R (L) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Jonathan Parker,Lord Justice Brooke |
| Judgment Date | 20 January 2005 |
| Neutral Citation | [2005] EWCA Civ 2 |
| Docket Number | Case No: C3/2004/1015 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2005 |
[2005] EWCA Civ 2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Collins)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President of the Court of Appeal (Civil Division)
Lord Justice Jonathan Parker and
Lord Justice Keene
Case No: C3/2004/1015
Alison Foster QC & Matthew Seligman (instructed by Peter Edwards, Hoylake CH47 2AE) for the Appellant
Tim Ward (instructed by The Treasury Solicitor) for the Respondent
The issues in this case concern the legality of the recall to hospital by the Secretary of State under section 42(3) of the Mental Health Act 1983 ("MHA") of a person who was the subject of an order under section 5(1)(a) of the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act") and the legality of the detention of that person in hospital between recall and the subsequent determination by a Mental Health Review Tribunal ("MHRT") under section 72 of the MHA. The case came before this court initially as an adjourned application for permission to appeal, on notice to the respondent, but such permission was granted at the hearing which then dealt with the substantive appeal. The appellant had failed before Collins J to obtain judicial review of the decisions of the Secretary of State to recall and detain.
The facts are not complicated. In March 1991 the appellant, who was then aged 23, killed his 17 year old girlfriend by beating her savagely about the head with an iron bar. He appeared before the Crown Court in September 1991, charged with murder, but a verdict was returned by the jury of not guilty by reason of insanity. As a result the court was required by section 5(1)(a) of the 1964 Act (which at that time had not been amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) to make an order that he be admitted to hospital. By paragraph 2(1) of Schedule 1 of the 1964 Act in its unamended form, such a person
"shall be treated for the purposes of the [Mental Health Act] 1959 as if he had been so admitted in pursuance of a hospital order made … under section 60 of that Act, together with an order restricting discharge made under section 65 of that Act without limitation of time."
The Secretary of State directed that the hospital to which the appellant was to be admitted should be Ashworth Hospital.
Since then the Mental Health Act 1959 has been replaced by the MHA and the 1964 Act has been amended to give the court somewhat wider powers, but it is not suggested that either of these statutory changes has any real significance for the purposes of this case. The upshot is that the appellant was to be treated for the purposes of the MHA "as if he had been … admitted" in pursuance of a section 37 hospital order together with a section 41 restriction order without limitation of time.
As was his right, the claimant made applications from time to time to a Mental Health Review Tribunal. The first such application was considered in July of 1994 and the Tribunal then decided that he should not be discharged because he continued to suffer from mental illness of a nature and degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment, the evidence from the RMO then being that he suffered from a schizophreniform illness which led to the commission of the murder. But it was also noted that there were some psychopathic features in his personality.
In April 1995, another MHRT concluded that it was not satisfied that he was not suffering from "mental illness or psychopathic disorder" of the requisite nature and degree and refused to direct his discharge. In March 1996 an MHRT again refused to direct his discharge because of his "mental illness". In 1997 an MHRT ordered that there should be a conditional discharge. Unfortunately the conditions could not be fulfilled and so the discharge did not take place. There was a further application which was heard in April 1998. Again the Tribunal ordered a conditional discharge but again the conditions were not able to be met.
Then on 28 March 2000, after a further hearing, there was a further order for his conditional discharge, deferred until arrangements had been made to meet the conditions. The MHRT in its decision stated:
"We are satisfied that the applicant does not currently suffer from mental illness or any other disorder specified in section 72(1)(b)(i) of the Mental Health Act 1983. It follows that he is entitled to discharge from detention. However, we have no doubt that it is appropriate and essential that his discharge shall be supported by carefully constructed conditions and that he shall remain liable to recall to hospital for treatment in the event of a relapse or breach of condition such as to give rise to risk thereof."
The conditional discharge eventually took effect in March 2001.
All then seemed to go reasonably well until early 2004, when the doctor who was supervising the appellant became very concerned. It came to light that the appellant had formed a relationship with a vulnerable 17 year old girl and had concealed this from his care team for some months. His engagement with his care team was partial at best and he was continuing to abuse drugs. His relationship with the vulnerable girl had only come to light through the actions of another restricted patient who had informed the girl of the claimant's past. He had thereupon threatened this other patient through a text message. There were concerns for the safety of the girl because there were reports that he had detained her against her will on at least one occasion, and there was real concern that a set of circumstances and a pattern of behaviour was developing that mirrored those at the time that he had killed his girlfriend back in 1991. As a result on 4 February 2004 the Secretary of State issued a warrant for the recall of the appellant under section 42(3) of the MHA to Ashworth Hospital. A subsequent letter from the Home Office to the appellant's solicitors stated that the decision to recall had been taken on the basis that there was an emergency, because of a potentially very serious and imminent risk to others.
Once a patient has been recalled, the Secretary of State must refer the case to an MHRT within one month: section 75(1)(a) of the MHA. In fact, the Secretary of State in the present case referred the matter on 11 February 2004, seven days after recall. There is then an eight week time limit within which the MHRT must fix a date for hearing. A hearing fixed for 1 April 2004 was stayed at the appellant's request and, unhappily, due to the present proceedings it had not taken place at the time of the hearing before us.
There is in fact no challenge by the appellant to the recall to hospital on an emergency basis. It is accepted that there was evidence supporting the concerns which gave rise to that recall. But that was on an emergency basis pending the obtaining of a medical report about his up-to-date mental condition. A medical report was produced for the Secretary of State on 3 March 2004 by the appellant's RMO, Dr Croy. In that report, Dr Croy gave it as her opinion that there were no symptoms of mental illness and that the appellant was not detainable under the classification of mental illness. However, she also concluded that he had psychopathic disorder, which was chronic and likely to persist. She considered that his psychopathic disorder was currently of a nature and degree to warrant in-patient hospital treatment and the risk to others made it appropriate for him to remain detained in the interests of his own health and for the protection of others.
That report forms the linch-pin of the appellant's case. It is contended on his behalf that his continued detention under Part III of the MHA became unlawful once the Secretary of State had received that report, indicating that the appellant no longer suffered from mental illness. This is not because there is any suggestion that there would be a breach of Article 5 of the European Convention on Human Rights: Miss Foster, Q.C., who appears on behalf of the appellant, accepts that the criteria for lawful detention of a person of "unsound mind" under Article 5(1)(e), as spelt out in Winterwerp v. The Netherlands [1979] 2 E.H.R.R. 387 and summarised in Kay v. United Kingdom 40 BMLR 20, paragraph 47, were met. There was clear evidence from Dr Croy of a mental disorder of a kind or degree warranting compulsory confinement.
The case for the appellant turns upon the provisions of domestic law and in particular upon the MHA itself. In essence the argument is that, save in an emergency and then only for a limited time, the Secretary of State's power to recall and detain a restricted patient can only be used where the patient is found to be suffering from the same form of mental disorder which was the foundation of his original detention in hospital. Miss Foster draws attention to the provisions of section 37 of the MHA, which gives to the courts the power in certain circumstances to make a hospital order, after a person has been convicted of an offence punishable with imprisonment. By section 37(2)(a), a hospital order may only be made where
"the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either –
(i) the mental...
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R (AL) v Secretary of State for the Home Department
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