High Court of Justice in Northern Ireland Queen's Bench Division Decisions

[2017] NIQB 29	Ref:	KEE10215
Judgment: approved by the Court for handing down	Delivered:	22/2/2017
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) ________ IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY JAMES WRIGHT (BY HIS FATHER AND NEXT FRIEND) JAMES ERNEST WRIGHT AND IN THE MATTER OF DECISIONS BY THE SOUTHERN TRUST AND PRAXIS ________

KEEGAN J

Introduction

[1] During the course of this case the parties agreed that anonymity could be removed.

[2] This applicant is a 23 year old man who suffers from severe learning disabilities. A psychology report has assessed his full scale IQ as 44. This report also stated that his intellectual functioning lies in an extremely low classification within learning disability, well into the bottom 2 per cent of the population spread. The applicant was arrested in relation to an allegation of rape on 29 April 2016. The applicant was subsequently charged and brought before a court.

[3] The applicant was remanded in custody and applied for bail. Bail was refused however O'Hara J, indicated that he would grant bail if suitable accommodation were available for the applicant. The refusal of bail was largely due to a difficulty with the home address where the applicant's sisters lived. They also suffer from learning disability. Overall the judge felt that it would be inappropriate to accommodate the applicant at home. That is the core issue in this case.

[4] The issue of accommodation for the applicant raises the duty upon the Health Trust to comply with Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 which states that:

"The Trust shall make such arrangements and provide or secure the provision of such facilities (including the provision or arranging for the provision of residential or other accommodation, home help and laundry facilities) as it considers suitable and adequate."

[5] The Trust in this case is the first named respondent to this judicial review. The second respondent is a charity, namely Praxis, who was also involved in the provision of accommodation.

[6] Leave was granted in this judicial review by O'Hara J and the matter was listed before me for a full hearing on 30 November 2016. Prior to that hearing there was an application made by the Trust to adjourn the case on the basis that the applicant was about to be transferred from custody under Article 54 of the Mental Health (Northern Ireland) Order 1986. That was on foot of a report from Dr Curran, a consultant psychiatrist, who had assessed the applicant in custody on behalf of the applicant's legal team. Dr Curran found that the applicant's mental health had deteriorated.

[7] I decided that I would adjourn the case on this basis but I stressed that the matter should progress speedily. The matter did not progress quite as promptly as I would have hoped and that resulted in the applicant bringing a claim for interim relief. However, on the date that the interim relief application was listed in December 2016 I was informed that the move to Muckamore Hospital was imminent and so court adjudication was not required. That move did take place in December 2016 and the applicant remains in Muckamore Hospital as a detained patient.

[8] The application for judicial review remains before the court and the issue is now whether or not the full application should proceed or whether the matter is academic.

[9] Miss Quinlivan QC and Miss Askin BL appeared on behalf of the applicant. Mr Montgomery BL appeared on behalf of the Trust. Mr Phillips BL appeared on behalf of Praxis. I am grateful to all counsel for their written and oral submissions.

Submissions of the Parties

[10] Miss Quinlivan stated that there had been no real acknowledgement by the Trust of a breach of Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972. As such she said that there was good reason to proceed with the case on the basis of a public interest. Miss Quinlivan indicated that there was an ongoing obligation upon the Trust to look at the issue of accommodation. She made the point that detention in Muckamore Hospital is subject to review and that the issue of accommodation remains. Miss Quinlivan referred to a potential breach of Article 5 and 3 of the European Convention on Human Rights in this case. She also made the case that the applicant has a claim for damages in this judicial review although Miss Quinlivan realistically accepted that this could be converted into a writ action. Fundamentally, Miss Quinlivan said that this case required further adjudication because this applicant had been treated in an unfair manner and this may apply to other vulnerable people many of whom would not have legal representation. Miss Quinlivan referred me to R v Secretary of State for the Home Department ex parte Salem [1991] 1 AC 450 and Re E's Application for Judicial Review [2003] NIJB 288 in support of her argument.

[11] Mr Montgomery submitted that the case was clearly academic. He said that this was a bail case. Mr Montgomery referred to the issue of this applicant being difficult to place in the community due to community sensitivities. In any event, he said that the issue had now been dealt with. Mr Montgomery was somewhat reticent on the issue of the Article 15 duty however when pressed he did accept that Article 15 would have been relevant prior to the placement in Muckamore. His argument was that this case revolves around whether or not the Trust has met the duty under Article 15 within a reasonable time. Mr Montgomery said that the issue has been effectively dealt with in the decision of McCloskey J in Re JR47's Application [2013] NIQB 7. Mr Montgomery submitted that this was not an exceptional case such as Re E and as such the court should decline to hear the case any further on the basis that it is academic.

[12] Mr Phillips argued out that his client was not the focus of the challenge. He submitted that as Praxis is not a public authority it has a limited role in the ongoing case. Other than that he supported the submissions made by Mr Montgomery that the case is academic.

Legal Context

[13] In R v Secretary of State for the Home Department ex parte Salem [1999] 2 All ER 42 the House of Lords considered an appeal by a claimant for asylum whose benefit had been discontinued after he had been refused asylum. This was a judicial review case which at the time of hearing had resulted in the appellant being granted refugee status and having had his benefit restored the question arose whether the appeal should be allowed to continue. The House of Lords decided that it should not. Lord Slynn made the following remarks which have been well-trammelled in this area:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

[14] In the Re E Application for Judicial Review [2003] NIJB 288 case Kerr J considered this at paragraph 7 which states:

"Unsurprisingly, no attempt is made in the authorities to state definitively what might qualify as a matter of general public interest or a question of fundamental importance. This is something that must be decided according to the particular facts of the individual's case."

[15] When dealing with cases such as Re McConnell's Application [2000] NIJB 116 and Re Nicholson's Application [2003] NIQB 30 in their treatment of Salem the judge also stated at paragraph 13:

"It should be made clear that Re Nicholson's Application does not prescribe that where a detailed examination of facts is required or where it cannot be shown that a large number of cases depend on the outcome of the application, it will automatically not be allowed to proceed. Equally, it is not invariably incumbent on the applicant to show (at the interlocutory stage where an application to stay the proceedings is made) that the decision-maker has plainly acted unlawfully. If a detailed examination of the facts is required or if the outcome of the application is clear, these are considerations to be taken into account. Their presence will tend to militate against allowing the application to proceed. Even if these factors are present, however, in appropriate cases (of which the instant case is an example) an application for judicial review may be allowed to proceed provided the case raises a point of general public interest.

[16] It seems to me, flowing from these cases, that the guiding principle is whether or not a case raises a point of general public interest. This will depend upon the facts of each case. The identified categories in Salem in relation to statutory construction and such like are by way of example and do not form an inflexible code. So in my view the court must look at the facts of each case to decide on an overall appraisal whether or not a case should proceed in the public interest taking into account that an appropriate measure of caution should be applied

Conclusions

[17] In reaching my conclusion I make the following points:

(i) All parties accepted that JR47 is a comprehensive decision dealing with the Article 15 duty. The law is clear. As such, Mr Montgomery's characterisation of this case as 'simply a bail issue' was not particularly helpful. However, he did accept that Article 15 of the 1972 Order applied prior to the applicant being detained.

(ii) The real issue is whether or not the duty was complied with within a reasonable time. This involves conducting a factual analysis of circumstances and practicalities. This is illustrated by the large number of affidavits in the case on a range of issues.

(iii) The other question in this case is whether or not the Trust is responsible for the deterioration in the applicant's mental health due to delay, on the basis of Dr Curran's report. This aspect of the case clearly extends beyond judicial review into potential civil liability. There is a factual dispute between the parties which will require the consideration of evidence. Miss Quinlivan rightly recognised that the claim for damages would be best dealt with by way of writ action. I agree. The writ action can also deal with the convention issues.

(iv) I do see the point that the issue of accommodation may arise again. However, the issue of the Article 15 duty should be very clear. If there is an alleged breach in relation to this, further proceedings can be brought.

(v) I do not consider that there is a wide public interest in relation to the point at issue in this case that needs to be determined. This case involves highly specific facts related to a particular individual.

[18] Accordingly, weighing up the various submissions, I have decided that it is not appropriate for there to be a full hearing of the judicial review. I cannot see the utility of proceeding any further at this time to consider declaratory relief. This judgment speaks for itself in relation to the Article 15 duty. I do not consider that a full hearing of the judicial review is purposive or proportionate in that context. Drawing together these strands, I consider that the case as it currently stands is rooted in the individual interests of the applicant and that it involves a factual dispute which is best dealt with in another arena.

[19] I will hear the parties as to costs.