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
		23 April 2007

1. MR JUSTICE HOLMAN: Article 5(4) of the European Convention on Human Rights provides that everyone who is deprived of his liberty by detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.
2. These two cases each raise two discrete issues. First, whether section 75(1) of the Mental Health Act 1983 and/or a combination of that section and rule 29(cc) of the Mental Health Review Tribunal Rules 1983 are compatible with that Convention right. That is essentially an abstract issue and not fact specific, although it is illuminated by the facts of these cases. Secondly, whether in each case on its respective facts there has been a violation of the Convention right or other unlawful action.
3. The claimant, Daniel Rayner, applies for judicial review with permission already granted. In the case of the claimant, Derek Marsh, there was a long delay, and his application was listed as a rolled-up application for permission, with the substantive hearing to follow immediately afterwards. Apart from the discretionary issue as to delay, no separate issue of law arises in the case of Marsh, and I propose therefore first to consider the case of Rayner alone.

The case of Rayner

The facts

4. Daniel Rayner was born in February 1981. In April 2002 he was convicted of assault and possessing an offensive weapon. He was diagnosed as suffering from schizophrenia, and in August 2002 the Crown Court made hospital and restriction orders under sections 37 and 41 respectively of the Mental Health Act 1983 (the Act). The hospital order authorised his detention in hospital and the restriction order restricted his discharge.
5. In August 2004 a Mental Health Review Tribunal directed his conditional discharge in exercise of powers under section 73 of the Act and he was released into the community. In May 2005 Mr Rayner was readmitted as a voluntary patient to Pembury Hospital in Kent. On 14 June 2005 the Secretary of State for the Home Department issued a warrant pursuant to section 42(3) of the Act, which formally recalled Mr Rayner to Pembury Hospital (from which he was later transferred to Maidstone Hospital), so that which had been voluntary now became compulsory. On the same date the Home Office sent a covering letter (which appears to be substantially in a standard form) addressed to Mr Rayner's Responsible Medical Officer at Pembury, Dr S Patel. I note that, although dated 14 June, the letter is date stamped as received on 21 June. The letter said in part:

"Under section 75(1)(a) of the Mental Health Act 1983 the Home Secretary is obliged to refer Mr Rayner's case to a Mental Health Review Tribunal no later than one month from the date of his recall to hospital. When the case has been referred you will be notified by the Tribunal direct ... I should be grateful if this could be explained to Mr Rayner and if he could be given a copy of Mental Health Act 1983 leaflet No 9."

6. Section 75(1) of the Act, to which the Home Office referred in that letter, provides as follows:

"75(1) Where a restricted patient has been conditionally discharged under section ... 73 ... above and is subsequently recalled to hospital-

(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; ..."

7. Although the section requires a reference within one month of the day "on which the patient returns or is returned", in Mr Rayner's case he was already at the hospital, so the period ran, as the letter said, from the date of recall, namely 14 June. The Secretary of State was accordingly required by the Act to refer Mr Rayner's case to a tribunal before, at the latest, 14 July 2005. Recalls are administered by a specialist unit within the Home Office, and the Secretary of State of course knew very well, as his letter evidences, that he had to make the reference within one month. But he failed to do so.
8. By a letter dated 4 August 2005, solicitors on behalf of Mr Rayner prompted the Secretary of State belatedly to do so, and on 8 August 2005 the Home Office replied to the solicitors:

"Thank you for your letter of 4 August 2005 to Mr Pocock, who has now left this office.

I regret to inform you that, due to an oversight, a referral to the Mental Health Review Tribunal was not made following Mr Rayner's recall to hospital in June. Please accept my apologies for this error.

A referral letter has been sent to the Tribunal office today."

9. I have no reason to suppose that the error was other than, as the letter said, "an oversight". It is more fully described and explained in a statement by a caseworker in the Mental Health Unit, Mr Chris Kemp, dated 15 March 2006 (now at bundle page 153(xxii) to 153(xxv)) as in part due to the involvement of a temporary member of staff. But that in no way excuses it.
10. The 8 August 2005 was a Monday. It appears (see paragraph 8 of the tribunal's summary grounds of defence) that the reference was actually received in the office of the tribunal on Friday 12 August 2005. On Tuesday 16 August 2005 the tribunal sent a letter (essentially in standard form) to the Home Office (now at bundle page 166J) informing them that the hearing had been arranged for 27 September 2005. On the same day, the tribunal wrote a standard form letter (now at bundle page 166H) to Mrs Janet Samuels, the client services manager for Maidstone Hospital, informing her and them of the reference as required by rule 29(b) of the Mental Health Review Tribunal Rules 1983 (the rules).
11. The letter continued by saying (now at bundle page 166H):

"Please forward six copies of each of the Authorities statement, medical and social circumstances reports as specified in the First Schedule to the Mental Health Review Tribunal Rules 1983. These documents must be submitted not later than three weeks from receipt of this letter."

12. The three-week period is that fixed by rules 29(c) and 6(1) of the rules, within which the hospital, being the responsible authority, must supply the specified statement and reports. So if that letter had been received on, say, 17 August, the hospital had to comply by 7 September. The letter to the hospital, unlike the letter to the Home Office, did not mention any actual date for hearing. However, on Wednesday 17 August, as is now agreed, Ms Sarah Pocknell, for the clerk to the tribunal, spoke on the telephone to Eileen Carter, the administrative assistant to Mrs Samuels, who, as now transpires, was herself on leave. This telephone conversation is evidenced by a standard form attendance note (now at bundle page 166A) of which the terms and layout are of some significance.
13. A grid in the middle of the page has vertical columns for date and time of hearing, "date offered", "date rejected", and "date confirmed". There are beside each of the hospital and solicitor three horizontal lines so that, in effect, entries can be recorded for three different or alternative dates of hearing and when each was respectively offered/rejected/confirmed by the hospital and solicitor respectively. The attendance note at page 166A records only that "27/9 at 14.30" was the date and time of hearing, and that there was communication with "Eileen" on 17/8. It is not clear whether there was any process of offering/rejecting or confirming, or mere notification.
14. The tribunal say that they followed up the telephone call by a standard form letter from Heena Vekaria to Mrs Samuels dated 23 August 2005, which begins:

"I am writing to confirm the arrangements which were agreed by telephone for the Mental Health Review Tribunal at Maidstone Hospital on Tuesday 27 September 2005 at 14.00 to consider the case of [Mr Rayner]."

15. The hospital did not produce any documents by 7 September. On a date in September 2005 (I will refer to the precise date below) the solicitor for Mr Rayner telephoned the hospital to chase them. A later letter from the solicitor dated 11 October 2005 (now at bundle page 272) reads:

"On 20th September 2005 Miss Stober of these offices telephoned the Mental Health Act Administrator for Priority House in order to chase the statutory reports for the Tribunal. Miss Stober was informed that the hospital were not aware of the Tribunal date of 27th September 2005. The hospital then requested an adjournment, which was granted."

16. Mrs Samuels herself wrote a letter to Ms Pocknell dated 21 September 2005 (and recorded also on its face that it was "faxed and sent 21 September 2005"), now at bundle page 201. That reads in part:

"I refer to the above named and my telephone call today. I would like to inform you that I have just learnt today, from solicitors that Daniel Rayner has a Tribunal booked for 27 September 2005.

I have no record of this being booked and do not have a copy of a letter requesting reports. I have checked with both the consultant and social worker, and they do not have any record of this date either and, therefore, have not produced reports.

I have now requested reports as a matter of urgency and should be grateful if another date could be set."

17. Although there is no witness statement from Mrs Samuels, during the course of the present hearing she signed a document dated 14 March 2007, and now at bundle page 324a which reads as follows:

"I would like to confirm that on my return from leave at the end of August 2005 there were no letters from the Tribunal office dated 16 August 2005 and 23 August 2005 regarding a Tribunal for Daniel Rayner. I only became aware of a Tribunal when I received a call from Mr Rayner's solicitor on 21 September 2005."

18. Although the solicitor's letter of 11 October 2005 says that the telephone call with Mrs Samuels was on 20 September, Mrs Samuels herself says that it was on 21 September, and that seems more consistent with the language of her letter of 21 September, which says: "... I have just learnt today, from solicitors ..."
19. It is of course possible that the telephone call was indeed on the 20th and the letter drafted or dictated on the 20th, but only typed and dispatched on the 21st. But, in light of Mrs Samuels' recent signed note and the evidence of her letter itself, I must assume that the date of the telephone call was indeed the 21st. If, and on the basis that, that was the first date upon which the hospital received adequate notice of the reference and the requirement to produce a statement and reports, then the three weeks in which to do so expired on 12 October. The relevant reports were dated 12 October and received by the tribunal and other parties on 14 October 2005. Apparently during part of the three-week period, the Responsible Medical Officer (RMO), Dr Patel, had been ill (see a letter dated 4 October 2005, now at bundle page 205) which, in my view, acceptably explains and excuses any slight slippage of a day or two beyond 12 October. I reject the suggestion that it would have been preferable for some stand-in doctor to write the reports while Dr Patel, who was Mr Rayner's RMO, was merely temporarily off sick.
20. These events necessarily entailed that the hearing was adjourned from 27 September. In the event, it took place on 28 October when the tribunal directed that Mr Rayner be conditionally discharged on various conditions, including that he reside at Arthur Court, Folkestone. A placement at Arthur Court was first offered, subject to availability, on 4 November 2005 and only became actually available on 12 January 2006, upon which date Mr Rayner moved there. The defendants to the claim thus say that, even if there were delays, they had no material effect on the outcome for Mr Rayner. Whenever the case was heard, he could not have left hospital until a place at Arthur Court was actually available in January, and indeed if the case had been heard as early as 27 September, it would almost certainly have been adjourned for further work to be done on arranging a discharge and support package.

The claim against the second and third defendants

21. The second defendant to Mr Rayner's claim is the Mental Health Review Tribunal itself, and the third defendant is (now) the Kent and Medway NHS Social Care Partnership Trust, which is responsible by succession for the acts or omissions of the relevant hospitals and their staff.
22. Although each of Miss Katherine Olley, on behalf of the tribunal, and Miss Marina Wheeler, on behalf of the NHS Trust, argued their cases with copious detailed and well-researched references to the penumbra of domestic and European law, I propose to deal with the claims against each of these defendants relatively shortly and summarily.

(i) The claim against the tribunal

23. This case concerned a reference under section 75(1), and the relevant primary rule is rule 29 of the rules. Rule 29(b) requires the tribunal on receipt of the reference to "send notice thereof" to the responsible authority. The tribunal received the reference on Friday 12 August and say that they sent notice thereof to the hospital on Tuesday 16 August (the document at bundle page 166H). If that is correct, the tribunal sufficiently complied with rule 29(b).
24. Rule 29(cc) provides as follows:

"(cc) where a reference is made under section 75(1) of the Act, on receipt of the reference the tribunal shall-

(i) fix a date for the hearing being not later than eight weeks, nor earlier than five weeks, from the date on which the reference was received;

(ii) fix the time and place for the hearing; and

(iii) give notice of the date, time and place of the hearing to the patient, the responsible authority and the Secretary of State;"

25. In my view, that rule contemplates a process of "fixing" familiar to litigators, whereby there is a degree of consultation between the tribunal office and the relevant parties in order to establish a mutually convenient date, time and place, albeit within the prescribed window of five to eight weeks from the date the reference was received.
26. Many people are necessarily involved in a tribunal hearing, and a suitable location has to be identified. The rule does not contemplate that the tribunal should simply decide date, time and place without any consultation, and unilaterally and arbitrarily announce them. If it did, paragraphs (i) and (ii) would be largely redundant and the rule could go straight to paragraph (iii). Further, at paragraphs 5 and 6 of his statement dated 28 March 2006 (now at bundle page 153 (xxvii)) the head of the secretariat at the Mental Health Review Tribunal, Mr Jack Fargher, himself describes a two-stage process of agreeing a date and then sending notification.
27. The tribunal was thus under a two-stage duty: first, to fix by process of consultation; second, to give notice of the date, time and place so fixed. It is obvious that the telephone call from Ms Pocknell to Eileen Carter on 17 August was made in discharge of the duty to fix and, as I have described, the standard form attendance note is obviously designed for a process of "fixing" with its grid of boxes for a range of hearing dates to be offered/rejected/confirmed. Separate from the duty of fixing, there is the duty under rule (c)(iii) to "give notice" of the date et cetera to the responsible authority. Although rule 29(b) employs the phrase "send notice", and rule 29(cc)(iii) the phrase "give notice", I do not consider that any distinction is intended. Rule 27, which is headed "Service of notices, etc", permits service by prepaid post or delivery, and refers indifferently to "any document required or authorised by these rules to be sent or given ..." [my emphasis].
28. In my view, therefore, the telephone call to Eileen Carter was the appropriate method and sufficed for the purpose of "fixing", but not for the separate purpose of giving notice. The tribunal discharged their duty to "give notice" by the letter which they say Heena Vekaria sent to the hospital on 23 August 2005.
29. At paragraph 6 of his statement describing the normal procedure of the tribunal, Mr Fargher says that "a date is agreed within 48 hours [of receipt of the referral] and notification is sent to all parties". In this case, the period between receipt of the referral (12 August) and sending the notification (23 August) was 11 days. So the tribunal did not adhere to their own normal standard, and were at the extremity of doing an act "on receipt of the reference" and within the framework of a rule which required the hearing itself to be fixed "not later than eight weeks". But given that the first day was a Friday, and given that the notice requiring the reports had already been sent on the 16th, I do not consider that of itself 11 days for this process was so long that it gives rise to any actionable breach by the tribunal, nor of itself to any violation of any right of Mr Rayner, whether under the Act or the Convention or otherwise.
30. Rule 29(cc) requires the tribunal to fix a date for the hearing being not later than eight weeks from the date on which the reference was received, and clearly contemplates that hearings so fixed will normally be effective so that the hearing does indeed take place within eight weeks. But rule 16 permits adjournments, and the tribunal is not under any absolute duty to have a hearing within eight weeks. The fact that the hearing itself did not take place within eight weeks of the reference does not ipso facto give rise to any breach of duty by the tribunal or violation of any right of Mr Rayner.
31. In this case, the subsequent adjournments or "relisting" by the tribunal were necessitated by, and were a rational, proportionate and sensible response to, the later claim by the hospital that they had not received any of the written notices, and did not in fact learn in writing of the 27 September hearing date until on or after 21 September.
32. As Stanley Burnton J said in R(KB and others) v MHRT and Secretary of State for Health [2003] 1 MHLR 1 at paragraph 38:

"In any sensibly managed judicial system there are bound to be adjournments and cancelled hearings for a number of reasons ... The postponement of a hearing ... does not necessarily involve any infringement of the rights of a citizen party under Article 5 or Article 6 ..."

33. Viewed from the perspective of the tribunal, the message from Mrs Samuels on 21 September that she had only just learned of the matter, and the content generally of her letter of 21 September, amply justified and required relisting or adjournment. The case was heard just over five weeks after that.

(ii) The claim against the hospital and Trust

34. I now turn to the position of the NHS Trust. Of course, they knew from the outset that Mr Rayner had been recalled, and his RMO, Dr Patel, was the addressee of the Home Office letter of 14 June 2005 (received on 21 June). On behalf of Mr Rayner, Mr Paul Bowen submitted that Dr Patel should therefore have started preparing reports even from that date. But the letter itself says: "When the case has been referred you will be notified by the Tribunal direct", and the trigger under rule 6(1) (as applied by rule 29(c)) for producing reports is not the fact or date of recall, but receipt from the tribunal of the notice of reference. That notice must clearly be a written notice, since rule 29(b) refers to "send notice", rule 29(c) refers to "the notice", rule 6(1) refers to "receipt of the notice", and rule 27 clearly contemplates service by post or delivery. It is of course unfortunate that Eileen Carter, who admits receiving the telephone call on 17 August, did not make a clear diary entry and treat it as notice of a hearing and inform Mrs Samuels on her return from leave. But there is a world of difference between dealing with a telephone call and dealing with a formal written document, and the rules do require a written notice to be given. From the perspective of Eileen Carter, the telephone call may indeed have been no more than part of a process of "fixing" and finding out whether the 27 September would be convenient.
35. Mrs Samuels has said emphatically, in both her contemporary letter of 21 September 2005 and in her signed document of 14 March 2007, that "there were no letters from the tribunal office dated 16 August 2005 and 23 August 2005". If that is right, then the hospital never received either the notice of reference under rule 29(b) nor the notice of the hearing under rule 29(cc)(iii), and cannot reasonably be criticised for any failure or delay. If time effectively only ran from 21 September, they were, at the most, two days out of time, and that is entirely explained and excused by Dr Patel being off sick.
36. It is of course very remarkable indeed that not one, but two letters apparently went astray, and one inevitably wonders whether either the outgoing postal procedures of the tribunal or the incoming postal procedures of the hospital were not seriously unreliable and at fault. But I have not heard and have not been asked to hear any oral evidence. In those circumstances, I cannot impugn or doubt the integrity or the reliability of any relevant person or official at either end. The fault may lie with the tribunal and the hospital be blameless, or vice versa. But the fact remains also that letters do go astray in large numbers every day, and although the statistical probability of two letters between the same sender and recipient on the same subject matter both going astray must be very low indeed, it cannot be impossible.
37. At all events, in the absence of considerable oral evidence (and perhaps not even then) I cannot conclude on a balance of probability that the tribunal did not send letters which it claims to have sent; nor that the hospital did receive letters which it claims not to have received. I thus conclude that no case has been proved against either of them, and I dismiss these proceedings against each of them.
38. The delays between 7 September, when the hospital should (and it is reasonable to assume, would) have produced the reports if they had received the letter of 16 August, and 14 October, when they in fact did so; and between 27 September when the hearing should (on the tribunal's original timetable) have taken place, and 28 October, when it in fact took place, are, I am afraid, just one of those things which may sometimes occur even in a "sensibly managed judicial system", and without any identifiable fault by anyone. They do not sensibly give rise to any right in Mr Rayner or violation of his Convention rights. I cannot view what happened as between the tribunal and the hospital in this case as evidence of, or the product of, any systemic inadequacies in the system.
39. Mr Bowen made some submissions to the effect that there is a positive duty on a Mental Health Review Tribunal actively to "police" the parties to proceedings before it, so as to ensure adherence to time limits required by rules and by the Convention right to a speedy hearing. He submitted in particular that the coming into force of the Human Rights Act 1998, and the decision of Scott Baker J in R(B) v MHRT and the Home Secretary [2003] 1 MHLR 19, in particular at paras 49 and 53, have displaced dicta of the Court of Appeal in R v MHRT ex parte Hall [2000] 1 WLR 1323 at page 1352 to the effect that the tribunal does not have any power to "police the work of other authorities".
40. In my view, however, the extent of a tribunal's duty actively to police does not arise on the facts of this case. The tribunal may reasonably have assumed that Mrs Samuels and the hospital had received their letters and were working to the stipulated date. Under the timetable of the letter of 16 August, the medical reports were due by 7 September. Any duty actively to police cannot sensibly be automatic or immediate upon breach or failure to comply, and two weeks later Mrs Samuels made her telephone call of 21 September, indicating that the letters and notices had not been received. The comments of Scott Baker J at paragraphs 49 and 53 of B were in the context of a case in which there was overall delay of eight months and (see paragraph 57) there had been repeated failure to give case management directions so the case "meandered" to a hearing. The present case is quite different on its facts and there was no failure of case management by the tribunal.

The principal claims

41. Those conclusions do not affect at all the principal claims of Mr Rayner to which I now turn. He makes complaints against the framework of the legislation and the rules themselves, and submits that they are not compatible with Article 5(4) of the European Convention on Human Rights; and he makes a specific complaint against the Secretary of State for the Home Department on the facts of this case for his admitted failure even to refer his case to the tribunal within the one-month period required by section 75(1) of the Act.
42. Mr Jeremy Hyam represented the Secretary of State for the Home Department and the Secretary of State for Health on the general issues, and the Secretary of State for the Home Department on the specific issue.

Article 5(4)

43. Article 5(4) of the European Convention on Human Rights provides as follows:

"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."

44. Mr Rayner was deprived of his liberty by detention from the date of his recall, namely 14 June 2005. It is not in issue that proceedings before a Mental Health Review Tribunal constitute proceedings whereby the lawfulness of his detention can be decided. But Mr Bowen submits that (i) the domestic legislation is incompatible with Article 5(4) in that it does not provide a mechanism whereby the person detained can himself take proceedings as, he submits, Article 5(4) requires. It relies instead on the Secretary of State referring the patient's case to the tribunal under section 75(1); and (ii) that incompatibility is reinforced by the fact that section 75(1) allows to the Secretary of State as long as one month in which to refer the case, so recourse to the tribunal may not even be immediate as Article 5(4) contemplates; and (iii) a combination of the one-month period permitted by section 75(1) before the reference must be made, and the eight-week period permitted by rule 29(cc)(i) within which a date for hearing the reference must be fixed, means that altogether three months may elapse between the date of recall and the date of hearing, even if there are no adjournments. Mr Bowen submits, in reliance on Strasbourg jurisprudence, that this does not afford the "speedy" hearing that Article 5(4) requires.
45. In support of his first and most fundamental contention, Mr Bowen points, first, to the plain words of Article 5(4) itself: "Everyone ... shall be entitled to take proceedings ..." He submits that a right to take proceedings cannot be satisfied by having someone else, viz the Secretary of State, making a reference, or initiating or taking proceedings on one's behalf.
46. Amongst Strasbourg jurisprudence, he relies in particular upon the decision of the European Court of Human Rights in Rakevich v Russia App No 58973/00 (unreported) 28 October 2003. The applicant was detained in a mental hospital. The relevant domestic law did not give her any personal right to apply to a court, but did provide that the detaining hospital must file an application for review by a court. At the review, the detained person "shall be allowed to participate personally in the hearing". The court said at paragraphs 43 to 46:

"43. The Court notes that the cornerstone guarantee of Article 5 § 4 is that a detainee must have the right actively to seek judicial review of his detention (see, eg, Musial v Poland, judgment of 25 March 1999, Reports 1999-II, § 43).

44. The administration of the hospital, acting under section 33-2 of the Psychiatric Treatment Law, applied for the judicial review of the applicant's detention. The Law did not permit the applicant to apply to the court herself. Instead, the initiative lay solely with the medical staff. However, Article 5 § 4 requires in the first place an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the detention. When this remedy is available, the detainee's access to the judge should not depend on the good will of the detaining authority. Whilst the legal mechanism contained in sections 33-35 of the Psychiatric Treatment Law, ensuring that a mental patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it would still be deficient if it does not contain the basic guarantee of Article 5 § 4. Surplus guarantees do not eliminate the need for fundamental ones.

45. It does not appear that the Law on Psychiatric Treatment provided the applicant with a direct right of appeal in order to secure her release. Sections 47 and 48 of the Law referred to by the Government recognised a detainee's right to complain about the unlawful actions of medical staff in general, but Article 5 § 4 requires a specific remedy to protect the liberty of a detainee.

46. The Court therefore finds that the applicant was not entitled to take proceedings to test the lawfulness of her detention by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of that provision."

47. Mr Bowen submits that this approach was repeated and reinforced by the court in the later case of Gorshkov v Ukraine App No 67531/01, 8 November 2005. The court said at paragraph 39:

"39. The Court observes that, in accordance with its case law, the person subjected to compulsory medical treatment should have access to a court and the opportunity to be heard either in person or through some form of representation (see De Wilde, Ooms and Versyp v Belgium, judgment of 18 June 1971, Series A no. 12, §§ 73-76, and the Winterwerp judgment, cited above, §§ 60 and 61). The Article 5 § 4 review is not required to be automatic, but should rather be an opportunity for proceedings to be taken by the patient himself or herself (see, inter alia, De Wilde, Ooms and Versyp v Belgium, cited above; Keus v the Netherlands, judgment of 25 October 1990, Series A no. 185-C)."

48. They said at paragraphs 44 to 46:

"44. The Court reiterates that a key guarantee under Article 5 § 4 is that a patient compulsorily detained for psychiatric treatment must have the right to seek judicial review on his or her own motion (see, eg, Musial v Poland, judgment of 25 March 1999, Reports 1999-II, § 43; the aforementioned Rakevich v Russia judgment, § 45). Article 5 § 4 therefore requires, in the first place, an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the continued detention. The detainee's access to the judge should not depend on the good will of the detaining authority, activated at the discretion of the medical corps or the hospital administration.

45. Whilst the legal mechanism contained in sections 19-22 of the Psychiatric Medical Assistance Act and Chapter 34 of the Code of Criminal Procedure, in force at the material time (see paragraphs 30 and 31 above), ensuring that a mental health patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it is insufficient on its own. Such surplus guarantees do not eliminate the need for an independent right of individual application by the patient.

46. The Court concludes that the applicant was not entitled to take proceedings to test the lawfulness of his continued detention for compulsory medical treatment by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of this provision."

49. Mr Bowen also draws attention to the speech of Baroness Hale of Richmond (with whom the rest of their Lordships agreed) in R(H) v Secretary of State for Health [2005] 3 WLR 867. The legal and factual situation in that case was very different, for it concerned a patient so severely mentally disordered that she could not herself mount any legal proceedings at all. However, at paragraph 24, Baroness Hale said:

"Indeed, in Rakevich v Russia ... it was held that even the judicial review of every admission on the initiative of the detaining authorities is not enough if the patient does not herself have the direct right to apply for her release."

Mr Bowen submits that, by that passage, the House of Lords were implicitly, if not expressly, endorsing the correctness and effect of Rakevich.

50. On behalf of the Secretaries of State, however, Mr Hyam submits that Rakevich and Gorshkov do not reflect the clear and constant jurisprudence of the Strasbourg Court; that the machinery of section 75 and the rules affords a superior right to that guaranteed by Article 5(4); and that R(H) v Secretary of State for Health as a whole supports that there is no incompatibility.
51. In X v United Kingdom [1981] 4 EHRR 188, a convicted patient had been conditionally discharged, but was later recalled by warrant by the Home Secretary. The European Court of Human Rights rejected the main submission of the Government that the original criminal proceedings continued to satisfy the requirements of Article 5(4), and held that under the domestic law as it then was there was a violation of the applicant's right under Article 5(4). But the European Court of Human Rights said at paragraph 52 on pages 206 to 207:

"By virtue of Article 5(4), a person of unsound mind compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the 'lawfulness' (within the meaning of the Convention ...) of his detention, whether that detention was ordered by a civil or criminal court or by some other authority."

Mr Hyam there stresses the words "at any rate where there is no automatic ... review of a judicial character".

52. In Koendjbiharie v the Netherlands App No 11487/85, 25 October 1990, the issue was speediness. But at paragraph 27, the European Court of Human Rights said:

"Consideration of the Netherlands legal system as described above ... leads the court to conclude that the contested proceedings amounted to an 'automatic periodic review of a judicial character' within the meaning of the X v United Kingdom judgment of 5 November 1981."

Mr Hyam submits that the court thereby repeated and reinforced the sufficiency of an automatic review of a judicial character.

53. In Megyeri v Germany [1992] 15 EHRR 582, the court said at paragraph 22:

"22. The principles which emerge from the Court's case-law on Article 5(4) include the following.

(a) A person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings 'at reasonable intervals' before a court to put in issue the 'lawfulness' - within the meaning of the Convention - of his detention ..."

54. There is then an important reference to a footnote, which reads: "see, inter alia, the X v the United Kingdom judgment ... para 52)". Paragraph 22 of the judgment in Megyeri continues:

" ...

(c) The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. None the less, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation ..."

55. Finally, Mr Hyam relied upon Musial v Poland App No 24557/9425, 25 March 1999. The particular importance of this case is that, as appears above, Musial was the authority quoted and relied upon by the court in its references to "cornerstone guarantee" in Rakevich at paragraph 43, and to "key guarantee" in Gorshkov at paragraph 44. In Musial, the essential issue was again speediness and delay. At paragraph 43 of its judgment in Musial, the court referred back (by the footnote) to paragraph 22 of its judgment in Meygeri, which in turn referred back to paragraph 52 of the judgment in X v United Kingdom, and accordingly, submits Mr Hyam, repeated that an automatic review of a judicial character satisfies the requirements of Article 5(4).
56. Mr Hyam thus submits that, until Rakevich, an automatic procedure for a review of judicial character satisfied the requirements of Article 5(4), and that, despite the language used by them, the court in Rakevich and Gorshkov were intending to state and repeat the established jurisprudence and not to develop or modify it.
57. Further, he says that under section 75 the referral is indeed automatic, albeit up to a month is allowed for the process, and does not depend at all on the initiative or good will of the detaining authority.
58. Further, on a reference of a recalled patient to the tribunal, the patient is a full party to the proceedings, is notified of the referral, and is entitled to legal representation at the hearing. The Act and the procedure under it does not merely afford "surplus guarantees", but contains within it the fundamental and guaranteed right.
59. Mr Hyam submits that the reference to Rakevich in paragraph 24 of R(H) v Secretary of State for Health, which I have already quoted, is no more than a passing reference. Instead, he stresses paragraph 26 where, referring to the opening words of rule 29 (which provide "the tribunal shall consider a reference as if there had been an application by the patient ..."), Baroness Hale said:

"A reference to the tribunal must be considered in the same way as if there had been an application by the patient: see rule 29. Hence although the initiative is taken by someone else, the patient's rights are the same."

60. At paragraph 30, she said:

"As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention."

61. On the facts of H, the reference depended, as that passage indicates, on the Secretary of State exercising a discretion to refer. In the present case, falling as it does under section 75, the Secretary of State is under an automatic duty to refer. So Mr Hyam submits that this is a stronger or a fortiori case.
62. After commenting at paragraph 31 on the limitations on judicial review and habeas corpus as means of satisfying the requirements of Article 5(4), Baroness Hale continued at paragraph 32:

"32. Hence, while judicial review and/or habeas corpus may be one way of securing compliance with the patient's article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State's reference under section 67. Either way, however, the means exist of operating section 29(4) in a way which is compatible with the patient's rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so."

63. As between these competing arguments, I am persuaded by those of Mr Hyam. It seems to me, first, that at least since X v United Kingdom the European Court of Human Rights has recognised that a procedure which guarantees an automatic review of a judicial character is capable of satisfying the requirements of Article 5(4). Rakevich and Gorshkov purport to be applying the earlier jurisprudence, and on a close reading of paragraphs 43 and 44 of the judgment of the court in Rakevich, the real vice identified was that the application in that case depended (or was said to depend) upon the "initiative" or "good will" of the detaining authority.
64. At paragraph 44 the court said:

" ... Article 5(4) requires in the first place an independent legal device by which the detainee may appear before a judge ... " [my emphasis]

65. The next sentence is crucial:

"When this remedy [viz an independent legal device ...] is available, the detainee's access to the judge should not depend on the good will of the detaining authority."

In other words, provided there is an "independent legal device" the element of discretion, arbitrariness or good will is avoided. The requirement of "an independent legal device" is repeated in paragraph 44 of Gorshkov, where there is a very clear reference to the requirement that the detainee's access to the judge should not depend on the good will of the detaining authority "activated at the discretion of" the medical corps.

66. In my view, section 75 does not depend on any discretion, initiative or good will, and does provide "an independent legal device by which the detainee may appear before a judge". But whether I am right or wrong about that, the speech of Baroness Hale in R(H) v Secretary of State for Health is, in my view, decisive. As already observed, on the facts and in the context of that case, referral by the Secretary of State was discretionary (see paragraph 30), whereas here, it is automatic or mandatory. Even so, Baroness Hale said in terms at paragraph 32:

"Either way [viz one way being a Secretary of State's discretionary reference under section 67], however, the means exist of operating section 29(4) in a way which is compatible with the patient's rights."

If that was so in relation to discretionary reference in that case, then it seems to me that it must all the more be so in relation to mandatory reference under section 75 in the present case.

67. So far as the first submission of Mr Bowen is concerned (namely, the absence of express provision for the patient actively to initiate proceedings), I consider it is possible to read the primary and subordinate legislation in a way which is compatible with the Convention rights, and I am not satisfied that section 75, or the scheme of the relevant procedure generally, is incompatible with a Convention right.
68. The second and further objection taken by Mr Bowen, however, is that unless the patient can himself directly take proceedings, he has no control over the timetable. He submits (and I agree) that Article 5(4) clearly contemplates the possibility of an immediate application to the tribunal (or other appropriate judicial proceedings). Section 75(1) accords to the Secretary of State an outer limit of a month and, further, as the facts of this case illustrate, the Secretary of State may fail even to adhere to that timetable which the section requires. So the patient is at the mercy of the Secretary of State, who may "overlook" his case and fail to do his duty; whereas, if the patient has a direct right of application, the initiative and responsibility rests with him and him alone.
69. In my view, however, these arguments do not prevent that section 75 can be read and given effect to in a way which is compatible with the Convention right, and they do not render section 75 incompatible. Although section 75, as enacted, gives to the Secretary of State one month in which to refer from the date of recall, it in no way prevents the Secretary of State from doing so forthwith.
70. The Secretary of State's case work manager, Mr Chris Kemp, says at paragraph 13 of his statement that:

"It is our practice to refer such cases to the Mental Health Review Tribunal as soon as possible, which is usually within 72 hours of recall."

71. He goes on to explain that:

"There are circumstances, however, where it is not possible or practical to refer the case to the Tribunal immediately following recall. The most common situation is where the patient absconds from his accommodation before the recall warrant can be effected. In such cases there is little point in referring the case to the Mental Health Review Tribunal until the patient has been detained. Such cases are by no means uncommon. For example, in a recent case in December 2005 the patient was unlawfully at large for 14 days.

While it is the policy of Mental Health Unit to refer the cases of recalled restricted patients to the Mental Health Review Tribunal immediately, for the reasons set out ... above, the statutory time limit of one month is both necessary and appropriate, in order to provide the flexibility to deal with cases where the patient absconds and there is a delay between the date of recall and the date on which the patient is re-detained in hospital."

72. In R v Secretary of State for Home Department ex parte K [1990] 1 All ER 703, in a passage on page 712, McCullough J said that:

"The observation presupposes that medical evidence is in general required before every deprivation of liberty on grounds of unsoundness of mind. That, however, is not what Parliament intended in relation to section 42(3). Parliament's thinking, I apprehend, was that the time to consider such medical evidence as either party might wish to put forward was at the mental health review tribunal hearing provided for by section 75(1). In requiring the Secretary of State to refer the case to a mental health review tribunal within one month of the patient's recall, rather than sooner or later, Parliament was striking a balance between the need to have the question considered by a court at the earliest opportunity and the need to provide the tribunal with evidence of appropriate quality; such evidence would obviously include assessments made in hospital after recall."

73. The first limb of that passage is clearly now undermined by the comment of the European Commission for Human Rights at paragraph 53 of its decision in the same case in application number 17821/91, 1 March 1994. They said there that the absence of up-to-date medical evidence before recall meant that certain minimum conditions of lawfulness were not respected. In my view, the effect of that decision must also largely undermine the second limb of the observation of McCullough J.
74. There must, as the Commission decision in Kay establishes, already be up-to-date medical evidence before recall. Whilst assessments made in hospital after recall are no doubt very important to the tribunal hearing and decision, that is no reason or justification for delaying the reference itself. Rather, the period of three weeks which the rules accord to the responsible authority for the preparation of reports, and the minimum period of five weeks between the reference and the hearing, provide the opportunity and period within which to assemble "evidence of appropriate quality", including assessments made in hospital after recall. It is to be noted that preparation of evidence after recall and return to hospital is not put forward by Mr Kemp as any reason for delaying reference to the tribunal.
75. The Secretary of State himself argues that the provision and effect of section 75 satisfies the requirements of Article 5(4). In my view, it does, as I have already explained, but only if and insofar as it affords an automatic and immediate reference to the tribunal. The machinery under the Act does not afford the superior right for which the Secretary of State argues if (other than in the case of absconding which Mr Kemp describes) a delay of a month may occur before proceedings are even commenced.
76. In order that section 75 satisfies the Convention right of the patient under Article 5(4), which contemplates the right of immediate application, the Secretary of State ought to (as he asserts he normally does) refer the case of a recalled patient at once to the Mental Health Review Tribunal unless the circumstances of the applicant or his case positively otherwise require. The only example of such circumstances currently given by the Secretary of State is absconding. On that basis, there is no incompatibility, but there will be a violation if the Secretary of State fails to do his duty. Here the words of Baroness Hale at paragraph 30 of H are directly in point:

"But the Secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so."

77. The third and related complaint by Mr Bowen is that a combination of the maximum one-month period before reference and the eight-week maximum period after reference, may mean that altogether three months may elapse between the date of recall and the hearing date. Mr Bowen submits that this would infringe the basis of the friendly settlement reached in Roux v United Kingdom application number 25601/94 on 16 September 1997. As recorded in paragraph 22 of the report of the Commission in that case, the Government undertook that the rules would "be amended to introduce a fixed time limit of two months for a hearing to take place in the case of applications of patients who have been recalled."
78. It is important to note that the terms of the friendly settlement contemplated amendment of the rules, not the Act, and in my view the terms are no warrant for the proposition that a case necessarily must be heard within eight weeks of recall. Nor is the earlier decision of the court in E v Norway application number 11701/85, 29 August 1990. The last two sentences of paragraph 64, and paragraph 67 of the judgment of the court in that case indicate that the question whether a hearing was sufficiently speedy must ultimately be fact specific. This was made plain by the Court of Appeal in R(C) v London South and West Region Mental Health Review Tribunal [2001] EWCA Civ 1110; [2002] 1 WLR 176 at paragraph 42, where Lord Phillips of Worth Matravers MR said:

"The [Strasbourg] court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances."

79. In that case the Court of Appeal clearly held that there was no incompatibility in having a "target date" of eight weeks maximum, but that an administrative practice of routinely listing after eight weeks was not lawful. Further, if, as I consider, the Secretary of State must normally refer promptly to the tribunal and not permit a month to elapse, the three-month period of which Mr Bowen complains should not arise if the Secretary of State does his duty.
80. In my view, section 75 and the rules in combination are well able to be applied and operated compatibly with the Convention requirement of a speedy hearing, and I reject Mr Bowen's submission that there is any incompatibility.

Violation by the Secretary of State on the facts

81. On the facts of Mr Rayner's case, the Secretary of State clearly acted unlawfully and there was a violation of Mr Rayner's right under Article 5(4) to a speedy hearing. Mr Rayner was recalled on 14 June. His case was not heard until 28 October, 19 weeks and three days later. That total period did not, in my view, amount to a speedy hearing, and there was a violation of his rights under Article 5(4).
82. Insofar as delays were caused by postal breakdowns between the tribunal and the hospital or Trust, I have already explained that they do not involve violation. But a significant period of the delay was directly due to the default of the Secretary of State, and of no one else. The Secretary of State in fact referred the case to the tribunal on 8 August 2005. In the period from 14 July to 8 August, the Secretary of State was in breach of his statutory duty to refer within one month. But, in my view, the period of violation of the Convention right to a speedy hearing was longer.
83. On the Secretary of State's own evidence, namely paragraph 13 of the statement of Mr Kemp, his normal practice is to refer within three days (72 hours) of recall. No justification or objective reason for delaying longer in this case has been suggested, and any delay after three days was purely due to "oversight" and the involvement of a temporary staff member. The 14 June 2005 was a Tuesday. 72 hours would have elapsed by the Friday. In my view, the very last day upon which the Secretary of State could lawfully have referred the case was Monday 20 June. In my view, therefore, there was a violation by the Secretary of State for seven weeks between Monday 20 June and Monday 8 August. If the case had indeed been referred by the Secretary of State on 20 June, but all else had then occurred at the same timetable or pace, then the hearing would have taken place 12 weeks and three days after recall. Although a long period, that is, in the circumstances of the case, sufficiently explained by the postal breakdowns between the tribunal and the hospital or Trust. But the further delay of seven weeks was entirely due to the unlawful failure of the Secretary of State to refer.
84. The issue of damages and compensation or other just satisfaction is not on the agenda for the present hearing. But it will be very important indeed for both parties to bear firmly in mind that the place at Arthur Court in any event only became available in January 2006. I urge both parties very strongly indeed to resolve any outstanding issues between them by negotiation.

The case of Marsh

The facts

85. Derek Marsh was born in April 1968. He has a long history of schizophrenia. He was convicted of arson, and in September 2001 the Crown Court made hospital and restriction orders under sections 37 and 41. In September 2004 he was conditionally discharged on condition that he resided at a specified address. There was soon a deterioration in his mental wellbeing, and early in November 2004 he was voluntarily readmitted to hospital.
86. On Friday 26 November 2004 the Secretary of State recalled him under section 42(3). In accordance with his 72-hour practice, the Secretary of State ought therefore to have referred his case to the tribunal by about Wednesday 1 December 2004 at the very latest. He did not do so until Thursday 3 February 2005, nine weeks later. In the event, there was no tribunal hearing, for as a result of a letter from the RMO dated 23 February 2005, the Secretary of State issued a warrant for his conditional discharge on 1 March 2005 and he was released back to the specified address on 3 March. The case of Mr Marsh is that if the Secretary of State had referred him promptly to the tribunal, he would have been discharged a good deal earlier.
87. The Secretary of State explains the reasons for the delay in a letter dated 17 February 2005 to Mr Marsh's then solicitors. That reads, in part:

" ... we were contacted by Mr Marsh's Responsible Medical Officer on 26 November 2004 ... The Responsible Medical Officer requested that Mr Marsh be admitted to the Dudley Venables Ward for assessment as a matter of urgency. It was unclear to us whether or not Mr Marsh had been conditionally discharged, as we had not received the MHRT decision or been informed in any other way of the Tribunal's decision. As we were uncertain of Mr Marsh's status we sent the fax of 26 November 2004, which gave our consent for Mr Marsh's admission to the Dudley Venables Ward whether he was a conditionally discharged or a detained patient.

We then telephoned the MHRT office and were informed that Mr Marsh had not been conditionally discharged. On the basis of that information, we therefore did not view our fax of 26 November 2004 as a recall to hospital, but instead as the authority to transfer a detained patient to a particular hospital. This remained the case until 31 January 2005 when, in the course of chasing the MHRT decision, we were informed that Mr Marsh had in fact been conditionally discharged. We then received the written MHRT decision on 1 February 2005. We referred Mr Marsh's case to the MHRT under section 75(1)(a) of the Mental Health Act 1983 on 3 February 2005.

The MHRT are under a statutory obligation (Rule 24 of the MHRT Rules 1983) to notify us of the Tribunal decision within 7 days of it having been made. The Home Office is under no statutory obligation to chase decisions, but nonetheless we routinely do so as a matter of good practice. We chased the decision in this case and were informed by telephone that Mr Marsh had not been conditionally discharged. It was only our continued endeavours to obtain the written decision that, in fact, brought to light the fact that Mr Marsh had been conditionally discharged in the first place.

In summary, the Home Office acted reasonably and in good faith on the information we had at the time. Following the decision to place Mr Marsh on the Dudley Venables Ward (26 November 2004), we sought clarification of Mr Marsh's status and acted in accordance with that information. As soon as we discovered that Mr Marsh had in fact been conditionally discharged and had that confirmed in writing we referred his case to the MHRT within 2 days."

The actual period between recall and release was 14 weeks.

88. On behalf of Mr Marsh, Mr Bowen advances the same arguments as to incompatibility which I have already rejected in the case of Rayner. I do not repeat either the arguments or my reasoning. But before he can pursue further his claim for compensation or damages or other relief, Mr Marsh requires permission to apply.
89. The acts or omissions complained of occurred during December 2004. The application for judicial review was not issued until 24 November 2005, around 11 months later. The solicitors for Mr Marsh applied for public funding on 27 April 2005. This in itself was about four months after the omissions complained of, and two and a half months after 3 February 2005. Public funding was finally authorised on 16 August 2005. By chance, the certificate arrived while the solicitor herself, Ms Una Turner, was on a short holiday, but was there on her return on 2 September. The solicitor instructed Mr Bowen on 27 September. Mr Bowen has explained that when he saw the instructions in the case of Marsh, he was already awaiting instructions in the case of Rayner and decided to defer taking action in the case of Marsh until he had also the papers in Rayner. He received these on 27 October 2005 and settled documents in both cases on 18 November. The claim in Marsh was issued on 24 November.

Discretion

90. I take no account of the period between 27 April, when the solicitors applied for public funding, and 16 August, when it was granted, which I extend also to 2 September because the solicitor happened to be on holiday at the critical time. But even excluding this period, there was a total period of at least two and a half months (and arguably more) before public funding was ever even applied for, and at least two and a half months between the grant of public funding and issue of proceedings. It is, in my view, elementary and does not require citation of authority that once there has been appreciable delay, for instance in obtaining public funding, then a litigant and/or his lawyers must act with particular promptitude thereafter. My overall conclusion is that, even ignoring the period between 27 April and 2 September, there was appreciable delay in this case for which no, or no adequate, reason or explanation has been given.
91. The effect of delay is cumulative, and the period from early February to late April is not adequately explained. Given that history, the explanation for the further period between 2 September and 24 November is not acceptable. I nevertheless must take into account the underlying merits of the claim.
92. The principal claim (and indeed the basis upon which public funding was granted -- see the letter from the Legal Services Commission Funding Policy Team to Mr Marsh's solicitor, Ms Una Turner, now at bundle page 103(viii)) was the incompatibility challenge. This would fail in any event. Any claim to damages would, in my view, be relatively small. Mr Bowen submits that under sections 7(1)(a) and 7(5)(a) of the Human Rights Act 1998, a claim for damages alone may be brought within one year, and that the damages element of his claim was issued in time. He submits that the claim could have been brought by way of a CPR Part 8 claim, and that even now, it could be transferred under CPR Rule 54.20 to proceed as an ordinary Part 8 claim. In my view, the argument is unsustainable.
93. Judicial review was the appropriate route of challenge -- see Anufrijeva v Southwark London Borough Council [2004] QB 1124 at paragraph 81(i) - and the fact is that the claimant, advised by his specialist lawyers, elected to proceed by way of judicial review. Judicial review is accordingly "the procedure in question". The last limb of section 7(5) of the Human Rights Act provides:

" ... but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

That limb cannot be outflanked by relying simply on the damages component of a claim.

94. This is from first to last properly viewed as a claim for judicial review, brought in the Administrative Court, to which strict time limits apply. No sufficient grounds exist for exercising a discretion, and I accordingly refuse permission to Mr Marsh to apply for judicial review. In doing so, I note that at the permission stage on paper, Ouseley J observed:

"I have not granted permission because of the delay point ... I would have refused relief on delay grounds ..."

His observations do not, however, form any part of my own independent reasoning and judgment on the point.

Outcome

95. The final outcome is that I refuse to Mr Marsh permission to apply for judicial review. I dismiss all the claims made by Mr Rayner against all parties, except the Secretary of State for the Home Department. I dismiss all the claims made by Mr Rayner against the Secretary of State for the Home Department, except the claim for damages. I hold that the Secretary of State for the Home Department did act unlawfully and in violation of the rights of Mr Rayner under Article 5(4) to the extent and for the period indicated (namely seven weeks between 20 June and 8 August 2005).
96. In accordance with paragraph 1 of the order of Bennett J dated 3 November 2006, I adjourn the issue of whether Mr Rayner has actually suffered any loss, and whether any award of damages is necessary to afford just satisfaction to him. I very strongly urge that that issue is now resolved by negotiation. It ought not to occupy further time of the court, or indeed further publicly funded legal costs on both sides. Paragraphs 79 to 81 of Anufrijeva are directly in point.
97. Right, where do we go on costs or anything else?
98. MR BOWEN: My Lord, may I just deal first with the question of the orders to be made that are consequent on my Lord's judgment?
99. MR JUSTICE HOLMAN: Yes.
100. MR BOWEN: In particular, whether and if so what order should be made in relation to my Lord's finding that Article 5(4) does, as the claimants maintain, require the Secretary of State to make an immediate reference under section 75(1).
101. MR JUSTICE HOLMAN: Yes.
102. MR BOWEN: My Lord, it is my submission, and notwithstanding the holding that you outlined at the end of your judgment, that it follows that a declaration can and, in my submission, should be made as to the nature of the duty that the Secretary of State owes under section 75(1).
103. MR JUSTICE HOLMAN: Under what authority should the declaration be made?
104. MR BOWEN: Well, what we sought in our claim form -- and I do not know whether my Lord can turn up the original claim form in Marsh -- it is at section 6. I do not have the page number here because I am reading from my computer.
105. MR JUSTICE HOLMAN: Hold on a minute. Marsh?
106. MR BOWEN: Sorry, in Rayner. Forget about Marsh.
107. MR JUSTICE HOLMAN: I think you had better stick to Mr Rayner. You want me to turn to the claim form?
108. MR BOWEN: Yes, just to look at the way we formulated our --
109. MR JUSTICE HOLMAN: Section 6.
110. MR BOWEN: Section 6, which was the details of the remedy that the claimants were seeking. Evidently 1 and 2 -- sorry, section 2 does not -- we do not get anywhere with 2. That is plain.
111. MR JUSTICE HOLMAN: I am afraid not.
112. MR BOWEN: But 3, what we sought and what we continue to seek and what we submit follows from my Lord's judgment is that a declaration should be made.
113. MR JUSTICE HOLMAN: Let me have a look at the Human Rights Act. I started stacking these up to give to the shorthand writer.
114. MR BOWEN: The declaration under section 3 is essentially a declaration that a provision should be read or given effect to in a manner that is compatible with the Convention.
115. MR JUSTICE HOLMAN: Hang on a minute. Section 3 does not talk about declaration.
116. MR BOWEN: My Lord, it does not, but the court can make a declaration. When it is found that rather than being incompatible with the Convention a provision can be given effect to in a way that is compatible, essentially by reading it back in this case by saying: well, even though section 75(1) allows a month --
117. MR JUSTICE HOLMAN: He must do it within, let us say --
118. MR BOWEN: -- within 72 hours.
119. MR JUSTICE HOLMAN: 72 hours, yes.
120. MR BOWEN: Then what the court should do is to make a declaration to that effect.
121. MR JUSTICE HOLMAN: Should I? Where do you get that proposition from? I have held it, and if anybody has any interest in anything I have said today, it is there. It will be reported.
122. MR BOWEN: My Lord, it has two consequences. The first one is that it gives clarity, bearing in mind this is now a judgment which is to be applied by the Secretary of State in all future cases of this kind. There will be a succinct summary of the law contained in an order of the court by way of a declaration.
123. MR JUSTICE HOLMAN: I really do not follow this. Section 4 makes express statutory provision for declarations about incompatibility. We are not in that territory. Every single day judges give judgments in which they say the law is so and so. But they do not then make a declaration that the law is so and so, and we learn that the law is so and so by reading what the judge said in the judgment.
124. MR BOWEN: My Lord, I accept that. But if one were to strip away everything else in this case, if the only dispute here had been: should the Secretary of State have referred it straight away or was he allowed up to a month in which to refer it?
125. MR JUSTICE HOLMAN: Yes.
126. MR BOWEN: If that had been the only issue between the parties, one then has to look at what relief would a claimant like Mr Rayner be seeking in order to bring proceedings to challenge the interpretation of the law that the Secretary of State had given to section 75, because you have to seek some form of remedy in order to ask the court --
127. MR JUSTICE HOLMAN: The remedy you seek is your damages.
128. MR BOWEN: Well, it may be that --
129. MR JUSTICE HOLMAN: I am not sure that you should get any damages, but that is a separate matter.
130. MR BOWEN: It does not necessarily follow that there is a damages claim. It may be that on advice, if there had not been the additional three weeks delay -- if it had just been the question of the Secretary of State making the reference at the end of the one-month period, say, and then it the whole hearing had been heard within a period of, say, eight weeks, let us just imagine for a moment --
131. MR JUSTICE HOLMAN: Can I just ask you this: do you have any authority of the court making declarations effectively under section 3(1) to the effect that some Act or something must be read in such and such a way?
132. MR BOWEN: I cannot think of any at the moment.
133. MR JUSTICE HOLMAN: I am really terribly against you, sorry. I have held what I have held. So I am with you on the point, but I really think that your argument would involve the proposition that in virtually any case in which a judge gives a judgment on any topic, there should be some declaration which is a succinct statement of what he said the law is, and that is just not the way we operate, and I do not think the Human Rights Act has altered it.
134. MR BOWEN: Can I just park that submission for a moment?
135. MR JUSTICE HOLMAN: Do not park it for very long. I have to give another even longer judgment at 2 o'clock.
136. MR BOWEN: I do not wish that to be the case. As far as, if you like, the outcome is concerned, you can see there in the claim form that we have sought declarations as to the meaning of section 75(1). That is one of the items of relief that we have sought. So we have essentially fought and won that plank of the claim.
137. MR JUSTICE HOLMAN: I agree that you have won that plank of the claim. Yes, certainly.
138. MR BOWEN: So when it comes to any considerations of costs, I do not know if there is any application being made by the defendants as to questions of costs, but that course is to be borne in mind. Now, it may well be, my Lord, that the appropriate order today in terms of costs is that there be no order for costs and there can be discussion --
139. MR JUSTICE HOLMAN: Forgive me. Having, I am afraid, reached a brick wall on your application for a declaration, are you now moving to costs?
140. MR BOWEN: Yes, I am moving to costs.
141. MR JUSTICE HOLMAN: Does any other point arise as to the manner in which the associate should be invited to draw, or you draw and submit to him an order giving substantive effect to what I have decided? I hope that I made it pretty clear at the end.
142. MR BOWEN: I think it is clear that, insofar as the orders that we sought at section 6 of the claim form in Rayner are concerned, obviously we win on one as against the Crown -- or against the Home Secretary but not against the other parties.
143. MR JUSTICE HOLMAN: You win on one to the extent that your claim for damages remains alive and is now adjourned.
144. MR BOWEN: Indeed. We lose on 2.
145. MR JUSTICE HOLMAN: You do.
146. MR BOWEN: And as regards 3 --
147. MR JUSTICE HOLMAN: You lose on 3 in the form it is put there, but you have won on the substantive point.
148. MR BOWEN: Yes, and so I do not consider there needs to be any further --
149. MR JUSTICE HOLMAN: So we now have reached costs.
150. MR BOWEN: So we are now on to costs.
151. MR JUSTICE HOLMAN: Before anybody develops anything about costs, all I would like to do is find out what actual applications any party is making; not the argument. Do you make any applications, Mr Bowen, and, if so, what?
152. MR BOWEN: Our application would be that, insofar as any application is made against us by the Secretary of State, we would be seeking a proportion of our costs against the Secretary of State.
153. MR JUSTICE HOLMAN: Mr Hyam may not apply for anything at all. Are you making any application positively against the Secretary of State?
154. MR BOWEN: Yes.
155. MR JUSTICE HOLMAN: And what is it you seek?
156. MR BOWEN: Our application is that a representative proportion of our costs occasioned by this claim should be paid by the Secretary of State.
157. MR JUSTICE HOLMAN: And are you suggesting a proportion -- you are talking about Rayner, I take it?
158. MR BOWEN: Yes, Rayner.
159. MR JUSTICE HOLMAN: Are you suggesting a proportion in recognition that you have not succeeded on the incompatibility point?
160. MR BOWEN: Indeed.
161. MR JUSTICE HOLMAN: What proportion do you suggest?
162. MR BOWEN: I am on the hoof here really, so it is difficult.
163. MR JUSTICE HOLMAN: He is publicly funded. Presumably a nil contribution is the reality.
164. MR BOWEN: He is publicly funded with a nil contribution. Any order in favour of the Secretary of State will attract costs protection under the Access to Justice Act 1999, section 11. So the Secretary of State would not be able to enforce any order against Mr Marsh, but if he were to make an order, he will be entitled to set off any order against him -- against any order made in his favour -- so it may be, and I would need to briefly discuss this with my solicitor, but it may be that if the Secretary of State does not -- if he is not going to make any application against us, then we will not make any application against him.
165. MR JUSTICE HOLMAN: I do see it is not a straightforward situation, and actually we are talking about publicly funded costs all round. What is your position, Mr Hyam?
166. MR HYAM: My Lord, I am afraid I am without instructions. My usual position in a case such as this is that the first set of costs, that is to say the first defendant, either apply for a football pools order --
167. MR JUSTICE HOLMAN: I honestly do not think Mr Rayner is going to win the football pools. Let us assume Mr Rayner is not going to win the football pools.
168. MR HYAM: On the assumption that that is never going to happen, simply as a matter of formality to reflect the outcome of the case, otherwise I would be applying for no order. If an order for costs is being made against me, then I am going to resist it to try and arrive at a set-off because I do not think there should be a payment out. So the situation is this: I do apply for an order, but to put it more clearly, if I had been wholly successful on every point, I would ask for a formal recording on a football pools basis of that order, subject to Legal Services assessment of the claimant's costs. In fact what has happened is the claimant has been partially successful. I say not only partially outweighed by (inaudible), and therefore in response to any application for costs by the claimant, I do apply for my costs against him in respect of the proportion of which I was successful: the net effect of which will either be that there is nothing to the claimant, or that there is an amount which is effectively unenforceable against Mr Rayner. Therefore, the submissions I make to you are: if the application is for an order for costs from the claimant, I make a cross-application. If there is no order, I have not got instructions not to apply for costs. Having said that, I have explained what would be my usual position in these cases to --
169. MR JUSTICE HOLMAN: We have not got anyone from the tribunal here, whether it is because somebody failed to get a message that judgment was being given this morning or they chose not to come, I do not know. But anyway there is nobody here so there is nobody applying on behalf of the tribunal. Do you have any application?
170. MISS CROSS: I do, very briefly.
171. MR JUSTICE HOLMAN: What is the application?
172. MISS CROSS: It is just in relation to costs thrown away in relation to the attempt by Mr Bowen to insert evidence in relation to Minder Singh. You may recall at the very beginning of the trial a bundle in relation --
173. MR JUSTICE HOLMAN: I do not because it never reached me. I am really not going to get sucked into Minder Singh now. I personally was never involved in that aspect.
174. MISS CROSS: In that case we seek no order as to costs.
175. MR JUSTICE HOLMAN: It is just bad luck on the hospital, I am afraid. At the moment, in the Rayner case, I am inclined to think that probably the right order is no order as to costs all round. So far as the tribunal and the hospital are concerned, there was a situation that they had to explain here, so I am not suggesting they were not rightly brought into this. But as I have tried to explain, they have in the end explained it.
176. As between the Secretary of State and Mr Rayner, I just feel that there is an element of win some, lose some, and bearing in mind that it is public funds all round, it seems to me that probably the most wise and just outcome is to say no order as to costs all round. I am talking about Mr Rayner -- to date. But that leaves at large, if the damages claim is not compromised, the question of any costs from now on in Rayner. The other parties are out of it, but I am clearly not pre-determining what further decision might be made as to costs if one or other party inappropriately or unreasonably caused Rayner to have to come back to court. So at the moment I would be inclined to say no order as to costs of or against the tribunal or the Trust. No order as to the costs to date of Mr Rayner or to date of the Secretary of State as between each other. Does anybody wish to argue further against that?
177. MR BOWEN: My Lord, that seems a sensible outcome. The only potential fly in the ointment that I envisage is that if -- and this is the next issue that I just wish to address your Lordship on briefly -- if you or the Court of Appeal in due course grant permission to appeal, which is going to be my next application, and the Court of Appeal should find in Mr Rayner's favour --
178. MR JUSTICE HOLMAN: That is their problem. They have to sort out any costs consequences that they think should flow.
179. MR BOWEN: For my part I do not think it makes any difference whether you order that cost should be as they lie or you make no order for costs, but I just raise that --
180. MR JUSTICE HOLMAN: My order is that there be no order as to the costs of Mr Rayner as against the Secretary of State up to and including today, and no order as to the costs of the Secretary of State as against Mr Rayner up to and including today. That is part of the order and it is a matter that has to be resolved prior to any consideration of appeal. It is perfectly routine if there were to be an appeal, and if the Court of Appeal were in some way to disturb my order, they can decide what they want to do about my costs order.
181. MR BOWEN: My Lord, I make no further submissions.
182. MR JUSTICE HOLMAN: So there are no orders as to costs all round in the Rayner case; it being made clear that if there is further hearing in relation to damages claimed, the costs of that hearing remain at large. If somebody could maybe help the associate draft all that up, that would be good.
183. What about Marsh?
184. MR HYAM: Marsh, permission refused. We would ask for a costs -- it was treated as a rolled-up substantive hearing, the Marsh case. Formally, again, I ask for costs in favour of the Secretary of State in relation to the Marsh case. A determination of the liability of such costs would be explained. The practical effect would be nil, but for formality's sake --
185. MR JUSTICE HOLMAN: Subject to anything that Mr Bowen may say, I feel that probably, in the Marsh case, has to be right, does it not? I have refused leave on delay grounds.
186. MR BOWEN: I could not resist that, my Lord.
187. MR JUSTICE HOLMAN: No. So in the Marsh case then, there will be an order that Mr Marsh pays the costs of the Secretary of State, but with all the usual Legal Services, Access to Justice Act provisions. The only tricky part about that is any issue as to apportionment because to what extent has the Marsh case extended the hearing? The answer is: definitely to a degree, but only a relatively small degree.
188. MR BOWEN: The procedure by which the Secretary of State would get to first base with recovering those costs would be actually to make an application to a costs judge.
189. MR JUSTICE HOLMAN: He would.
190. MR BOWEN: And generally speaking my recollection is the Court of Appeal considered these provisions in a case called Gunn(?). Once you made the order that you have, then it is a matter for the costs judge.
191. MR JUSTICE HOLMAN: It is. I am merely just sort of thinking out aloud. Do the same solicitors act in both cases?
192. MR BOWEN: No.
193. MR JUSTICE HOLMAN: So you have people here in both cases.
194. MR BOWEN: One in each, yes.
195. I am grateful for that, my Lord. So as regards costs, an order -- if it is to be expressed in terms that Mr Marsh do pay the costs of the Secretary of State -- no other parties because the usual principle is only one party should have their costs.
196. MR JUSTICE HOLMAN: There are no other parties in the Marsh case.
197. MR BOWEN: There is the tribunal.
198. MR JUSTICE HOLMAN: Not in the Marsh case.
199. MR BOWEN: I am reminded not. But if it can say something along the lines of: in such proportion as is reflected by the involvement of that case --
200. MR JUSTICE HOLMAN: You and Mr Hyam work out something which effectively puts down the marker that though the Marsh case has added obviously both to preparation costs, because the Secretary of State has had to do specific things in relation to Marsh, and the length of the hearing -- well, Rayner clearly was the lead case. You work something out and liaise with the associate. I really do not want to see it. There is consensus as to the principle.
201. Does anybody else have any application for permission to appeal? I do not see that you could for the hospital. Does the Secretary of State?
202. MR HYAM: Well, I have no instructions. I doubt it in the light of the way the judgment is worded. However, I would, if an application for permission to appeal is going to be made by the claimant, and indeed even if there is not one, I would just ask for a period of time in which to consider the outcome of the judgment for those who instruct me in order to make, if appropriate, an appropriate application. I would be happy for that to be dealt with on paper rather than incurring more time in dealing with the costs.
203. MR JUSTICE HOLMAN: How do you wish to proceed, Mr Bowen? I have to tell you that I find it intellectually extremely difficult when I have just given a judgment to conceive that actually in the end I have made an error of law and/or indeed an error of discretion. So neither of you are on very fertile ground and I cannot recall when I last, if ever, have given permission to appeal.
204. MR BOWEN: There are two grounds on which leave can be given. One is where it is likely that it is going to be successful, and I accept that it is a very difficult matter for me to persuade your Lordship on. But the other is if there is some other good reason and if something raises an issue of public importance. That in itself is sufficient.
205. MR JUSTICE HOLMAN: I think the Court of Appeal, if anybody is going to decide that, should decide whether it has sufficient public importance.
206. MR BOWEN: My Lord, in that case it probably is easiest if my Lord, given that you have indicated that view, refuses permission to appeal. But what I would ask for is we now have two different time limits that will apply in relation to any appeal. In relation to Mr Marsh, because permission has been refused, we have seven days, and in relation to Mr Rayner we have 28 days. There is the added difficulty: firstly, we do not have a written judgment in advance so --
207. MR JUSTICE HOLMAN: In Mr Rayner's case, when does time run from? The case has not finally been disposed of actually.
208. MR BOWEN: That also is true.
209. MR JUSTICE HOLMAN: But it would be quite wrong clearly to leave the question of appeal hanging around for a long time while you do or do not negotiate.
210. MR BOWEN: My Lord, there is a formula that has been used in the past, and I discussed it with my learned friends who seemed not unhappy with the idea, firstly that you extend time limits for appealing in both cases to 28 days from the date upon which public funding, if any, is granted for an appeal. Now that can be upon --
211. MR JUSTICE HOLMAN: No, I am sorry, at the moment I am not going to grant you permission to appeal anyway. So all I would be doing would be extending the time within which to apply.
212. MR BOWEN: -- to the Court of Appeal.
213. MR JUSTICE HOLMAN: But I do not think you need to hang around to get an extension of public funding to make an application if you think it right to do so. But it may be that you should have an opportunity to consider the judgment when you have it in a written form.
214. MR BOWEN: Yes. Well either then the time limit, if my Lord were minded to extend it, if you were to extend it from the date upon which we obtained a copy of the transcript, and my Lord could also indicate that the transcript should be expedited.
215. MR JUSTICE HOLMAN: I do not know about that. There is not that degree of urgency. At the moment I think I am going to say myself that I refuse all applications for permission to appeal. That is point 1. Point 2, the time limit for any party to renew to the Court of Appeal an application for permission to appeal in either case is extended to 14 days, provisionally, after the date upon which that party receives the official approved transcript of judgment.
216. MR BOWEN: That covers it, my Lord.
217. MR JUSTICE HOLMAN: Are you happy with 14 days? You know the essential outcome. You need to have an opportunity to study it, but it is not like getting something when you have not even got a clue what is coming.
218. MR BOWEN: I have a very careful note.
219. MR JUSTICE HOLMAN: I know you have. I can see that. So I think 14 days really does give you enough time.
220. MR BOWEN: I am not seeking any further extension. Those are my applications.
221. MR JUSTICE HOLMAN: Then that resolves everything, does it not? So after I have risen could you kindly have a little liaison with the associate and work out between you all who is going to finally draft up the terms of the order and ensure that it is drafted and drawn. Mr Bowen, you kindly lent me your Mental Health Act manual. It has served me in very good stead because in fact it served me throughout another case on the Mental Health Act with which I have dealt and given a reserved judgment. So I have been very, very grateful to you for your book. So it is there.
222. Thank you all very much indeed.