Strand, London, WC2A 2LL
B e f o r e :
| South West Yorkshire Mental Health NHS Trust
|Bradford Crown Court
Secretary of State for the Home Department
Mr Kris Gledhill (Instructed by Switalskis Solicitors) for the Interested Party
Mr Martin Chamberlain (instructed by Treasury Solicitors) for the Defendant
Mr. David Perry & Mr. Nigel Giffin for the Secretary of State for the Home Department -Interested Parties
Hearing dates : 9 & 16 December 2002 & 13 February 2003
Crown Copyright ©
Mr Justice Newman :
"(2) Subject to subsection (3) below, the Court shall either -
(a) make an order that the accused be admitted, in accordance with the provisions of Schedule 1 to The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to such hospital as may be specified by the Secretary of State; or
(b) where they have the power to do so by virtue of section 5 of that Act, make in respect of the accused one of the following orders as they think most suitable in all the circumstances of the case,....."
Schedule 1 to the 1991 Act to which Mr Justice Goldring's attention was drawn, provides as follows:
ORDERS FOR ADMISSION TO HOSPITAL
1.----- (1) An admission order, that is to say, an order for
admission to hospital made—
(a) by a Crown Court under section 5 of the 1964 Act; or
(b) by the Court of Appeal under section 6, 14 or 14A of the 1968 Act, shall be sufficient authority for any person acting under the authority of the Secretary of State to take the person to whom the order relates and convey him at any time within the relevant period to the hospital specified by the Secretary of State.
(2) The court by which any such order is made may give such directions as it thinks fit for the conveyance of a person to whom the order relates to a place of safety and his detention there pending his admission to the hospital within the relevant period.
(3) Where a person is admitted within the relevant period to the hospital specified by the Secretary of State, the admission order shall be sufficient authority for the managers to detain him in accordance with the provisions of the 1983 Act referred to in paragraphs 2 and 3 below, as those provisions apply by virtue of those paragraphs.
(4) The relevant period for the purposes of this paragraph is—
(a) in relation to an admission order made otherwise than under section 14A of the 1968 Act, the period of two months;
(b) in relation to an admission order excepted by paragraph (a) above, the period of seven days, beginning (in either case) with the date of which the order in question was made."
The Judge's attention was drawn to paragraph 2 on the Schedule which provides:
"2.-(l) A person who is admitted to a hospital in pursuance of an admission order made otherwise than under section 14A of the 1968 Act shall be treated for the purposes of the 1983
(a) as if he had been so admitted in pursuance of a hospital order within the meaning of that Act made on the date of the admission order; and
(b) if the court so directs, as if an order restricting his discharge had been made under section 41 of that Act, either without limitation of time or during such period as may be specified in the direction.
(2) Where the offence to which the special verdict, findings or appeal relates is an offence the sentence for which is fixed by law, the court shall give a direction under sub-paragraph (1) (b) above without specifying any period."
It is material to point out that Schedule 1 contains also paragraph 4(1)
"4.—(1) If while a person is detained in pursuance of an admission order made by virtue of section 5(l)(b) of the 1964 Act (findings of unfitness to plead etc.), the Secretary of State, after consultation with the responsible medical officer, is satisfied that that person can properly be tried, the Secretary of State may remit that person for trial either—
(a) to the court of trial; or
(b) to a prison; or
(c) to a remand centre provided under section 43 of the Prison Act 1952;
and on his arrival at the court, prison or remand centre, the order shall cease to have effect."
"In other words your Lordship having made the admission order is obliged by statute to impose that it should be without restriction of time under section 41."
But Mr Lawler then stated:
"Now, my Lord, the only qualifications to this that I have been able to discern are first of all that I take your Lordship, please, to page 756 of Archbold..........and to The Crime (Sentences) Act 1997 section 47. Now this appears to me to enable your Lordship to specify the hospital to which the defendant can go. Because under section 47, where there is a power, as here, under 47 (i) (d) you have the power to specify the hospital unit where he should go to. In other words Parliament is giving the judge who has heard the case the power to send to the hospital that he, no doubt on the evidence which he has heard, thinks is appropriate. So, in other words, it is a substitution of the Secretary of State's power as I understand it.
And so your Lordship can in fact - if you go back to my note -you can in fact direct, if you think it right, that the defendant should be taken forthwith to the Newton Lodge Regional Secure Unit.
Of course, thereafter, if for example the Secretary of State, in consultation with the doctors, should decide that the defendant should go somewhere else, there are other provisions, as I understand it, which will enable his transfer within the system, but that at least gives your Lordship the power."
"As I observed when speaking to the jury, it is a very sad case. I am going to make the only order that I can in the circumstances, I order that you be admitted to a hospital - I am going to specify that hospital, it is Newton Lodge Regional Secure Unit in Wakefield - where a bed is immediately available and I order that you be conveyed there immediately."
"to give such directions as it thinks fit for the conveyance of a person to whom the order relates to a place of safety and his detention there pending his admission to the hospital within the relevant period."
The relevant period is two months.
1) It recorded that the defendant had been convicted of murder.
2) It recorded that the court had ordered "that within 28 days from the date of this order that the defendant should be admitted to and detained in a hospital, namely Newton Lodge Regional Secure Unit, and that the defendant should be conveyed to that hospital by Mr John Wiggins."
3) It recorded that the court further ordered that the defendant should be subject to the special restrictions set out in section 41 of the Mental Health Act 1983.
1) Mr A was admitted to Newton Lodge and the NHS Trust (the claimant) believed that the admission was under section 37 and 41 of The Mental Health Act 1983.
2) the Secretary of State also believed that Mr A was detained under sections 37 and 41 of the Mental Health Act 1983.
3) At no time did the Secretary of State designate a hospital as Schedule 1 to the 1991 Act requires
4) The misapprehension on the parts of both the Trust and the Secretary of State as to the basis of Mr A's detention was not identified until April 2002. By then it was not possible for the Secretary of State to specify the hospital to which Mr A should be admitted as the period of two months from the date of the order had passed.
5) An attempt to resolve the problem was made by Bradford Crown Court. It issued a form of amended order on 18 April 2002, purporting to be an order for admission to hospital in appropriate terms. It was dated 28 February 2001 and carried the signature of an officer of the court and was endorsed as "an amended order reissued on 18 April 2002". For reasons which will be apparent from this judgment this form of order is a nullity and can have had no effect.
6) Since 29th April 2001, being the expiry date of the two month period during which a hospital could and should have been specified by the Secretary of State, there has been doubt as to the true basis of Mr A's detention.
7) In order to ensure that Mr A was lawfully detained, on 13 May 2002 the Trust accepted an application to detain Mr A under section 3 of the Mental Health Act 1983.
1) it is clear Mr A is potentially very dangerous;
2) there is a need for the lawfulness of his detention between 29 April 2001 and 13 May 2002 to be clarified;
3) there are grounds for public concern given that the true intention of the court was that Mr A should be detained with appropriate restrictions as set out in the Mental Health Act 1983 and applied to detention under the 1964 Act as amended by the 1991 Act (see paragraph 2(1) of Schedule 1). The court was required to direct that Mr. A be detained subject to restrictions. Such restrictions include the requirement that the Secretary of State consents to any leave under section 17 of the Mental Health Act 1983, that the Secretary of State consents to any discharge of the patient under section 23 of the Mental Health Act 1983, that the Mental Health Review Tribunal has the power to order a conditional discharge, deferred if necessary, under section 73 of the Mental Health Act 1983, and that there is a power on the Secretary of State to recall the patient after he is conditionally discharged, under section 42 of the Mental Health Act 1983.
The Proceedings for Judicial Review
i) What was the effect of the order made by Mr Justice Goldring on 28 February 2001
ii) What was the status of Mr A's detention following the order dated 28 February 2001 in the following periods:
a) 28 February - 28 April 2002;
b) 28 April 2001 - 13 May 2002;
c) 13 May 2002-to date?
i) What steps (if any) should the Secretary of State have taken in the light of the order made by Goldring J. ?
ii) What consequences flow from the omission/failure by the Secretary of State to take any such action ?
iii) Does the court have any jurisdiction to grant relief having regard to section 29 (3) of the Supreme Court Act 1981 ?
iv) What relief (if any) should the court grant having regard, in particular, to the public interest ?
Mr A's position
i) That the Secretary of State for the Home Department should have been aware
that the court had no jurisdiction to make a section 37/41 Mental Health Act Order. He submits that in failing to designate a hospital in the two month period, there was a culpable failure on the part of the Secretary of State for the Home Department.
ii) That the claimant was under a duty to ensure that the basis for Mr A's detention was carefully looked at and to act with expedition. In the circumstances it had failed in both respects and should not be granted any relief at the discretion of the court. Further, that there was no need, from the point of view of the protection of the public, for the order to be quashed and for a fresh order to be made because Mr A is now detained under the civil provisions of the Mental Health Act 1983.
1) The order of Goldring J took effect so as to admit Mr. A to Newton Lodge Regional Secure Unit without limit of time. His order had to be obeyed.
2) At all material times Mr. A had been detained pursuant to the Judge's order
3) It would have been open to the Secretary of State to have specified a hospital within 2 months of the 28th February 2001, but he was not notified of the proceedings until 28th April 2002. By then he had no power to do so.
4) The consequence of the Secretary of State not having done so is that Mr. A has been detained pursuant to the order of Goldring J.
5) The Court has jurisdiction to grant relief. Section 29(3) of the Supreme Court Act 1981 does not apply to orders under the 1964 Act.
6) The Court should quash the order of Goldring J. No particular order is required in connection with the order under section 3 Mental Health Act 1983. It has had no effect.