QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF PD
|- and -
WEST MIDLANDS AND NORTH WEST MENTAL HEALTH REVIEW TRIBUNAL
MERSEY CARE NHS TRUST
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)
Miss. Nathalie Lieven (instructed by Treasury Solicitor) for the Defendant
The Interested Party was not represented
Crown Copyright ©
Mr Justice Silber:-
II The Claim
III Dr. Izmeth's relationship with the Trust and the Tribunal
IV The Relevant Legal Principles
"In the determination of his civil rights .. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law .." (my emphasis added).
(a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord Hope of Craighead in Porter v. Magill  2 AC 357 at 494 ). It follows that this exercise entails consideration of all the relevant facts as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid ).
(b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson  200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v. Northern Spirit Limited  ICR 856, 862 ).
(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situation. "One does not come to the issue with a clean slate on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra), 862 ).
(d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra) 864-5 ).
(e) the need for a Tribunal to be impartial and independent means that "it must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect" (Findlay v. United Kingdom (1997) 24 EHRR 221 at 224-245 and quoted with approval by Lord Bingham of Cornhill in R v. Spear  1 AC 734 ).
V The Claimant's Submissions
"A person shall not be qualified to serve as a member of a Tribunal for the purpose of any proceedings where … (b) he is a member or officer of a health authority which has the right to discharge the patient under Section 23(3) of the Act".
VI The Defendant's Submissions
VII Two Preliminary Points
VIII Adequacy of Safeguards
IX R v. Spear  1 AC 734
"It is also true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the Permanent President court-martial whose presence was accepted … as a guarantee of the rights of the accused. It is also true that junior officers sitting on courts-martial remain subject to Army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer's decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external Army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the Army Act 1955. The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to "speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator". They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid "local unit influences". They are instructed "not to associate with formation or unit personnel either professionally or socially until the trial is over". At the outset of the hearing the officers take an oath in terms quoted by the European Court at p 1265, para 27 of its judgment in Morris, swearing to try the accused "according to the evidence" and to "administer justice according to the Army Act 1955 without partiality, favour or affection". In considering the independence and impartiality of the [Permanent President of Courts-Martial] both the Court of Appeal in its judgment in R v. Spear  QB 804, 818-819, paras 33 and 35 and the European Court in Morris 34 EHRR 1253, 1276-1277, paras 68-69 attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to "external Army influence", as I feel sure the European Court would have appreciated had the position been more fully explained" ( pages 750-751).
(a) there was nothing to suggest that any member of the courts-martial was subject to any report in respect of his decision-making. In addition, it was hard to see how any report could be made on any member given the prohibition on disclosure of the deliberations of the Tribunal in the oath taken by members;
(b) there was nothing to suggest that the members of the courts-martial remained subject to service discipline when performing their judicial decision-making as members of the courts-martial;
(c) any person seeking to influence any decision of a member of the courts-martial would be at risk of prosecution, either for perverting or for attempting to pervert the course of justice or under Section 69 of the Army Act 1955;
(d) the members of the courts-martial are drawn from a different command from the accused and the members are instructed in writing not to have any communication with anybody other than members of the courts-martial;
(e) the members of the courts-martial were instructed not to associate with any formation or unit personnel of the unit under investigation in the courts-martial either professionally or socially until the trial is over;
(f) the members of the courts-martial swear an oath to administer justice according to the Army Act 1955 "to administer justice … without partiality, fear or affection".
X The Four Strasbourg Court Cases
"the ordinary citizen will tend to see [the member of the Police Board] as a member of the police force subordinate to his superiors and loyal to his colleagues. A stipulation of this kind may undermine the confidence which must be inspired by the courts in a democratic society" .
XI Lawal v. Northern Spirit  ICR 856
"2.5 at any hospital which he or she was employed, engaged or for whom he or she acted during the period of three years commencing with the date of termination of the employment or engagement or on ceasing to act. In respect of any other hospital within the same Trust and for any non-remunerated position in a Trust, the appropriate period should be two years".
"3.4 at any hospital in which he or she was employed or engaged during the period of five years commencing with the date of termination of the employment or engagement".
XII Rule 8(2) of the 1983 Rules
XII Conclusions without considering the consequences of holding that consultants cannot sit on any Mental Health Review Tribunals in which the detaining Trust is the consultant's employer
(i) a breach of Article 6 will be established if a judicial figure has a clear and specific interest adverse to one of the parties (Langborger v. Sweden)
(ii) if a judicial figure is subordinate to one of the parties, the starting position is that the court will require safeguards to show the independence of the judicial figure if it is not to find a real possibility of bias (R v. Spear, Sramek v. Austria and Bellilos v. Switzerland)
(iii) the safeguards have in that situation to be examined carefully in the light of the factors suggesting bias.
(a) Dr. Izmeth worked in a clinical directorate which was managed on a day-to-day basis independently of the directorate which was concerned with the claimant's hospital;
(b) he had had no previous dealings whatsoever with either any of the witnesses or the Rathbone Hospital, where he had never worked;
(c) there was nothing to suggest that he was liable to be disciplined by Mersey Care in respect of any decision that he had reached while sitting as a member of the Tribunal;
(d) as Mr. Wright explained in his witness statement, the terms and conditions of Dr. Izmeth's employment on basic matters such as dismissal and pay were nationally agreed, thereby removing them from Mersey Care's sphere of influence;
(e) any organisation or person trying to influence Dr. Izmeth's decision would be at risk of being prosecuted for perverting or attempting to pervert the course of justice;
(f) Mersey Care was a large organisation which had many hospitals and there is nothing to suggest that it was a matter of great or any importance to Mersey Care if the claimant was or was not discharged;
(g) as a Consultant Psychiatrist, he was professionally obliged to act independently in the interests of his patients and not those of his employer;
(h) there was nothing to suggest that Dr. Izmeth was subject to any report to Mersey Care in respect of his decision-making activities while sitting as a member of the Tribunal;
(i) the guidance to members of Tribunals draws members' attention to potential conflicts of interest and that they "must raise any doubts with the regional chairman or President";
(j) there was no suggestion that Mersey Care could on or after 16 October 2002 take any step or make any decision, which would be beneficial to Dr. Izmeth in relation to his employment;
(k) it was not suggested nor was there any cogent evidence to show that Mersey Care could or might on or after 16 October 2002 make any decision detrimental to Dr. Izmeth in relation to his employment as a consultant;
(l) if any attempt was to be made by Mersey Care to dismiss Dr. Izmeth, he had a right of appeal to the Secretary of State. That factor would have meant that Dr. Izmeth would not have been at risk of or in fear of dismissal if Mersey Care became dissatisfied with any of the Tribunal's decisions, and
(m) although Mr. Southey referred to Dr. Izmeth's promotion prospects as being an area in which Mersey Care could influence his career, there was no evidence that there was any promotion or demotion that Mersey Care could offer a consultant psychiatrist such as Dr. Izmeth. Indeed his terms of appointment confirm Dr. Izmeth's established rights as a consultant;
XIII Consequences of holding that consultants cannot sit on Mental Health Review Tribunals in which the detaining Trust is the consultant's employer