A, R (on the application of) v Secretary of State for the Home Department & Anor

In these proceedings, the Claimant seeks:

There was originally in addition a claim for damages at common law and under sections 6 and 8 of the Human Rights Act 1998 for the Claimant’s allegedly unlawful detention. Following a direction requiring the claim for damages to be particularised it was reconsidered by the Claimant and abandoned.

On the 1 August 2001, the Claimant, to whom I shall refer to as A, was involved in an incident of violence with two gentlemen to whom I shall refer to as victim 1 and victim 2. He was charged and committed to trial at Harrow Crown Court. There were three counts in the indictment against him. Count 1 charged him with causing grievous bodily harm with intent to victim 1, contrary to section 18 of the Offences Against the Persons Act 1861. Count 2 charged him with the same offence against victim 2. Count 3 charged an offence of affray.

As a result of concerns about A’s mental health, psychiatric reports were obtained from Dr Martin Lock, a Consultant Forensic Psychiatrist, and subsequently from Dr Gandhi, a Consultant Psychiatrist. Dr Lock was of the opinion that A was unfit to plead and stand trial. In consequence, the Crown Court followed the procedure required by the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. On 30 May 2002, the question of A’s fitness to be tried was determined by a jury pursuant to section 4 of the 1964 Act. The jury found that he was indeed under a disability, that is to say that he was unfit to plead. In consequence, as required by section 4A of the 1964 Act, the trial on the indictment did not proceed further. A jury was empanelled to determine the question whether they were satisfied, as respects each of the counts in the indictment, that A did the act charged against him: see section 4A(2). The determination of those issues took place before His Honour Judge Bailey and a jury between 24 June and 26 June 2002. During the course of the hearing, the judge ordered that Count 2 be reduced to a charge of assault occasioning actual bodily harm. On 26 June 2002, the jury determined that A had done the act charged in count 2, but that he had not done the act charged in count 1 or that charged in count 3.

A again appeared before HH Judge Bailey on 11 September 2002. Surprisingly, it appears that everyone who participated in the hearing on that date had either forgotten, or was unaware, of the fact that A had been found unfit to plead, and therefore there had been no conviction: the judge, the court clerk, and counsel for A. Dr Lock gave evidence. His reports show that he was well aware of the difference between a finding of unfitness to plead but having committed the act charged and a conviction. However, the substance of his evidence as to the mental health and needs of A would not have been affected by the difference between the two legal procedures.

It is common ground that the order made by the judge on that occasion was a hospital order under section 37 of the MHA (“the MHA”) coupled with a restriction order under section 41. That that was the order the judge intended to make appears from the transcript of his sentencing remarks, during which the judge expressly referred to a restriction order under section 41. It is common ground that the effective order made by the judge was that announced in court rather than the written order produced by the Crown Court subsequently, but that does not matter in this case, since the judge’s order is accurately reflected in the written order of the court, which purports to be a hospital order with restrictions under section 41 of the MHA.

On the basis of the order made on 11 September 2002, A was detained at the Three Bridges Unit. His mental health improved, and he was transferred to the Avebury Ward of Ealing Hospital. As a result of his solicitors’ representations, on 17 April 2003 he was assessed by two medical practitioners and an approved social worker. They determined that he did not meet the criteria for detention under section 3 of the MHA. Since that date he has remained on the ward as an informal patient.

An order under section 37 of the MHA may only be made “where a person is convicted before the Crown Court of an offence”. Where there are findings that the defendant is under a disability and did the act charged, the procedure under the 1964 Act does not result in a conviction or in the imposition of punishment: see the judgment of the House of Lords in R v H [2003] UKHL 1, [2003] 1WLR 411. A section 37 order is not an available order in such circumstances: R v Fairley [2003] EWCA Crim 1625. The Crown Court has power to make a similar, but legally different, order where findings are recorded that a person is under a disability and did the act charged against him: under section 5(2) of the 1964 Act, the court may make an order that the defendant be admitted, in accordance with the provisions of Schedule 1 to the 1991 Act, to such hospital as may be specified by the Secretary of State, and may give a direction under paragraph 2 of that Schedule that he be treated as if a restriction order under section 41 of the MHA had been made. An admission order is sufficient authority for the hospital managers to detain the person concerned: paragraph 1(3) of the First Schedule to the 1991 Act.

It follows that the order made by HH Judge Bailey on 11 September 2002 was one the Crown Court had no power to make. The appropriate remedy in a case such as the present is by way of judicial review. The order was not made on a trial on indictment. The exception to the judicial review jurisdiction in sections 28(2) and 29(3) of the Supreme Court Act 1981 therefore does not apply: see Fairley at [10] and the cases there referred to. The order of 11 September 2002 will be quashed.

The Claimant seeks in addition an order requiring Harrow Crown Court to correct its records so as to remove the references to A having been convicted of an offence. It follows from the order that I shall make that its records are inaccurate in so far as they record a conviction. Its records must be brought into line with the legal position resulting from my order of today. The court record suggests that the finding under count 2 was that A committed an act charged as causing grievous bodily harm with intent, rather than an offence under section 47 of the Offences against the Person Act 1861. I am sure that the record will be corrected once the Crown Court has seen this judgment without the need to make a separate order requiring that to be done. If it is not, further application may be made.

The application of Article 5

The contentions of the parties

The live issue argued before me concerns A’s claim that his rights under Article 5 of the European Convention on Human Rights had been infringed. Article 5 is as follows:

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The relevant sub-paragraph in this case is (e), and for reasons summarised above not (a).

Mr Mullins submitted that A had been deprived of liberty, in consequence of the order made on 11 September 2002, otherwise than “in accordance with a procedure prescribed by law”; and, since the order made on that date was not a lawful order, his detention could not be justified under Article 5.1(e) as “the lawful detention…of persons of unsound mind….”

Mr Chamberlain, on behalf of the Crown Court and the Home Secretary, submitted that the procedure leading to the order of 11 September 2002 was “a procedure prescribed by law”. He submitted that the focus of Article 5.1(e) is on the lawfulness of the detention of the individual, rather than of the order (in this case a court order) from which the detention resulted, and that A’s detention was lawful within the meaning of the Convention.

“A procedure prescribed by law”

There is no suggestion that there was any defect in the procedures followed on 30 May 2002 or between 24 June and 26 June 2002, when the jury determined what acts A had done that were charged against him as offences. The defects in the procedures on 11 September 2002 of which Mr Mullins complains consists of what was said by the judge during his remarks before he passed “sentence”, the nature of the order made, and, by inference, what must have been said by counsel, and possibly by Dr Lock, during the hearing. All their statements, and the order made, were appropriate to section 37/41 orders under the MHA rather than orders appropriate to findings under the 1964 Act. Mr Chamberlain submitted that these errors were not such as to render the procedure not “in accordance with the procedure prescribed by law”.

In practice, the European Court of Human Rights often rolls up the question whether a person has been deprived of his liberty “in accordance with a procedure prescribed by law” with the question that arises under the applicable sub-paragraphs of Article 5.1, namely whether the detention of the individual is lawful. The general purpose of Article 5 is to protect the individual from arbitrary detention. In my judgment, the requirement of Article 5.1 that the procedure should be “prescribed by law” refers to the substantial requirements of a fair procedure. Errors in what is said by counsel or a judge will not, of themselves, result in a procedure being unlawful. In contrast, defects such as a failure to give the individual an opportunity to be heard, or an opportunity properly to consider and to respond to the case or evidence against him, may lead to an infringement of Article 5.1. In the present case, there was no breach of any fundamental procedural requirement. The evidence before the court, including the reports of Dr Lock and Dr Gandhi and the oral evidence of the former, justified A’s detention in hospital. The substance of A’s complaint concerns the order made by the judge. In my judgment, the procedure leading up to that order was a procedure prescribed by law.

Was A’s detention lawful for the purposes of Article 5.1(e)?

It is convenient first to consider the lawfulness of A’s detention as a matter of domestic English law. The order of the Crown Court made on 11 September 2002 was one it had no power to make. It was clearly irregular. If it were a nullity, in the strict sense of the word, the consequent detention of A would have been unlawful as a matter of English law. If, however, it was effective unless and until set aside, the consequent detention of A was lawful, and those who detained him in reliance on the court order would have no liability to him for false imprisonment. The first question to be considered is whether the order of 11 September 2002 was a legally effective order.

I mention at this stage that some care is required in the use in the present context of expressions such as “nullity”, “lawful” and “without jurisdiction”. The order of the Crown Court was clearly unlawful; it may nonetheless have been legally effective.

In that regard, the position under our domestic law is clear. The Crown Court, unlike a Magistrates Court, is part of the Supreme Court (as it is still called) and as such a superior court of record: see section 1 of the Supreme Court Act 1981. It is not an inferior court, which is why section 29(3) of that Act provides:

“Inrelation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

The Crown Court is also what is sometimes referred to a court of unlimited jurisdiction. It is clear that its orders are effective in law, and must be obeyed, unless and until set aside. In R v Cain [1985] AC 46, Lord Scarman said, at 55:

“The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner's case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning. ….”

Similarly, in Isaacs v Robertson [1985] AC 97, the Privy Council approved a passage from the judgment of Romer LJ in Hadkinson v Hadkinson [1952] P.285, 288:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer (1846) Cooper temp. Cottenham 205, 338.) Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court ... is in contempt and may be punished by committal or attachment or otherwise.”

The Privy Council added, at 102 to 103:

“Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are ‘void’ in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are ‘voidable’ and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions ‘void’ and ‘voidable’ respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh [1945] A.C. 271, 284 and MacFoy v. United Africa Co. Ltd. [1962] A.C. 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind, what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice.

The contrasting legal concepts of voidnesss and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies.”

Accordingly, the Privy Council upheld a finding of contempt consisting of a failure to obey an interlocutory injunction irrespective of whether the injunction had properly been granted. See too South West Yorkshire Mental Health NHS Trust v Bradford Crown Court [2003] EWHC 640 (Admin) at [17].

It follows that the order made by the Crown Court on 11 September 2002 was legally effective unless and until set aside, and that the detention of A consequential on that order was lawful as a matter of our domestic law, albeit that the order itself was irregular and, in a sense, unlawful.

I add that both Mr Mullins and Mr Chamberlain referred me to the decision of the House of Lords in R v Governor of Brockhill Prison, ex parte Evans [2000] 3 WLR 843. In that case the governor of the prison had miscalculated the duration of the Claimant’s prison sentence. His miscalculation was understandable, since he had followed existing judicial authority as to the calculation of the sentence. However, the House of Lords held that the cases laying down that calculation of a sentence were incorrectly decided. It followed that Mr Evans had been wrongfully imprisoned from the date of expiry of his sentence when calculated in accordance with the law as found by the House of Lords. No question arose as to the validity or lawfulness of the sentence of imprisonment itself: what was in issue was its effect. The decision of the House of Lords has no bearing on the present case.

I also derive no assistance from the essay by Dr Christopher Forsyth entitled “‘The Metaphysic of Nullity’ – Invalidity, Conceptual Reasoning and the Rule of Law” to which Mr Mullins referred me, given that Dr Forsyth’s analysis relates to the effect of administrative acts rather than judicial orders. In R (London) v Central London County Court [1999] 3 WLR 1, the Court of Appeal considered a case having similarities to the present. Ex parte and interim orders had been made by the County Court displacing the applicant’s mother as his nearest relative for the purposes of the MHA. He was detained under section 2. The hospital managers had rejected his mother’s application for his discharge on the basis that she had ceased to be his nearest relative; and they subsequently admitted him under section 3, relying on the County Court orders. The applicant claimed that the County Court had no jurisdiction to make ex parte or interim orders displacing his nearest relative, and that his detention by the hospital resulting from those orders was wrongful. Stuart-Smith LJ (with whom the other members of the Court agreed) held that the County Court did have jurisdiction to make such orders displacing a nearest relative. However, he also referred to Dr Forsyth’s analysis, and nonetheless stated that even if the County Court had had no jurisdiction to make its orders, they were valid until set aside, so that the decision of the hospital managers to admit the applicant was one they were both entitled and bound to make. Leave to apply for judicial review of their decision was accordingly refused. It is because A’s detention resulted from an order of the Crown Court rather than an administrative decision that this case differs from In re SC [1996] QB 599.

I turn to the question whether, on that basis, A’s detention was lawful for the purposes of Article 5.1(e).

In Benham v United Kingdom (1996) 22 EHRR 293, the European Court of Human Rights considered the claim under Article 5 of an applicant who had been imprisoned for non-payment of the community charge as a result of a decision of a magistrates’ court. The magistrates’ court had power to make an order for imprisonment only if the justices were satisfied that the applicant’s failure to pay the community charge was due either to his wilful refusal or culpable neglect. The applicant had applied for judicial review to the Divisional Court, which had set aside the magistrates’ order on the ground that there was no evidence before them that could have justified a finding of wilful refusal or culpable neglect. He contended that the magistrates had acted in excess of their jurisdiction, so that his consequent detention was unlawful. The European Court stated, in its judgment:

“40.

The main issue to be determined in the present case is whether the disputed detention was "lawful", including whether it complied with "a procedure prescribed by law". The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 18, para. 47).

41.

It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 para. 1 (art. 5-1) failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see the Bouamar v. Belgium judgment of 29 February 1988, Series A no. 129, p. 21, para. 49).

42.

A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (see the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, para. 55, and the report of the Commission of 9 March 1978 on application no. 7629/76, Krzycki v. Germany, Decisions and Reports 13, pp. 60-61).

43.

It was agreed by those appearing before the Court that the principles of English law which should be taken into account in this case distinguished between acts of a magistrates' court which were within its jurisdiction and those which were in excess of jurisdiction. The former were valid and effective unless or until they were overturned by a superior court, whereas the latter were null and void from the outset (see paragraph 24 above).”

The European Court then reviewed English Law on the question whether or not the magistrates’ order had been a nullity in the strict sense. They continued:

“46.

Against the above background, it cannot be said with any degree of certainty that the judgment of the Divisional Court was to the effect that the magistrates acted in excess of jurisdiction within the meaning of English law. It follows that the Court does not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law (see the above-mentioned Bouamar judgment p. 21, para. 49). The mere fact that the order was set aside on appeal did not in itself affect the lawfulness of the detention (see paragraph 42 above).

47.

Nor does the Court find that the detention was arbitrary. It has not been suggested that the magistrates who ordered Mr Benham's detention acted in bad faith, nor that they neglected to attempt to apply the relevant legislation correctly (see the above-mentioned Bozano judgment, pp. 25-26, para. 59). It considers the question of the lack of legal aid to be less relevant to the present head of complaint than to that under Article 6 (art. 6) (see paragraph 64 below).

Accordingly, the Court finds no violation of Article 5 para. 1 of the Convention (art. 5-1).”

On the basis of Benham, A’s detention was “lawful” provided it was not arbitrary: see paragraph 47 of the judgment of the court. In my judgment, A’s detention was not arbitrary. It was based on the finding that he had committed an act which constituted an assault occasioning bodily harm, and, equally important, on the necessity to detain him for medical treatment established by the undisputed medical evidence.

Mr Mullins placed reliance on the decision of the European Court of Human Rights in Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198. That case concerned the detention of the applicants who were Jehovah’s Witness Ministers on account of their refusal to perform military service in Greece. The court repeated, at paragraph 58:

“Detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law.”

The applicants in that case had been detained as a result of an order of a Military Appeal Court. The European Court nonetheless came to the conclusion that their detention “had no basis under domestic law and was arbitrary. It cannot accordingly be considered to have been ‘lawful’ for the purpose of Article 5(1)”: paragraph 62 of the judgment. The judgment of the Court does not clearly distinguish between the requirements of lawfulness and that the court order should not have been arbitrary. However, it is apparent that the European Court considered that the Greek court had acted arbitrarily, in that it had wilfully ignored applicable laws and case law. The European Court said:

“59.

The Court notes that section 6 of the 1988 Law refers to ministers of all ‘known religions’. As early as 1975, the Supreme Administrative Court acknowledged that the Jehovah’s Witnesses were to be considered as such, and this case law could unquestionably be regarded as established by 1990. It was not disputed throughout the domestic proceedings that the applicants were ministers of that religion. However, in deciding on the issue of the applicants’ criminal liability, and thus on the lawfulness of their detention, the military authorities blatantly ignored this case law. As a result, Mr Tsirlis and Mr Kouloumpas spent 13 and 12 months in detention respectively.

60.

Furthermore, the relevant authorities’ persistence not to recognise Jehovah’s Witnesses as a ‘known religion’ and the disregard of the applicants’ right to liberty that followed, were of a discriminatory nature when contrasted with the way in which ministers of the Greek Orthodox Church obtain exemption.”

The finding of the court in Tsirlis that the applicants’ detention had infringed their rights under Article 5 does not justify a similar conclusion in the present case.

It follows that there was no infringement of A’s Convention rights under Article 5.

The Claimant was originally transferred to and detained in the Three Bridges Unit pursuant to a transfer direction made by the Home Secretary under section 48 of the MHA. That transfer direction ceased to have effect on the making by the Crown Court of its order of 11 September 2002, by virtue of section 51(2) of that Act. The consequence of the quashing of the order of 11 September 2002 will be that there will cease to be any lawful authority to detain the Claimant for treatment under the MHA or otherwise. In order to make provision for A’s continued detention, should that be appropriate, and otherwise to dispose of or make provision for the disposal of the unfinished proceedings under the 1964 Act, immediately after this judgment is handed down this Court will reconstitute itself as the Harrow Crown Court. This course was discussed during the hearing of the judicial review proceedings and agreed by the parties to be appropriate and convenient. I shall then be able to make such order as may lawfully be made under section 5 of the 1964 Act on the basis of the evidence as to the present state of A’s mental health. If the requisite medical evidence is not available, I shall remand A to a further hearing of the Crown Court. If the Crown Prosecution Service wishes to proceed with the trial of the Claimant, on the basis that he is now fit to plead, I shall be able to hear submissions on behalf of the CPS and the Claimant and deal with the matter appropriately.