R (F) v Secretary of State for Justice; R (TF) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Aikens,Lord Justice Waller |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1457 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2008 |
| Docket Number | Case No: C1/2008/2898 |
[2008] EWCA Civ 1457
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mrs Justice Cox
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Lord Justice Waller Vice-President of the Court of Appeal, Civil Division
Lord Justice Thomas and
Lord Justice Aikens
Case No: C1/2008/2898
Stephen Knafler and Roger Pezzani (instructed by Campbell-Taylor Solicitors) for the Appellant
Katherine Olley (instructed by Treasury Solicitor) for the Respondent
Hearing date : 16th December 2008
Judgement
Lord Justice Waller :
The appellant is only 20 years old and already has a record of committing a series of criminal offences, including wounding with intent. He has a mental disorder which would come within the diagnosis of Dissocial Personality Disorder. His last sentence was one of 30 months for robbery, which was due to end on 12 th September 2008. Consideration had been given from time to time during the period of that sentence to seeking from the Secretary of State a warrant directing his transfer to a hospital under section 47 of the Mental Health Act 1983 but, until the very last moment of his sentence, that did not happen. It is the circumstances under which a warrant was sought and obtained at the last moment of his sentence that is under scrutiny in the proceedings.
On the morning of the 12 th September 2008, the day he was due to be released, the appellant was under the impression that he would be released into the community, albeit under supervision. A notice of supervision relating to the appellant's release plan was handed to the appellant on that day. It informed him that his sentence expired on 12 th September and that after his release he would be under the supervision of a probation officer or local authority social worker for three months until 11 th December.
Unbeknownst to the appellant, a direction had been sought from the Secretary of State for a transfer to a hospital and a warrant had been issued and signed on 11 th September, transferring the appellant to a Medium Secure Hospital, Kneesworth House in Hertfordshire. Thus, when the appellant, who had prepared for and was expecting his release, reached the reception area having changed into his civilian clothes, he was served with the order for transfer and escorted by hospital staff to Kneesworth.
By section 47 of the Mental Health Act the Secretary of State must be satisfied of certain matters. The warrant stated that he was so satisfied, and it is convenient at this stage to quote the warrant issued in this case, which stated that the Secretary of State was satisfied “by the reports of two medical practitioners, of whom one at least is a practitioner approved for the purposes of section 12 of the said Act, that the [appellant] is suffering from psychopathic disorder within the meaning of the said Act and that the mental order is of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment and that such treatment is likely to alleviate or prevent a deterioration of his condition.”
By a judgment handed down on 18 th November 2008 Mrs Justice Cox held that, on the evidence before her, the Secretary of State “could not have been satisfied by reports from at least two medical practitioners that hospital treatment was likely to alleviate or prevent a deterioration of the [appellant's] condition.” On that basis she held that “if that had been the end of the matter” she would have felt constrained to make an order quashing the decision to transfer. But she also held that it was not the end of the matter. She went on to consider evidence from two practitioners brought into existence after the transfer had been made and, in reliance on that evidence, she found that if the Secretary of State had made further inquiries he would have been so satisfied and would have made the order for transfer, so that in the exercise of her discretion she would not grant relief.
The appellant appealed that part of the judge's judgment whereby she had, in her discretion, refused relief. Buxton LJ granted permission to appeal on 10 th December and directed that the appeal should be expedited. The appeal was listed to be heard on 16 th December. The respondent put in a respondent's notice challenging that part of the judgment by which the judge indicated that but for the exercise of her discretion she would have quashed the transfer decision.
On the hearing of the appeal we indicated that we would like to hear argument on the respondent's notice first because if the judge's decision on that aspect were reversed that would make the appellant's argument academic. Having heard argument on the respondent's notice and having retired for a short while we indicated that we needed further time to consider that aspect and would like to hear argument on the judge's exercise of discretion on the basis that the judge's view on quashing the order to transfer might be right.
Miss Olley at this stage indicated very properly that she would find it impossible to uphold the judge's exercise of discretion if the order to transfer and thus the warrant were quashed. With the greatest respect to the judge, who had clearly taken the greatest care in considering every aspect of a troublesome case, and, who quite understandably was concerned about the ramifications of quashing the order to transfer with its obvious consequences, the judge went wrong in seeking to keep an invalid order in place by the exercise of a discretion to refuse relief.
It seems probable that she was misled by the decision in R v Secretary of State for the Home Department ex p Gilkes [1999] 1 MHLR 6 where Dyson J (as he then was) held in relation to a decision to transfer under section 47 that it had not been reasonable for the Secretary of State to rely on one of the two medical reports she relied on and held that, in the light of the fact that if the Secretary of State had made further inquiries at the time of the decision to transfer, the decision would have been the same, that he would exercise his discretion against granting relief.
There does not seem to have been argument in that case as to whether, by virtue of unreasonably relying on a report, the warrant issued was unlawful. It may be that that case fell a different side of the line. Lord Donaldson MR in R v Secretary of State ex p Cheblak [1991] 1 WLR 890 explained the difference between an application for judicial review and habeas corpus in these words:-
“Although, as I have said, the 2 forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different. A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.”
If the judge's decision in this case was right the Secretary of State simply did not have the power under section 47 to direct a transfer. If that was right the detention was unlawful. The court simply cannot render a detention lawful that which was unlawful simply by refusing to grant relief.
I should perhaps add that, so far as the future is concerned, as Mr Knafler has explained in his skeleton there are provisions of the Mental Health Act sections 5 and 3 which would allow for the detention of the appellant in a hospital, if the criteria under those sections apply. That could be the only way in which the appellant's detention in a hospital could become lawful once the order for transfer and the warrant were quashed.
Accordingly the question is – was the judge right in her view that the Secretary of State did not have the power to direct a transfer under section 47? It is important in considering that question to have in mind the context. The decision under section 47 was being taken right at the end of the appellant's sentence and it was thus a decision that involved depriving him of his liberty. That may often not be the position when section 47 is used because the transfer is in the course of a sentence of imprisonment and the patient's detention in hospital is in exchange for lawful detention in prison. That, as it seems to me, heightens the scrutiny which should be applied both by the Secretary of State as to the evidence on which that decision should be taken, and heightens the scrutiny which the court must apply to the decision of the Secretary of State.
Mr Knafler reminded us of the words of Brooke LJ in D v Home Office [2006] 1 WLR citing the words of Lord Atkin and Lord Griffiths in paragraph 69:-
“no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action...
To continue reading
Request your trial
-
R (DK) v Secretary of State for Justice
...treatable. 26 However, the problem in that approach is, Mr Southey submits, created by a decision of the Court of Appeal in TF v the Secretary of State for Justice [2008] EWCA Civ 1457. That decision had not been made before this transfer was made, and so those responsible did not have the ......
-
R (SP) v Secretary of State for Justice
...made. On 3rd November 2008 this version replaced an earlier form of section 47 which was considered by the Court of Appeal in TF v Secretary of State for Justice [2008] EWCA (Civ) 1457, upon which Mr Southey relies. The section has now been superseded by further changes in legislation with ......
-
R (SP) v Secretary of State for Justice [Administrative Court]
...this version replaced an earlier form of s47 which was considered by the Court of Appeal in R (TF) v Secretary of State for JusticeMHLR[2008] MHLR 370, upon which Mr Southey relies. The section has now been superseded by further changes in legislation with effect from 30 October 2009. The r......
-
R (DK) v Secretary of State [Administrative Court]
...in that approach is, Mr Southey submits, created by a decision of the Court of Appeal in R (F) v Secretary of State for JusticeMHLR[2008] MHLR 370. That decision had not been made before this transfer was made, and so those responsible did not have the benefit of the view of the Court of Ap......
-
Table of Cases
...[2011] EWHC 2355 (Admin) 191, 192 R (on the application of T) v Home Secretary [2003] 1 MHLR 239 122 R (on the application of TF) v SSJ [2008] 1 MHLR 370 120 R (on the application of von Brandenburg) v East London and the City Mental Health NHS Trust and Another [2003] UKHL 58 [2004] 2 AC 2......
-
Transfers from Prison to Hospital under Sections 47 and 48 of the Mental Health Act 1983
...way of keeping a dangerous prisoner detained for longer than his sentence would otherwise allow. In R (on the application of TF) v SSJ [2008] 1 MHLR 370, the court’s view was that any decision taken by the SSJ to transfer under section 47 of the MHA 1983 towards the end of a prison sentence......