QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Secretary of State for Justice
Ms Eleanor Grey (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 9 July 2008
Crown Copyright ©
Mr Justice Bean :
"(a) to reside at T House; when deemed appropriate by the clinical team;
(b) to abide by the rules of T House;
(c) to continue to receive treatment as advised by the RMO or his nominee;
(d) to continue to take medication as advised by the RMO or his nominee;
(e) to accept social work and CPN involvement;
(f) to comply with the treatment and therapy programmes as advised by the multi-disciplinary team."
"The patient has complied with his treatment since the deferred conditional discharge. A well structured conditional discharge plan is now in place and the Tribunal believe that it is now appropriate for that to be activated."
"[He] remains on 1:1 escort outside T House at all times. We have just agreed he can be unescorted between Rosemount Day Care Services, Dane Ward, and the hospital CAS Office, which are all on campus."
"I can confirm that [the Claimant] remains on 1:1 escorts at all times whilst outside T House until reviewed by his consultant Dr Waring, at his next outpatient follow up. The reason for this is because of his past history of risks of sexual behaviour involving young children and the public. I can confirm there have been no such incidents of behaviour recently."
"In my view, the fact that IT required escorts due to the risk of sexual offending demonstrated that he presented a risk to others. I considered that the escort arrangements amounted to deprivation of liberty equivalent to detention and that it was not appropriate for a restricted patient to be conditionally discharged if he could not have unsupervised access to the community due to the risk posed to others. I therefore informed Dr Waring [the new RMO] that I would recall IT to hospital. In taking this decision I took account of the fact that IT had been recalled to hospital in 2006 following an allegation that he had made sexually inappropriate advances to a 16 year old woman in the street."
"[T]he rule of law requires that effect should be loyally given to the decisions of legally constituted Tribunals in accordance with what is decided. It was clearly established by the House in P v Liverpool Daily Post and Echo Newspapers PLC  2 AC 370 that a Mental Health Review Tribunal is a court to which the law of contempt applies. It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the 1983 Act would plainly be stultified if proper effect were not given to tribunal decisions for what they decide, so long as they remain in force, by those making application for the admission of a patient under the Act. It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision. ...[10.]...Consistently with the principle identified in paragraph 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a Mental Health Review Tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the Tribunal which puts a significantly different complexion on the case as compared with that which was before the Tribunal."
"For the Home Secretary to recall a patient who has been "conditionally discharged" by a MHRT, he has to believe on reasonable grounds that something has happened, or information has emerged, of sufficient significance to justify recalling the patient."
In order to be consistent with the Brandenburg case this must, I think, be read as meaning that for the Secretary of State to recall a patient who has been conditionally discharge by the MHRT the decision maker must "believe on reasonable grounds that something has happened since the decision of the MHRT, or information has emerged which was not available to the MHRT, of sufficient significance to justify recalling the patient."
"14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5 (1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights...
15 Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.
16 Fifthly, the purpose of any measures of restriction is irrelevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. ..."