Re Campbell ; R v Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE STEPHEN BROWN,SIR JOHN MEGAW |
| Judgment Date | 23 April 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0423-2 |
| Date | 23 April 1986 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0373 |
[1986] EWCA Civ J0423-2
IN THE SUPREME COURT 0F JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE WOOLF and MR. JUSTICE KENNEDY)
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Stephen Brown
Sir John Megaw
86/0373
and
and
MR. J. G. M. LAWS (instructed by The Treasury Solicitor) appeared for the Appellant.
MR. A. O. THOROLD (instructed by Messrs. Irwin Mitchell, Sheffield and Messrs. Alexander & Partners) appeared for the Respondents.
There are two appeals by the Secretary of State for the Home Department before this court. One is against a judgment of Mr. Justice Woolf delivered on 8 November 1985 whereby he refused judicial review of a decision of the Oxford Regional Mental Health Review Tribunal made on 12 February 1985. The other appeal is against a decision of Mr. Justice Kennedy refusing judicial review on 21 January 1986 of a decision of the Yorkshire Mental Health Review Tribunal. The Oxford case arose out of an application for review by a Mr. Ernest Campbell. The Yorkshire case arose out of an application for review by a Miss Mollie Lord. Both cases substantially raise the same point, namely: What are the powers of a Mental Health Review Tribunal under section 73(2)?
The facts can be stated shortly. Mr. Campbell in 1959 at the age of 17 was convicted of manslaughter by reason of diminished responsibility and was sentenced to ten years imprisonment. He was released from that sentence in 1965. In 1969 he became aware that he was suffering from some kind of mental disorder and submitted himself to hospital treatment as an informal patient. Whilst he was in hospital it seems to have been appreciated by the doctors treating him that he was a suitable case for compulsory detention in hospital pursuant to the provisions of section 26 of the Mental Health Act 1959. Whilst undergoing treatment in hospital he confessed to two comparatively minor cases of burglary. As a result, he was brought before a Crown Court. The Crown Court made orders against him pursuant to section 60 of the Mental Health Act 1959 together with a restriction unlimited in time pursuant to section 65 of that Act. He has been under care in Broadmoor Hospital ever since. In 1971 the Secretary of State consented to his conditional discharge subject to arrangements being made for his supervision. It was found impossible to make those arrangements and, as a result, the conditional discharge did not take effect. He has applied unsuccessfully on one previous occasion for review. This was his second application for review.
The Secretary of State is entitled to notice not only that an application for review has been made but to notice of the hearing of the application. He is also entitled to early notice of any psychiatric reports which the applicant may be putting forward.
The Secretary of State, through one of the doctors at Broadmoor Hospital, submitted in writing to the Review Tribunal that the Secretary of State was not satisfied that Mr. Campbell should be released. Most unfortunately, it may be because of some administrative mistake, the Secretary of State was not sent a copy of the medical opinion which the applicant intended to put before the Review Tribunal; nor was he informed when the hearing was to take place.
The hearing took place on 12 February 1985. The Tribunal considered such information as it had before it and came to its decision in these terms:
"The Tribunal has considered the Patients Application relating to the above named and hereby directs that:-
"This patient shall be conditionally discharged, such discharge to be deferred to Friday 28th June 1985, for proposals to meet the conditions to be prepared.
"The conditions shall be that:-
1. The patient reside at and abide by the rules of a suitably supervised hostel which has an Active Rehabilitation Programme.
2. The patient shall be placed under the supervision of a suitable Probation Officer or suitable Social Worker, who shall report from time to time as requested to the Home Office and the hospital referred to in condition 3.
3. The patient shall attend a Psychiatric Out-Patient Clinic as directed by a Consultant Psychiatrist yet to be nominated.
"The Tribunal is satisfied about these reasons because:-
They were satisfied that this patient continues to suffer from Psychopathic Disorder but not of a nature of degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment but were satisfied that this patient should remain liable to recall."
It has been the submission of Mr. Laws on behalf of the Secretary of State that, on the face of it, that order was a complete order and that all that remained to be done was for the arrangements to be made and for the Tribunal to be satisfied about them.
When the Secretary of State was sent, as he was in the ordinary course of administration, a copy of that order, those acting for him appreciated that there had been a very serious breakdown in the administrative arrangements which are contained in the rules made under the Mental Health Act 1983. Because there had been that breakdown he applied for judicial review. The answer which was put forward on behalf of Mr. Campbell to Mr. Justice Woolf was as follows. There was no need for the Secretary of State to apply for judicial review, albeit there had been an irregularity in procedure in that notices had not been given as they should have been given under the appropriate rules. The reason was that the Mental Health Review Tribunal could re-convene, then re-consider the position and the Secretary of State could make such representation to them as he thought appropriate. That was a submission which, broadly, Mr. Justice Woolf accepted.
The facts relating to Miss Mollie Lord are these. In 1985, when she was a patient in the Stanley Royd Hospital at Wakefield, she set fire to the premises in circumstances which made her liable to be convicted of arson endangering life. She was so convicted in the Crown Court and the Crown Court made orders under sections 60 and 65 of the Mental Health Act 1959. She is said to have made progress in hospital and, when her case came to be considered by the Yorkshire Mental Health Tribunal on 1 April 1985, they came to a decision as follows:
"The Tribunal has considered the application relating to the above named and hereby directs that the patient be conditionally discharged but the direction therefor be deferred, pursuant to Section 73 (7), until the following arrangements for that purpose have been made to our satisfaction, viz
1. that the patient be received and accommodated in a hostel which is supervised;
2. that she is subject to such periodical psychiatric out-patient treatment as may be advised and
3. that she remains under the supervision of an officer of the relevant Social Services Department."
Mr. Laws accepts that, if the order of the Yorkshire Mental Health Tribunal had stopped there, no complaint could be made. But it did not stop there. It went on as follows:
"The Tribunal directs further that in the event of the aforementioned arrangements not having been made within the next six months, it will reconvene to reconsider in the light of the patient's progress reports during this period whether the direction for conditional discharge may be perfected without the attachment of any specified arrangements."
There was a reflection of that approach later in the order when it was said:
"There is always a possibility that at that time we may feel able to conclude that the statutory criteria for conditional discharge without deferment have been satisfied."
In other words, said Mr. Laws, they were taking upon themselves, having decided it was a case for conditional discharge, the right to re-consider the position at the end of six months. It was Mr. Laws' submission that, on the proper construction of section 73 of the Mental Health Act 1983, that Tribunal had no power, just as the Oxford Tribunal had no power, to re-consider a decision once made.
One of the problems in the case has been whether either Tribunal did make a decision which was capable of being reconsidered. It was submitted by Mr. Thorold on behalf of both applicants before Mr. Justice Woolf and Mr. Justice Kennedy that a decision of the kind which was made pursuant to section 73 (2) and section 73 (7) was only a provisional one and, being only provisional, it could be reviewed. Mr. Laws submitted on behalf of the Secretary of State that that was an impossible reading of the relevant sections of the 1983 Act.
I should state for completeness that both Mr. Campbell and Miss Mollie Lord are now restricted patients under the 1983 Act, although the original orders were made under the 1959 Act. That is because of transitional provisions in the 1983 Act in paragraph (3) of Schedule 5 to that Act.
In my judgment, the problem we have to solve is one which turns on the construction of the 1983 Act. The ordinary canons of construction apply. It may be, as Mr. Thorold has suggested in the course of his submissions, that the Act is not all that well drafted. It may be that some of those provisions could have been better drafted. It is not for us to make any comment about either of those suggestions. What we are concerned to do is to find out from the words what the intention of...
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