R (Rayner) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Mrs Justice Black,Lord Justice Ward |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2008] EWCA Civ 176 |
| Docket Number | Case No: C/2007/1099 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2008 |
[2008] EWCA Civ 176
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(THE HONOURABLE MR JUSTICE HOLMAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Keene and
Mrs Justice Black
Case No: C/2007/1099
Jeremy Hyam (instructed by Treasury Solicitor) for the Appellant
Paul Bowen (instructed by Messrs Needham Poulier & Partners) for the Respondent
This appeal and cross-appeal raise issues about the statutory provisions under the Mental Health Act 1983 (“the 1983 Act”) dealing with convicted persons detained in hospital because of their mental condition and about the right such persons have under Article 5(4) of the European Convention on Human Rights (“ECHR”) to take proceedings to obtain a speedy determination by a court of the lawfulness of their detention. The appeals are brought from a judgment of Holman J dated 23 April 2007 in the Administrative Court.
The Statutory Context:
Under section 37 of the 1983 Act, a criminal court may in certain circumstances order the detention in hospital of a person who has been convicted, if satisfied that that person is suffering from a mental disorder which meets the conditions set out in section 37(2). A Crown Court may also then make a restriction order in respect of the offender, if his offence, antecedents and the risk of further offences make such an order necessary for the protection of the public from serious harm: section 41(1). The effect of such a restriction order is to remove the ability of the responsible medical officer and the hospital to order the patient's discharge from hospital, a power which exists where an unrestricted hospital order has been made under section 37. The Secretary of State is, generally speaking, given greater powers of control in respect of those subject to a restriction order: see, for example, section 42.
Such restricted patients may nonetheless apply after six months in the first instance and at intervals thereafter to a Mental Health Review Tribunal (“MHRT”) under section 70, and their case may also be referred to a MHRT by the Secretary of State under section 71. In certain circumstances the Secretary of State must make such a reference. The MHRT then has, by virtue of section 72 and 73, the power and in some cases the duty, to discharge the patient from hospital, either absolutely or conditionally. If a restricted patient is discharged conditionally, the Secretary of State may at any time recall him by warrant to a hospital specified in the warrant: see sections 73(4)(a) and section 42(3). As we shall see, this is the situation which arose in the present case.
Having been recalled to hospital, section 75(1) then operates. Its provisions are at the heart of this case. It reads as follows:
“(1) Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 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; and
(b) section 70 above shall apply to the patient as if the relevant hospital order[, hospital direction] or transfer direction had been made on that day.”
Once such a reference has been made, the procedure is then governed by the Mental Health Review Tribunal Rules 1983. Rule 29 of those Rules is of particular relevance, especially rule 29 (cc) which states:
“(cc) where a reference is made under section 75(1) of the Act, on receipt of the reference the tribunal shall
(i) fix a date for the hearing being not later than eight weeks, nor earlier than five weeks, from the date on which the reference was received;
(ii) fix the time and place for the hearing; and
(iii) give notice of the date, time and place of the hearing to the patient, the responsible authority and the Secretary of State,”
The Facts:
The respondent, Daniel Rayner, was convicted in April 2002 of assault and possession of an offensive weapon. He was diagnosed as suffering from schizophrenia, and in August 2002 the Crown Court made hospital and restriction orders under section 37 and 41 of the 1983 Act. In August 2004 an MHRT directed his conditional discharge under section 73. He was duly released, but in May 2005 he was readmitted as a voluntary patient to Pembury Hospital in Kent. He was thus already in hospital when, on 14 June 2005, the Secretary of State for the Home Department issued a warrant under section 42(3), formally recalling him to that hospital. From that date the respondent was being compulsorily detained in hospital under the 1983 Act.
Given the terms of section 75(1) set out earlier, the Secretary of State was required to refer Mr Rayner's case to an MHRT before, at the latest, 14 July 2005. The specialist unit within his Department was, of course, well aware of this statutory duty, but it is not in dispute that the duty was not performed within the specified time. A letter from solicitors acting on behalf of Mr Rayner and dated 4 August 2005 produced a reply from the Department, dated 8 August 2005 and stating as follows:
“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.”
A witness statement in the proceedings by a caseworker in the Mental Health Unit of the Department, Mr Chris Kemp, explains that the oversight was due, at least in part, to the involvement of a temporary member of staff. It is not suggested by either party that the failure to comply with section 75(1) was the result of anything but an oversight. That cuts both ways, since it means that there is no attempt by the Department to justify the delay on any rational basis. The fact that there has been a breach of the statutory duty is not in issue.
The reference having been made on 8 August 2005, the MHRT initially arranged that the hearing should take place on 27 September 2005, but that date had to be vacated because of problems in providing the necessary reports in time. A detailed description of those problems is given in Holman J's judgment, but I need not cover those aspects in detail since there is no appeal against his finding that neither the MHRT nor the Trust responsible for the hospital was in breach of any duty owed to Mr Rayner. The MHRT hearing eventually took place on 28 October 2005. The tribunal directed the conditional discharge of Mr Rayner, but as one of the conditions was only fulfilled on 12 January 2006, it was only on that date that he was discharged.
The Issues:
The issues in this case arise from Article 5(4) of the ECHR, part of the article dealing with the right of liberty and security of person. Article 5(1) allows for certain exceptions to that right, one of which is sub-paragraph (e),
“the lawful detention … of persons of unsound mind … .”
Article 5(4) confers a further right. It provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
That is an additional and free-standing right, as one would expect: see De Wilde, Ooms and Versyp v. Belgium [1971] EHRR 373 at paragraph 73. There is no dispute that an MHRT constitutes “a court” for the purpose of Article 5(4) and that it is empowered to decide whether a patient's detention is lawful or not. It can order his release if it concludes that the detention is unlawful: see section 73. The matters which are in issue in this case derive from two features of Article 5(4): first, the requirement that the court's decision should be made “speedily” raises questions about the timescale of the procedures under section 75(1) and rule 29 of the Mental Health Review Tribunal Rules. Secondly, the wording of Article 5(4) to the effect that the detainee “shall be entitled to take proceedings” by which the lawfulness of his detention shall be decided gives rise to the issue of whether the duty on the Secretary of State under section 75(1) to make a reference to an MHRT suffices to meet that requirement and, if not, whether any other available legal procedures make up the deficiency. There is considerable Strasbourg jurisprudence in recent years on this latter topic.
(i) Timescale:
Before Holman J it was submitted on behalf of Mr Rayner that the maximum of one month allowed under section 75(1) to the Secretary of State for the making of a reference to an MHRT after the return of a patient to hospital was, particularly when seen in combination with the eight weeks then allowed under rule 29(cc) for a hearing date, incompatible with the requirement of a speedy decision and that a declaration of incompatibility in this respect should be made. Holman J rejected that submission. He concluded that section 75(1) could be read and given effect to in a way compatible with the Article 5(4) right, in that it in no way prevented the Secretary of State from making an immediate reference. All that it did was to set an outer time limit on references.
It is no longer contended before this court that these domestic provisions are...
To continue reading
Request your trial
-
R (Lucinda Vowles) v Secretary of State for Justice and Another
...to be what is required as an energetic and rapid approach (as described in and required by the decision in R (Rayner) v Home Secretary [2009] 1WLR 310 at paragraph 40 Furthermore in assessing the period of time within which a case should be determined, it is necessary to take into account ......
-
R (on Application of L) v West London Mental Health Nhs Trust Partnerships in Care (First Interested Party) The Secretary of State for Health (Second Interested Party)
...That had been held sufficient to satisfy the procedural requirements of Article 5(4) see Secretary of State for Justice v Rayner [2009] 1 WLR 310. If a post-recall reference is sufficient in a case where a patient is moving from liberty to detention he submitted it was submitted that it mu......
-
R (L) v West London Mental Health NHS Trust [Administrative Court]
...recall. That had been held sufficient to satisfy the procedural requirements of Art 5(4) see Secretary of State for Justice v RaynerWLR[2009] 1 WLR 310, [2008] MHLR 115. If a post-recall reference is sufficient in a case where a patient is moving from liberty to detention he submitted it wa......
-
R v Knowles and Others
...to be what is required as an energetic and rapid approach (as described in and required by the decision in R (Rayner) v Home Secretary [2009] 1WLR 310 at paragraph 40 Furthermore in assessing the period of time within which a case should be determined, it is necessary to take into account ......
-
Human rights as risk: UK prisons and the management of risk and rights
...v. Northern Ireland Prison Service [2006] NIQB 1.Napier v. Scottish Ministers (2005) SC 229.R(C) v. Secretary of State for Justice [2008] EWCA Civ 176.Smith v. Scott [2007] CSIH 9.Noel Whitty is a Professor of Human Rights Law at the University of Nottingham.His current research focuses on ......