England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2003

Stanley Burnton J :

Introduction

1. This is another case concerned with the inter-related and unnecessarily labyrinthine provisions of our penal and mental health legislation relating to life prisoners detained in a mental hospital and their compatibility with the European Convention on Human Rights.
2. P is a discretionary life prisoner: on 13 October 1986, following his conviction on charges of rape and manslaughter, he was given concurrent life sentences. His tariff was fixed at 10 years. In 1994 he was transferred to Broadmoor Hospital pursuant to a transfer direction made by the Home Secretary under section 47 of the Mental Health Act 1983 ("the MHA"). In addition, the Home Secretary made a restriction direction under section 49.
3. P remains detained at Broadmoor. His tariff has expired, and if he were detained only by virtue of his life sentences he would on expiry of his tariff and since then have had the right to have his case reviewed by a Discretionary Lifer Panel ("DLP") of the Parole Board pursuant to section 34 of the Criminal Justice Act 1991 ("The CJA"). Section 34 has been replaced by the identical provisions of section 28 of the Crime (Sentences) Act 1997, but it survives for limited purposes, and will apply to P's first application to the Parole Board. For present purposes, it is unnecessary to refer separately to section 34 of the CJA and section 28 of the 1997 Act, since identical considerations apply to both.
4. Under existing domestic legislation as presently interpreted and applied, P will have the right conferred by section 34 of the CJA if, after a reference to a mental health review tribunal, it notifies the Home Secretary, pursuant to section 74 of the MHA, that P would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged, but not otherwise. P has a right to apply to a mental health review tribunal once a year; but unless and until it makes a decision in his favour, he has no right to apply to the Parole Board and he remains liable to detention as a lifer.
5. In R (Hickey) v Secretary of State for the Home Department [1995] QB 43, the Court of Appeal held that the right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those who were also detained under the MHA by reason of transfer and restriction directions given by the Home Secretary under sections 47 and 49 respectively. In R (D) v Secretary of State for the Home Department [2002] EWHC 2805 (Admin), [2003] 1 WLR 1318, I held that Hickey remains good law, notwithstanding section 3 of the Human Rights Act 1998, but that the relevant legislation was not compatible with the Convention because a patient in respect of whom a Tribunal notified the Home Secretary that he should be conditionally discharged, but that if he were not discharged he should continue to be detained in hospital (see section 74(1)(a) and (b)), did not have a legal right to have his case considered by the Parole Board.
6. In my judgment in D, to which I refer, I set out the relationship between the relevant provisions of the MHA and section 34.
7. In D I suggested, at paragraph 34, that it would not be difficult to arrange for joint tribunal/DLP hearings. I did so without having heard argument or any evidence directed at the practicalities of doing so.
8. It was not argued in D that the Convention required that the lawfulness of the detention of a discretionary life prisoner/patient be reviewed by a single tribunal, exercising the functions of both a mental health review tribunal and a DLP, or by a panel exercising both of those function. In this case, Mr Bowen, for P, does so argue. He further submits that D was wrongly decided; that section 34 of the CJA must, in order to comply with the Convention, be interpreted as applying to all discretionary lifers whose tariff has expired, including those detained under the MHA; that P has suffered an infringement of his Convention rights because he has been unable to have his detention as a lifer reviewed and remains liable to detention as a life prisoner; and that his right to a speedy review of the lawfulness of his detention cannot be complied with because of the necessary delay that would follow after a tribunal decision in his favour before a DLP could or would consider his case. In this connection, he relies on the fact that the normal period between an application to the Parole Board and a hearing before a DLP is 24 weeks, which he submits must be added to the delay before a hearing before a mental health review tribunal in determining whether there has been a speedy decision on the lawfulness of his detention as required by Article 5.4 of the Convention.
9. As is implicit in the above summary of Mr Bowen's submissions, he accepts that both a mental health review tribunal and the Parole Board satisfy the requirement of Article 5.4 that the lawfulness of a person's detention be reviewed by a "court".
10. Ms Lieven, for the Home Secretary, disputes each of Mr Bowen's submissions. She submits that D was correctly decided; that the Convention does not require a combined court or hearing for all the legal bases for a person's detention; that the fact that a detained lifer must make consecutive, rather than concurrent, applications to a tribunal and to the Parole Board, and to the latter only if the former decides in favour of his discharge, does not involve any infringement of any Convention right; and that consecutive hearings do not necessarily involve any unreasonable delay such as to infringe rights under Article 5.4.
11. In this judgment I use the expression "mentally ill" and cognate expressions as synonymous with the expression "of unsound mind" in Article 5.1(e) of the European Convention on Human Rights, and therefore as including all forms of mental disorder referred to in section 1 of the MHA.

The relevance of evidence of administrative difficulties.

12. The legislation and government of Member States are relevant to the interpretation of the Convention. They form the matrix of facts against which the Convention is interpreted. In interpreting the Convention, the European Court of Human Rights takes account of generally accepted features of the legislation and government of the Members: see, e.g., De Wilde, Ooms and Versyp v Belgium (No. 1) (1970) 1 EHRR 373, 409 at paragraph 79; James v UK (1986) 8 EHRR 123 at paragraph 54. Conversely, diversity of practice among Member States may lead the Court to adopt a permissive interpretation of the Convention.
13. In this case, P submits that the Convention requires a departure from our existing administrative practices and from the existing interpretation of our domestic law. In support of their respective cases, both sides adduced evidence concerning the practicalities of his proposals: the Home Secretary to the effect that combined hearings of tribunals and DLPs would be burdensome and lead to greater delays and waste of resources; the Claimant to the effect that combined hearings were preferable and that the Home Secretary's supposed difficulties were exaggerated or could be overcome.
14. It is important to appreciate the relevance of such evidence in cases such as the present. Where the requirements of the Convention are clear or established, it is no answer to a claim of incompatibility or of breach of a Convention right that compliance with those requirements would be burdensome or costly or difficult. Evidence of administrative difficulties is irrelevant in such circumstances. It is only if there is uncertainty, some room for judicial interpretation, that practicalities become relevant, on the familiar basis that in such cases, if the words permit, a written instrument should be given a reasonable, rather than an unreasonable, construction.
15. The meaning of the Convention cannot differ from Member State to Member State. It follows that caution must be exercised if the objection to a proposed interpretation of the Convention is that its acceptance would involve practical difficulties caused by features of a single Member State's legislation or administration that are peculiar to it. Those practical difficulties will, however, be clearly relevant if their context is an area of discretion left to Member States by the Convention. Difficulties inherent in the provisions of the Convention, or the varying circumstances in which they may apply, or which are likely to be common to Member States, will be highly relevant.
16. It appears from my judgment below which are the difficulties to which the evidence of the Home Secretary refers that I consider relevant to the interpretation of the Convention.
17. Practical difficulties that are peculiar to this jurisdiction are of course relevant to the interpretation of our domestic legislation.
18. The only evidence before me on the issues of practicability and cost consists of relatively short witness statements. P's case is not fact-dependent, and I do not have evidence focusing on a sample of cases with a view to assessing whether on their individual facts joint hearings would be practical or desirable. Both sides have considered the issues in principle, on the basis of broad generalisations. In a hearing such as that in this case it is impossible to investigate in any depth the issues as to the consequences or the costs of the steps that P suggests must be taken to comply with the requirements of the Convention. Indeed, the process of investigating and assessing these matters would itself be costly and time-consuming.

Statistics

19. Both sides adduced statistics. The Home Secretary's evidence is that only 2 per cent of applications to mental health review tribunals concerning transferred lifers result in a recommendation under section 74: i.e., 98 per cent of such applications fail.
20. P's solicitors elicited from the Home Office that 22 per cent of hearings of applications to tribunals in respect of patients detained in hospitals as a result of a hospital orders under section 37 and restriction orders under section 41 of the MHA result in their discharge.
21. It was argued on behalf of P that the discrepancy between these discharge rates is so great that the tribunals must be discriminating between transferred lifers and section 37/41 patients, i.e. that they are more ready to discharge the latter than the former, even though both will have been found guilty of criminal offences.
22. I decline to accept this argument. It would be simplistic in the extreme to draw any such conclusion from the difference between the discharge rates, particularly when it may be explicable by the fact that transferred life prisoners have committed the most serious offences and therefore have demonstrated that they constitute a serious risk to the public. In the absence of compelling evidence, I decline to infer that the members of tribunals apply different tests in the two cases. I take the statistics at their face value, although I would not rest my decision on the precise figures.

R (D) v Home Secretary

23. As mentioned above, in D I decided that it was not possible to interpret section 34 of the CJA as conferring a right to apply to the Parole Board on lifers who were also detained under the MHA. I said at paragraph 26:

… 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.

24. As mentioned above, it appears from the evidence in the present case that "the vast majority" to which I referred in that passage are 98 per cent of the relevant cases. Only 2 per cent of applications to tribunals by transferred lifers result in a recommendation under section 74. Even treating that figure as an approximation, it is significant.
25. Quite apart from the fact that I was the judge who decided D, the rules of precedent require me to follow it unless I am convinced it was wrongly decided. I am not. Indeed, the evidence in the present case fortifies me in the conclusion I expressed in the above passage was correct.
26. There is a further reason to follow the decision in D. Neither party appealed against my judgment. The Home Secretary accepted my decision, and introduced legislation to remedy the incompatibility – effectively a lacuna in the provision for a right to a review of the lawfulness of detention by a court – by inserting appropriate provisions of the Criminal Justice Bill. Since I heard argument in this case, the Bill has received the Royal Assent, and I assume that the incompatibility that I found no longer exists. If so, unless Mr Bowen's other submissions are well-founded, section 3 of the Human Rights Act cannot now require the court to re-interpret section 74 of the CJA. Unless those submissions are well-founded, there is now no incompatibility, since all transferred patients now have a legal right to apply to a court for the review of the lawfulness of their detention.
27. It seems to me that Mr Bowen's principal submission is that Article 5.4 requires that the lawfulness of detention be determined by a single tribunal. It is to that submission that I therefore turn.

Does Article 5.4 require a single tribunal to determine the lawfulness of detention?

28. No authority has been cited to me on this issue. It must therefore be determined solely on the basis of the interpretation of Article 5.
29. Article 5 is as follows:

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.

30. Paragraph 1 of Article 5 contains a number of disparate heads. Very different considerations apply to detention for the purpose of the prevention of disease, for example, from those applicable under paragraph 1(d); or under sub-paragraph (f) as compared with sub-paragraph (e). Within sub-paragraph (e) itself a number of different bases for detention are specified, each of which must be subject to different considerations.
31. It is evident that a person may be detained under more than one sub-paragraph of Article 5.1, and not only in the case of persons of unsound mind who have been convicted of a criminal offence. For example, an alcoholic illegal immigrant may lawfully be detained, for the purposes of the Convention, under both sub-paragraphs (e) and (f).
32. In the case of the mentally ill, there may be a causal link between the detained person's illness and his conviction. But that is not necessarily so. For example, his mental illness may have developed after he committed the offence. And in other cases there may be no causal link between the applicable heads of detention under Article 5.1.
33. Article 5.4 applies to all of the heads of detention in Article 5.1. If Mr Bowen's submission is correct, Article 5.4 requires a single court hearing to determine all of the heads of detention applicable in every case. Mr Bowen's submission cannot be confined to mentally ill persons who have been convicted of an offence, i.e. to sub-paragraphs (a) and (e) (or more precisely to that part of (e) that relates to the mentally ill). The wording of Article 5 does not permit an interpretation of Article 5.4 that varies from sub-paragraph to sub-paragraph of Article 5.1.
34. In my judgment, Mr Bowen's submission, if correct, results in an unnecessary unreasonable and impractical interpretation of Article 5.4. It is evident that the Member States might sensibly create different and differently qualified "courts" to determine the lawfulness of detention under different heads of Article 5.1. The effect of Mr Bowen's submissions would be to render it at least difficult for Member States to have the various grounds for detention considered by specialist courts. I do not think that the Convention should be given such an unreasonable interpretation. Provided there is no undue delay in the review of the lawfulness of detention, or other infringement of a Convention right, there is no reason to require that the same court (whether nominally one court or a panel that sits as more than one court) determine each head of detention.
35. This conclusion seems to me to be consistent with what the European Court of Human Rights said in X v UK (1981) 4 EHRR 188 at paragraphs 52 and 53 of its judgment:

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. …

36. Moreover, Article 5.4 does not in terms require that the lawfulness of each applicable head of detention be reviewed. If a person is detained under more than one head, as is P, and a court (such as a mental health review tribunal) decides that his continued detention under one of those heads is lawful, his continued detention is lawful, irrespective of the lawfulness of his detention under the other head or heads. If he were then to apply to a court to determine the lawfulness of his detention under another head as if it were the sole justification for his continued detention, that court could not order his release in terms of Article 5.4. In my judgment it follows that no question arises of his having a right to seek review under the other head (such as the Parole Board). It is only if it is established that detention under one head is not, or is no longer, justified that he is entitled under Article 5.4 to take proceedings in the other court which may order his release.
37. In Hickey, Rose LJ said, at [1995] QB 56C:

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.

38. Unless I concluded that there is some other Convention objection to consecutive hearings before a mental health review tribunal and a DLP, therefore, I would reject Mr Bowen's submission that consecutive hearings are necessarily incompatible with the Convention.
39. Turning to practicalities, it was submitted on behalf of P that both the DLP and a mental health review tribunal are concerned with substantially the same issue, namely whether the detained person presents a danger to the public. On this basis it was submitted that combined hearings of the DLP and a Tribunal would be practical and indeed desirable, since they would avoid duplication of hearings. Mr Bowen also raised the problem of inconsistent findings by the Tribunal and the DLP, and submitted that a finding by a DLP after tariff expiry that a prisoner did present a danger to the public after a Tribunal had found that he were not, at least in a case in which the only cause of his dangerousness were his mental illness, would infringe his rights under Article 5.4: since the Tribunal had held that his continued detention was not lawful, the prisoner was entitled to an order that he be released.
40. As I stated above, the interpretation of Article 5 cannot depend only on the relationship between detention under Article 5.1(a) and the detention of the mentally ill under sub-paragraph (e). But in any event it is not correct that identical issues necessarily arise under those heads of detention. The issues considered by a mental health review tribunal on an application under section 74 of the MHA are specified in section 72:

(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-

(a) …

(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

(iii) ...

(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.

41. Section 73(1) and (2) are as follows:

(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.

42. As can be seen, a mental health review tribunal is concerned only with risk due to mental disorder; it is, however, concerned with risk to the detained person himself as well as to other persons. Furthermore, a tribunal must determine that detention in a hospital is necessary for treatment, albeit that the concept of treatment is a wide one (see Reid v Secretary of State for Scotland [1999] 2 AC 512 per Lord Hope at 531). If the detained person is mentally ill and by reason of his illness is dangerous, but is untreatable, he cannot be detained under the MHA.
43. The Parole Board, on the other hand, is concerned only with risk to persons other than the prisoner, but irrespective of its cause. By section 34(4)(b) of the CJA, the Board is not to give a direction for the release of a tariff-expired discretionary life prisoner unless it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined".
44. Thus while in some, and perhaps many, cases if a joint hearing of a tribunal and a DLP were held, both would consider similar issues (as shown by the evidence of His Honour Judge Quentin Campbell and of Dr David Somekh), there will be cases in which the issues would be very different.
45. Even where a mentally ill prisoner is dangerous, he may present danger both because of his illness and because of his criminal associations and violent tendencies. In argument the Kray twins were mentioned. They were gang leaders who presented a high risk to the public. Only one of them was detained under the MHA. If his mental health had recovered sufficiently for it to be inappropriate to continue to detain him under that Act, it would obviously have been necessary to consider whether he nonetheless continued to present a risk to the public by reason of his criminal associations and violent tendencies. That assessment involves very different investigation and evidence from that conducted before a mental health review tribunal.
46. It is doubtless for these reasons that, although there are psychiatrist members of the Parole Board, a DLP is not required to include a psychiatrist, and the panels for oral hearings no longer routinely include one. On the other hand, a mental health review tribunal always includes a consultant psychiatrist who, as the medical member (see Schedule 2 to the MHA), must examine the patient: see rule 11 of the Mental Health Review Tribunal Rules 1983.
47. In Hickey, the Court of Appeal referred to the difficulties for the Parole Board in assessing the risk posed to the public by a prisoner who has been detained in a hospital. Rose LJ said, at 56F:

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.

48. It does not appear from the judgment in Hickey whether the Court of Appeal had evidence before it directed to this issue, or whether Rose LJ was referring to a point raised by Mr Pannick in argument unsupported by evidence. In the present case, I have the evidence of Mr McCarthy, the Head of Casework at the Parole Board, who said, in his witness statement:

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.

49. It is not however easy to see that these difficulties must always be insuperable: why the probation service could not be involved at an earlier stage and a period in open prison conditions tried by way of leave of absence, with the consent of the Home Secretary, under section 17 of the MHA, in much the same way that patients detained under section 3 of the MHA are given home leave. Miss Lieven accepted that the above statement of Rose LJ is unlikely to be true in every case. However, Mr McCarthy was not cross-examined, and I accept that in many cases it will be inappropriate or difficult or impractical to make such arrangements. By way of example, it would be wrong to require a DLP to assess risk to the public while the prisoner is receiving medication in a hospital. (But that is not to say that it is never appropriate.) Moreover, the percentage of successful applications to tribunals by transferred patients is so low that the making of such arrangements would be very wasteful of the time of an already hard-pressed probation service.
50. Other difficulties of joint hearings would have to be faced. Before a mental health review tribunal, the burden of establishing that continued detention is necessary is on the detaining authority. Before the Parole Board, the burden is on the detained person. It has not been argued that this burden is incompatible with the Convention. A single tribunal applying inconsistent burdens of proof would not find the intellectual task easy.
51. More significantly, a discretionary life prisoner such as P is entitled to have his case considered by the Parole Board every two years (section 34(5)(b) of the CJA), whereas he is entitled to apply to a mental health review tribunal within 6 months after the transfer direction, once in the following 6 months, and subsequently every 12 months: section 70 of the MHA. It has not been suggested that the statutory period of 2 years in section 34(5)(b) of the CJA is incompatible with the requirement of Article 5 that the lawfulness of detention be reviewed at reasonable intervals (Megyeri v Germany (1993) 15 EHRR 584, at paragraph 22(a)). I assume that the difference between the minimum periods between tribunal applications and DLP applications is attributable to their different contexts: mental health is more likely to fluctuate than the proved dangerousness of a life prisoner. Mr Bowen disclaimed a requirement that every possible annual hearing of a tribunal should be a joint hearing with a DLP. However, I do not see how, if his submission is well-founded, it could be otherwise. Neither the tribunal nor the DLP could know in advance whether any tribunal sitting only as such would decide that the patient prisoner should be discharged. If the Convention requires that every "court" to which he applies under Article 5.4 is able to order his release, or prohibits the delay involved in successive hearings of separate courts, every tribunal must also sit as a DLP.
52. Mr Bowen placed stress on the risk of inconsistent decisions if applications for discharge from MHA detention and for release on licence continue to be heard separately. I do not think that there is such a risk. Most cases are decided on the basis of positive findings by the tribunal or DLP, rather than on the burden of proof. Having regard to the decision of the House of Lords in R (von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58, I do not think that a DLP is entitled to reach a different conclusion from a tribunal in relation to the risk to the public arising from the prisoner's mental illness unless it forms the "reasonable and bona fide" conclusion that "it has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal" (see the speech of Lord Bingham at paragraph 10). If it does, it must give adequate reasons for its conclusion. Most cases do not depend on the burden of proof: a tribunal is able to make findings one way or the other. There will be some cases that will turn on the different burdens of proof, but in such cases the decisions are different, but not, when properly analysed, inconsistent. The fact that different decisions are made in such cases is not indicative of arbitrariness, which is the fundamental object of Article 5.4 to preclude; it is the product of different rules relating to the burden of proof, a difference which, I assume, is permitted by the Convention.
53. None of these matters leads me to depart from or to doubt the conclusion I have reached on the basis of the provisions of the Convention themselves.
54. If joint hearings of mental health review tribunals and DLPs were mandatory for discretionary life prisoners, the potential increase in the workload of the Parole Board would be substantial. Mr McCarthy's evidence is that as a result of the increase in oral hearings following the decision of the European Court of Human Rights in Stafford v UK (Application no. 46295/99) the resources of the Board are stretched to breaking point. In 2003-2004, it is projected that the Board will hold approximately 950 oral hearings, against 495 in 2002-2003. if all transferred lifers were entitled to an annual oral hearing before a joint tribunal/Board panel, there would potentially be about an additional 200 hearings a year. If I had concluded that such joint hearings were required by the Convention, those difficulties would have been irrelevant. The State would have to provide the necessary resources.

Delay

55. If separate hearings by tribunals and DLP's necessarily result in a failure by the State to provide the speedy decision of the review of the lawfulness of detention that is required by Article 5.4, then such hearings are incompatible with the Convention right, and other provision must be made. However, it is only if breach of the Convention right is inevitable that there is incompatibility.
56. There was discussion during the hearing before me whether, in deciding whether the obligation under Article 5.4 to provide a speedy decision of the review of the lawfulness of detention has been complied with, and there are to be successive hearings before the "court", the relevant time before the hearing before the second court begins with the making of the application to the first "court" or the making of the application to the second. This is I think likely to be an arid debate. Whichever view one takes, the investigations and procedures necessary for the second court must take into account the fact that there have been investigations and a decision by the first court. It will also be relevant that the period before the first court (in the present context, the mental health review tribunal) hearing provided an opportunity for the Home Secretary to make investigations and obtain evidence for the purposes of the second court hearing. That is not to say, however, that the Home Secretary (or the Parole Board) is necessarily required to do so. If the investigations and procedures for the second court cannot sensibly be carried out before the first court makes its decision (because, for example, it has been impossible to assess the detained person in appropriate conditions), a delay before the second court makes its decision to enable those investigations to be carried out will not preclude its decision from being "speedy", even if the start date for the assessment of the relevant period is the date of the application to the first court. It may be that if the information available before the tribunal hearing indicates that the prospects of its deciding that a patient should be discharged are remote, neither the Home Secretary nor the Parole Board can reasonably be expected to carry out investigations that would only be relevant if the tribunal came to an unexpected decision; but I do not have to decide that question.
57. It follows, however, that in my judgment there is no necessary breach of the requirement of a speedy hearing caused by the provision of successive hearings by a mental health review tribunal and (if that results in discharge from MHA detention) a DLP.
58. Whether, in individual cases, there is delay such that Article 5.4 is not complied with is to be determined on their particular facts. Similarly, the question whether the present 24-week delay is acceptable in all cases should be determined on the facts of an actual case. The decision of the Court of Appeal in Regina (C) v London South and West Region Mental Health Review Tribunal [2001] EWCA Civ 1110, [2002] 1 WLR 176 may indicate that a standard period before a hearing that does not vary with the facts of each case may involve a breach of the Convention right, but it is unnecessary to determine that in this case.
59. Mr Bowen relied on the decision of the Court of Appeal in R (Noorkoiv) v Home Secretary [insert ref] [2002] 1 WLR 3284. However, the facts under consideration in that case were very different from the present. Noorkoiv would be applicable if a transferred life prisoner made a successful application to a tribunal before the expiration of his tariff. There is nothing to preclude an application being made to a tribunal sufficiently long before the expiration of the tariff as to enable, if the tribunal decides he should be discharged, an effective Parole Board hearing to take place before expiration. If he has not made an application to a tribunal before tariff expiration, or it has not resulted in his discharge, on expiration of his tariff he is detained under the MHA, and unless Mr Bowen's submissions are well-founded, has no right to make an application to a DLP that could not order his release.
60. In the course of argument, Mr Bowen sought to argue that the period of 90 days provided by section 74(2)(b) of the MHA within which the Home Secretary may give notice to a tribunal that a patient, in respect of whom the tribunal have given notification that he would be entitled to be absolutely or conditionally discharged, may be so discharged, is incompatible with the requirement of a speedy determination under Article 5.4, since that period will delay the hearing of an application to a DLP. Miss Lieven objected to this point being argued, on the basis that it had not been raised in P's claim form, or indeed in Mr Bowen's skeleton, and had therefore not been the subject of evidence or of proper consideration on behalf of the Home Secretary. I uphold that objection, and say nothing about this point.

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?

61. If a tribunal finds that a transferred patient is not a danger to others, but is a danger to himself, and is not to be discharged on that basis, neither the transfer direction nor the restriction direction cease to apply to him. He remains subject to the special restrictions referred to in section 41 of the MHA. He also remains unable to have his case referred to the Parole Board.
62. Mr Bowen submits that these consequences are disproportionate and a violation of Article 5.1 and 5.3. He relies on the judgment of the Court of Appeal in R v Offen and ors [2001] 1 WLR 253, and in particular paragraph 95, where the court referred to the imposition of a life sentence being disproportionate in certain cases.
63. Miss Lieven submitted that the matters to which Mr Bowen objected go to the conditions of detention rather than detention itself, so that Article 5 is not engaged: Ashingdane v UK (1985) 7 EHRR 528.
64. In my judgment Miss Lieven's submission is correct. Mr Bowen's objections go not to the fact of detention but to the conditions attaching to it. In Ashingdane those conditions were physical rather than, as in the present case, legal, but the principle applies if anything even more strongly. In Offen the Court of Appeal was concerned with an order that did affect the duration of detention itself, and not just the conditions of detention.
65. The situation envisaged by Mr Bowen is in any event hypothetical in this case. Furthermore:

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.

66. The considerations mentioned in the subparagraphs of the preceding paragraph would lead me to be reluctant in the extreme to conclude that proportionality requires the Parole Board to consider the continuing detention of a transferred prisoner in the circumstances considered under this heading, or that a decision by a tribunal that a transferred patient no longer needs treatment for the protection of other persons should lead to his re-categorisation or other change in the legal conditions of his detention.

Damages

67. Mr Bowen submitted that if I held that there had been an infringement of a Convention right of P, I should direct an inquiry as to the damages to which he is entitled.
68. A finding that a Convention right has been infringed, including a right under Article 5, does not necessarily result in an award of damages: see Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406, especially at paragraph 62 ff., including the citation from R (KB and others) v Mental Health Review Tribunal [2003] EWHC 193. It must be shown that the claimant has suffered pecuniary damage, or non-pecuniary damage sufficiently significant to justify an award of compensation.
69. The effect of an order for the inquiry as to damages is very much the same as an interlocutory order for a split trial of liability and damages. In both cases, the claimant should give notice to the defendant that he proposes to seek the order in question and he must justify the making of the order to the defendant and the court. An inquiry as to damages will not be ordered unless the court has before it some evidence which, if accepted, would indicate that an award of damages is appropriate. The court will also require an explanation as to why the issue of damages could not fairly be dealt with at the same time as the issue of liability.
70. In the present case, there is no evidence that P has suffered any distress or other non-pecuniary damage, or any pecuniary damage, as a result of the alleged infringement of his Convention rights. In these circumstances, if I had decided that an infringement of a Convention right had been established, I should nonetheless not have ordered an inquiry as to damages. In other words, no award of damages would have been made.

Conclusion

71. In my judgment the Convention does not make mandatory joint hearings of mental health review tribunals and DLPs.
72. The fact that P has no right to have his case considered by the Parole Board until after his discharge from detention under the MHA does not infringe his rights under Article 5.4.
73. As I hope I have made clear, it does not follow that a delay of 24 weeks before the hearing of the case of a prisoner who has been discharged under section 74 of the MHA complies with the requirements of Article 5.4. Nor does it follow that the Home Secretary may always delay making any investigation of the appropriateness of release on licence until after the decision of the tribunal without there being an infringement of Article 5.4. However, these questions should be investigated on the facts of individual cases, if and when they arise.
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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.