DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Jacobs |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] UKUT 166 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | UA-2022-000151-HM |
Neutral Citation: [2022] UKUT 166 (AAC)
Judge: UTJ Jacobs
UA-2022-000151-HM
Court and Reference: Upper Tribunal (AAC),
Facts: DD was imprisoned in 2016; charged with further offences, he was found unfit to stand trial (s4 Criminal Procedure (Insanity) Act 1964) but to have committed the acts charged (s4A), leading to the making of hospital and restriction orders under ss37/41 Mental Health Act 1983 in October 2019. In September 2021, DD applied to a Tribunal; in October 2021, the Secretary of State granted him a conditional discharge with a condition that he reside in prison, with the consequence that the Parole Board considered that it could not consider a parole application in relation to the 2016 prison sentence. On 29 November 2021, the Tribunal decided that it no longer had jurisdiction to consider his application, in relation to which permission to appeal to the Upper Tribunal was later given and MIND was joined as intervener. Subsequently, the Secretary of State, being satisfied that DD was now fit to stand trial, remitted his case for trial, the effect of which was that the hospital and restriction orders ceased to have effect (s5A of the 1964 Act). DD was acquitted when no evidence was offered.
Appearances: R Pezzani (instructed by GT Stewart) for DD; Dr R Ley (former Responsible Clinician for DD) for the Trust; the Secretary of State took no part; S Simblet QC (instructed by MIND) for MIND as intervener.
Decision (following an oral hearing)
Although the decision of the First-tier Tribunal involved the making of an error on a point of law, it is NOT SET ASIDE under s12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
1. The issue that originally arose in this case was whether the First-tier Tribunal retained jurisdiction on an application made by the patient who was subject to hospital and restriction orders when the application was made, but who had been conditionally discharged before the hearing. Before the hearing of the appeal to the Upper Tribunal, the patient ceased to be subject to the Mental Health Act 1983. That rendered the outcome of the appeal academic, which raised the question whether I should decide the issue. I did so and have decided that the First-tier Tribunal retained jurisdiction.
2. The background is complicated and confusing. What follows is not complete, but it is sufficient to the purposes of this appeal. I am grateful to counsel and DD's solicitor for their joint efforts at unravelling what happened.
3. On 20 September 2016, DD was convicted of offences and sent to prison.
4. He was later charged with further offences. In order to follow what happened next, it is necessary to understand the Criminal Procedure (Insanity) Act 1964. In 2019, the issue arose whether he was fit to be tried on those further offences. The decision that he was unfit was made by a judge without a jury under s4(5). Section 4A then provided for the jury to decide whether he did the act or made the omission in the charge:
(2) The trial shall not proceed or further proceed but it shall be determined by a jury—
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
The jury's decision led to the making, on 18 October 2019, of hospital and restriction orders under the Mental Health Act 1983, as authorised by s5 of the 1964 Act:
(1) This section applies where–
… (b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused–
(a) a hospital order (with or without a restriction order); …
5. I will need to refer to the 1964 Act again, but meanwhile back to the history. On 27 September 2021 with the hospital and restriction orders still in force, DD applied to the First-tier Tribunal. A few weeks later, on 15 October 2021, the Secretary of State directed that he be conditionally discharged; the only condition was that he ‘reside at HM Prison’. I was told that the Parole Board considered that this condition prevented the Board from considering parole in respect of the earlier offences.
6. On 29 November 2021, the First-tier Tribunal decided that, following and as a result of the conditional discharge, it no longer had jurisdiction to hear DD's application. On 18 February 2022, the tribunal gave DD permission to appeal to the Upper Tribunal.
7. The Secretary of State was later satisfied that DD could properly be tried. Section 5A(4) of the 1964 Act then applied. This provides for the orders to cease to have effect after a person's mental health has improved sufficiently to be tried:
(4) Where–
(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1)(b) above, and
(b) the court also made a restriction order, and that order has not ceased to have effect,
the Secretary of State, if satisfied after consultation with the responsible clinician that the person can properly be tried, may remit the person for trial, either to the court of trial or to a prison. On the person's arrival at the court or prison, the hospital order and the restriction order shall cease to have effect.
Once the orders ceased to have effect, the proceedings in the Upper Tribunal became academic in the sense that DD's discharge and the issue of the First-tier Tribunal's jurisdiction no longer arose for decision. Just to complete the history, DD was acquitted at the Crown Court on 1 April 2022, on the Crown offering no evidence.
8. As I have explained, DD ceased to be subject to the Mental Health Act 1983 after he had been given permission to appeal by the First-tier Tribunal and had lodged his appeal with the Upper Tribunal. In that sense, his appeal became academic. That does not mean that this tribunal ceased to have jurisdiction. Permission is merely a threshold condition, meaning that it does not lapse if the grounds on which it was given cease to obtain. The Upper Tribunal retains jurisdiction so long as there is a point of law arising from the decision under appeal: s11(1) of the Tribunals, Courts and Enforcement Act 2007 and Secretary of State for Work and Pensions v Robertson[2015] CSIH 82 at [42]–[45]. In this case, there is a point of law, so...
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