QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF MARGARET HAGGERTY and Others
|- and -
ST. HELENS COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss. Fenella Morris (instructed by The Solicitor, St. Helens Council) for the defendant
Crown Copyright ©
Mr Justice Silber:
"The application and the application for interim relief are wholly misconceived. Southern Cross has decided to close the home and evict the residents on 31 March, the Council has to respond to that situation. I can see no error of law in the Council's decision-making process as explained in the Council's letter dated 17 February 2003. Southern Cross has not challenged the Council's decision. This challenge appears to be an attempt to put indirect pressure on the Council to negotiate improved commercial terms with Southern Cross".
The background to the dispute
The Legal Framework
(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;
(c) the preferred accommodation is available;
(d) the person in charge of the preferred accommodation provide it subject to the authority's usual terms and conditions … (paragraph 3).
(a) Was the decision of the Council not to enter into a contract on the terms sought by Southern Cross amenable to judicial review either on public law or human rights grounds? ("the judicial review amenability issue") (paragraphs 20 – 26 below)
(b) Have the claimants' rights under Articles 2, 3 and 8 of the ECHR been infringed? ("the human rights challenge issue") (paragraphs 27 – 61 below)
(c) Was the Council's decision irrational as it failed to take into account relevant considerations? ("the public law challenge issue") (paragraphs 62 – 82 below)
A The Judicial Review Amenability Issue
(i) The ECHR challenge
(ii) Public law challenges
B) The Human Rights Challenge Issue
The right to life – Article 2
"The court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual".
"The degree of risk described as "real and immediate" in Osman v. United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was "a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party" which was, or ought to have been, known to the authorities: p305 para 116. Such a degree of risk is well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself" .
The views of the claimants' General Practitioners
Report of Professor David Jolley
Prohibition against degrading treatment and physical integrity – Article 3
(i) the facts constituting violation must be proved beyond a reasonable doubt, but it may be proved by inferences or unrebutted presumptions of fact" (Ireland v. United Kingdom (1978) 2 EHRR 25 )
(ii) deterioration in the mental health of a person is capable of constituting inhuman or degrading treatment if it reaches the appropriate level of severity. In Aerts v. Belgium ((2000) 29 EHRR 50), the European Court did not uphold a finding by the Commission of an Article 3 breach because of the acute anxiety caused by the claimant's conditions or detention expressly on the basis that "there is no proof of deterioration of [the claimant's] mental health" 
(iii) the test to be applied before finding a breach of Article 3 is becoming stricter and significantly the Strasbourg court has observed that:-
"having regard to the fact that the Convention is a "living instrument which must be interpreted in the light of present day conditions", the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view 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" (Selmuni v. France (2000) 29 EHRR 403 ).
(iv) the kinds of ill-treatment which fall within the scope of Article 3 are very serious as "the [Strasbourg] Court's case law refers to ill-treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering" (Pretty v. United Kingdom (2002) 35 EHRR 1  with my emphasis added).
Article 8 - Right to physical integrity and respect for home and family life
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and necessary in a democratic society in the interests of national security, public safety for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others".
C The public law issue challenge
"To be proper, consultation must be taken at a time when proposals are still at a formative stage; it must include sufficient reasons for the particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the produce of consultation must be conscientiously taken into account".
Matters which should have been, but were not, considered by the Council
Professor Jolley's Report
The Cowl Report
The claimants' new point submitted after the oral hearing
A further possible obstacle to granting relief?
MR JUSTICE SILBER: I am grateful to counsel for their helpful comments on the judgment. I do not know if you have had an opportunity of considering what I say in the last paragraph of my judgment.
MR SKILBECK: My Lord, I spoke to my learned friend outside court and perhaps she can outline the steps that have been taken so far.
MS MORRIS: My Lord, just to clarify precisely what consultants there are currently. There are two consultants in old age psychiatry who have so far been advising the team, a Dr Lindon(?) and a Dr Theopolis(?).
MR JUSTICE SILBER: They have been advising who?
MS MORRIS: They have been advising the multi-disciplinary team which is concerned with the arrangements for the move. However, further to that, what we have discussed with Mr Skilbeck is that Professor Jolley is invited to have some telephone contact with Julian Wakefield of Social Services to see if there are any additional contributions that Professor Jolley could make to the insights of the consultants who have already been instructed, and we could consider those and take them on board where appropriate. As I understand it, Professor Jolley is retired from the end of March and therefore is not, perhaps, in as active practice as he has been.
MR JUSTICE SILBER: That probably means that he has more time available. Perhaps he is taking a well-earned holiday.
MR SKILBECK: Those instructing me attempted to contact him yesterday, and, in fact, were not able to get through on the usual number. So it does appear that he has to some extent withdrawn in that respect. We will contact him, certainly, the week after, but at the moment we cannot get in contact.
MR JUSTICE SILBER: The way forward is to have a system by which you put forward somebody who can liaise, and whose views will be taken into account. What I would have in mind would be if some agreement could be reached about some structure for dealing with this.
MS MORRIS: My Lord, we are quite happy to write a letter saying, "Please give us Professor Jolley's details and a date and a time when we could contact him". If Professor Jolley is not happy to participate, we do know that there is another local professor of psychiatry, a geriatrician who specialises in dementia, a Professor Wilson, and we would be quite happy to consult with her or him, should that be of assistance or give an insight. It seems to me that perhaps we should write a letter saying, "Please give us Professor Jolley's details so that he can have contact with Mr Wakefield". Failing that, we will consult with Professor Wilson.
MR JUSTICE SILBER: Mr Skilbeck, you were taking instructions?
MR SKILBECK: Yes, I was listening with both ears. I was just discovering whether we knew that individual. We have no knowledge.
MR JUSTICE SILBER: Shall we just think of a system by which St Helens will agree to liaise with Professor Jolley, or any other suitable -- how do you describe these people? Are they psychiatric geriatricians?
MS MORRIS: I think the common term now is "consultant in old age psychiatry".
MR JUSTICE SILBER: So St Helens will liaise with Professor Jolley, or a suitable consultant in old age psychiatry, on the best ways of moving the claimants. Shall I give you liberty to apply if there are difficulties in respect of that?
MR SKILBECK: Yes, that would be --
MR JUSTICE SILBER: I am available next week. As I regard this case as sufficiently important, I will come in during the vacation if there is a problem.
MS MORRIS: My Lord, if there was liberty to apply, I would be grateful if it would specify that it would be, for instance, on 48 hours' notice.
MR JUSTICE SILBER: On notice, and then we can see how it works out. So liberty to apply on notice, to me if available. Shall we put it that way? Certainly, as I say, I am very, very conscious that the interests of the claimants should be looked at systematically. In coming to this, I have actually built on what your solicitors put in the claim form, and I think also what happened in a case concerning Lancashire Council.
MR SKILBECK: I think Professor Jolley had been involved in that, which may be why he is otherwise engaged.
MR JUSTICE SILBER: But apart from that, I think the order is that the application is dismissed. Thank you very much.
MR SKILBECK: My Lord, there is an application for permission to appeal with regard to the issue of the test applied for the engagement of Article 2 in circumstances such as these. In particular, the aspect of the claim suggests that there should be expert evidence on behalf of the council prior to the decision being made.
MR JUSTICE SILBER: There should be?
MR SKILBECK: Yes, which was an aspect of this claim. It is really to do with the evidential basis.
MR JUSTICE SILBER: I think the difficulty for you is that the burden of proof on this is on you, so you need to put the evidence in to show the infringement of it. I was very -- as I hope came over during the hearing -- sympathetic to their position, but the evidence from your side simply was not there.
MR SKILBECK: It is to do with the test as applied (inaudible) there be an immediate risk in cases such as that, and your Lordship has clearly interpreted it in the judgment in a certain way for these facts, and it would be on the basis of that level of engagement for Article 2 in a case such as this (inaudible) required to be subject to review in the Appeal Court. That is accepted.
MS MORRIS:: My Lord, I say that this is not an appropriate case for the court to grant permission to appeal. There is a very clear judgment upon the facts of this case. I do not discern there to be a point of law which either has the necessary prospect of success or the necessary public interest which might exceptionally make the grant of permission to appeal appropriate.
MR JUSTICE SILBER: Is there anything more you want to say?
MR SKILBECK: No, my Lord.
MR JUSTICE SILBER: I have very great sympathy for the claimants in this case, but I have no hesitation in refusing permission. There was totally inadequate evidence on the issue of Article 2 to suggest that there was any infringement likely. But in any event, even if there had been, the fact that the council is now agreeing to liaise with Professor Jolley, or a suitable consultant in old age psychiatry, on the best ways of achieving a move for the claimants would be a further reason as to why permission to appeal has to be refused in this case. It is very much in the interests of the claimants for the views to be -- the way in which the claimants can be moved to be put forward by their consultant. Indeed, if I had given liberty to apply, obviously, one of the reasons why you could apply again would be if your consultant was dissatisfied with the ways in which the council is suggesting that people ought to be moved. So, the next step would be that the views of the claimants' consultant should be obtained and taken note of by the council. I have no reason to believe that they will not.
MS MORRIS: My Lord, may I just clarify that we would not be bound by what that consultant says.
MR JUSTICE SILBER: No, you would not, but they could come back if there were difficulties, obviously.
MS MORRIS: Equally, my Lord, may I also clarify that the test for whether we were acting improperly would remain a Wednesbury test, or a super-Wednesbury test, on the specific human rights that are engaged. This court would be substituting its own view for how an individual should be moved.
MR JUSTICE SILBER: Would it not have to wait and see what transpires? I have heard your position on that and, as I say, I very much hope, and would expect, that agreement could be reached between the experts about the least harmful way of moving the claimants, and taking advantage of what Professor Jolley said in his report, which was to the effect that it is always possible to mitigate these --
MS MORRIS: Plainly, again just for the record, my Lord, you will recall that there is, in fact, evidence from the local authority about the very elaborate measures which are being taken to move these individuals.
MR JUSTICE SILBER: But I have also made it clear that the liaison which will hopefully allay the fears of the claimants' families --
MS MORRIS: We appreciate that.
MR JUSTICE SILBER: I think we have -- can I thank you for your help in this.
MS MORRIS: My Lord, we do have an application for costs. As I understand it, it is unopposed by Mr Skilbeck, namely that costs should follow the event, subject to the fact that the claimants are publicly funded.
MR JUSTICE SILBER: In other words, it is a football pool, in the sense that it is only if they receive huge sums of money.
MR SKILBECK: I slightly misled my learned friend in accepting that bluntly outside court, as it were. My Lord, there are some concerns, as it were, with elderly claimants represented by, on many occasions, elderly sons and daughters that (inaudible) will be made against them at all.
MR JUSTICE SILBER: Does the council really want to go ahead with an order for costs?
MS MORRIS: The importance of it is this. As we understand it, an appeal is contemplated. If there is an appeal, then we would be able to recover our costs against the legal aid fund. My Lord, you have heard the financial situation of the local authority. In those circumstances we say it is appropriate for costs to follow the event. My Lord, it is not possible for this court to take into account the fact that individuals are publicly funded in deciding not to make an order for costs, and there is a whole chain of authority. We would say that there should be an order for costs, which is that we have our costs, but the usual public funding provisions apply.
MR SKILBECK: My Lord, apart from the point which I made about the nature of the claimants, in my submission it is also quite clearly an issue of great public and personal importance for the claimants and, in my submission, it is quite proper for it to be --
MR JUSTICE SILBER: Normally the party who loses an action has to pay the costs.
MR SKILBECK: Yes, I would accept that that is the normal course of events. My submission would be that in this case, given the nature of the application --
MR JUSTICE SILBER: I appreciate that, but the almost invariable rule in these cases is that the losing party pays the costs. As I have indicated in my judgment, although you have put forward every point that could be put forward on the evidence, the claim failed by a substantial margin on a large number of points.
MR SKILBECK: Those are my submissions.
MR JUSTICE SILBER: I will make an order for costs in the defendant's favour that the determination be postponed. Perhaps I ought to make that clear: the consequence of that is, in fact, that if they had limited means, the order would never be enforced against them. That is the almost invariable consequence for an order of that sort, that the claimants will not at the end of the day have to pay costs. Thank you both very much.