England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		Friday, 3rd March 2006

Friday, 3rd March 2006

1. MR JUSTICE OUSELEY: The two claimants renew an application for permission to apply for judicial review in respect of the change of policy by the Secretary of State as concerns technical lifers. The change was introduced with effect from 2nd April 2005. At that stage the two claimants were in Broadmoor and another special hospital having been transferred from prison whilst serving life sentences.
2. The origin of the technical lifer policy lay in the existence of two statutory routes governing the discharge of patients from a special hospital, who had been given a life sentence and had been transferred to such a hospital; one, what loosely is called the criminal justice route, and the other, the mental health route. The latter is governed by provisions of the Mental Health Act 1983.
3. The technical lifer policy was the description given to the circumstances in which the Secretary of State would choose the mental health release route as opposed to the criminal justice route. The choice and grant of a technical lifer status, for it was indeed a status for which patients could apply before their discharge came to be considered, was based on the view that there would be circumstances in which a life sentence had been imposed but when a hospital order would in fact have been appropriate. That could arise from: the lack of a suitable hospital bed at the time; a lack of proper clinical information provided to the court; the lack of medical reports accurately recording the patient's mental state; and circumstances where a patient's particular defence meant that his mental health was not assessed. Thus they were called technical lifers. They were people who should have been given hospital orders.
4. As the decreasing power of the Executive and the increasing judicialisation of the discharge of patients from special hospitals developed, it became clear that the decision of a mental health review tribunal in relation to a technical lifer would have to be given effect to, and the law changed in relation to that, as a result of a recent European Court of Human Rights decision in Benjamin and Wilson.
5. The Secretary of State decided to change the policy which he had hitherto applied. He has given a number of reasons for that, including that the policy itself was anomalous in that it conferred on the executive in 1985, and in the light of Benjamin and Wilson, on mental health review tribunals, powers to take decisions in respect of sentences passed by the higher courts, and to take those decisions without considering all the matters that would be considered by the Parole Board following the criminal justice route. The justifications for the policy in 1985, in particular in relation to sentencing information and alterations of sentences through the reference of cases by the Home Secretary to the Court of Appeal, were said to have changed. There was now much more information available on sentencing and the Criminal Cases Review Commission was a more ready source of referrals, as it plainly is, to the Court of Appeal Criminal Division.
6. The announcement was made in Parliament on 24th January 2005 that no new applications would be considered after 2nd April 2005. The Home Office wrote, on 25th January, to every hospital where a transferred lifer was detained. It wrote to the Mental Health Act Administrator. Obviously some Responsible Medical Officers got to hear of the change. The Home Office also wrote to the Mental Health Lawyers Association which referred to the change in policy in its minutes.
7. The circumstances of the claimants were that they were in the process of preparing an application to be considered as technical lifers. Their discharge was not in fact imminent. Their solicitor did not, according to her evidence, actually discover that the policy change was being made.
8. Mr Bowen, in his amended grounds, submits that the change in policy is unlawful. There are two statutory powers. It is legitimate, he accepts, for the Secretary of State to have a policy. It is legitimate for the Secretary of State to be unable to define the exceptions to the policy. The Secretary of State has accepted, in response to the grounds initially deployed, that the expression of his policy was too absolute; that is to say, that it fettered his discretion. In a statement from Mr Derby of the Mental Health Unit of the Home Office where he is a case work manager it says that:

"... consideration will be given to the question whether to depart from the general policy that transferred life sentence prisoners will have their future release date determined by the Parole Board and be subject to life licence on release."

He accepts that in an exceptional case it could be appropriate to consider the mental health discharge route.

9. Mr Bowen's contention is that if the basis for the change in policy is taken at face value it is difficult to discern, and no other circumstances have been referred to, what actually is meant by exceptional circumstances. It is not sufficient, he says, merely to enunciate the words of exceptional circumstances. It is necessary that there be some circumstances discernible in which the exception might be exercised. The only basis for the exceptions related to the circumstances which are now said not to constitute exceptions.
10. Mr Bowen refers me to R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977 at page 993. He contends that the Secretary of State must show that there is some content to the exception even if he does not define it, otherwise there is, at least arguably, in reality, a fettering of the Secretary of State's discretion. He also contends that his clients had a substantive legitimate expectation of being able to make an application for technical lifer status and accordingly had a legitimate expectation that, individually, they would be consulted about the change in policy and be given an opportunity to respond to it or make an application before the change in policy took effect. In this context Mr Bowen referred me to the case of Fisher v Minister of Public Safety (No 2) [2000] 1 AC 434, a decision of the Privy Council.
11. Taking the first point first, the answer to it, in my judgment, can be summed up by the phrase "The proof of the pudding is in the eating". In the case of R v North West Lancashire Health Authority the asserted existence of exceptions was shown to be illusory by reference to what had happened to those who applied for the particular medical treatment. Not merely was the language of the refusal identical, but the description of the circumstances in which the treatment was refused demonstrated that the words of exception were devoid of practical application and meaning. Therefore the policy was an unlawful fetter on the exercise of the discretion.
12. It seems to me to be impossible at this stage to say that the policy in relation to exceptions, accepted as necessary by the Secretary of State, is devoid of purpose. Some of the purposes which underlie it may have gone. There may be individual circumstances, albeit not enunciated, which engage the exception. The authorities of the North West Lancashire Health Authority at page 991, and again the decision directly in point in relation to this policy, that of Henry J in R v Secretary of State for the Home Department ex parte Stroud 16th July 1992 at page 7 of 10, onto 8 of 10, show that the existence of undefined exceptions does not demonstrate that they are void of meaning or application.
13. One possible case for an exception might be the degree to which somebody had prepared their application. That is not an exception spelt out by Mr Chamberlain for the Secretary of State, but it seems to me a not irrelevant factor for the Secretary of State to consider.
14. I am not prepared to regard as arguable at this stage that the Secretary of State's acceptance that there need to be exceptions, means that he should now be regarded as having emptied the scope of exceptions of all meaning. They may not be of the width they were in the past, they may be much more narrow. But the test for whether the Secretary of State has enunciated a policy, in respect of which, in truth, there are no exceptions, will depend, in my judgment, upon the demonstration of circumstances in which the refusal of technical lifer status demonstrates that there is nobody who could sensibly be regarded as an exception.
15. I do not consider that this case is at that stage at all. That is not to say that it might not become one, depending upon the reality of the way in which the Secretary of State approaches those matters. There are decisions, for example, the decision of Judge J in R v Warwickshire County Council ex parte Collymore [1995] ELR 217, which demonstrate policies which, in theory, admitting of exceptions, do not, in reality, result in the proper consideration of each individual case of its merits. Judge J quashed not the policy itself, but the implementation of the policy in the individual case. Accordingly I do not regard the first point upon which Mr Bowen relies as giving rise to an arguable case.
16. The second point upon which he relies relates to a legitimate expectation. The Fisher case to which he referred is so different in context that little assistance can be derived from it. It was a specific promise to a particular individual about the way his death sentence would be carried out upon which, understandably, the Bahamian government gave him notice of a change and permitted him to make representations about it.
17. The starting point, in my judgment, in relation to this matter, is that set out in the case of Findlay, that the legitimate expectation entertained by the claimants was that any applications which they might make would be considered by reference to the policies applicable at the time. I do not accept any broad proposition that those who are affected by changes in policy, under which they had understandably entertained hopes of a particular decision, have a right to be consulted about changes to that policy which deprived them of that. That seems to me to be far too broad a proposition in relation to legitimate expectation.
18. The position here was that the policy change was, however, identified publicly and generally. It was notified to the hospital. The claimants' RMO knew about it. The reasons for not writing to the individual claimants telling them of the change, the clinical reasons that attach to the position of patients in the special hospital, seem to me to be wholly persuasive.
19. There was no obligation in statute and no promises or practice that, in my judgment, entitled the claimants to a higher degree of notification for more specific consultation on the change in policy to be made, let alone to enable them to make applications for the relevant status before the policy was in fact changed. In a sense it would have defeated a good part of the policy if all transferred lifers were able to preserve intact the policy and its application to them, with the undoubted problems that could arise if those granted that status were then able to insist on release under the Mental Health Review Tribunal route without regard being had to the danger to the public which they might represent which it was for the Parole Board to consider.
20. I accordingly do not consider that there was a substantive legitimate expectation that the policy would not be changed, that it would be kept open for them, or a legitimate expectation that more would be done than was in fact done in relation to the notification about the change in policy. Accordingly that second ground also does not persuade me that there is an arguable case.
21. Accordingly this application for renewed permission, although renewed on something of a different basis from that which Silber J considered on paper, is rejected.
22. MR BOWEN: My Lord, I think I need to formally request an order for detail assessment of the public funding certificate.
23. MR JUSTICE OUSELEY: Yes, you can have that.
24. MR BOWEN: Thank you, my Lord.
25. MR JUSTICE OUSELEY: Thank you.