B v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Carnwath,Lady Hale,Lord Sumption,Lord Kerr |
| Judgment Date | 30 January 2013 |
| Neutral Citation | [2013] UKSC 4 |
| Date | 30 January 2013 |
| Court | Supreme Court |
[2013] UKSC 4
Lord Neuberger, President
Lady Hale
Lord Kerr
Lord Sumption
Lord Carnwath
Appellant
Hugh Southey QC
Kate Markus
(Instructed by Birnberg Peirce and Partners)
Respondent
Robin Tam QC
Steven Gray
(Instructed by Treasury Solicitor)
Heard on 5 December 2012
Lord Kerr (with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnwath agree)
An Algerian national whose true identity has not been revealed, but who has been referred to throughout these proceedings as 'B', was sentenced to four months' imprisonment by the Special Immigration Appeals Commission (SIAC) on 26 November 2010. That sentence was imposed because of what was found to be B's deliberate and contumelious refusal to obey an order made by SIAC on 19 July 2007. By that order, SIAC had required B to give particulars of his true identity and to consent to provide a sample for the purpose of DNA testing. B had supplied the sample but had steadfastly refused to disclose his identity or the other particulars.
B appealed SIAC's order committing him for contempt. Before the Court of Appeal [2011] EWCA Civ 828 the principal arguments advanced on his behalf were that the sentence of imprisonment gave rise to breaches of his rights under articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Secondary submissions were made that SIAC had failed to give reasons for a critical finding that B was likely to continue to take medication while in prison and that the sentence was excessive. The significance of the point about medication was that it underlay SIAC's conclusion that B was unlikely to suffer a relapse into paranoid psychosis if he was committed to prison. He had suffered from that condition previously and there was medical evidence that, if sent to prison, he was likely to react by refusing to take prescribed medication and that, in consequence, he would revert to a psychotic state.
The Court of Appeal found that SIAC had erred in expressing confidence that B would not relapse into paranoid psychosis if he was sent to prison. In particular, it had erred in rejecting, in effect, the evidence of two consultant psychiatrists, Dr Deeley and Dr Payne, that B would refuse to take his medication and that, in consequence, the onset of a psychotic state was likely. Moreover, SIAC had misunderstood the evidence of another doctor, Dr Thompson, that B would take medication if detained. Dr Thompson had expressed that opinion on the basis that B would be detained in a secure hospital. He did not hold that view in relation to B's detention in prison which was, of course, the place that he would be detained on foot of SIAC's order.
A majority of the Court of Appeal (Longmore LJ and Laws LJ) held that, notwithstanding SIAC's error, the appeal against the four months' committal order should be dismissed. They rejected the arguments based on articles 3 and 8 of ECHR. Longmore LJ accepted that there was a risk of relapse if B did not continue to take his medication in prison (para 16) and it is implicit in that finding that there was also a risk that he would not do so. A relapse into a psychotic condition whilst in prison would not amount to a breach of article 3, in Longmore LJ's view, because arrangements would be in place for B's transfer to hospital if such a relapse occurred. (Section 48 of the Mental Health Act 1983, as amended by section 1(4) of, and paragraph 11 of Schedule 1 to, the Mental Health Act 2007, empowers the Secretary of State, if satisfied that a civil prisoner—which would be the appellant's status—was in need of urgent medical treatment, to ensure that such treatment was received in hospital.)
On the question whether the four months' imprisonment was excessive, the majority found that it was not. Longmore LJ said:
"Many people might think that a sentence of four months for a deliberate and contumelious contempt, frustrating the Secretary of State's intention to deport B and causing SIAC great difficulty in its final disposition of the appeal before it, is a sentence which is comparatively merciful." (para 20)
Laws LJ was of like mind. At para 37 he said:
"…this was a grave and deliberate contempt of court. Even on the footing that the appellant is at risk of a relapse into paranoid psychosis, I am wholly unpersuaded that there is the least possibility of any violation of ECHR article 3 or 8. This was a lenient sentence."
Etherton LJ, while agreeing that SIAC had erred in the manner found by Longmore LJ, was of the view that the case should be remitted to SIAC for reconsideration. He considered that SIAC was in "a far better position" (para 33) than was the Court of Appeal to evaluate recent medical evidence about B's mental state.
The Court of Appeal refused permission to appeal but certified the following questions:
"(1) whether the Court of Appeal is correct that it should adopt the approach of the Court of Appeal (Criminal Division) and only allow an appeal where a sentence is manifestly excessive or whether section 13 of the Administration of Justice Act 1960 (when read with the Civil Procedure Rules) gives it a broader discretion that enables it to remit a case where a first instance judgment regarding sentence was flawed and/or procedurally unfair?
(2) whether the Court of Appeal must remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair unless it concludes that the court below would have reached the same conclusion even if it had not fallen into error"
The focus of the appeal in this court was distinctly different from that which had been central to the hearing before the Court of Appeal. Before this court it was argued that the Court of Appeal had unwarrantably deferred to SIAC's selection of the appropriate sentence and had wrongly determined that the sentence of four months was proper on the basis that it was not manifestly excessive. Mr Southey QC, on behalf of the appellant, took particular issue with Longmore LJ's statement in para 12 of his judgment where he said:
"As in any appeal against a sentence of imprisonment, the question for this court is whether the sentence imposed was excessive or, indeed, to use the almost invariable language of the Criminal Division of this court, 'manifestly excessive' since there is, of course, a wide discretion given to any sentencing tribunal. "
To adopt the conventional approach taken by the Court of Appeal, Criminal Division to appeals against sentence by first instance courts was wrong, the appellant argued, for three reasons. First, it treated SIAC's decision as having residual validity, despite it having been found that the basis on which that decision had been reached was flawed. The second reason was related to the first. Section 13(1) of the Administration of Justice Act 1960 gives an automatic and broadly based right of appeal from a decision of a court in the exercise of its jurisdiction to punish for contempt of court. Section 13(3) gives an unfettered power to the appellate court to reverse or vary the order of the lower court. It was therefore wrong, the appellant contended, to constrain the exercise of that power by reference to the possible propriety of the lower court's penalty. It was necessary for the appellate court to take an entirely de novo decision on the proper penalty, if any, to impose on the defendant in a contempt proceeding. Finally, it was argued that, in general, where an appellate court has found that the court exercising the power...
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