R (on the application of C) v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLady Hale,Lord Wilson,Lord Carnwath,Lord Clarke,Lord Hughes
Judgment Date27 January 2016
Neutral Citation[2016] UKSC 2
Date27 January 2016
CourtSupreme Court
R (on the application of C)
(Appellant)
and
Secretary of State for Justice
(Respondent)

[2016] UKSC 2

before

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Carnwath

Lord Hughes

THE SUPREME COURT

Hilary Term

On appeal from: [2014] EWCA Civ 1009

Appellant

Stephen Knafler QC

Roger Pezzani (Instructed by Guile Nicholas)

Respondent

Kate Olley

(Instructed by The Government Legal Department)

Intervener (Media Lawyers Association)

Jude Bunting

(Working on a direct access basis)

Heard on 26 October 2015

Lady Hale

(with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hughes agree)

1

The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule. There is a long-standing practice that certain classes of people, principally children and mental patients, should not be named in proceedings about their care, treatment and property. The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 ("the 1983 Act"). The second issue is whether there should be an anonymity order on the facts of this particular case.

The facts

2

The appellant is now 46 years old. He has had mental health problems for much of his life and in his twenties these became so severe that he was compulsorily admitted to a psychiatric hospital under section 2 of the 1983 Act. There he met and formed a relationship with another patient but it did not last. Shortly after his release from a second period in hospital he murdered her and her new boyfriend. It was a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families. In January 1997 he was convicted of murdering them both, the jury rejecting his defence of diminished responsibility, a verdict at which the trial judge expressed himself "astonished". His first conviction was set aside on appeal, in the light of fresh evidence as to his mental condition; but when he was retried in November 1998 he was again convicted of murder, the jury again rejecting his defence of diminished responsibility. He was sentenced to life imprisonment, with a tariff originally set at 15 years but reduced on review to 11 years. The reviewing judge commented that "the outstanding feature of the case … is the obvious sub-normality or mental abnormality of the defendant".

3

This tariff expired in May 2007. But in August 2000 the appellant had been transferred to a high security psychiatric hospital, pursuant to a direction of the Secretary of State under section 47 of the 1983 Act. This permits the Secretary of State to transfer a person serving a sentence of imprisonment to be detained in hospital for psychiatric treatment if the grounds for doing so exist. The effect of an ordinary transfer is the same as the effect of an ordinary hospital order made in criminal proceedings under section 37 of the 1983 Act (section 47(3)). However, the Secretary of State may couple a transfer direction with a restriction direction under section 49 of the 1983 Act and did so in this case. This means that if the grounds for detaining the patient in hospital no longer exist, the Secretary of State may return the patient to prison to serve the remainder of his sentence (section 50(1)(a)). While the patient is in hospital, however, a transfer with restrictions has the same effect as a restriction order imposed by a court under section 41 of the 1983 Act (section 49(2)). This means, among other things, that the usual power of the patient's responsible clinician to grant him leave of absence from the hospital under section 17 of the 1983 Act, and the power of the hospital managers to transfer him to another hospital under section 19 of the Act or the regulations made thereunder, and the power of the responsible clinician or the hospital managers to discharge him from hospital under section 23 of the Act, can only be exercised with the consent of the Secretary of State (section 41(3)(c)). The Secretary of State also has his own powers, to lift the restrictions if they are no longer required to protect the public from serious harm (section 42(1)), or to discharge the patient, either absolutely or conditionally (section 42(2)), and to recall a conditionally discharged patient to hospital (section 42(3)). But if a transferred prisoner is no longer suitable for hospital treatment, the Secretary of State may, instead of returning him to prison, exercise the same powers of releasing him on licence or subject to supervisions as he could have exercised had the patient been remitted to prison (section 50(1)(b)).

4

In August 2007, the appellant was transferred from the high security hospital to a private sector medium secure psychiatric hospital, where he remained until October this year. From 2008, he had unescorted leave within the hospital grounds (which does not require the consent of the Secretary of State). From 2009, he also had escorted leave in the community, where he did voluntary work. In July 2012, his responsible clinician applied to the Secretary of State for consent for the appellant to have unescorted leave in the community. It is uncontroversial that unescorted leave in the community is usually an important component in assessing a patient's suitability for discharge from hospital. That consent was refused by letter dated 13 December 2012.

5

Patients subject to restriction orders or directions may apply annually to the First-tier Tribunal under section 70 of the 1983 Act. The Tribunal has a duty, under section 73 of the Act, to discharge a patient who is subject to a restriction order, either absolutely or conditionally, if the grounds for detaining him in hospital no longer exist. But if the patient is subject to a restriction direction, the Tribunal has no power to discharge him. Instead, under section 74(1), the tribunal must:

"(a) notify the Secretary of State whether in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73; and

(b) if the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital."

Where (a) applies, the Tribunal shall direct the absolute or conditional discharge of the patient if, within 90 days of the notification, the Secretary of State informs the Tribunal that it may do so (section 74(2)).

6

On 25 April 2013, the First-tier Tribunal, having heard the appellant's case, notified the Secretary of State that he would have been entitled to a conditional discharge. In their view, he was not then suffering from mental disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment; it was not necessary for his own health or safety or for the protection of other persons that he should receive such treatment, provided that his discharge was conditional; and appropriate medical treatment was available for him, provided that the discharge was conditional and subject to the conditions they proposed, which included supervision, supported accommodation and further treatment. The Tribunal also recommended, pursuant to section 74(1)(b), that if he were not discharged he should remain in hospital.

7

The Secretary of State could have sought to appeal that decision but did not do so. Instead, he followed his policy that the release of persons sentenced to life imprisonment should be determined by the Parole Board. Accordingly he referred the case to the Parole Board. Section 74(5A) of the 1983 Act provides that applications and references to the Parole Board may be made in respect of a patient subject to a restriction direction where the Tribunal has recommended that a patient who would otherwise be entitled to a conditional discharge should remain in hospital if not discharged.

8

Following the Tribunal's decision, the appellant's responsible clinician again applied for the Secretary of State's consent for him to have unescorted community leave. Consent was again refused in a letter dated 11 July 2013. In October the Secretary of State agreed to retake that decision, but in a letter dated 18 October 2013, consent was again refused. The claimant applied for judicial review of that decision in November 2013; in December 2013, the High Court ordered that the appellant be anonymised in the proceedings; this was continued at the end of December when permission to apply for judicial review was granted.

9

The claim was heard by Cranston J in January 2014: [2014] EWHC 167 (Admin). He rejected the appellant's challenge to the lawfulness of the Secretary of State's decision. He had earlier invited the parties' submissions on whether the appellant should remain anonymous. In response, the responsible clinician wrote to the judge to request that the anonymity order remain in force for the following reasons:

"1. The hospital is a secure mental...

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