R (B) v Mental Health Review Tribunal and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Scott Baker,MR JUSTICE SCOTT BAKER |
| Judgment Date | 22 July 2002 |
| Neutral Citation | [2002] EWHC 1553 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1586/2001 |
| Date | 22 July 2002 |
[2002] EWHC 1553 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Scott Baker
Case No: CO/1586/2001
Mr Paul Bowen & Miss D Teipley (instructed by Scott Moncrieff, Harbour and Sinclair) for the Claimant
Mr Tim Mould (instructed by Treasury Solicitor) for the First Defendant
Mr Martin Chamberlain (instructed by Treasury Solicitor) for the Second Defendant
Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”) provides that:
“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.”
B, who is the Claimant in these proceedings is a restricted patient under Sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). He was recalled to hospital under Section 42(3) of the 1983 Act by the Secretary of State on 2 February 2001. His case was heard substantively by the Mental Health Review Tribunal (“the tribunal”) on 8, 9 and 10 October 2001 and its decision not to discharge him was promulgated on 18 October 2001. He claims the delay of between 8 and 9 months amounts to a breach of Article 5(4) of the ECHR. All parties agree that a delay of this length is on the face of it unacceptable and requires justification if the court is not to find a breach of Article 5(4).
Chronology
In order better to understand the issues in this case it is helpful to have in mind the chronology. B is a paedophile with a psychiatric disorder. On 7 February 1992, following conviction for two counts of abducting a child, one of indecent assault and one of assault occasioning actual bodily harm, he was made the subject of a restriction order under Sections 37 and 41 of the 1983 Act. Whilst on leave from hospital he abducted and indecently assaulted a young girl and on 23 August 1996 was sentenced to 7 years imprisonment. He was felt at that stage to be untreatable. On 10 April 1997 he was discharged from hospital on condition that he reside in prison.
On 4 October 2000 Dr Simon Beer wrote to the Home Office saying there were real questions about his treatability and suggesting that an assessment should be carried out by a special hospital. He was subsequently assessed by Dr Horne from Broadmoor at the request of the Home Office. He reported on 25 January 2001. It will be necessary to refer in some detail to his report later in this judgment.
On 2 February 2001, the day B was due to be released from prison, the Secretary of State recalled him to hospital under Section 42(3) of the 1983 Act. The Secretary of State's concern is obvious. He did not wish to release a dangerous paedophile into the community if he met the criteria for transfer to hospital; and he concluded that he did.
On 8 February 2001 the Secretary of State referred B's case to the tribunal as he was obliged to do under Section 75(1) of the 1983 Act within one month of the patient's return to hospital. The tribunal fixed B's case for hearing on 28 March 2001. This was in accordance with Rule 29(cc) of the Mental Health Review Tribunal Rules as amended (“the 1983 Rules”) which requires the tribunal to fix a date for the hearing not later than 8 weeks nor earlier than 5 weeks from the date of receipt of the reference.
On 8 March 2001 the Broadmoor Hospital Authority produced a statement required by Rule 6 of the 1983 Rules. This included a report by Dr McGregor- Morris, the registrar to the responsible medical officer (RMO), concluding that B is was not treatable. This was received by the Secretary of State on 19 March 2001.
On 21 March 2001 the Secretary of State produced the statement required of him by Rule 6(2) of the 1983 Rules, and the following day wrote to the tribunal asking for an adjournment to enable him to instruct an expert in the light of Dr McGregor-Morris's conclusions.
On 26 March 2001 the regional chairman granted an adjournment but without giving B or his solicitors any opportunity to make representations and without giving any reasons for his decision. The same day B's solicitors wrote objecting in strong terms pointing out that the request for an adjournment ought to have been considered by the tribunal members in full on 28 March following representations. The regional chairman was not however prepared to alter his decision. A file note suggests the tribunal administration was told to “try and negotiate a date as soon as possible.” This, I understand to refer to a date for the substantive hearing.
On 27 March 2001 the Secretary of State instructed Dr Meux. On 19 April 2001 the present judicial review proceedings were commenced claiming at that time a quashing order in respect of the decision to adjourn and a mandatory order requiring the tribunal to hear the reference forthwith. On 23 April 2001 Crane J. granted permission and the tribunal gave an undertaking to list the application to it for hearing within fourteen days or as soon thereafter as reasonably practicable.
On 30 April 2001 Dr Meux submitted his report, which was adverse to B, and on 4 May 2001, the date the tribunal had fixed for the hearing, B's solicitors applied for an adjournment to enable Dr Payne, the RMO, to produce a report and to allow them time to respond to it if so advised. The hearing was fixed for one day on 29 June 2001.
On 18 May 2001 Dr Payne submitted his report which likewise was adverse to B. It concluded that he suffered from a personality disorder but that it was his sexual deviancy rather than his personality disorder that caused him to abuse children and in any event his personality disorder was not treatable.
The next event of significance was on 5 July 2001 when Dr Amory Clarke produced a report which concluded, contrary to the views of Dr Payne and Dr Meux, that B did not suffer from a personality disorder. There is no indication when, and in what circumstances, 29 June 2001 was vacated and the hearing date of 24 to 27 July fixed instead. It seems fairly clear that for one thing it was felt the hearing would take more than one day. What is known is that neither Dr Meux or Dr Payne was available for the 24 July hearing and the hearing was re-fixed for 8 to 10 October 2001. The tribunal concluded at that hearing that B's propensity to abuse children was at least in part due to his personality disorder and that his personality disorder was treatable. The tribunal communicated its decision on 18 October 2001, one day outside the 7 day period prescribed by Rule 24(1) of the 1983 Rules, but nothing in my judgment turns on this.
In separate proceedings ( CO/2379/2001) B sought to challenge the Secretary of State's decision to recall him to hospital. B's renewed application was refused by Collins J. at an oral hearing on 27 November 2001. This had previously been adjourned pending the outcome of the tribunal hearing. Finally, Sullivan J. gave permission in the present application on amended grounds on 15 April 2002.
The Claimant's Case
Mr Paul Bowen, for the Claimant, has directed his main attack at the decision to adjourn on 26 March 2001. Broadly, he submits that (i) the decision was made in breach of natural justice because B's representatives were not given an opportunity to be heard and (ii) an adjournment was inappropriate anyway because the Secretary of State was at fault in leaving the instruction of an expert to such a late stage. He argues that all the subsequent delay flows from that adjournment and that it is nothing to the point if much of that delay was directly attributable to the instruction of an expert on his side.
The Tribunal's position
Rule 16 of the 1983 Rules provides that the tribunal may at any time adjourn a hearing for the purpose of obtaining information or for such other purposes as it may think appropriate. Rule 16(2) provides that before adjourning any hearing the tribunal may give such directions as it thinks fit for ensuring the prompt consideration of the application at an adjourned hearing. Where no date is fixed for an adjourned hearing at least fourteen days notice is required in the absence of consent to some shorter period (Rule 16(4)).
Rule 13 gives the tribunal power to give such directions as it thinks fit to ensure the speedy and just determination of the application before it.
Rule 5 gives the regional chairman power to exercise the powers of the tribunal at any time before the tribunal itself hears the application. Those powers include those under Rule 13 but not those under Rule 16.
Mr Michael Christie, the regional chairman in the present case, says in a statement that he was able to read the file carefully and was satisfied that a postponement was both justified and the proper action to take in accordance with the Rule 13. Were the matter to have been left to the tribunal hearing he was of the opinion that the tribunal would almost certainly have granted the Secretary of State's application for an adjournment in the exercise of its power under Rule 16. By granting the adjournment in advance, unnecessary attendance could be avoided and the overall determination of the Claimant's case speeded up. He says he had in mind the impact of postponement on the rights of the Claimant to a speedy hearing and determination of his case both under domestic law and in accordance with the ECHR, but that postponement for a limited period of time was the proper course to take.
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