R (Rayner and Marsh) v Home Secretary and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 23 April 2007 |
| Neutral Citation | [2007] EWHC 1028 (Admin) |
| Date | 23 April 2007 |
| Docket Number | CO/10273/2005, CO/9676/2005 |
| Court | Queen's Bench Division (Administrative Court) |
[2007] EWHC 1028 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Holman
CO/10273/2005, CO/9676/2005
MR PAUL BOWEN (instructed by Fairweather & Co) appeared on behalf of the CLAIMANTS
MR JEREMY HYAM (instructed by Treasury Solicitor) appeared on behalf of the 1st and 4th Defendants
MISS KATHERINE OLLEY (instructed by Treasury Solicitor) appeared on behalf of the 2nd Defendant
MISS MARINA WHEELER AND MISS CAROLINE CROSS (JUDGMENT ONLY) (instructed by Brachers) appeared on behalf of the 3rd DEFENDANT
Article 5(4) of the European Convention on Human Rights provides that everyone who is deprived of his liberty by detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.
These two cases each raise two discrete issues. First, whether section 75(1) of the Mental Health Act 1983 and/or a combination of that section and rule 29(cc) of the Mental Health Review Tribunal Rules 1983 are compatible with that Convention right. That is essentially an abstract issue and not fact specific, although it is illuminated by the facts of these cases. Secondly, whether in each case on its respective facts there has been a violation of the Convention right or other unlawful action.
The claimant, Daniel Rayner, applies for judicial review with permission already granted. In the case of the claimant, Derek Marsh, there was a long delay, and his application was listed as a rolled-up application for permission, with the substantive hearing to follow immediately afterwards. Apart from the discretionary issue as to delay, no separate issue of law arises in the case of Marsh, and I propose therefore first to consider the case of Rayner alone.
The case of Rayner
The facts
Daniel Rayner was born in February 1981. In April 2002 he was convicted of assault and possessing an offensive weapon. He was diagnosed as suffering from schizophrenia, and in August 2002 the Crown Court made hospital and restriction orders under sections 37 and 41 respectively of the Mental Health Act 1983 (the Act). The hospital order authorised his detention in hospital and the restriction order restricted his discharge.
In August 2004 a Mental Health Review Tribunal directed his conditional discharge in exercise of powers under section 73 of the Act and he was released into the community. In May 2005 Mr Rayner was readmitted as a voluntary patient to Pembury Hospital in Kent. On 14 June 2005 the Secretary of State for the Home Department issued a warrant pursuant to section 42(3) of the Act, which formally recalled Mr Rayner to Pembury Hospital (from which he was later transferred to Maidstone Hospital), so that which had been voluntary now became compulsory. On the same date the Home Office sent a covering letter (which appears to be substantially in a standard form) addressed to Mr Rayner's Responsible Medical Officer at Pembury, Dr S Patel. I note that, although dated 14 June, the letter is date stamped as received on 21 June. The letter said in part:
"Under section 75(1)(a) of the Mental Health Act 1983 the Home Secretary is obliged to refer Mr Rayner's case to a Mental Health Review Tribunal no later than one month from the date of his recall to hospital. When the case has been referred you will be notified by the Tribunal direct … I should be grateful if this could be explained to Mr Rayner and if he could be given a copy of Mental Health Act 1983 leaflet No 9."
Section 75(1) of the Act, to which the Home Office referred in that letter, provides as follows:
"75(1) Where a restricted patient has been conditionally discharged under section … 73 … above and is subsequently recalled to hospital—
(a) the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to a Mental Health Review Tribunal; …"
Although the section requires a reference within one month of the day "on which the patient returns or is returned", in Mr Rayner's case he was already at the hospital, so the period ran, as the letter said, from the date of recall, namely 14 June. The Secretary of State was accordingly required by the Act to refer Mr Rayner's case to a tribunal before, at the latest, 14 July 2005. Recalls are administered by a specialist unit within the Home Office, and the Secretary of State of course knew very well, as his letter evidences, that he had to make the reference within one month. But he failed to do so.
By a letter dated 4 August 2005, solicitors on behalf of Mr Rayner prompted the Secretary of State belatedly to do so, and on 8 August 2005 the Home Office replied to the solicitors:
"Thank you for your letter of 4 August 2005 to Mr Pocock, who has now left this office.
I regret to inform you that, due to an oversight, a referral to the Mental Health Review Tribunal was not made following Mr Rayner's recall to hospital in June. Please accept my apologies for this error.
A referral letter has been sent to the Tribunal office today."
I have no reason to suppose that the error was other than, as the letter said, "an oversight". It is more fully described and explained in a statement by a caseworker in the Mental Health Unit, Mr Chris Kemp, dated 15 March 2006 (now at bundle page 153(xxii) to 153(xxv)) as in part due to the involvement of a temporary member of staff. But that in no way excuses it.
The 8 August 2005 was a Monday. It appears (see paragraph 8 of the tribunal's summary grounds of defence) that the reference was actually received in the office of the tribunal on Friday 12 August 2005. On Tuesday 16 August 2005 the tribunal sent a letter (essentially in standard form) to the Home Office (now at bundle page 166J) informing them that the hearing had been arranged for 27 September 2005. On the same day, the tribunal wrote a standard form letter (now at bundle page 166H) to Mrs Janet Samuels, the client services manager for Maidstone Hospital, informing her and them of the reference as required by rule 29(b) of the Mental Health Review Tribunal Rules 1983 (the rules).
The letter continued by saying (now at bundle page 166H):
"Please forward six copies of each of the Authorities statement, medical and social circumstances reports as specified in the First Schedule to the Mental Health Review Tribunal Rules 1983. These documents must be submitted not later than three weeks from receipt of this letter."
The three-week period is that fixed by rules 29(c) and 6(1) of the rules, within which the hospital, being the responsible authority, must supply the specified statement and reports. So if that letter had been received on, say, 17 August, the hospital had to comply by 7 September. The letter to the hospital, unlike the letter to the Home Office, did not mention any actual date for hearing. However, on Wednesday 17 August, as is now agreed, Ms Sarah Pocknell, for the clerk to the tribunal, spoke on the telephone to Eileen Carter, the administrative assistant to Mrs Samuels, who, as now transpires, was herself on leave. This telephone conversation is evidenced by a standard form attendance note (now at bundle page 166A) of which the terms and layout are of some significance.
A grid in the middle of the page has vertical columns for date and time of hearing, "date offered", "date rejected", and "date confirmed". There are beside each of the hospital and solicitor three horizontal lines so that, in effect, entries can be recorded for three different or alternative dates of hearing and when each was respectively offered/rejected/confirmed by the hospital and solicitor respectively. The attendance note at page 166A records only that "27/9 at 14.30" was the date and time of hearing, and that there was communication with "Eileen" on 17/8. It is not clear whether there was any process of offering/rejecting or confirming, or mere notification.
The tribunal say that they followed up the telephone call by a standard form letter from Heena Vekaria to Mrs Samuels dated 23 August 2005, which begins:
"I am writing to confirm the arrangements which were agreed by telephone for the Mental Health Review Tribunal at Maidstone Hospital on Tuesday 27 September 2005 at 14.00 to consider the case of [Mr Rayner]."
The hospital did not produce any documents by 7 September. On a date in September 2005 (I will refer to the precise date below) the solicitor for Mr Rayner telephoned the hospital to chase them. A later letter from the solicitor dated 11 October 2005 (now at bundle page 272) reads:
"On 20th September 2005 Miss Stober of these offices telephoned the Mental Health Act Administrator for Priority House in order to chase the statutory reports for the Tribunal. Miss Stober was informed that the hospital were not aware of the Tribunal date of 27th September 2005. The hospital then requested an adjournment, which was granted."
Mrs Samuels herself wrote a letter to Ms Pocknell dated 21 September 2005 (and recorded also on its face that it was "faxed and sent 21 September 2005"), now at bundle page 201. That reads in part:
"I refer to the above named and my telephone call today. I would like to inform you that I have just learnt today, from solicitors that...
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