Seal v Chief Constable of South Wales Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Mr Justice Ouseley,Lord Justice Clarke |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 586 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2004/2284/CCRTF |
| Date | 19 May 2005 |
[2005] EWCA Civ 586
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
His Hon Judge Graham Jones
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Clarke
Lord Justice Scott Baker and
Mr Justice Ouseley
Case No: B2/2004/2284/CCRTF
Mr Graham Brodie (instructed by Messrs Morgans) for the Appellant
Mr Jeremy Johnson (instructed by Messrs Dolmans) for the Respondent
The issue in this appeal is the effect of s.139(2) of the Mental Health Act 1983 ("the 1983 Act"). That subsection provides a filter for proceedings arising in respect of acts purporting to be done under the mental health legislation. In the case of civil proceedings the leave of the High Court is required. When proceedings are brought without the leave of the court, as required by the subsection, what is the consequence? Are the proceedings a nullity or can the situation be remedied by a subsequent grant of leave, possibly with the proceedings being stayed in the meantime?
This is a second appeal but, because the issue raised is an important one of principle, permission to appeal has been granted.
The essential background facts are as follows. On 9 December 1997 Mr Seal, the appellant, went to his mother's house in Merthyr Tydfil but could not park his car because of other vehicles. He went into his mother's house having been unable to alert the owners of the other vehicles by sounding his horn. He decided to telephone the police and complain about the obstruction. His mother tried to stop him, but somebody contacted the police and a few minutes later three police officers arrived.
There is a dispute about what happened, both inside and subsequently outside his mother's house. Mr Seal was arrested inside the house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside. The police apparently intended to take him home, but as a result of what happened outside they decided to remove him to a place of safety under s.136 of the 1983 Act. He was detained for some days under that Act.
At the very end of the limitation period Mr Seal brought proceedings against the South Wales Police for damages. District Judge Singh CBE struck out the whole claim on 5 July 2004 on the grounds that the proceedings were a nullity since Mr Seal had failed to obtain the necessary permission of the High Court under s.139(2). Mr Seal appealed and the matter came before His Honour Judge Graham Jones in the Swansea County Court on 18 October 2004. He varied District Judge Singh's order reinstating that part of the claim that did not relate to the police's purported exercise of power under s.136 i.e. removing him to a place of safety. He held that the district judge was wrong to strike out the whole proceedings and there is no cross-appeal about that.
Mr Seal's appeal is on the basis that Judge Graham Jones should have reinstated the whole claim i.e. including that part relating to the purported action under s.136, albeit staying that aspect of it until Mr Seal had obtained the necessary leave of the High Court.
So the narrow issue is whether Judge Graham Jones was correct in holding that when civil proceedings are brought without leave in circumstances where leave is required under s.139(2) those proceedings are a nullity.
S.139 provides:
"(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions."
The remainder of the section is irrelevant for the purposes of the present appeal.
The natural meaning of the words against the historical background.
It is to be noted that by subsection (1) acts done in pursuance of the Act or legislation made under it do not render the perpetrator liable in the absence of bad faith or negligence.
Subsection (2) covers both civil and criminal proceedings. The filter in the case of civil proceedings is leave of the High Court whereas criminal proceedings can only be brought by or with the consent of the Director of Public Prosecutions.
The wording of subsection (2) is strong. It opens with the words, "No civil proceedings shall be brought………" It is difficult to envisage more mandatory words. The wording continues, emphasising the ambit of the prohibition, "against any person in any court in respect of any such act." The wording of the criminal proceedings prohibition follows in identical terms save that the filter is provided by the Director of Public Prosecutions rather than the High Court.
As a matter of construction I find it impossible to conclude that failure to obtain the necessary consent should have a different consequence depending on whether the proceedings are civil or criminal. The consequence must be the same in both cases. Either the proceedings are a complete nullity or the situation is remediable.
The predecessor to s.139 of the 1983 Act was s.141 of the Mental Health Act 1959 ("the 1959 Act"). Subsection (1) was for practical purposes in identical terms to s.139(1). But subsection (2) was different. It read:
"(ii) No civil or criminal proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care."
The two material differences between the subsections are in the later Act (i) absence of the additional bad faith/negligence filter and (ii) consent of the Director of Public Prosecutions rather than the High Court for criminal proceedings. The additional bad faith/negligence filter was in fact removed by s.60(2) of the Mental Health (Amendment) Act 1982.
It is to be noted that in s.141(2) of the 1959 Act the opening words are, "No civil or criminal proceedings shall be brought…….". This was because at the time civil and criminal proceedings were treated identically in that the necessary consent was required from the High Court in each case. The only reason it was necessary to put civil and criminal proceedings in separate clauses in the later legislation was because of the introduction of the Director of Public Prosecutions as the person from whom consent had to be obtained to bring criminal proceedings. The structure of subsection (2) of s.141 of the 1959 Act and following it, s.139(2) of the 1983 Act emphasises in my view the intention of the legislature that the consequence of failure to obtain the necessary consent should be identical for both criminal and civil proceedings.
There are numerous offences that require the consent of the Attorney General or the Director of Public Prosecutions as a condition precedent to the institution of criminal proceedings. The Law Commission Report No 255, Consents to Prosecution sets them out as at 14 July 1998 in Appendix A. Neither counsel was able to draw our attention to any instance where the consequence of commencing criminal proceedings without the necessary consent was other than to render those proceedings a nullity see e.g. R v Angel [1968] 1 WLR 669 where the failure to obtain the consent of the Director of Public Prosecutions to a prosecution under s8 of the Sexual Offences Act 1967 rendered the whole of the trial, including the committal proceedings, a complete nullity.
It is, in my judgment, impossible to envisage criminal proceedings to which s.139(2) applies that are commenced other than by the Director of Public Prosecutions or with his consent being treated by the court other than as a nullity. Looking at the wording of the subsection and bearing in mind how it developed from s.141(2) of the 1959 Act I can see no reason to treat civil proceedings commenced without consent any differently.
There is one other factor looking at the historical development of the mental health legislation that gives a pointer to the meaning of s.139(2) of the 1983 Act. S.139(2) and before it s.141(2) of the 1959 Act can be traced back in origin to s.12 of the Lunacy Acts Amendment Act 1889. S.12(2) of that Act provided that:
"If any proceedings are taken against any person for… doing anything in pursuance of this Act, such proceedings may, upon summary application to the High Court of Justice or a judge thereof, be stayed………if the court or judge is satisfied that there is no reasonable ground for alleging want of good faith or reasonable care."
There lay the origins of the filter. But there was no prohibition against the start of proceedings albeit the court had jurisdiction to stay the proceedings on application to it if the criteria laid down were met. The legislature in the 1959 Act moved away from staying proceedings that should not have been brought to requiring...
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