QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of: A
|- and -
|HARROW CROWN COURT
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
||First Interested Party
|WEST LONDON MENTAL HEALTH NHS TRUST
||Second Interested Party
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Martin Chamberlain (instructed by the Treasury Solicitor) for Harrow Crown Court and the Home Secretary
West London Mental Health NHS Trust did not appear and was not represented
Crown Copyright ©
Mr Justice Stanley Burnton :
i) An order quashing the order made by Harrow Crown Court on 11 September 2002 requiring him to be detained in the Three Bridges Unit of the West London Mental Health NHS Trust.
ii) An order requiring Harrow Crown Court to correct its records relating to the proceedings against him.
iii) A declaration that his detention resulting from the order of 11 September 2002 infringed his rights under Article 5.1 of the European Convention on Human Rights.
Discussion: (a) the lawfulness of the order of 11 September 2002
(b) The application of Article 5
(i) The contentions of the parties
"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:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(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;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
(ii) "A procedure prescribed by law"
(iii) Was A's detention lawful for the purposes of Article 5.1(e)?
"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court."
"The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner's case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning. …."
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer (1846) Cooper temp. Cottenham 205, 338.) Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court ... is in contempt and may be punished by committal or attachment or otherwise."
The Privy Council added, at 102 to 103:
"Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are 'void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are 'voidable' and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions 'void' and 'voidable' respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh  AC 271, 284 and MacFoy v. United Africa Co. Ltd.  AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind, what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice.
The contrasting legal concepts of voidnesss and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies."
Accordingly, the Privy Council upheld a finding of contempt consisting of a failure to obey an interlocutory injunction irrespective of whether the injunction had properly been granted. See too South West Yorkshire Mental Health NHS Trust v Bradford Crown Court  EWHC 640 (Admin) at .
"40. The main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 18, para. 47).
41. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 para. 1 (art. 5-1) failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 21, para. 49).
42. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 55, and the report of the Commission of 9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61).
43. It was agreed by those appearing before the Court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates' court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset (see paragraph 24 above)."
The European Court then reviewed English Law on the question whether or not the magistrates' order had been a nullity in the strict sense. They continued:
"46. Against the above background, it cannot be said with any degree of certainty that the judgment of the Divisional Court was to the effect that the magistrates acted in excess of jurisdiction within the meaning of English law. It follows that the Court does not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law (see the above-mentioned Bouamar judgment p. 21, para. 49). The mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention (see paragraph 42 above).
47. Nor does the Court find that the detention was arbitrary. It has not been suggested that the magistrates who ordered Mr Benham's detention acted in bad faith, nor that they neglected to attempt to apply the relevant legislation correctly (see the above-mentioned Bozano judgment, pp. 25-26, para. 59). It considers the question of the lack of legal aid to be less relevant to the present head of complaint than to that under Article 6 (art. 6) (see paragraph 64 below).
Accordingly, the Court finds no violation of Article 5 para. 1 of the Convention (art. 5-1)."
"Detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law."
The applicants in that case had been detained as a result of an order of a Military Appeal Court. The European Court nonetheless came to the conclusion that their detention "had no basis under domestic law and was arbitrary. It cannot accordingly be considered to have been 'lawful' for the purpose of Article 5(1)": paragraph 62 of the judgment. The judgment of the Court does not clearly distinguish between the requirements of lawfulness and that the court order should not have been arbitrary. However, it is apparent that the European Court considered that the Greek court had acted arbitrarily, in that it had wilfully ignored applicable laws and case law. The European Court said:
"59. The Court notes that section 6 of the 1988 Law refers to ministers of all 'known religions'. As early as 1975, the Supreme Administrative Court acknowledged that the Jehovah's Witnesses were to be considered as such, and this case law could unquestionably be regarded as established by 1990. It was not disputed throughout the domestic proceedings that the applicants were ministers of that religion. However, in deciding on the issue of the applicants' criminal liability, and thus on the lawfulness of their detention, the military authorities blatantly ignored this case law. As a result, Mr Tsirlis and Mr Kouloumpas spent 13 and 12 months in detention respectively.
60. Furthermore, the relevant authorities' persistence not to recognise Jehovah's Witnesses as a 'known religion' and the disregard of the applicants' right to liberty that followed, were of a discriminatory nature when contrasted with the way in which ministers of the Greek Orthodox Church obtain exemption."