R (IR) v (1) Dr G Shetty (2) Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,MR JUSTICE MUNBY |
| Judgment Date | 12 December 2003 |
| Neutral Citation | [2003] EWHC 3152 (Admin) |
| Date | 12 December 2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5599/2003 |
[2003] EWHC 3152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Munby
Case No: CO/5599/2003
Mr Paul Bowen (instructed by Kaim Todner) for the claimant
The first defendant was neither present nor represented
Ms Eleanor Grey (instructed by the Treasury Solicitor) for the second defendant
1. On 2 April 1995 the claimant killed his brother. On 17 February 1997 he was convicted of manslaughter by a jury at Norwich Crown Court. On 8 September 1997 HHJ Hyam sentenced him to life imprisonment and fixed the tariff under section 34 of the Criminal Justice Act 1991 at eight years. As he was first remanded in custody on 4 April 1996 his tariff date is 4 April 2004. Whilst in prison his mental state deteriorated. On 8 August 2000 he was transferred to the Norvic Clinic in Norwich pursuant to a transfer direction made by the Secretary of State under section 47 of the Mental Health Act 1983 (“the Act”). In accordance with his normal policy the Secretary of State imposed a restriction direction under section 49(1) of the Act. On 4 January 2001 the claimant was returned to prison pursuant to a warrant issued by the Secretary of State under section 50(1)(a) of the Act. On 23 April 2003 he was again transferred to the Norvic Clinic pursuant to transfer and restriction directions made under sections 47 and 49(1). It is common ground that, whatever his mental state at the time he was sentenced, the claimant has since suffered severe psychotic episodes.
2. Much time was spent in 1997 ascertaining whether it was open to HHJ Hyam, instead of sending the claimant to prison, to make a hospital order under section 37 of the Act. I need not set out the section. It suffices for present purposes to note that a hospital order cannot be made (see section 37(1)) unless three conditions are satisfied:
i) Two doctors must give evidence that the offender is suffering from a mental illness or other mental disorder within the meaning of section 1(2) of the Act: section 37(2)(a).
ii) The same two doctors must also give evidence that the mental disorder from which the offender is suffering “is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”: section 37(2)(a)(i).
iii) There must be a hospital bed available: section 37(4).
If these three conditions are met the court has power and discretion, subject to certain other conditions which are not relevant for present purposes, to make a hospital order: sections 37(1) and 37(2)(b).
3. HHJ Hyam had before him the evidence of three doctors: Drs Hadrian Ball, Jonathan Shapero and Henrietta Bullard. Dr Ball, in a report dated 12 September 1996, was clear that the claimant was not currently mentally disordered, though he had “an extremely unusual character, amounting to a personality disorder” which Dr Ball described as “of a mixed type with prominent schizoid and paranoid traits.” He commented that the degree of disorder was “marked”. He thought that what he diagnosed as the claimant's malingering “could well be a harbinger of future genuine mental illness.” In a report dated 29 May 1997 Dr Ball said that he did not feel able to offer the claimant a bed at the Norvic Clinic.
4. Dr Shapero, in a report dated 8 August 1997, said that the claimant “does not presently suffer from mental illness … but he does have a significant disorder of personality.” He acknowledged “the possibility that under severe stress he probably develops symptoms of mental illness.” His report concluded:
“[The claimant] is determined to avoid medical treatment at the present time. He has poor insight, poor impulse control and seems only motivated to isolate himself from others. Indeed one of his motivations for wanting to return to prison custody is so that he may stay in isolation – at the hospital he sees himself as being forced into therapeutic activities in which he does not want to participate.
As a consequence of the above I regret that I do not consider that there will be any need to continue [his] detention under Section 38 of the Mental Health Act. His bed will not be available after the date of his Court appearance, and I assume he will return to prison custody even if he is not sentenced on that date.
There is little point in trying to persuade a patient with personality disorder to engage in treatment against their will. Consequently, I have no formal medical recommendation to make to the Court regarding this man's disposal, other than to repeat my concerns about his long-term dangerousness in the community if he does not receive treatment.”
5. Dr Bullard's report was dated 12 August 1997. She agreed with Dr Shapero that the claimant “suffers from a serious personality disorder and … has failed to participate in the assessment procedure.” She continued:
“It is hard to see how such a disturbed person can be accommodated within the prison system and if he is also subject to an indeterminate prison sentence he is likely to remain in prison indefinitely and not be suitable for release at tariff. It is inconceivable that the prison personnel will be able to cope with this man and I do consider that his needs are for management in hospital. In addition to his abnormal personality it is quite likely that he also suffers from a mental illness and that his strong views about his brother and people in Norwich Prison “burning his head from behind” are paranoid delusions.”
6. Sentencing the claimant to life imprisonment on 8 September 1997 HHJ Hyam said:
“Since your conviction, it has been urged upon me that the appropriate way of dealing with you is by means of a hospital order with the restrictions under s 41 of the Mental Health Act 1983. After a series of adjournments to explore that possibility, we have today reached a point at which your own counsel is driven to concede that there is no prospect of the conditions of such an order being made which will be satisfied.
I am left, therefore, to consider whether this is a case where an indeterminate sentence should be imposed or whether I should pass a determinate sentence. In order to pass a discretionary life sentence, I have to be satisfied that there is a likelihood that you constitute a threat to the public for an unpredictable period of time. It had been contended by your counsel, Mr Stokes that, in the light, particularly, of the evidence of Dr Ball at a previous hearing, there is a possibility but not a likelihood of you posing a risk to the public in the future.
Dr Bullard has also given evidence on previous occasions and today. She has always said and still says that a hospital order would be the appropriate sentence but she told me today that if that was not possible then a discretionary life sentence was in her view the next best way of dealing with you.
I have also a report by Dr Shapiro, dated 8th August 1997, and he says a number of things: first, that you do not at present suffer from mental illness; second, that you have a significant personality disorder; third, that you are at high risk of future violence or homicidal behaviour unless you receive treatment; fourth, that you are potentially a dangerous man made more so by the possibility that under severe stress you would possibly develop symptoms of mental illness; and, fifth, before your release from prison you should receive treatment.
In the light of that evidence, I have come to the conclusion that the only appropriate sentence in this case is an indeterminate life sentence.”
7. Subsequently, as we have seen, the claimant has twice been transferred to the Norvic Clinic: the first time on 8 August 2000, the second on 23 April 2003. The responsible medical officer (RMO) is the first defendant Dr Shetty. By October 2003 all the doctors were agreed that the claimant not merely had a disordered personality but was also suffering from paranoid schizophrenia. A report dated 6 October 2003 prepared by the RMO's SHO, Dr Umezinwa, stated that the claimant “has an existing diagnosis of paranoid schizophrenia and emotionally unstable personality disorder.” The RMO, in a report dated 24 October 2003, said that “There is unanimity of the psychiatric opinions that [the claimant] has a disordered personality.” Dr Bullard in a witness statement dated 2 December 2003 makes two observations which are particularly important. Speaking of the period 1996–1997 she says that “none of us who examined [the claimant] at the time – Dr Ball, Dr Shapero or myself – accurately diagnosed his primary mental disorder, namely paranoid schizophrenia.” She continues:
“From what I have seen of [the claimant's] medical notes it only appears to have been after transfer to the Norvic Clinic in August 2000 that the primary diagnosis of paranoid schizophrenia was made. That is now a diagnosis upon which all the clinicians agree.
It is likely that, if that diagnosis had been made in 1997, a hospital order would have been recommended. His schizophrenia was then, and remains, of a nature and degree that justified his admission to hospital for treatment.”
The claim
8. The claimant is currently in the Norvic Clinic. On 21 October 2003 his solicitors wrote to the Secretary of State for the Home Department seeking “technical lifer status” for him. The Secretary of State replied on 31 October 2003:
“In connection with the application for technical lifer status, the Secretary of State has considered carefully the medical evidence...
To continue reading
Request your trial
-
R (EM and Others) v Secretary of State for Work and Pensions
...status was conferred on life sentence prisoners in circumstances summarised by Munby J in R (IR) v Dr Shetty and the Home Secretary [2003] EWHC 3152 Admin: “10. A “technical lifer” is a person who, although sentenced to life imprisonment, is treated by the Secretary of State after transfer ......