QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of P
|- and -
|Secretary of State for the Home Department
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)
Natalie Lieven (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Stanley Burnton J :
The relevance of evidence of administrative difficulties.
R (D) v Home Secretary
… Clearly, in a sense a compatible interpretation is possible: the court could simply declare that H's case is, by reason of section 3, no longer good law. But the decision in H's case continues to make good sense in the vast majority of cases: it makes no sense to confer on life prisoners who have served the relevant period of their sentence but who are compulsorily detained under the 1983 Act a right to have their case reviewed by the Parole Board. It seems to me that in deciding whether an alternative interpretation of legislation is "possible", the court must take account of the practical and negative consequences of that alternative interpretation. In these circumstances, I do not think that section 3 requires me to hold that H's case is now wholly abrogated.
Does Article 5.4 require a single tribunal to determine the lawfulness of detention?
Article 5—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:
(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.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone 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 by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
52. … as the Government themselves pointed out, the content of the obligation imposed on the Contracting States by Article 5 (4) will not necessarily be the same in all circumstances and as regards every category of deprivation of liberty. …
53. It is not within the province of the Court to enquire into what would be the best or most appropriate system of judicial review in this sphere, for the Contracting States are free to choose different methods of performing their obligations. Thus in Article 5 (4) the word "court" is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country. …
For my part, I see nothing incompatible with the Court of Human Rights ruling in Thynne v. United Kingdom (1990) 13 E.H.R.R. 666 in the procedure laid down by the Act of 1983. Nor do I see anything unjust or illogical in two separate codes existing which cannot be triggered simultaneously, but each of which at an appropriate time, depending on the circumstances, can be triggered so as to achieve a judicial hearing.
I respectfully agree.
(1) Where application is made to a mental health review tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and-
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied-
(i) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or
(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard –
(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patients condition; and
(b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.
(1) Where an application to a mental health review tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if satisfied-
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that subsection the tribunal shall direct the conditional discharge of the patient.
Indeed, as Mr. Pannick (in my judgment, rightly) pointed out, the proper discharge of functions by the Parole Board under the Act of 1991 would be impossible if it were the case that the person under consideration was still in receipt of medical treatment, in accordance with a transfer under the Act of 1983.
Another practical problem with the concept of a MHRT/Board Panel is that central to any assessment by the Board of a prisoner's level of risk in the community is the release and supervision plan set up by the probation office. It is the Board's experience that patients held under the Mental Health Act are not supervised in detention by a probation officer and accordingly no testing of a potential release plan takes place. In the prison system this would entail the prisoner possibly spending a period in open prison conditions, allowing for unescorted temporary leave to the release address and a risk assessment by the probation officer to take place. The current procedures following a recommendation by an MHRT allow time for this to be achieved. It is therefore by no means certain that a joint MHRT/Board Panel would result in the patient being released on life licence and may in fact result in his spending longer in custody than he would do otherwise.
Is the continuing application of the restrictions applicable to a restricted patient who is held by a tribunal to present a risk only to himself incompatible with the Convention?
i) It is likely to be rare, since the court would not have imposed a life sentence unless the prisoner constituted a serious risk to the public and had been convicted of a serious offence or offences of violence to others.
ii) The Parole Board must consider risk at the anticipated date of release from custody. It does not follow from a finding that a patient does not constitute a danger to anyone other than himself when he appears before a tribunal that he will not do so the later date when his release from custody might be considered.
iii) It does not follow from a finding of a tribunal that it is necessary for the health or safety of the patient that he should receive treatment (section 72(b)(ii) of the MHA) that he does not represent a risk to others for reasons that are not associated with his illness and for which treatment is irrelevant.
iv) The consideration by the Parole Board of the continued detention of such a prisoner would be an academic exercise so far as his continued detention is concerned.
MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am grateful to counsel for their corrections. It sets out my conclusions, and on the basis of those conclusions, the application for judicial review will be dismissed. Copies of the judgment in its approved form are available to all those who may be interested.
MR BOWEN: My Lord, can I just apologise for having sent my second lot of corrections after the deadline yesterday.
MR JUSTICE STANLEY BURNTON: Did we get them?
MR BOWEN: I sent them at about 2 o'clock in the afternoon.
MR JUSTICE STANLEY BURNTON: I do not think Ms Lieven or those representing the Secretary of State were exactly expeditious with their corrections.
MR BOWEN: Paragraph 66 is the only substantive correction.
MR JUSTICE STANLEY BURNTON: Was it corrected.
MR BOWEN: Shall I just have a look?
MR JUSTICE STANLEY BURNTON: I was told that they were all grammatical, and I can live with bad grammar.
MR BOWEN: It has been corrected, so it has been incorporated.
MR JUSTICE STANLEY BURNTON: You are forgiven then, Mr Bowen.
MR BOWEN: My Lord, I am grateful. In that case can I turn to the question of permission to appeal. I do apply for permission to appeal in accordance with CPR 52.36. In my respectful submission, there are real prospects of success on an appeal on four grounds. If there are no real prospects of success, there is the other compelling reason to grant permission, namely that it raises a matter of some importance.
My Lord, the first ground is that, in rejecting the claimant's argument that joint Tribunal and DLP hearings are required because the series of consecutive hearings leads to violations of Article 5.1, that was, in my respectful submission, wrong essentially for the grounds that I have already spent time developing. In my respectful submission, my Lord, the point that your Lordship makes at paragraph 33 of the judgment, that if my submissions were correct a single court hearing would be necessary to determine all of the heads of detention applicable in every case --
MR JUSTICE STANLEY BURNTON: So someone who is eventually ill plus somebody who was an immigrant.
MR BOWEN: My Lord, it does not follow, in my respectful submission --
MR JUSTICE STANLEY BURNTON: Why not?
MR BOWEN: Because the single court hearing is only necessary where the court may in substance be determining the same issues. That is the key to my submission, that because the Tribunal in some if not many cases is determining the same issue --
MR JUSTICE STANLEY BURNTON: How do you know if they are the same issues?
MR BOWEN: That is the problem, My Lord, that one will not know until the Tribunal is determining it.
MR JUSTICE STANLEY BURNTON: How can you say there is an obligation for two Tribunals to have joint hearings if the identity of issues is not known until you have the joint hearing?
MR BOWEN: I suppose the only riposte I can make to that, my Lord, is that the difficulty is I have identified a situation where two --
MR JUSTICE STANLEY BURNTON: We are all agreed that there may be cases --
MR BOWEN: With the greatest of respect, no examples have been identified where the problem that I have identified would lead to the conclusion that your Lordship has identified as a problem.
MR JUSTICE STANLEY BURNTON: I have the point.
MR BOWEN: The point is made. My Lord, as far as the submission that part of your ruling is concerned that different tests are applied by the Tribunal and the DLP as a matter of domestic law, that is answered, in my respectful submission, by the point that I did not specifically make.
MR JUSTICE STANLEY BURNTON: Is this your first ground?
MR BOWEN: My first ground, yes, that it is a question of substance not form that the court looks to, and as a matter of substance the issue that the Tribunal is determining in some, if not many cases as your Lordship accepted, is essentially the same one because in substance that is the procedure that is being determined, then that is what the court must look to, and for authority I would rely on the House of Lords' approach in Anderson.
MR JUSTICE STANLEY BURNTON: I understand the point.
MR BOWEN: My Lord, I do not want to trouble you in any great detail on this point.
MR JUSTICE STANLEY BURNTON: You will have to trouble the Court of Appeal if I give you leave, and if I do not, presumably you will in any event.
MR BOWEN: It is not a big secret that that is what we will be doing. The second ground is that, ostensibly for similar reasons --
MR JUSTICE STANLEY BURNTON: The real point in this case is won, is it not? If you are wrong on joint hearings then everything else -- and the rest is merely supportive of it.
MR BOWEN: I have identified four grounds and I am not going to develop them in any great detail before your Lordship.
MR JUSTICE STANLEY BURNTON: But when you stand back and think about the issue, it is whether there must be one Tribunal, whether it sits jointly or whether you can have successive, and what I have said, effectively, is that you can have successive, but that does not mean that you start from the same point when you get to the second Tribunal as you would if they were totally separate hearings.
MR BOWEN: It may be possible to shorten the overall period.
MR JUSTICE STANLEY BURNTON: Absolutely.
MR BOWEN: But that only goes to the delay point, and the substantive issue, which is that a person who has been discharged by a Tribunal on the grounds that include the 5.1(a) detention, essentially is being detained unlawfully thereafter and the Tribunal is depriving its jurisdiction as a 5.4 Tribunal. That is the point that I spent two days developing in front of your Lordship, I am not going to trouble you any further with it now.
MR JUSTICE STANLEY BURNTON: Your submissions were very clear.
MR BOWEN: So, my Lord, that is the issue in relation to the question of whether there is a real prospect of success, and in my respectful submission, these are areas where there is, in effect, no authority on the key point apart from your Lordship's judgment. In my respectful submission, it is sufficient to establish real prospects of success to say that I can, by reference to the authorities that do exist, come to the conclusion that, in fact, your Lordship was wrong.
MR JUSTICE STANLEY BURNTON: That is fine. It would not be the first time the Court of Appeal has disagreed with me.
MR BOWEN: My Lord, it will not be the first time, if I lose, that they agree with you either. As far as there being some other compelling reason, my Lord, in my submission this is an issue of some substantive importance not just to Mr P, but to the other nearly 200 transferred lifers who are currently detained in the hospital system.
MR JUSTICE STANLEY BURNTON: I see there is a question of principle.
MR BOWEN: Indeed, and it is my submission that it is open to your Lordship to recognise that it is of sufficient importance to make that decision for the Court of Appeal if only to ensure that the matter comes on a little sooner in the Court of Appeal than it otherwise would do. My Lord, I cannot say any more on that.
MR JUSTICE STANLEY BURNTON: Thank you very much. I think you should go to the Court of Appeal for leave. I am going to refuse leave on the basis that I came to clear decisions, and if there is some other reason, that is primarily a matter for the Court of Appeal. They may be interested in this matter. They may think it is appropriate to take it. There is also the issue that to some extent these matters were academic and I did think that some of the issues would be better investigated in the context of a specific case. Thank you very much. You want the usual certificate, I imagine?
MR BOWEN: Can I have the usual certificate as far as my client's public funding is concerned, subject to the usual undertaking if the certificate is not on the file.
MR JUSTICE STANLEY BURNTON: You have had plenty of time to put it on the file.
MR BOWEN: I agree. I will make sure that it is done within seven days, if I might have that indulgence. My Lord, I understand there is no application for costs.
MR BURLEY: That is right, my Lord.
MR JUSTICE STANLEY BURNTON: Good, thank you both very much. It will be interesting to see what the Court of Appeal says, if anything.