Case No: CO/5599/2003
Neutral Citation Number: [2003] EWHC 3022 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 9 December 2003
Before :

THE HONOURABLE MR JUSTICE MUNBY

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Between :

	THE QUEEN (on the application of I R)	Claimant	
	- and -		
	(1) DR G SHETTY (Responsible Medical Officer)
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Defendants	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Paul Bowen (instructed by Kaim Todner) for the claimant
Mr Philip Havers QC (instructed by Mills & Reeve) for the first defendant
Ms Eleanor Grey (instructed by the Treasury Solicitor) for the second defendant

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Judgment
Mr Justice Munby : 

1.	On 2 April 1995 the claimant killed his brother. On 17 February 1997 he was convicted of manslaughter by a jury at Norwich Crown Court. On 8 September 1997 HHJ Hyam sentenced him to life imprisonment and fixed the tariff under section 34 of the Criminal Justice Act 1991 at eight years. As he was first remanded in custody on 4 April 1996 his tariff date is 4 April 2004. Whilst in prison his mental state deteriorated. On 8 August 2000 he was transferred to the Norvic Clinic in Norwich pursuant to a transfer direction made by the Secretary of State under section 47 of the Mental Health Act 1983 (“the Act”). In accordance with his normal policy the Secretary of State imposed a restriction direction under section 49(1) of the Act. On 4 January 2001 the claimant was returned to prison pursuant to a warrant issued by the Secretary of State under section 50(1)(a) of the Act. On 23 April 2003 he was again transferred to the Norvic Clinic pursuant to transfer and restriction directions made under sections 47 and 49(1). It is common ground that, whatever his mental state at the time he was sentenced, the claimant has since suffered severe psychotic episodes. 
2.	The present proceedings, commenced on 23 October 2003 against Dr Shetty, the responsible medical officer (“RMO”) at the Norvic Clinic, and the Secretary of State, are brought to prevent the claimant being returned to prison. An injunction to restrain the claimant’s return to prison was granted by Poole J on 23 October 2003 and extended by Richards J on 24 October 2003 and seemingly again by Stanley Burnton J (although his order is silent on the point) on 7 November 2003. On the latter occasion Stanley Burnton J granted the claimant permission to apply for judicial review as against the Secretary of State and fixed the substantive hearing for 4 December 2003. He directed that the application for permission as against the RMO was to be heard on 4 December 2003, with the substantive hearing to follow immediately if permission was granted. The matter came on for hearing before me on 4 December 2003. The claimant was represented by Mr Paul Bowen, the RMO by Mr Philip Havers QC and the Secretary of State by Ms Eleanor Grey.
The claim
3.	Section 50(1) is in the following terms:
“Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person’s sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—  
(a)  	by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or  
(b)	exercise any power of releasing him on licence or discharging him under supervision which could have been exercisable if he had been remitted to such a prison or institution as aforesaid,  
and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.”
4.	On 8 October 2003 the RMO wrote to the Secretary of State:
“I am writing to request issue of a warrant directing [the claimant’s] remission to prison namely HMP Cardiff under Section 50(1) of the Mental Health Act 1983. I am satisfied that [he] no longer requires treatment in hospital for a mental disorder namely mental illness.
You will be aware from my report to the Mental Health Tribunal and CPA/Section 117 Meeting reports (copies enclosed), that [the claimant] was admitted to Norvic Clinic on the 23rd April 2003 under Section 47/49 of the Mental Health Act 1983, as he had relapsed into psychosis again. He responded quickly and well to Clozapine therapy and has not exhibited any psychotic symptoms for some time. [He] has not engaged in any meaningful therapeutic activities and psychology sessions failed to give us any better understanding of his psychopathology or formulation of his rehabilitation needs. [He] has remained largely inactive and has not shown any self-harming or aggressive behaviour.
[He] has remained dissatisfied with his legal status, as he believes that he should have received a Hospital Order. Furthermore he, while accepting improvement in Clozapine asserts that he should remain in hospital, as he is likely to relapse if returned to prison. It has been repeatedly pointed out to him that it is not inevitable that he will relapse especially given that he is now on Clozapine which has proven therapeutic advantages over other antipsychotic medications. [He] is also concerned that the Parole Board will never release him.
At the Section 117 Meeting on the 8th October 2003 all members of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity had persisted. It was acknowledged that his more recent transient complaints about depression and thoughts of self-harm are directly related to the likelihood of being returned to prison rather than relapse of illness per se. 
[He] attended the meeting with his legal representative ... The views of the clinical team were again explained to [him] but he repeatedly stated that it was “unfair” to return him to prison as he should have been given a Hospital Order in the first place. I again explained the statutory criteria under Section 50 and told him that all possible arrangements for his smooth transition from the hospital to prison will be made. (I had telephone discussion with Mr Thomas, In-reach nurse at HMP Cardiff who has previous knowledge of [him]. He was due to attend the meeting today but was unable to do so due to another crisis at HMP Cardiff. However we were able to discuss provisional plans over the telephone and Mr Thomas is willing to monitor [his] mental state should he be returned to HMP Cardiff. It is also noteworthy that HMP Cardiff has visiting forensic psychiatrists from Caswell clinic who are in fact responsible for his referral to this service on this occasion).”
5.	On 31 October 2003 the Secretary of State gave his decision:
“The Secretary of State has considered carefully the reports prepared on [the claimant] by Dr Bullard dated 20 and 22 October. He has also considered the other relevant material submitted in the judicial review bundle, letters from Dr Shetty dated 8 and 24 October 2003, and the reports of the CPA/section 117 meeting on the 8 October 2003 … 
The Secretary of State prefers the view of Dr Shetty who is the Responsible Medical Officer for [the claimant] and who has been treating him since his transfer to the Norvic Clinic (and on a previous admission to the Clinic). Dr Shetty, in his reports, states that [he] has responded well to the drugs he has been prescribed, and that his clinical team believes that his mental state has remained stable since the last review. Dr Shetty states that [he] no longer requires treatment in hospital and that effective treatment for his condition can be given after his return to prison.
The Secretary of State notes the views of Dr Shetty are supported unanimously by [the claimant’s] clinical team, and that Dr Shetty in his letter dated 8 October 2003 states that “at the section 117 meeting on 8 October all member of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity has persisted” Both [the claimant] and yourselves were present at the section 117 meeting, during which the views of the clinical team were explained to [him], and he was afforded an opportunity to comment.
The Secretary of State has given careful consideration as to whether [he] would receive appropriate treatment if remitted to prison. Dr Bullard in her first report is unspecific about the type of treatment that would benefit [him]. In her second report she notes that [he] suffers from an emotionally unstable personality disorder and that he present a “therapeutic challenge which can only be successfully undertaken with the support of a dedicated clinical team”. Dr Shetty has addressed the question of treatability in his letters of 8 and 24 October. In his 8 October letter Dr Shetty states [he] “has not engaged in any meaningful therapeutic activities and psychological sessions failed to give us a better understanding of his psychopathology or formulation of rehabilitation needs.” The issue is addressed again by Dr Shetty in his letter of 24 October where he states that “any attempts to explore psychological issues with [him] has been unsuccessful”. These views, coming as they do from the doctor in charge of [his] treatment, and unanimously supported by the clinical team, must be accorded considerable weight. On the basis of these letters the Secretary of State has concluded that it would be of little benefit to [him] to remain in hospital and that he would receive appropriate treatment in prison.
[The claimant] was transferred to the Norvic Clinic as he required treatment in hospital. The Secretary of State accepts the opinion of Dr Shetty and [the claimant’s] clinical team that his condition has stabilised, that he no longer requires treatment in hospital, and the conditions for remission have therefore been met. The Secretary of State considers that he ought now to return to prison. [His] condition will be monitored by staff at HMP Cardiff and by visiting forensic psychiatrists from the Caswell Clinic.”
6.	The claimant seeks judicial review of, and brings a claim under section 7 of the Human Rights Act 1998 in respect of, the decisions of the RMO in his letter of 8 October 2003 and the Secretary of State in his letter of 31 October 2003. He seeks orders quashing both decisions. His primary case is that the RMO’s decision to recommend, and the Secretary of State’s decision to accept the recommendation, that he be returned to prison is a violation of his rights under Articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. For good measure Mr Bowen also referred to Article 8 but as that played no part in his detailed submissions I say no more about it.
Article 5
7.	Article 5, so far as material for present purposes provides that:
“(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; …
(e)  	the lawful detention of … persons of unsound mind ... ;
(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.”
8.	Mr Bowen, relying upon cases such as X v United Kingdom (1981) 4 EHRR 188 at paras [38]-[39] and Johnson v United Kingdom (1997) 27 EHRR 296 at para [58], submits that following his transfer to the Norvic Clinic on 23 April 2003 the claimant’s detention falls within both Article 5(1)(a) and 5(1)(e). Ms Grey did not demur from Mr Bowen’s analysis and I agree with it. 
9.	Mr Bowen’s primary contention is that, so long as the claimant’s detention falls within both Articles 5(1)(a) and 5(1)(e), he can lawfully be detained only in a “hospital, clinic or other appropriate institution”; that a prison is not for this purpose an “appropriate institution”; and that so long as the claimant continues to be of “unsound mind” within the meaning of Article 5(1)(e) then it is a violation of Article 5(1) to remit him back to prison.
10.	In relation to Article 5 the lynchpin of Mr Bowen’s case is Reid v United Kingdom (2003) 37 EHRR 211 where, following its earlier decisions in Ashingdane v United Kingdom (1985) 7 EHRR 528 and Aerts v Belgium (1998) 29 EHRR 50,  the Court held at para [48] that:
“there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution.”
Mr Bowen also referred to para [54] where the Court, reflecting what it had earlier said in Aerts v Belgium at para [49], said:
“Generally, in fact, it would be prima facie unacceptable not to detain a mentally ill person in a suitable therapeutic environment.”
11.	Now this is all very well, but it has to be read in the context of another key strand in the jurisprudence. For, as the Court said in Reid v United Kingdom at para [47]:
“For the purposes of Article 5(1)(e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.”
The same point had earlier been made by the Court in Ashingdane v United Kingdom at para [37]:
“The Court, in its previous case-law, has stated three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5(1)(e): except in emergency cases, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”
12.	In my judgment what the cases establish is that, since a person can lawfully be detained as “mentally unsound” within the meaning of Article 5(1)(e) only if his mental condition, as established on the basis of objective medical expertise, continues to be such as to warrant compulsory confinement, and since a person who is “mentally unsound” within the meaning of Article 5(1)(e) can lawfully be detained only in a “hospital, clinic or other appropriate institution”, that is, in a “suitable therapeutic environment”, it follows that the obligation under Article 5(1)(e) to detain a person who is mentally unsound in a “hospital, clinic or other appropriate institution” rather than in, say, a prison, applies only to someone whose mental condition, as established on the basis of objective medical expertise, continues to be such as to warrant compulsory confinement in a “suitable therapeutic environment”.
13.	The question under Article 5, therefore, is one to be determined on the basis of “objective medical expertise”. If the relevant medical opinion is that the claimant’s mental condition continues to be such as to warrant his compulsory confinement in a “suitable therapeutic environment”, then it will be unlawful under Article 5(1)(e) to confine him anywhere other than in a “hospital, clinic or other appropriate institution”. (“Objective medical expertise” may, of course, conclude that, in all the circumstances, a prison, or a particular prison, is an “appropriate institution”, notwithstanding that he remains of unsound mind, in which case there will be nothing unlawful under Article 5(1)(e) in detaining him in prison.) If the relevant medical opinion is otherwise then Article 5(1)(e) falls away, and there will be nothing in Article 5 to prevent the claimant’s return to prison to serve a sentence which, having been imposed after conviction by a competent court, is lawful under Article 5(1)(a).
14.	In short, in a case such as this the legality of the claimant’s detention has to be assessed for the purposes of Article 5 in accordance with the principles set out in Ashingdane v United Kingdom and on the basis of “objective medical expertise”.
Article 3
15.	Article 3 provides in absolute and unqualified terms that:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
16.	The general principles are well known. As summarised in Mouisel v France (2002) November 14 at para [37],
“ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3.”
17.	The Court’s jurisprudence also shows that, for the purposes of Article 3, the State, when it deprives someone of his liberty, must take him as it finds him. The position was summarised in Mouisel v France at paras [38]-[43]:
“[38]  	The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention. In the case of a prisoner suffering from disorders associated with hereditary obesity, the European Commission of Human Rights expressed the opinion that that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (Chartier v Italy (1982) 33 DR 41 at pp 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant’s complaint under that Article was manifestly ill-founded (Papon v France (2001) June 7). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person’s suitability for detention.
[39]	Thus, in assessing a prisoner’s state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (Keenan v United Kingdom (2001) 33 EHRR 913, paras [111]-[115]). In Price v United Kingdom (2001) 34 EHRR 1285 the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment.
[40]	Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of the execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment.”
Having referred to certain provisions in French domestic law the Court continued:
“[43]	… The Court accordingly notes that the health of a detainee is now among the factors to be taken into account in determining how a custodial sentence is to be served, particularly as regards its length. In that way, practical expression has been given to the Court’s statement that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies”.”
18.	In that case the Court held that the conditions in which a prisoner suffering from cancer had been detained in prison constituted a violation of Article 3:
“[45]	… The Court observes that the applicant’s health was found to be giving more and more cause for concern and to be increasingly incompatible with detention. The report of 28 June 2000 referred to the difficulty of providing cancer treatment in prison and recommended transferring him to a specialist unit. It also mentioned the applicant’s psychological condition, which had been aggravated by the stress of being ill and had affected his life expectancy and caused his health to decline. The letter of 20 November 2000 from the UCSA doctor to the applicant confirmed that his health was deteriorating and referred only to the possibility of a remission in the disease. All those factors show that the applicant’s illness was progressing and that the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night.
[48]	In the final analysis, the Court considers that the national authorities did not take sufficient care of the applicant’s health to ensure that he did not suffer treatment contrary to Article 3 of the Convention. His continued detention, especially from June 2000 onwards, undermined his dignity and entailed particularly acute hardship that caused suffering beyond that inevitably associated with a prison sentence and treatment for cancer. In conclusion, the Court considers that the applicant was subjected to inhuman and degrading treatment on account of his continued detention in the conditions examined above.
There has therefore been a violation of Article 3 of the Convention.”
19.	Mr Bowen also referred me to McGlinchey v United Kingdom (2003) 37 EHRR 821, where failures by the prison authorities to provide appropriate treatment to an asthmatic heroin addict who died whilst in custody were held to have been violations of Article 3. He pointed in particular to certain observations in the concurring opinion of Judge Costa:
“[3]	What counts in my opinion is a nexus of facts. … That factual nexus is the reason why I and the majority of my colleagues reached the finding of a violation.
[4]	Moreover, that finding must be placed in a wider context, that of the special treatment to be given to prisoners whose state of health gives cause for concern. In cases like that of the victim, such concern might even entail a decision that their state of health is incompatible with committal to prison, or in any case with continued detention.
[6]	Our Court itself is becoming more and more sensitive to this concern. It has frequently stated in its judgments that assessment of the question whether treatment reaches the minimum level of severity for the purposes of applying Article 3 may depend on the sex, age and state of health of the victim. I might also mention, although the facts were different (the prisoner being seriously disabled), Price v United Kingdom (2001) 34 EHRR 1285, with the separate opinion of Sir Nicolas Bratza, whom I joined, and the separate opinion of Judge Greve; the authors of those opinions considered that the very principle of committing the applicant to prison was incompatible with Article 3 on account of her condition. See also the recent Mouisel v France in which the Court unanimously held that there had been a violation of Article 3 on account of the conditions of treatment and continued detention of a person suffering from an incurable illness.
[7]	I naturally do not underestimate the difficulties the judicial authorities have to face when they are required to determine what kind of sentence to impose on an offender in bad health or those of the prison authorities and health services when they have to choose between treatment on the spot and admission to a hospital outside prison, especially as ill health among prisoners is unfortunately not an exceptional circumstance, particularly on account of the ravages of drugs among offenders. But if I return to the instant case, I think that all those authorities, for their part, underestimated the seriousness of Ms McGlinchey’s personal condition. The accumulation of errors was such, in my opinion, as to constitute in the final analysis a violation of Article 3.”
20.	Mr Bowen also pointed to Bensaid v United Kingdom (2001) 33 EHRR 205 at para [37], where the Court recognised that “the suffering associated with” a “relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (eg, withdrawal and lack of motivation”) could in principle fall within the scope of Article 3. That, of course, is so. But as Ms Grey pointed out, the mere fact of a relapse or psychosis would not necessarily engage Article 3. It all depends on the particular facts and circumstances, on the severity and duration of the episode. As ever, she rightly says, the factual context is key. Thus, for example, if a prisoner’s deterioration was rapidly and properly managed, the suffering might not reach the necessary severity.  
21.	Mr Bowen further pointed to the recognition by the Court of Appeal in R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 at para [53] that “seclusion is capable of amounting to the ‘inhuman or degrading treatment or punishment’ which is prohibited by Article 3.” On the other hand, as the Court went on to observe at para [54], “segregation from the prison community or other detained patients does not of itself constitute a form of inhuman or degrading treatment.” Again it all depends on the facts. The Court went on to comment at para [55]:
“The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment, provided that they meet the standards considered acceptable at the time, are unlikely to amount to inhuman or degrading treatment or punishment under Article 3. The detention of psychiatric patients is a means to an end, the assessment and treatment of their mental disorder. Conditions of detention which defeat rather than promote that end are much more likely to amount to inhuman or degrading treatment. The Keenan case, which concerned a mentally ill prisoner, is a good illustration of this.”
22.	Finally, Mr Bowen relied on R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 at para [58] for the proposition that:
“where the state itself has deprived a vulnerable person [of] his liberty … the state itself is responsible for how that person is treated. In such cases, the state ought to know enough about its own prisoner or patient to provide effective protection from inhuman or degrading treatment by the state’s own agents. As the Strasbourg Court observed in Pretty v United Kingdom (2002) 35 EHRR 1, at para [50]:
“[Article 3] may be described in general terms as imposing a primary negative obligation on States to refrain from inflicting serious harm upon persons within their jurisdiction.””
23.	None of this is at all controversial. I refer to the authorities at some length out of deference to Mr Bowen’s argument and because of the intrinsic importance of the subject-matter. Article 3 imposes potentially onerous burdens on the State when it seeks to imprison those who are physically or mentally handicapped. And, as Mouisel and McGlinchey show, the Strasbourg court is becoming more and more sensitive to this concern and demands an increasingly high standard. There is no room for complacency here. These are not matters affecting only those incarcerated in the further reaches of eastern or south-eastern Europe or Asia Minor. The decisions of the Court in Keenan v United Kingdom (2001) 33 EHRR 913, Price v United Kingdom (2001) 34 EHRR 1285 and McGlinchey v United Kingdom (2003) 37 EHRR 821 – in each of which this country was found to have violated the Article 3 rights of a prisoner – should concern us all, as, for that matter, should my own decision in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484.
24.	So it is important to recognise that Article 3 has a crucial role to play, whilst never forgetting the “high threshold” required to establish a violation of Article 3 and the importance, because of the absolute, unqualified and non-derogable nature of the obligation under Article 3, that the threshold should not be eroded or diminished.
The statutory scheme
25.	The scheme of section 50(1) of the Act is clear and simple. Confining the analysis to the circumstances of the present case, the Secretary of State can do nothing unless and until he is: 
“notified by the responsible medical officer … that [the patient] no longer requires treatment in hospital for mental disorder”. 
Even then the Secretary of State is under no duty to act. He merely has a power and a discretion – “the Secretary of State may” – either to remit the patient to prison or to another hospital, or to release him on licence or discharge him under supervision. So although the RMO’s notification is a pre-requisite, a sine qua non, to any exercise by the Secretary of State of his powers, the decision whether or not to act on the RMO’s advice, and the decision whether or not to remit the patient to prison, and if so to which prison or type of prison, is that of the Secretary of State alone and no-one else. The RMO advises: the Secretary of State decides.
26.	As Mr Havers correctly submits, the RMO, as a clinician, is plainly exercising a clinical judgment and coming to a clinical opinion. And, as he also points out, the only question which the RMO has to consider – Does the patient any longer require treatment in hospital for mental disorder? – is a very narrow one. In contrast, the Secretary of State’s decision-making role is much wider. He is not obliged to accept the RMO’s advice. And if he does, he has a wide and unfettered discretion as to what to do with the patient; a discretion which entitles him to take into account a wide range of facts, some no doubt referable to the patient himself but others referable to wider considerations of the public interest and in any event extending far beyond the purely clinical. Moreover, it is to be noted that the Secretary of State is unfettered in the exercise of his discretion as to which prison or type of prison the patient is to be remitted to: he may “direct that he be remitted to any prison … in which he might have been detained if he had not been removed to hospital”.
Article 5(4)
27.	Mr Bowen submits that, because of Article 5(4), the decision to remit the claimant back to prison can only be taken by a body which constitutes a “court” within the meaning of Article 5(4) – he suggests by a Mental Health Review Tribunal – and that section 50(1) of the Act is therefore incompatible with Convention rights. Accordingly, he says, the question of whether the claimant continues to be of “unsound mind” within the meaning of Article 5(1)(e), and thus the question of whether it is lawful to detain him anywhere other than in a “hospital, clinic or other appropriate institution”, can only be determined by a court. Section 50(1) is incompatible with the Convention, he submits, because it confers the power to take such decisions on the Secretary of State.
28.	I do not agree. Article 5(4) does not apply here. Section 50(1) of the Act is not incompatible with the Convention.
i)	The claimant is not challenging the legality of his present detention in the Norvic Clinic. On the contrary he wants to stay there. Nor is he challenging the legality of any present detention in prison, for he is not at present detained in any prison. What he is seeking to challenge is the Secretary of State’s decision to move him from what he accepts is a lawful detention in a hospital to what he asserts will be an unlawful detention in a prison. But that is simply not an issue which engages Article 5(4). It is clear from the very language of Article 5(4) that it applies only to an existing and not to some future or threatened detention. This, in my judgment, is clear both from the words “who is deprived of his liberty by arrest or detention” – which plainly refer only to those who, as a result of having been placed under arrest or detention, are in the condition of having been and continuing to be deprived of their liberty – as also from the reference to the detainee’s release being ordered if the detention is not lawful. In my judgment Article 5(4) is no more engaged in the present case than it is when a policeman arrests someone without prior judicial warrant or when the Secretary of State recalls to prison, without prior judicial sanction for the recall, a ‘lifer’ who has been released on licence.
ii)	As Ms Grey points out, the purpose of the court access guaranteed by Article 5(4) is to secure the detainee’s release from detention if it is not lawful. But there are at present no circumstances in which the claimant can demand his release. For if he does not remain in hospital he will be remitted to prison, and for that there is a pre-existing basis for his lawful detention: his conviction and sentence by a competent court. As she says, there is an Article 5(4) compliant decision as to the lawfulness of the claimant’s detention: the decision of the Norwich Crown Court. In remitting the claimant to prison the Secretary of State is not deciding afresh that he deserves to go to prison. That decision has already been taken by a court. The Secretary of State is doing no more than decide, on the basis of the clinical views of his treating clinicians, that the claimant no longer requires treatment in hospital. That decision, although it affects the location and nature of the claimant’s detention, does not, per se, engage its lawfulness. There is thus no need for the decision to be taken by a court.
iii)	In any event, the claimant has ample means of challenging the legality of his continuing detention in prison were the conditions of his confinement at any time to violate either Article 3 or Article 5. He would immediately be able to bring proceedings in the High Court either by way of an application for permission to apply for judicial review and/or by means of a free-standing application under section 7 of the Human Rights Act 1998.
29.	Accordingly I reject the claimant’s case insofar as it is based on Article 5(4).
The claim against the RMO
30.	The claimant’s case, as I have said, is that the RMO’s decision to recommend his return to prison is a violation of his rights under Articles 3 and 5. Mr Bowen submits that, since the Secretary of State cannot remit the patient back to prison without a recommendation from the RMO, if the recommendation is flawed then the decision to remit is flawed.
31.	It is important to note that the only challenge here to the RMO’s decision is on Human Rights Act grounds. It is not even suggested that the RMO’s decision is irrational, unfair or flawed because of any procedural irregularity.
32.	Mr Havers does not dispute that a decision of the RMO under section 50(1) of the Act is judicially reviewable in the same way as is the decision of a second opinion appointed doctor (SOAD) under section 58(3) of the Act. He accepts that a RMO is under a duty to make proper inquiries before making a recommendation under section 50(1): see R (Morley) v Nottinghamshire Health Care NHS Trust [2002] EWCA Civ 1728, [2003] 1 All ER 784, para [41]. And as I understood his submissions, he did not dispute that a RMO should, like a SOAD, give reasons for his decision: see R (Wooder) v Feggetter [2002] EWCA Civ 554, [2003] QB 219, para [25]. Nor did he dispute that the decision of a RMO can be challenged on the grounds of irrationality, unfairness or procedural irregularity: see R (Morley) v Nottinghamshire Health Care NHS Trust [2002] EWCA Civ 1728, [2003] 1 All ER 784, paras [37], [39], [47]. But, he says, the RMO’s duty goes no further.
33.	Mr Bowen submits that by the same token the RMO’s decision is susceptible to challenge on Convention grounds. He points in particular to what he says are the broad principles lying behind what was said by Simon Brown LJ in R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, paras [25]-[26], and by Brooke LJ in R (Wooder) v Feggetter [2002] EWCA Civ 554, [2003] QB 219, para [25]. So, he says, the RMO is properly joined, and his decision is susceptible to challenge on the grounds that to remit the claimant back to prison, where, says Mr Bowen, he will in all likelihood relapse, is a breach of his Convention rights and thus an unlawful act for the purposes of section 6 of the Human Rights Act 1998. 
34.	Mr Havers disputes that the decision of a RMO under section 50(1) of the Act (or for that matter the decision of a SOAD under section 58(3)) is challengeable on Article 3 or Article 5 grounds. He submits, in my judgment correctly, that neither Simon Brown LJ nor Brooke LJ in the passages relied upon by Mr Bowen said anything to support the view that a SOAD is so challengeable. And, he submits, and I agree, that if a SOAD is not so challengeable in the context of section 58(3) then, a fortiori, a RMO is not challengeable in the context of section 50(1). After all, as he points out, the function of a SOAD under section 58(3) is to certify that certain treatment “should be given”, whilst the RMO under section 50(1) has a more limited function.    
35.	One searches in vain in all the cases to which I have been referred – R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, R (Wooder) v Feggetter [2002] EWCA Civ 554, [2003] QB 219, R (Morley) v Nottinghamshire Health Care NHS Trust [2002] EWCA Civ 1728, [2003] 1 All ER 784, and R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562 – for any suggestion that the decision of a SOAD under section 58(3) or a RMO under section 50(1) is amenable to challenge on the ground that in certifying or notifying his clinical decision the SOAD or RMO is violating or acting incompatibly with Article 3, Article 5 or for that matter Article 8. That omission, it seems to me, is all the more striking given that Article 3 was at the centre of the arguments in both R (Wilkinson) v Broadmoor Special Hospital Authority and R (N) v M and that the impact of Article 8 was likewise debated in R (Wooder) v Feggetter. 
36.	On the contrary, Pill LJ in R (Morley) v Nottinghamshire Health Care NHS Trust at paras [39], [41], [47], clearly treated the RMO’s duty, assuming he had made proper inquiries, as simply being to arrive at a clinical judgment, fairly and rationally made. As he said:
“[39]	… As RMO, Dr Hayden was required to take an overall view when applying the treatability test. … If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by s 50 when deciding to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged ... 
[47]	… The issue [under section 50(1)] is treatability and the Secretary of State’s decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment was fairly and rationally made, a duty in the Secretary of State to permit and consider representations does not … arise.”
Fundamentally, as Pill LJ put it, the issue for the RMO is “treatability”. And that, at the end of the day, is a matter for clinical judgment, nothing more and nothing less.
37.	Wrapped up in this issue is a dispute between Mr Bowen and Mr Havers as to what precisely is meant by the words “no longer requires treatment in hospital for mental disorder”. Mr Havers says that they are simple words and, meaning what they say, require only a clinical judgment. Mr Bowen says this is too simple an analysis. 
38.	Drawing attention to the contrast in section 50(1) between the phrase “in hospital” and the phrase “in the hospital to which he has been removed”, Mr Bowen submits that the RMO’s certificate in a case such as this is given quite generally – the patient “no longer requires treatment in hospital for mental disorder” – and not by reference to any particular hospital. He points out that, whatever the ambit of the Secretary of State’s discretion under section 50(1), in a case such as this the Secretary of State, if he accepts that the patient “no longer requires treatment in hospital for mental disorder”, will inevitably direct him to be remitted to a prison. It necessarily follows, says Mr Bowen, that the RMO cannot certify that a patient who on discharge from hospital will be returned to prison “no longer requires treatment in hospital for mental disorder” unless he has first satisfied himself that any treatment for mental disorder he may still require can if the need arises be given to him in prison. He shrank from asserting that this required the RMO to investigate the facilities to be found in the various parts of the prison estate or to satisfy himself that the patient, if discharged from hospital, would be remitted to a prison with appropriate facilities. He was wise to make this concession: otherwise the burden on a RMO would be intolerable and hardly consistent with the fact that it is, as I have pointed out, for the Secretary of State and not the RMO to decide which prison, or type of prison, the patient should be returned to. But, he said, it was still the duty of the RMO to stipulate what facilities the patient would need if returned to prison.
39.	I disagree. The RMO’s function and responsibility is, as the statute says, to notify the Secretary of State, if this is his professional opinion, that his patient “no longer requires treatment in hospital for mental disorder”. That is a clinical question, calling for the exercise of clinical judgment. It does not require the RMO to address the wider issues canvassed by Mr Bowen. Those, in my judgment, are matters for the Secretary of State. For the fact, as Mr Havers rightly emphasised, is that it is only the Secretary of State who is empowered to take the action that might, on Mr Bowen’s hypothesis, involve a breach of the claimant’s Convention rights. As Mr Havers rightly says, any such breach arises, and can only arise, if and when the Secretary of State decides to return the claimant to prison. So, if there is any substance in the claimant’s contention that to remit him to prison would breach his rights under either Article 3 or Article 5 (and I should make clear that Mr Havers does not accept there is) then it is an argument properly addressed to the Secretary of State, on the basis that he should not be taking a decision which will have that consequence, and not to the RMO.  
40.	I agree with Mr Havers. Obviously if the RMO’s decision that his patient “no longer requires treatment in hospital for mental disorder” is based upon certain special assumptions as to the facilities available for him outside hospital – or, in a case such as the present, any special assumptions as to the facilities available for him in prison – then the RMO will make that clear. Otherwise it may be that will he lay himself open to challenge, not on Convention grounds but rather on the basis of irrationality or unfairness. But that is all. His duty, having made all proper inquiries, is to exercise a clinical judgment and come to a clinical opinion. He should give reasons for his decision and spell out any assumptions that he has made in arriving at his conclusion. But that is all he has to do. And assuming he has done it fairly and rationally he cannot be challenged on the grounds that his recommendation, if implemented by the Secretary of State, will or may involve a violation of his patient’s Convention rights. 
41.	I do not overlook the powerful point made by Sedley LJ in R (Wooder) v Feggetter at para [38], that where:
“a person with special qualifications is equipped in the public interest with statutory powers which impact directly on someone’s physical and moral autonomy … such power carries a heavy burden of responsibility. The SOAD’s opinion, while of course it is clinical, has legal and moral dimensions which cannot be marginalised and which are in every sense the SOAD’s business and – if necessary – the court’s.”
42.	The same, I accept, goes for the RMO. Nonetheless, it does not carry with it the proposition, and Sedley LJ did not suggest, that the decision of a SOAD, let alone a RMO, is susceptible to challenge on Convention grounds.   
43.	In my judgment, the claimant’s case against the RMO is fundamentally flawed. It presupposes that his clinical decision under section 50(1) can be challenged on Convention grounds, whereas I am satisfied that it cannot be. Mr Havers submits that the claimant’s case against the RMO is unarguable, not merely on the facts but also, and more importantly, as a matter of law. I agree. Accordingly I refuse the claimant permission to apply for judicial review as against the RMO.
44.	Mr Havers submitted that I should in any event refuse the claimant permission in the exercise of my discretion. He says that it is unnecessary in a case like this to sue the RMO since all the same points can be argued (and if they are good points argued successfully) against the Secretary of State. He submits that the claimant can obtain the real relief he is seeking – an order to prevent his remittal to prison – whether or not the RMO is a party. And he points out that the RMO can if necessary be called to give evidence whether or not he is a party. He submits that the RMO’s employers should be spared the burden of irrecoverable costs which, he says, is an inevitable and inescapable feature of a case such as this.
45.	The point does not in the event arise, but if it had I should not have exercised my discretion in the way suggested by Mr Havers. As Mr Bowen pointed out, since the Secretary of State is unable to remit him to prison absent a valid notification from the RMO, the claimant, if it were open to him to do so, would have a real interest in seeking to have the RMO’s decision quashed. If he is entitled to seek such relief he should not, in my judgment, be denied that opportunity by the exercise of a discretion which would deny him even the right to argue his case.
The claim against the Secretary of State – the court’s approach
46.	Before I can address the claimant’s case against the Secretary of State on the facts, there are three preliminary matters that I need to consider:
i)	the role of the court and the approach the court should adopt when addressing the argument that the Secretary of State’s decision involves a violation of Articles 3 and 5;
ii)	the test which is to be applied when judging whether the risk of future harm means that an action in the present amounts to a violation of Articles 3 and 5; and
iii)	the burden of proof.
I shall deal with these in turn.  
47.	What approach should the court adopt when addressing the argument that the Secretary of State’s decision involves a violation of Articles 3 and 5? Founding himself in particular upon R (Wilkinson) v Broadmoor Special Hospital Authority, Mr Bowen submitted that this was an issue for the court to decide itself. The court’s function is not limited, he says, to a mere review of the Secretary of State’s decision. The role of the court, he says, is to determine whether or not there will in fact be a violation of the claimant’s Convention rights.
48.	I do not agree. The decision in Wilkinson was very carefully scrutinised by the Court of Appeal in R (N) v M. Both cases related to the medical opinion given by a SOAD for the purposes of compulsory treatment proposed to be administered in accordance with section 58 of the Act. In the latter case at para [39] the Court of Appeal said:
“although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review: see per Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paragraph 27.”
49.	Richards J came to precisely the same conclusion in R (P) v Mersey Care NHS Trust [2003] EWHC 994 (Admin), where the challenge was to the refusal of the Secretary of State to direct the move of a patient from a high security hospital to a medium security hospital under sections 17 and 19 of the Act. So there, as here, the central question was the location of the patient’s detention; there, as here, the question turned on a clinical judgment; there, as here, there was conflicting expert evidence that the Secretary of State had to weigh; and there, as here, it was alleged that the Secretary of State’s decision violated the patient’s Convention rights.
50.	There, as here, the claimant (also represented, as it happens, by Mr Bowen) argued (see para [16]) that the issue was one to be determined by the court itself hearing the relevant evidence. There, as here, reliance was placed on Wilkinson. Richards J rejected the submission:
“[25]	In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights.  
[26]	Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen’s submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker.  
[27]	The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court’s role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence.”
51.	I respectfully agree with my brother’s decision. In my judgment his reasoning applies, mutatis mutandis, to the present case. And I agree with Ms Grey when she submits that it cannot simply be marginalised or distinguished, as Mr Bowen would have it, because it was only a decision on an application for permission, or because the Convention rights in issue there arose under Article 8 rather than, as here, under Article 3, or because the issue there was whether a patient should be transferred from one hospital to another whereas here the issue is whether the claimant should be transferred from a hospital to prison. Richards J delivered a fully reasoned judgment following a relatively lengthy contested hearing at which the patient, the hospital and the Secretary of State were all represented. He refused the patient’s application for permission to appeal, and so did the Court of Appeal. The argument there turned, as here, on whether the Secretary of State had wrongly assessed the medical evidence. And although it is obviously relevant that Richards J was concerned only with an alleged violation of Article 8, whereas I am concerned with alleged violations of Articles 3 and 5, that goes only to the intensity of the scrutiny that is called for. As Lord Steyn observed in R (Daly) v Secretary of State for the Home Department at para [28], “context is everything”. And I readily accept that where the rights in issue are as important as those protected by Articles 3 and 5 a heightened degree of scrutiny will be necessary compared to what is appropriate where only Article 8 is in issue.
52.	The fact is that in the present context, just as that which Richards J was concerned with, Parliament has chosen to confer the relevant power on the Secretary of State: not on the Mental Health Review Tribunal, nor on the court, nor on anyone else. There is nothing in that which is in any way incompatible with the Convention. And my duty is to recognise the will of Parliament and not to seek to usurp a power which Parliament, compatibly with the Convention, has chosen to confer on an accountable minister rather than on an unaccountable judge.
53.	I was referred by Ms Grey to what the Court of Appeal said in R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840 at para [34]:
“In R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2002] 3 WLR 1276, it was made clear by the House of Lords that the court’s role is to exercise a function of supervisory review, rather than to engage in a merits review. As Lord Hutton states at para 70: “the question is whether the Secretary of State was entitled to certify that the appellant’s allegation was manifestly unfounded”, rather than “the substantive one whether the removal of the appellant to Germany would breach his human rights under article 3”. But the court, when reviewing the decision of the Secretary of State, is required to subject the decision to “the most anxious scrutiny” (Lord Hope para 58) and “rigorous examination” (Lord Hutton para 74).”
That seems to me, as Ms Grey submitted, to support the approach I propose to adopt.
54.	There is one final observation to be made. The Strasbourg court has made it clear that even when Article 5(4) is engaged, so that the legality of a detention is required to be reviewed by a “court”, the ambit of judicial review is limited. As the Court said in Reid v United Kingdom (2003) 37 EHRR 211 at para [64]:
“An arrested or detained person is entitled before such a court to a review of the “lawfulness” of his detention in light not only of domestic law requirements but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by para (1). This does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person subject to the type of deprivation of liberty ordered.”
55.	In his final submissions Mr Bowen, in fact, came very close to accepting Ms Grey’s approach. Faced with R (N) v M he accepted that the function was essentially one of review. He accepted, following Professor Jeffrey Jowell’s analysis in Judicial deference: servility, civility or institutional capacity? [2003] PL 592 at p 598, that the court is engaged not in a substantive “merits review” but rather, he suggested, in what Professor Jowell calls “constitutional review”. But he submitted that the court might still have to reach a decision on the merits. I do not go that far. I must address the central issues identified in Reid v United Kingdom, I must subject the Secretary of State’s decision to “the most anxious scrutiny” and I must rigorously examine all the evidence. In the course of that exercise I may have to form a view of my own on some matters of fact. But at the end of the day, as Richards J said, it is not for me to substitute my judgment for that of the Secretary of State. 
56.	The next issue is the test which is to be applied when judging whether the risk of future harm means that an action in the present amounts to a violation of Articles 3 and 5.
57.	Mr Bowen submits that the relevant question is whether there are “substantial grounds” for believing that there is a “real risk” of ill-treatment of such severity as to amount to a violation of Article 3. But that, as he acknowledges, is the test applied, both by the Strasbourg court (see Soering v United Kingdom (1989) 11 EHRR 439, paras [90]-[91], Cruz Varas v Spain (1991) 14 EHRR 1, paras [69]-[70], Chahal v United Kingdom (1996) 23 EHRR 413, paras [74], [80], D v UK (1997) 23 EHRR 423 and Bensaid v United Kingdom (2001) 33 EHRR 205, para [40]) and by our domestic courts (see R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840, paras [11], [24], [85], and R (Batayav) v Secretary of State for the Home Department [2003] EWCA Civ 1489, para [6]), in cases involving removal or expulsion to another State. Mr Bowen has been unable to point to any case, either at Strasbourg or in our domestic courts, in which that test has been applied in a purely domestic context. 
58.	On the contrary, the test propounded by Mr Bowen was explicitly disavowed in the domestic context by the Court of Appeal in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2003] 3 WLR 365. In that case the court was concerned with the circumstances in which the State’s failure to make provision for asylum seekers might drive them into circumstances of destitution so severe as to amount to a violation of Article 3. Amongst the questions the Court of Appeal had to consider was (see para [50]) “whether the “real risk” test that has been applied by the Strasbourg Court in relation to intended removal was applicable in the present context.” The Court of Appeal held that it was not:
“[61]	The passages from the judgment of Collins J to which we have referred above suggest that he considered that there will be a breach of Article 3 if the Secretary of State refuses permission to an asylum seeker where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty. The “real risk” test is one that Strasbourg has applied in the case of removal to a country in circumstances where the removing State will no longer be in a position to influence events.  We do not believe that it is an appropriate test in the present context.
[63]	Unlike Collins J we do not consider that the fact that there is a real risk that an individual asylum seeker will be reduced to this state of degradation of itself engages Article 3.  It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself.”
59.	So the relevant test is not whether there are substantial grounds for believing that there is a real risk that Convention rights will be violated. The test is whether it is clear that there will be such a violation, “will” here meaning that it is more likely than not that there will be a violation. I should add that this view perhaps receives some support from sections 6(1), 7(1) and, in particular, 8(1) of the Human Rights Act 1998, which show that the availability of a judicial remedy depends upon the court finding that the act (or proposed act) under challenge “is (or would be) unlawful” as being incompatible with a Convention right.   
60.	The final issue relates to the burden of proof. Founding himself on Barthold v Germany (1985) 7 EHRR 383, para [58], Herczegfalvy v Austria (1992) 15 EHRR 437, para [82], Rehbock v Slovenia (2000) November 28, para [72] and R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, paras [16]-[17], Mr Bowen submits that it is enough for the claimant to demonstrate a prima facie violation of Article 3 on the evidence: once he has done that, he says, the burden shifts to the Secretary of State to prove – to establish convincingly – that the proposed treatment will not give rise to a violation. He further submits that since, as he would have it, on the materials before the court the claimant has established a prima facie case, the court can resolve the dispute in favour of the claimant on the basis of the evidence already before it, but cannot resolve it against the claimant without further evidence. 
61.	I do not agree. With all respect to Mr Bowen he has misunderstood the authorities upon which he relies. All they show is that once it is demonstrated that some course of conduct will, in the absence of justification, amount to a violation of the Convention then it is for those who seek to rely upon such a justification to prove convincingly that it exists. Thus in Barthold v Germany, a case under Article 10, it was for those who sought to restrict freedom of expression to establish convincingly the necessity for such restriction. So in Rehbock v Slovenia, a case under Article 3 where the claimant alleged ill-treatment in the course of his arrest, it was for the state to demonstrate with convincing arguments that the use of force was not excessive. Likewise, as Herczegfalvy v Austria and R (N) v M show, in the case of an asserted medical justification. Once it is demonstrated that some course of conduct will, in the absence of some medical justification, amount to a violation of Article 3 then it is for those who seek to rely upon a medical justification to prove convincingly that there is a medical necessity for what is proposed. As the Court said in Herczegfalvy v Austria at para [82]:
“The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”   
62.	But it remains for the claimant to establish in the first place that the treatment to which he will be subjected will, absent justification, be such as to violate Article 3 or, as the case may be, Article 5.
The claim against the Secretary of State – the facts
63.	I turn to consider the factual basis for the challenge to the Secretary of State’s decision.
64.	The Secretary of State’s decision has, as Mr Bowen asserts, to be assessed against the claimant’s history since he was first imprisoned. Whilst in prison the claimant has spent long periods in segregation and in the prison’s health care centre. On occasions he has self-harmed and banged his head against his cell wall. On one occasion he swallowed a razor blade. He has, as we have seen, spent periods at the Norvic Clinic. As Mr Bowen would have it, the claimant’s condition is characterised by relatively rapid stabilisation following the administration in hospital of anti-psychotic drugs followed by a rapid deterioration upon being returned to prison. And, says Mr Bowen, on each occasion the claimant has been returned to prison and deteriorated, his readmission to hospital has taken many months to achieve. This cycle of admission and readmission, says Mr Bowen, will almost certainly continue unless he remains in hospital and receives longer-term treatment for his mental disorder.
65.	Part of the picture painted by Mr Bowen is, I do not doubt, entirely accurate. But not all of it. True it is that the claimant’s admission to the Norvic Clinic on 8 August 2000 occurred almost two years after a visiting psychiatrist had on 19 August 1998 recommended his transfer to hospital. That delay, on the face of it, is utterly lamentable. But following his return to prison on 4 January 2001 almost two years passed before he relapsed, and a visiting psychiatrist’s recommendation on 28 March 2003 that he should be transferred back to hospital was implemented within a month: he was returned to the Norvic Clinic on 23 April 2003. So the picture of the claimant’s life in prison is not so bleak as Mr Bowen would have it.
66.	The most important of the materials considered by the Secretary of State in arriving at the decision set out in his letter of 31 October 2003 were reports from the RMO, Dr Shetty, and from Dr Henrietta Bullard, a Consultant Forensic Psychiatrist who has known the claimant since she first examined him in 1996.
67.	I have already set out in paragraph [4] above what the RMO said in his letter of 8 October 2003. That letter, as we have seen, referred to an earlier report he had written. It was dated 27 August 2003 and in it the RMO had said:
“It is likely that [the claimant] will require further input from this service at a future date in terms of rehabilitation back into the community. It is of course also possible that his mental health will deteriorate especially if he defaults on medication, requiring further treatment in hospital. In either case we are willing to be involved.”
68.	The Secretary of State also had in front of him two reports from Dr Bullard. In the first, dated 20 October 2003, she said:
“[The claimant] suffers from a mental disorder, namely mental illness (Paranoid Schizophrenia F20.0) and psychopathic disorder (Emotionally unstable personality disorder with both impulsive and borderline traits F60.3 and F60.31) and his mental disorder is of a nature and degree which makes it appropriate for him to receive medical treatment in a hospital; and in the case of psychopathic disorder such treatment is likely to alleviate and prevent a deterioration of his condition; and it is necessary for his health and safety and for the protection of other that he should receive such treatment …
Persons, such as [the claimant], who suffer from serious and endangering mental illness (with or without a personality disorder) and are also subject to life sentences are subject to double jeopardy. They cannot be released on life licence because they are mentally ill and unstable; and if transferred to hospital they cannot be conditionally discharged and when recovered are returned to prison only to become ill again. They are ineligible for rehabilitation because of their status as life sentence prisoners. This is an invidious and unjust state of affairs and the Home Office has recognised this and can change the status of a life sentenced prisoner to that of a “technical life sentence” where-by the prisoner is treated as if he was subject to a hospital order together with a restriction order. The clinical team is then able to offer the patient the treatment and rehabilitation he needs and make appropriate recommendations concerning conditional discharge …
In conclusion I am recommending that [his] case be reviewed by the Mental Health Review Tribunal before a decision is made to return him to prison and that the Home office make him a technical life sentence prisoner. ”
69.	In the second, dated 22 October 2003, she said:
“[The claimant] suffers from a serious personality disorder and paranoid schizophrenia. At the time of the offence he was isolated, paranoid and disturbed. It was in the context of an un-treated mental illness that he killed his brother. He has not done well in prison although he has been compliant with anti-psychotic medication. He cannot participate in the lifer programme and remains in closed conditions as he approaches tariff. He spends long periods in segregation and in the Health Care Centre. He has self-harmed and bangs his head against his cell wall. On one occasion he swallowed a razor blade and was removed to the segregation unit for adjudication.
Prisons cannot cope with severely disordered inmates and [he] should be in hospital. His treatment needs to be given in a therapeutic environment where he is not punished for erratic and disturbed behaviour. At the moment he is in a Catch 22 situation. He is mentally disturbed in prison because he is mentally ill and therefore has no prospect of release on licence; and he cannot be conditionally discharged from hospital because he is a life sentenced prisoner and when he is deemed not to require treatment for mental illness in hospital, he is returned to prison where his illness relapses within weeks.
I agree with Dr Shetty about the diagnosis but not about his management of this case. I accept that [the claimant] improves in hospital and that treatment with Clozapine has been successful in ameliorating his psychotic symptoms. I am also aware that, because of his emotionally unstable personality disorder together with a long-standing largely un-treated mental illness and having spent seven years in prison, he is difficult to motivate and refuses to precipitate in the ward programme. This is a therapeutic challenge which can only be successful undertaken with the support of a dedicated clinical team. There is no possibility that [he] can receive any effective treatment in prison.
As a detained patient under the Mental Health Act, [he] is entitled to psychiatric supervision when he leaves hospital and is returned to prison. However, he has not had six monthly CPA reviews since he was discharged from hospital on the 8 January 2001. What actually happens is that he goes back to prison, his illness relapses and he is re-admitted to the Norvic Clinic after waiting up to seven months for a bed.
Opinion
[He] suffers from an enduring mental illness and severe personality disorder. He is likely to require treatment is hospital as a detained patient for many years. He needs slow rehabilitation through medium security followed by continuing care in a ward for the chronically mentally ill. He would benefit from all aspects of a rehabilitation programme; none of which is available in prison.
The risk [he] poses can only be assessed in hospital.”
70.	Dr Shetty responded in a letter dated 24 October 2003:
“This is [his] second admission to the Norvic Clinic and from my clinical observations I am not persuaded that he has a “persistent disorder or disability of mind which has resulted in abnormally aggressive or seriously irresponsible conduct” during that time. I am also not persuaded that treatment at the Norvic Clinic is likely to alleviate or prevent a deterioration of his condition.
As far as his mental illness is concerned, as I have stated in my previous reports [he] is currently well and compliant with medication. There have been no episodes of violence or self-harm of note during the current admission.”
71.	It was on the basis of these differing views that the Secretary of State came to the decision in his letter of 31 October 2003, the relevant parts of which I have set out in paragraph [5] above.
72.	Ms Grey submits that the Secretary of State was fully entitled to accept the RMO’s view in preference to that of Dr Bullard and to reach the conclusion – which she invites me also to reach – that the analysis of the claimant’s needs given by his care team at the Norvic Clinic was the more balanced.
73.	I agree. In my judgment the Secretary of State was entitled, where they conflicted, to prefer the unanimous views of the RMO and his team to Dr Bullard’s views. He was entitled to accept and, if he thought fit, to act on the RMO’s recommendation. The RMO’s letter of 8 October 2003, when read in conjunction with all the other materials before the Secretary of State, was in my judgment more than sufficient to justify the Secretary of State in concluding, as he did, that the claimant, in the sense in which these words are used in section 50(1) of the Act, no longer requires treatment in hospital for mental disorder and that the remittal of the claimant to prison would violate neither his rights under Article 5 nor his rights under Article 3.  
74.	I should add that the Secretary of State was, in my judgment, entitled to pay particular regard to the views of the RMO and his team, as those specifically charged with the claimant’s care: see R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, para [38]. 
75.	The Secretary of State had to consider, just as I also have to consider, three questions:
i)	Does the claimant any longer require treatment in hospital for mental disorder? – the section 50(1) question.
ii)	Does the claimant’s mental condition continue to be such as to warrant his compulsory confinement in a suitable therapeutic environment other than a prison? – the Article 5 question.
iii)	If the claimant is remitted to prison is it more likely than not that he will suffer treatment at the hands of the prison authorities so damaging to him as to amount to inhuman or degrading treatment within the meaning of Article 3? – the Article 3 question.
Questions (i) and (ii) raise issues of what Pill LJ called treatability, which are to be determined on the basis of objective medical expertise – in the case of question (i) the clinical judgment and clinical opinion of the RMO if the Secretary of State chooses on proper grounds to accept his opinion. Question (iii) raises wider issues, though as the case is put by Mr Bowen they are still bottomed on essentially medical issues: the likelihood of a relapse, the severity of any symptoms the claimant will suffer if he does relapse, and the need for and appropriate form of any future medical treatment in the event of a relapse.
76.	Given the potential engagement of Articles 3 and 5 the Secretary of State must subject each of these questions to the most anxious scrutiny, just as I, in turn, must subject his decision to the most anxious scrutiny. In my judgment the letter of 31 October 2003 shows that he did just that. The Secretary of State must rigorously examine all the evidence, just as I must. Again, the letter of 31 October 2003 shows in my judgment that he did just that.
77.	If it once be accepted – and I do – that the Secretary of State was entitled to accept and act upon the RMO’s clinical advice, then the answers to questions (i) and (ii) followed as of course. So too in large measure did the answer to question (iii). Having accepted the RMO’s clinical advice it was in my judgment quite plainly open to the Secretary of State to conclude that a remittal to prison would not violate the claimant’s rights under either Article 5 or Article 3 and, equally plainly, open to the Secretary of State to decide to exercise his discretionary power under section 50(1) as in the event he did.
78.	Further medical evidence has been prepared since the Secretary of State first made his decision. The RMO’s colleague, Dr Hadrian Ball, has prepared witness statements dated 28 November 2003, 2 December 2003 and 3 December 2003; Dr Bullard has prepared a witness statement (in effect a further report) dated 2 December 2003.
79.	Dr Ball agrees that the claimant may relapse in prison but opines that:
“It is highly unlikely that any such relapse would be life threatening or would have significantly adverse consequences for the claimant’s health or well being given that he will be under the immediate care and attention of the prison services and the visiting psychiatric services … it is very unlikely that any relapse would be untreated for any significant length of time, or have any deleterious effect on his long-term health or well-being.”
However, he acknowledges that he has had no direct contact with the claimant since 1997 and that his knowledge of the claimant and his situation is limited. I therefore attach little weight to his evidence. 
80.	Dr Bullard’s statement is much more important for she was asked to consider two specific questions:
i)	What is the likelihood of the claimant’s mental illness (paranoid schizophrenia) relapsing if he is returned to prison?
ii)	What are the consequences of a relapse for the claimant?
Her answer to the first question is clear and stark. In her opinion the prospects of the claimant relapsing if he returns to prison are “almost 100%”. Her answer to the second question is that the claimant’s acts of self-harm and aggression “are likely to be more frequent and to have more serious consequences”, that there is “the possibility that he will not respond to treatment” and that if he relapses “it may be many months before [he] receives appropriate treatment, in particular another transfer back to a psychiatric hospital.”
81.	She adds these further observations which I think I should set out in full:
“First, [his] active delusional symptoms would be subjectively very distressing. In my opinion those symptoms are so severe that to allow him to suffer a relapse when the means are available to prevent him so suffering could be described as “inhuman” or “degrading”, particularly if after a relapse he were to suffer those symptoms for many months.
Second, [his] self-harming and aggressive behaviour, which is a symptom of his underlying personality disorder, increases in frequency and intensity when his mental illness deteriorates.
Third, the likelihood of [his] mental illness (schizophrenia) relapsing in prison so that he again suffers those symptoms is extremely high: in my view, almost 100%  If it does so he will need to be transferred back to hospital. That process is likely to take many months, if not years, as it has in the past.
Fourth, [he] suffers from a mental illness and mentally ill “lifers” who also have a personality disorder and cannot cope with prison do not stand any chance of release. It would be reasonable if the doctor responsible for managing this patient’s care accepted that the best chance for this patient to remain mentally well is for him to be in hospital and his treatment planned over years. To continue to detain him in prison where the prospect of release is held out to him by regular parole board reviews but when, in fact, such a prospect is wholly illusory is, in my view, quite wrong and could be described as “inhuman”.”
82.	Mr Bowen submits that Dr Bullard’s various reports establish a prima facie case that to remit the claimant to prison will be a violation of Articles 3 and 5 and that the evidence relied on by the Secretary of State does not discharge the burden which is on him of showing that there will be no violation. That, as I have already said, is not the test. He also submits that to transfer the claimant back to prison while he continues to suffer from mental illness and in circumstances where he is almost certain to relapse into psychosis, and where the combination of his mental illness and his personality disorder means that he is likely to spend considerable periods in segregation, particularly once his mental illness relapses, violates both Article 3 and Article 5.
83.	As Ms Grey points out, the main thrust of the claimant’s case is related to his fear that he will deteriorate if returned to prison and his concerns that, if he relapses, he will not receive either timely or effective treatment there and that he will be delayed in his return to hospital. There are, she says, inevitable uncertainties concerning the possibility of a deterioration or relapse, their management by the prison authorities, the severity of any symptoms suffered during such a period and the management of any transfer back to hospital. She submits that, properly analysed, and even taking it at its highest – that is, accepting Dr Bullard’s evidence at face value and ignoring all the evidence that points the other way – the claimant’s case still falls short of establishing any violation of either Article 3 or Article 5. It is, she says, to a large extent speculative.
84.	Moreover, says Ms Grey, Dr Bullard’s evidence assumes that the claimant will almost inevitably suffer a relapse, ignores the evidence that relapse may occur even in hospital conditions, and ignores the facilities which are available within the prison system to maintain the claimant’s medication (including Clozapine) and monitor his condition. Relapse per se would not, she says, lead to a breach of Article 3. There cannot be an absolute duty to prevent a relapse. The key issue is, rather, what the response would be to a relapse. On that, she says, there is no reason on the evidence for me to conclude other than the claimant will be properly monitored in prison and remitted back to hospital if his medical condition deteriorates so that he again, unlike at present, requires hospital care. 
85.	More fundamentally, she says, Dr Bullard’s evidence fails to engage with the issue of whether hospital is a suitable and appropriate place for the detention of a patient whose mental illness is in remission and who refuses to engage with any form of therapy. On one view, she says, Dr Bullard seems to come close to asserting that the claimant should be required to stay in hospital simply to ensure that he takes his medication, something that Dr Ball understandably, as it seems to me, characterises as “not a realistic scenario”.
86.	Ms Grey submits that the fundamental obstacles in the claimant’s case are:
i)	the nature of his condition, which is such that his treating doctor, the RMO, does not consider that he presently requires hospital treatment; and
ii)	the fact that there is no contradiction between the view that the claimant should presently be returned to prison and the possibility that he may suffer a relapse requiring further treatment in hospital. 
There is, she says, no credible evidence to suggest that the claimant’s medication – his use of Clozapine – cannot be effectively monitored at HMP Cardiff or elsewhere within the prison system, or that, if the need arises, he will not be returned to hospital.
87.	As Ms Grey points out, what the claimant has to demonstrate for the purposes of Article 3, and demonstrate clearly if he is to meet the legal test I have identified, is that, following a transfer back to prison,
i)	there will be a relapse;
ii)	the treatment provided in response will be inadequate; 
iii)	as a consequence severe suffering will occur; such that
iv)	having regard to all these matters, there will be a violation of Article 3 unless it is prevented now.
88.	That, she says, the claimant simply cannot establish, even on Dr Bullard’s evidence. Nor, she says, can he establish that the Secretary of State should have come to that conclusion.
89.	I agree with Ms Grey. Even if one takes Dr Bullard’s evidence at face value and ignores all the evidence that points the other way, the claimant simply cannot demonstrate that there will be any violation of his rights under either Article 5 or Article 3. Let it be assumed for the sake of argument that Dr Bullard is correct in asserting that a relapse is an almost 100% probability. That is not enough to get the claimant home, for as Ms Grey rightly says a relapse per se would not lead to a breach of Article 3. The critical question is not so much whether the claimant will suffer a relapse (important though that question plainly is) but rather whether the consequences of a relapse will – will not may – be such as to constitute a breach of Article 3. And in relation to that question Dr Bullard’s evidence is, understandably, much more circumspect: her language is that of possibilities and of what may happen, nor what will happen.
90.	Reviewing the matter at the end of the day in the light of all the evidence, and subjecting the matter to the most anxious scrutiny, it seems to me, as it seemed to the Secretary of State, that he was, and is, entitled to take the view that he can and should exercise his powers under section 50(1) by directing the remittal of the claimant to prison. Similarly, and having given the matter the most anxious consideration, I conclude that the claimant’s challenge fails insofar as he asserts violations of Articles 3 and 5. Even taking Dr Bullard’s evidence at face value, the claimant has failed to establish – and for the reasons I have given it is for him to establish – either (i) that his return to prison will of itself violate either Article 5 or Article 3 or (ii) that if returned to prison he will in future be subjected to inhuman or degrading treatment in breach of Article 3.
91.	Accordingly the claimant’s case against the Secretary of State fails and must be dismissed.    
Further evidence
92.	Mr Bowen submitted that the matter should be adjourned pending:
i)	the obtaining of certain further information (all the medical reports prepared when the claimant was sentenced; the inmate medical records from the various prisons in which the claimant has been detained, including all the reports of the visiting prison psychiatrists who have assessed him; and all the medical records at the Norvic Clinic, including the CPA Care plans, if any, provided at the time of his discharge back to prison in January 2001); and
ii)	arrangements being made for the attendance for cross-examination of the RMO, Dr Ball and Dr Bullard. 
I do not agree.
93.	In large measure Mr Bowen’s reasons for adopting this approach reflected what I have already said was his erroneous submission that since, as he would have it, the evidence establishes a prima facie case that to remit the claimant to prison will be a violation of Articles 3 and 5, and since the evidence relied on by the Secretary of State does not discharge the burden of showing that there will be no violation, the matter cannot be resolved against the claimant without further evidence. That, as I have said, is neither the correct approach nor, in any event, an approach justified on the facts. The evidence does not, in my judgment, establish even a prima facie case against the Secretary of State.
94.	The principles to be applied in deciding whether or not to direct the hearing of oral evidence and cross-examination are now to be found in R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, esp at paras [36]-[39], where the Court of Appeal emphasised that cross-examination should be ordered only if this was “necessary” to enable the court to determine any factual disputes for itself and that, even where there were disputed issues of fact and opinion, “it should not often be necessary to adduce oral evidence with cross-examination”. The court made it clear that R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, should not be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. As the court went on to observe at para [41],
“there is nothing in the Strasbourg jurisprudence to indicate that, even in a case where the question whether there has been a violation of a Convention right depends on disputed issues of fact or expert opinion, article 6 requires those issues to be determined by oral evidence.”
95.	The factual issues which Mr Bowen seeks to explore in oral evidence are revealing: the most important topics are, he says, the likelihood of the claimant’s mental illness relapsing if he is returned to prison, the severity of the symptoms he is likely to suffer if there is a relapse, the extent and degree to which his acts of self-harm and/or aggression will increase in the event of a relapse, the prospects of an appropriate response being made to such a deterioration by prison staff, and the likelihood that his behaviour will (as in the past) be treated as a disciplinary issue rather than a health issue, thus leading to prolonged periods of segregation. The dispute between the RMO and Dr Bullard, he says, can only be resolved by the calling of oral evidence.
96.	In other words, what Mr Bowen seeks to explore – no doubt through many hours of oral evidence, for the documentation is already substantial – is in fact the whole range of factual issues going not merely to the claimant’s clinical prognosis but also to his entire clinical history since 1996.
97.	As Ms Grey correctly observed, cross-examination is not “necessary” simply because there are competing clinical opinions. It is, as she rightly says, no more necessary for the court to conduct such an exercise than it was for the Secretary of State as the primary decision-maker. 
98.	I agree. And in my judgment there are no good grounds for allowing an adjournment to obtain further documents which are, as it seems to me, most unlikely to assist: both the Secretary of State and the court, as Ms Grey points out, have had extensive evidence from those with current clinical experience of the claimant summarising the position following contact with the claimant over a number of years.
99.	In my judgment no useful purpose will be served by taking either of the steps proposed by Mr Bowen. 
The court has made an order in this case restricting disclosure, or reporting, of the identity of the claimant.  Anyone to whom a copy of this judgment is supplied, or who reads it in whatever circumstances, is bound by that order, details of which may be obtained from the clerk of the court.