. I agree with and accept the second and third of those propositions. I have reservations as to the first. I have been referred by Mr Gledhill to two relatively recent authorities: R v (Kenneally) v Snaresbrook Crown Court and R v Crown Court at Maidstone ex parte Harrow. Mr Gledhill relies on both cases in support of the proposition that consent does not preclude this court from intervening where the consent was given to an unlawful act. The Orders actually made were respectively: (i) an order under section 51 of the Mental Health Act in circumstances where the statutory requirements for the making of such an Order had not been met; and (ii) a decision by a judge to accept and offender’s plea of not guilty by reason of insanity where the statute requires that decision to be made by a jury.
51. Mr Gledhill argues that if the decision here was unlawful the consent of the parties cannot permit the decision to stand. Mr Swift seeks to distinguish both cases. He argues that in neither of those cases was the offender’s consent a necessary pre-requisite to the Order. That is plainly right. He points out that here none of the parties has the right to demand to transfer, it can only be done by consent. Consent, he submits, is the ultimate basis to act: to allow the Claimant’s application to amend the warrant substituting for the discretionary Life Sentence an Order under sections 37 and 41 of the Mental Health Act would undermine the whole basis of the repatriation. The state of Denmark had never consented to repatriation on those terms.
52. All those submissions are, in my judgment, correct. However, I am not prepared to rule that there can be no circumstance where those factors will be inclusive as to the lawfulness of the Secretary of State’s action. There may be circumstance where it would be necessary for a Court simply to quash a warrant even if there had been consented. Quite what effect that would have had is not clear. The matter has been canvassed briefly before me, but not fully addressed.
53. Given the findings that I have made, it is unnecessary for me to make that final decision and I decline to do so. I add that I would be extremely reluctant to rule that a person’s consent to a course of action precludes him asserting subsequently that that course of action was unlawful.
54. For the reasons given, the Claimant’s applications fail.

MR SWIFT: Thank you, my Lord, I have no application to make.

MR GLEDHILL: My Lord, the only application I have at this stage is for an order that there be legal aid detailed assessment. If the relevant certificate is not in the file, I will undertake to ensure that one is supplied.

My Lord, in relation to the other question, which I could raise, which is that of permission to appeal, I have no instructions one way or another in relation to whether I should seek that permission, so might I leave it this way: unless I contact your Lordship in writing with an application for permission, such application being served on my learned friend, Mr Swift, then to reply, then there is no application for permission to appeal?

MR JUSTICE GRIGSON: Yes. Can you do that reasonably swiftly?

MR GLEDHILL: Yes, I understand your Lordship has duties outside London, so, yes, it will be done within 14 days, my Lord, yes.

MR JUSTICE GRIGSON: Thank you both very much.

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