R (Juncal) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Scott Baker,Lord Justice Richards |
| Judgment Date | 25 July 2008 |
| Neutral Citation | [2008] EWCA Civ 869 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2008 |
| Docket Number | Case No: C1/2008/0222 |
[2008] EWCA Civ 869
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Scott Baker and
Lord Justice Richards
Case No: C1/2008/0222
Mr Richard Gordon QC and Mr Denis Edwards (instructed by Messrs Campbell-Taylor Solicitors) for the Appellant
Mr Martin Chamberlain (instructed by the Treasury Solicitor for the First, Third and Fourth Respondents and by Messrs Bevan Brittan for the Second Respondent)
Hearing dates: 14 & 15 May 2008
This is an appeal against a judgment of Wyn Williams J dated 19 December 2007 whereby he dismissed a claim by Mr David Grant Juncal (“the appellant”) for declarations that the appellant's detention has been and continues to be unlawful. It is claimed that the appellant has been unlawfully detained since being found unfit to plead, at the Crown Court in Belfast on 16 December 1997, to a charge of unlawful wounding in March 1997, contrary to section 20 of the Offences Against the Person Act 186Permission to appeal was granted by the judge.
The sequence of events
On 16 December 1997, the appellant was made subject to a hospital order together with a restriction order made without limitation of time, imposed under article 49 of The Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”). The order recited that the appellant was suffering from the mental illness known as paranoid schizophrenia. He has since been detained in hospitals.
The record of proceedings at the Belfast Crown Court is far from complete but the judge made findings of fact which are not challenged in this appeal. Prior to his trial, the appellant was admitted, for urgent psychiatric assessment, to the psychiatric unit of the prison at which he was held. Following further reports, a jury was empanelled on 16 December 1997 and, having heard oral evidence from Dr Brian Fleming and Dr Frederick Brown, both consultant psychiatrists qualified to offer opinions, the jury concluded that the appellant was unfit to plead. The procedure under article 49 of the 1986 Order was followed so that there was no investigation by the court of the facts upon which the criminal charge was based or of whether the appellant had carried out the acts alleged to form the substance of the charge.
Two weeks after the court's findings, an order was made pursuant to section 81(1) of the Mental Health (Scotland) Act 1984 (“the 1984 Act”) authorising the appellant's removal to Scotland. The 1984 Act applied to Northern Ireland so that the Secretary of State for Northern Ireland was empowered to give the written authority for transfer, which he did on 30 December 1997. Section 81(2) of the 1984 Act provides:
“… where a patient who is liable to be detained under this Act by virtue of an application, Order, or direction under any enactment in force in Northern Ireland is removed under this section and admitted to a hospital in Scotland, he shall be treated as if on the date of his admission he had been so admitted in pursuance of an application forwarded to the managers of the hospital, or an Order or direction made or given, on that date under the corresponding enactment in force in Scotland …”
A provision to the same effect appears in Section 77(2) in relation to a removal from Scotland to England and Wales.
The power to remove was exercisable only if it was established to the satisfaction of the Secretary of State for Northern Ireland that it was “in the interests of the patient to remove him to Scotland, and that arrangements had been made for admitting him to a hospital …” (Section 81(1) of 1984 Act). Subject to its legality, it is accepted that, because his mother lived in Scotland, the move was in the interests of the appellant.
On admission to hospital in Scotland, the appellant was medically examined by Dr Colin Gray, consultant forensic psychiatrist, and his report is dated 4 February 1998. Pursuant to a warrant issued by Scottish Ministers on 7 June 2005, the appellant was transferred to a hospital in England under section 77(1) of the 1984 Act on the basis that it was in his interest. By virtue of section 77(2) he was treated as being detained in England under the enactment “corresponding” to that in force in Scotland (ss37/41 of the Mental Health Act (“the 1983 Act”)), as provided by the Criminal Procedure (Insanity) Act 1964 (“the 1964 Act”) and the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (“the 1991 Act”). The appellant continues to be detained under those sections.
By Home Office letter dated 7 June 2005, the appellant was notified of his position under the legislation dealing with mental health. He was supplied with a leaflet explaining the effect of orders under sections 37 and 41 of the 1983 Act. He was told that there were some statements in the leaflet which did not apply to him:
“1. Because you have not yet stood trial for the offence(s) of which you are accused, it may be necessary, when you have recovered sufficiently, to make arrangements for you to appear again before the court. Your doctor will advise the Home Secretary about this.
2. You do not have to wait 6 months before you can apply to the Tribunal [Mental Health Review Tribunal]. You can apply once at any time in the first 6 months of your detention. If you do not use this right yourself, the Home Secretary has to refer your case to the Tribunal at the end of the 6 months. After that, if you are still detained in hospital, your rights of application are the same as stated in the leaflet.
If you have any questions about this the doctor or a nurse or social worker will help you.”
The 1986 Order
The 1986 Order was made pursuant to powers conferred by the Northern Ireland Act 1974 (“the 1974 Act”), section 1(1) of which provides: “Her Majesty may by Order in Council dissolve the Assembly elected under the Northern Ireland Assembly Act 1973 …”
Section 1(3) provides:
“(3) The provisions of Schedule 1 to this Act shall have effect with respect to the exercise of legislative, executive and other functions in relation to Northern Ireland during the interim period specified by or under sub-section (4) below.”
In the event, the “interim period” under Section 1(4) lasted for many years.
Schedule 1, so far as is material, provides:
“1. (1) During the interim period -
(a) …
(b) Her Majesty may by Order in Council make laws for Northern Ireland and, in particular, provision for any matter which the Constitution Act authorises or requires provision to be made by Measure.
(2) …
(3) …
(4) No recommendation shall be made to Her Majesty to make an Order in Council under this paragraph unless either -
(a) a draft of the Order has been approved by resolution of each House of Parliament; …”
The 1986 Order was made in accordance with the requirements of the 1974 Act. Article 49 provided for what was to occur when a finding of unfitness to plead had been made:
“(5) Where in accordance with paragraphs (2) to (4) it is determined that the accused is unfit to be tried -
(a) the court shall direct a finding to that effect to be recorded; and
(b) the trial shall not proceed or, as the case may be, proceed further.
(6) Where a court has directed that a finding be recorded in pursuance of paragraph 5(a) … the court shall order that the person to whom the finding relates shall be admitted to hospital.
(7) An order under paragraph (6) shall have the same effect as a hospital order together with a restriction order made without limitation of time.
(8) Where the Secretary of State is notified by the responsible medical officer that a person detained in a hospital by virtue of an order under paragraph (6) no longer requires treatment for mental disorder, the Secretary of State may remit that person to prison or to a remand centre or remand home for trial by the Crown Court at the place where, but for the order, he would have been tried, and on his arrival at the prison, remand centre or remand home the order under paragraph (6) shall cease to have effect.”
Sub-sections (6) and (7) reflect the power of a court in England and Wales, under the 1983 Act, in certain circumstances to make a hospital order (section 37) and a restriction order (section 41).
Article 49(3) provides:
“(3) If, having regard to the nature of the supposed mental condition of the accused, the court is of opinion that it is expedient so to do and in the interests of the accused, the court may -
(a) postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence; and
(b) if, before the said question falls to be determined, the jury returns a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.”
The formal order of the Belfast Crown Court is headed with a reference to article 49(6) of the 1986 Order and recites the finding that the appellant has been found to be under a disability so that he cannot be tried on the section 20 offence. On that finding, a hospital order, with a restriction order made without limitation of time, followed necessarily under article 49(6) and (7). The order does, however, recite a...
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