R (DK) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 18 January 2010 |
| Neutral Citation | [2010] EWHC 82 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 January 2010 |
| Docket Number | CO/11268/2008 |
[2010] EWHC 82 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/11268/2008
Mr H Southey (instructed by Roberts Moore Nicholas Jones) appeared on behalf of the Claimant
Miss K Olley (instructed by Treasury Solicitors) appeared on behalf of the Defendant
: The claimant in this case, who is known as DK, was, when sentenced in November 2001 for three offences, 21 years old. The offences in question were one of causing grievous bodily harm with intent, one of causing grievous bodily harm (or wounding) and one of assault occasioning actual bodily harm. He was sentenced to a total of nine years and seven months’ imprisonment.
He has a considerable number of previous convictions, many of which involved violence of one form or another, and there was ample evidence before the sentencing court which showed that he was a thoroughly dangerous young man and would be likely to commit further offences. Indeed, the report before the judge was that the risk of re-offending was high. He in fact had received some 20 convictions overall. His release date, on the law as it then was, was 29 August 2008, and his licence would be due to end at the three quarter stage of his sentence, namely June 2009.
On 11 April 2006, a direction was given and he was transferred to Broadmoor on 20 April 2006. On 12 July 2007, a Mental Health Review Tribunal decided that he should be released from Broadmoor, which meant that he was returned to prison. The basis of the decision of the Tribunal was that they were not satisfied that the treatability test had been met in his case. The Tribunal's view was that, contrary to the evidence given by a doctor from Broadmoor, that he had received some treatment, in fact he had not received any treatment which had done any good to him at all. The Tribunal accepted that he was suffering from psychopathic disorder of a sufficient nature and degree for the purposes of the provisions of the Mental Health Act, which would be the first step to justify a transfer to a mental hospital. But the Tribunal was not persuaded in the circumstances that it was appropriate for him to be liable to be detained for medical treatment in detention. The reason for that was, as I have said, that the Tribunal decided he had received no or no significant medical or other treatment which had alleviated or prevented deterioration in his condition. However, it is fair to say that the Tribunal appear to have accepted that, if he had co-operated, there was available treatment which would fall within the statutory provisions, and which might do some good for the claimant.
In effect, what the claimant was doing was to recognise that he had a release date in August 2008, and he wanted to be sent back to prison in order that he could be released rather than kept in detention. So it was that he was returned to prison.
Whilst he was in prison, there were further worrying matters discovered. In particular, he was found to have been in possession of material that related to bomb making, and an indication of a possible concern on his part to take some sort of violent action against others, and indeed he had maintained his views on that sort of approach. It seems that, in reality, there can be no doubt that he is a potentially very dangerous young man, and if he were at large, there is a distinct possibility—it may even be a probability—that he will commit further offences of violence. However, it must be made clear, and indeed as the law then stood it is apparent, that detention in a mental hospital cannot be justified on the basis purely that the individual is a danger, whether to the public or to himself. It can only be justified if there is treatment available which might alleviate or, as the law then stood, was likely to alleviate or prevent a deterioration of his condition.
Indeed, the medical profession generally is adamant that detention in a mental hospital can only be justified if there is a treatment which may do some good. One can well understand why that is the position, and equally well understand why this country would not countenance anything short of that. One only has to think back to the use of mental hospitals in some countries for purposes of keeping out of action those whom the authorities consider should not be at large. One must be very careful to ensure that that does not occur. Hence the importance of treatability, rendered in this case the more important because of the decision of the Tribunal.
I confess that when I read the papers I was concerned whether the decision of the Tribunal was one which could be justified, because a failure to co-operate if treatment otherwise would be available would, in my view, on the face of it not be a proper basis for saying that the condition was not treatable. I have not gone into that aspect in detail. Mr Southey, without being able, understandably, to refer explicitly to the decision, indicates that there is a decision which suggests that that may not be a correct approach, and certainly I can see that if the failure to co-operate is part of the psychopathic disorder (or whatever disorder there may be), then it may well be that that cannot be held against the individual in question. If, on the other hand, it is a deliberate decision not to co-operate for ulterior motives and not part of the mental disorder, then, as it seems to me, different considerations might apply. However, that has become somewhat academic because of the changes effected by the 2007 Act, and now it is the availability rather than the taking up of treatment which is material. However, at the time that the decision that we are concerned with was made, the provisions of the 2007 Act had not come force. They came into force in November 2008.
So we come to the decision in question, and that was made in due course on 21 August 2008. However, it was recognised that, if this decision was to be made, it ought to be at least notified to the claimant before and certainly not at the last minute before his release date. As I have said, in fact his release date was 30 August 2008.
The relevant provision which justifies the transfer is contained in section 47 of the Mental Health Act 1983. This provides as follows, so far as material:
“47(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners-
(a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and
(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition;
the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as ‘a transfer direction’.”
Thus, there must be reports from at least two registered medical practitioners. For the purpose of this case section 47(1)(a) was satisfied because, and it is not disputed, there were reports, as we shall see, from three registered medical practitioners that he was suffering from psychopathic disorder. But the question arises under (b) as to whether, because this was psychopathic disorder, such treatment was likely to alleviate or prevent a deterioration of his condition. That was an aspect that had to be addressed.
There is before me a statement from a Mr Nanda, who was the senior caseworker at the Mental Health Unit of the Ministry of Justice and who was involved in arranging the claimant's transfer. What he says is, so far as material, as follows: that at the end of June 2008 he contacted Broadmoor and he was advised by the doctor who had treated the claimant there and who had given evidence before the Mental Health Review Tribunal that a possibility of a transfer back to Broadmoor should be explored because of the earlier contention that he was in need of treatment. He then requested a report from the prison. In fact, it transpired that the claimant had been removed from the prison at which Mr Nanda thought he was incarcerated to Her Majesty's Prison Garth, and so an update from Garth from a nurse dealing with him was also requested.
It transpired that Dr Ross, who was the relevant doctor, could not see the claimant before 12 August 2008, and what he did then was to conduct an assessment with a Dr Walker. Dr Walker is not a registered medical practitioner, but a psychologist also working at Broadmoor. That assessment having been made, Mr Nanda spoke to Dr Ross on 14 August. Unfortunately, as matters turned out, Mr Nanda was going on holiday after the 14th and so was not available to take any part in the final decision-making which, as I have said, occurred on 21 August. In any event, he spoke to Dr Ross, and, as Mr Nanda says in his statement, and I read from paragraph 7:
“The issue of treatability was paramount. It was failure satisfy the tribunal on this criterion in 2007 while [the claimant] was at Broadmoor Hospital that had necessitated his remission back to...
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