The King on the application of Teresa Maher v First Tier Tribunal (Mental Health)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 13 January 2023 |
| Neutral Citation | [2023] EWHC 34 (Admin) |
| Docket Number | Case No: CO/1672/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2023] EWHC 34 (Admin)
THE HONOURABLE Mrs Justice Stacey
Case No: CO/1672/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Dan Squires KC and Mr Timothy Baldwin (instructed by Saunders Law) for the Claimant
Mr Richard O'Brien (instructed by Government Legal Department) for the First, Second and Third Defendants
Ms Leonie Hirst and Ms Daniella Waddoup (instructed by GT Stewart) for the Interested Party
Hearing dates: 22–23 June 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 13 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Stacey
The claimant in this case is Teresa Maher, whose son Kyle was unlawfully killed by Richard Wilson–Michael, the interested party in these proceedings. He was made the subject of both a hospital order and a restriction order pursuant to s.37 and s.41 of the Mental Health Act 1983 (“MHA 1983”) on 4 August 2017. On 9 February 2021 the First-Tier Tribunal (Mental Health), (“FTT”), the first defendant to these proceedings, directed the conditional discharge of Mr Wilson–Michael (“the Conditional Discharge Decision”).
Ms Maher seeks to challenge the initial refusal of the FTT to provide her with the reasons, or the gist of its reasons for its Conditional Discharge Decision (the First Decision); its failure to allow her to submit and to consider a victim personal statement; and her inability to request a review of the Conditional Discharge Decision. The first defendant refused Ms Maher's requests on 28 October 2020 and 16 February 2021 and the second and third defendants refused her request on 29 October 2020 and 12 February 2021.
In a further decision of 2 February 2022 the FTT again refused Ms Maher's request for disclosure of the reasons for the Conditional Discharge Decision (“the Further Decision”). The Further Decision is also under challenge.
There are two broad strands to Ms Maher's challenge. The FTT is alleged to have adopted a policy of never providing reasons to victims, such as herself, in its decisions, including the Conditional Discharge Decision, representing an impermissible fetter on its discretion. In the alternative it is alleged that if it had in fact considered Ms Maher's request in its First Decision, it applied an incorrect legal test. It is also alleged to have applied an incorrect legal test in the Further Decision in which it is accepted that it applied its mind to Ms Maher's application. It is a live issue between the parties whether the Further Decision renders the challenge to the First Decision academic. Ms Maher also alleges that she is the victim of discrimination contrary to Article 14 of the European Convention of Human Rights (“ECHR”), read with Article 8, because of the differences between practice and procedures of the FTT as compared to and contrasted with the Parole Board.
Ms Maher seeks declarations (1) that the failure of the FTT to give her reasons, or the gist of reasons, for its Conditional Discharge Decision was unlawful; (2) that the failure of the FTT to permit her to submit, and to consider, a victim personal statement (“VPS”) was unlawful; (3) that her inability to request a review of the Conditional Discharge Decision was unlawful; (4) that the Further Decision was unlawful; and, finally, (5) damages.
The case raises important principles about victims' participation in proceedings before the FTT and the difference of treatment and entitlements between bereaved victims of mentally disordered offenders and those bereaved by offenders serving a sentence under the criminal justice system.
Issues and grounds
Six grounds were advanced:
i) That the FTT operated a blanket policy or practice of refusing to provide reasons or a summary or gist of its reasons for its discharge decisions to victims, amounting to an unlawful fetter on its discretion, which it applied to the claimant in its First Decision and which continued, at least up until the Further Decision.
ii) Breach of Article 8/14 by failing to provide the claimant with the reasons or gist of the reasons for the Conditional Discharge Decision in comparison to the entitlements and treatment of victims in Parole Board decisions.
iii) Breach of Article 8/14 by failing to allow the claimant a VPS setting out the impact of the killing on Ms Maher and her family and the effect Mr Wilson-Michael's release would have on them, in comparison to the entitlements and treatment of victims in Parole Board decisions.
iv) Breach of Article 8/14 by failing to allow the claimant a right to request a re- consideration of the Conditional Discharge Decision, in comparison to the entitlements and treatment of victims in Parole Board decisions.
v) No longer pursued.
vi) Failure to apply the correct legal test to the Further Decision since Judge Johnston did not have the power to determine Ms Maher's application under the FTT rules of procedure and in any event incorrectly directed herself on the applicable legal test.
The parties had helpfully agreed the issues as follows.
On Ground 1
i) Does the Further Decision of 1 February 2022 render Ground 1 academic?
ii) In not providing the claimant with any reasons for its Conditional Discharge Decision of 9 February 2021 (what I have called the First Decision) was the FTT acting pursuant to an inflexible policy or practice, applicable at the time, that victims were not entitled to reasons for discharge decisions, or did it direct its mind to the claimant's specific request and consider her particular case?
iii) If the answer to question (ii) is the former, was that unlawful and if so what, if any, remedy should flow?
On Ground 6
iv) Did Judge Johnston (the FTT Judge who made the Further Decision) apply the correct legal test in determining on 1 February 2022 that no reasons should be provided to the claimant for the Conditional Discharge Decision?
Grounds 2–4
v) Were the claimant's rights under Article 14 taken with Article 8, ECHR breached by a difference in treatment of victims as between the FTT and the Parole Board (“PB”) in respect of:
a) The right to receive reasons or a gist of reasons for the discharge decision;
b) The right to submit a VPS;
c) The right to request a review of the discharge decision.
vi) In particular:
a) Does the provision of reasons/right to submit a VPS/right to request a review fall within the ambit of Article 8?
b) Was the claimant treated differently to others in an analogous situation?
c) If so, was the difference in treatment on grounds of a status within the meaning of Article 14?
d) If so, did the difference in treatment have an objective and reasonable justification?
Procedural history and preliminary applications.
Judicial review proceedings were lodged on 10 May 2021 on grounds 1 to 4, prior to the Further Decision. On 14 October 2021 Mr Justice Jay granted permission on ground 1, but refused permission on grounds 2–4. On 22 November 2021 Mostyn J ordered a “rolled up” hearing, but the hearing was adjourned since on 6 January 2022 the FTT informed Ms Maher that it would take a fresh decision on her application for disclosure of the reasons for the Conditional Discharge Decision, resulting in the Further Decision of 1 February 2022. Following the Further Decision, Ms Maher sought permission to add grounds 5 and 6 (although does not pursue ground 5 about which nothing more need be said) to challenge the Further Decision. The parties had agreed that the questions of permission (applicable to grounds 2, 3, 4 and 6) and all substantive matters, if permission is granted, be dealt with together on a rolled up basis and I adopt that course.
A number of applications were dealt with at the outset of the hearing. The claimant's unopposed application for permission to amend her statement of facts and grounds including the adding of the further ground, ground 6, was granted. The claimant was given permission to rely on the witness statement of Mr Julian Hendy of 11 February 2022. The Secretary of State for Justice (“SSJ”) was given permission to rely on the second and third witness statements and exhibits of William Dowse of 9 March 2022 and 9 June 2022. Permission was given to allow the amended statement of facts and ground to exceed 40 pages in length and for skeleton arguments to exceed 25 pages.
The evidence
The evidence consisted of a witness statement together with exhibits from Ms Maher dated 6 May 2021 and a witness statement and exhibits dated 11 February 2022 from Julian Hendy, Director of the charity Hundred Families which provides support to those bereaved as a result of homicides committed by persons with mental health disorders and is a commissioned service of Victim Support. For the second and third defendants, evidence was filed by William Dowse, Head of the Administrative Justice Policy Team at the Ministry of Justice, consisting of three statements dated 26 February 2022, 9 March 2022 and 9 June 2022 respectively, together with exhibits.
Background facts
Both Kyle and Mr Wilson-Michael were living in supported accommodation at 51 Drakefield Rd, Tooting, South West London under the care of the Wandsworth Early Intervention Scheme (“WEIS”), which is a service for people with early symptoms of psychosis, run by South West London and St George's NHS Mental Health Trust.
In the early hours of the morning of 21 January 2017 Kyle was on his way to the kitchen when Mr Wilson-Michael confronted him on the staircase and stabbed him with a large...
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