R (Pendlebury) v Secretary of State for Justice [Administrative Court]
| Jurisdiction | England & Wales |
| Judge | Recorder Fordham |
| Judgment Date | 15 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 October 2013 |
| Docket Number | CO/366/2013 |
Neutral Citation: [2013] EWHC 3613 (Admin)
Administrative Court,
Judge: Recorder Fordham QC (sitting as a Deputy High Court Judge)
CO/366/2013
Appearances: A Weston and L Hirst for P; Miss Wheeler for the Secretary of State.
Issue: Whether a decision to remit a transferred prisoner back to prison against advice by a Tribunal was lawful.
Facts: In 1979, P was sentenced to life imprisonment for manslaughter, rape and burglary. In 2005, he was transferred to a personality disorder unit of a psychiatric hospital under ss47/49 Mental Health Act 1983. In 2008 and again in 2011, the clinical team began to explore his transfer to medium secure conditions. In early 2012, his Responsible Clinician sought a warrant for P's return to prison on the basis that he no longer required treatment and that no effective treatment could be given; the request was deferred pending consideration of the case by a Tribunal. In March 2012, a Tribunal again upheld P's detention, commenting – on the basis of expert evidence before it – that therapy beyond that being used by the RC should be explored and that a return to prison would be problematic. The RC nevertheless maintained his request for the warrant of remittal, after a peer review involving personality disorder specialists.
In October 2012, the Secretary of State issued the warrant to remit to P to prison, giving reasons which dealt with the arguments for and against. This was challenged in judicial review proceedings as being unreasonable, breaching Art 3 ECHR because it denied P medical assistance he needed and exposed him to avoidable distress and hardship, breaching Art 5(1)(e) because he was deprived of a therapeutic environment, and breached Art 5(4) because he was denied the prospect of progress towards release. As part of the argument, it was suggested that good reasons based on new information were required to act contrary to the findings of the Tribunal. The Secretary of State argued that the decision was justified and adequately reasoned.
1. This is a claim for judicial review, brought with the permission of HHJ Stephen Davies on 16 May 2013. At issue in the claim is the lawfulness of a remission warrant, made for the Secretary of State by Mr Buckle in the relevant department at the Ministry of Justice, and issued on 15 October 2012 under s50(1) of the Mental Health Act 1983. The warrant of remission directs that the claimant be remitted from Rampton Hospital to HMP Albany on the Isle of Wight.
2. Section 50(1)(a) empowers the Secretary of State to direct by warrant remission, to any prison or other institution in which the individual might have been detained had he not been removed to hospital, in circumstances prescribed by Parliament. There must have been a notification, from: the responsible clinician (a term that is defined in the statute), or an approved clinician, or the appropriate Tribunal (which I interpose is the First-tier Tribunal).
3. The statutorily required notification to the Secretary of State can be on one or both of 2 bases. Firstly, that the person (being a person in respect of whom a transfer direction has been given) no longer requires treatment in hospital for mental disorder. Secondly, that no effective treatment for his disorder can be given in the hospital to which he has been removed.
4. The claimant is a tariff-expired life sentence prisoner who in November 1979 was imprisoned under the sentence of the court having been convicted of manslaughter (on the grounds of diminished responsibility), rape and burglary. In September 2004 he was assessed as having a psychopathic disorder, within the meaning of the 1983 Act.
5. In February 2005 the Secretary of State exercised the power conferred in s47(1) of the 1983 Act and directed that the claimant be transferred by warrant to hospital. The trigger for that transfer from prison to hospital was that the requisite ‘at least two registered medical practitioners’ had concluded in reports: that the claimant was a person suffering from mental disorder, that the mental disorder from which he was suffering is of a nature or degree which makes it appropriate to be detained in a hospital for medical treatment, and that appropriate medical treatment was available for him.1 In those circumstances the Secretary of State had a discretion to direct transfer to hospital, if the Secretary of State was of the opinion, having regard to the public interest and in all the circumstances, that it was expedient so to do. The Secretary of State was satisfied and the claimant was duly transferred and took up a place in the DSPD unit (that is Dangerous and Severe Personality Disorder Unit) at Rampton Hospital.
6. In 2008 the claimant's care team had raised the question of transfer from high security hospital placement at Rampton, to a lower security hospital placement. That question of transfer, from higher to lower security hospitals — through what is sometimes described as a gate or gateway – came to be pursued further in 2011. That was the context in which the claimant's case came before the First-tier Tribunal, Health Education and Social Care Chamber at an oral hearing on 20 and 22 March 2012. There had been previous determinations in his case by the Tribunal.
7. In this case the trigger for a s50 remission warrant was a notification under s50(1) by the responsible clinician, Dr Matambike. His request, originally dated 11 January 2012, recorded that in his view both of the 2 statutory conditions for remission were satisfied, that is to say treatment in hospital for mental disorder was no longer required by the claimant and in any event effective treatment for his mental disorder could not be given in the hospital to which he had been removed.
8. Transfer of the claimant back to prison was opposed by the claimant and on his behalf by his representatives. On his behalf what was put forward was a transfer through the gateway from higher to lower security hospital placement and treatment in a medium secure unit. But, in any event, what was opposed by him and on his behalf was transfer back to prison.
9. Many clinicians have considered the claimant's case over the years. Some of them have modified their positions over time and there are several respects in which there has been and remains disagreement between them.
10. In essence the claimant's case, as it seems to me, is as follows. He says, ably represented before me by Amanda Weston and Leonie Hirst together with their very experienced instructing solicitors: that there was a cogent case of necessity of treatment of the claimant in hospital; that there was a cogent case as to the appropriateness of such treatment; that such treatment continued to be required by him; and that effective treatment continued to be available to him. It is submitted on his behalf that those questions were conscientiously and independently evaluated by the Tribunal, at its 2-day oral hearing, preceded by 2 examinations by the Tribunal medical member and with detailed consideration of all relevant available written evidence. That included the evidence of the relevant clinicians who had assessed the claimant, and of others who could comment in relevant ways as to his position. It included oral evidence from the responsible clinician, Dr Mathambike, but also other expert clinicians including Dr Bradley and Prof Maguire. The claimant submits that the Tribunal's closely reasoned determination strongly vindicates the points that were advanced on his behalf and arrived at powerfully reasoned findings: as to the appropriateness and need for continued treatment in hospital for mental disorder, which could effectively be provided in hospital, and which undermined the responsible clinician's provisional conclusions (as they then were) as to the conditions for a s50(1) remission warrant.
11. The claimant submits that in circumstances where the Tribunal had made its clear and conscientious findings, the Secretary of State acted unlawfully and unreasonably and contrary the claimant's human rights under ECHR Arts 3 and 5: in departing...
To continue reading
Request your trial