R, R (on the application of) v Shetty (Responsible Medical Officer) & Anor

On 2 April 1995 the claimant killed his brother. On 17 February 1997 he was convicted of manslaughter by a jury at Norwich Crown Court. On 8 September 1997 HHJ Hyam sentenced him to life imprisonment and fixed the tariff under section 34 of the Criminal Justice Act 1991 at eight years. As he was first remanded in custody on 4 April 1996 his tariff date is 4 April 2004. Whilst in prison his mental state deteriorated. On 8 August 2000 he was transferred to the Norvic Clinic in Norwich pursuant to a transfer direction made by the Secretary of State under section 47 of the Mental Health Act 1983 (“the Act”). In accordance with his normal policy the Secretary of State imposed a restriction direction under section 49(1) of the Act. On 4 January 2001 the claimant was returned to prison pursuant to a warrant issued by the Secretary of State under section 50(1)(a) of the Act. On 23 April 2003 he was again transferred to the Norvic Clinic pursuant to transfer and restriction directions made under sections 47 and 49(1). It is common ground that, whatever his mental state at the time he was sentenced, the claimant has since suffered severe psychotic episodes.

Section 50(1) is in the following terms:

“Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person’s sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for his disorder can be given in the hospital to which he has been removed, the Secretary of State may—

(a)

by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b)

exercise any power of releasing him on licence or discharging him under supervision which could have been exercisable if he had been remitted to such a prison or institution as aforesaid,

and on his arrival in the prison or other institution or, as the case may be, his release or discharge as aforesaid, the transfer direction and the restriction direction shall cease to have effect.”

On 8 October 2003 the RMO wrote to the Secretary of State:

“I am writing to request issue of a warrant directing [the claimant’s] remission to prison namely HMP Cardiff under Section 50(1) of the Mental Health Act 1983. I am satisfied that [he] no longer requires treatment in hospital for a mental disorder namely mental illness.

You will be aware from my report to the Mental Health Tribunal and CPA/Section 117 Meeting reports (copies enclosed), that [the claimant] was admitted to Norvic Clinic on the 23rd April 2003 under Section 47/49 of the Mental Health Act 1983, as he had relapsed into psychosis again. He responded quickly and well to Clozapine therapy and has not exhibited any psychotic symptoms for some time. [He] has not engaged in any meaningful therapeutic activities and psychology sessions failed to give us any better understanding of his psychopathology or formulation of his rehabilitation needs. [He] has remained largely inactive and has not shown any self-harming or aggressive behaviour.

[He] has remained dissatisfied with his legal status, as he believes that he should have received a Hospital Order. Furthermore he, while accepting improvement in Clozapine asserts that he should remain in hospital, as he is likely to relapse if returned to prison. It has been repeatedly pointed out to him that it is not inevitable that he will relapse especially given that he is now on Clozapine which has proven therapeutic advantages over other antipsychotic medications. [He] is also concerned that the Parole Board will never release him.

At the Section 117 Meeting on the 8th October 2003 all members of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity had persisted. It was acknowledged that his more recent transient complaints about depression and thoughts of self-harm are directly related to the likelihood of being returned to prison rather than relapse of illness per se.

[He] attended the meeting with his legal representative ... The views of the clinical team were again explained to [him] but he repeatedly stated that it was “unfair” to return him to prison as he should have been given a Hospital Order in the first place. I again explained the statutory criteria under Section 50 and told him that all possible arrangements for his smooth transition from the hospital to prison will be made. (I had telephone discussion with Mr Thomas, In-reach nurse at HMP Cardiff who has previous knowledge of [him]. He was due to attend the meeting today but was unable to do so due to another crisis at HMP Cardiff. However we were able to discuss provisional plans over the telephone and Mr Thomas is willing to monitor [his] mental state should he be returned to HMP Cardiff. It is also noteworthy that HMP Cardiff has visiting forensic psychiatrists from Caswell clinic who are in fact responsible for his referral to this service on this occasion).”

On 31 October 2003 the Secretary of State gave his decision:

“The Secretary of State has considered carefully the reports prepared on [the claimant] by Dr Bullard dated 20 and 22 October. He has also considered the other relevant material submitted in the judicial review bundle, letters from Dr Shetty dated 8 and 24 October 2003, and the reports of the CPA/section 117 meeting on the 8 October 2003 …

The Secretary of State prefers the view of Dr Shetty who is the Responsible Medical Officer for [the claimant] and who has been treating him since his transfer to the Norvic Clinic (and on a previous admission to the Clinic). Dr Shetty, in his reports, states that [he] has responded well to the drugs he has been prescribed, and that his clinical team believes that his mental state has remained stable since the last review. Dr Shetty states that [he] no longer requires treatment in hospital and that effective treatment for his condition can be given after his return to prison.

The Secretary of State notes the views of Dr Shetty are supported unanimously by [the claimant’s] clinical team, and that Dr Shetty in his letter dated 8 October 2003 states that “at the section 117 meeting on 8 October all member of the clinical team present acknowledged that [his] mental state has remained relatively stable since the last review and his inactivity has persisted” Both [the claimant] and yourselves were present at the section 117 meeting, during which the views of the clinical team were explained to [him], and he was afforded an opportunity to comment.

The Secretary of State has given careful consideration as to whether [he] would receive appropriate treatment if remitted to prison. Dr Bullard in her first report is unspecific about the type of treatment that would benefit [him]. In her second report she notes that [he] suffers from an emotionally unstable personality disorder and that he present a “therapeutic challenge which can only be successfully undertaken with the support of a dedicated clinical team”. Dr Shetty has addressed the question of treatability in his letters of 8 and 24 October. In his 8 October letter Dr Shetty states [he] “has not engaged in any meaningful therapeutic activities and psychological sessions failed to give us a better understanding of his psychopathology or formulation of rehabilitation needs.” The issue is addressed again by Dr Shetty in his letter of 24 October where he states that “any attempts to explore psychological issues with [him] has been unsuccessful”. These views, coming as they do from the doctor in charge of [his] treatment, and unanimously supported by the clinical team, must be accorded considerable weight. On the basis of these letters the Secretary of State has concluded that it would be of little benefit to [him] to remain in hospital and that he would receive appropriate treatment in prison.

[The claimant] was transferred to the Norvic Clinic as he required treatment in hospital. The Secretary of State accepts the opinion of Dr Shetty and [the claimant’s] clinical team that his condition has stabilised, that he no longer requires treatment in hospital, and the conditions for remission have therefore been met. The Secretary of State considers that he ought now to return to prison. [His] condition will be monitored by staff at HMP Cardiff and by visiting forensic psychiatrists from the Caswell Clinic.”

The claimant seeks judicial review of, and brings a claim under section 7 of the Human Rights Act 1998 in respect of, the decisions of the RMO in his letter of 8 October 2003 and the Secretary of State in his letter of 31 October 2003. He seeks orders quashing both decisions. His primary case is that the RMO’s decision to recommend, and the Secretary of State’s decision to accept the recommendation, that he be returned to prison is a violation of his rights under Articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. For good measure Mr Bowen also referred to Article 8 but as that played no part in his detailed submissions I say no more about it.

Article 5, so far as material for present purposes provides that:

“(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; …

(e)

the lawful detention of … persons of unsound mind ... ;

(4)

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Mr Bowen, relying upon cases such as X v United Kingdom (1981) 4 EHRR 188 at paras [38]-[39] and Johnson v United Kingdom (1997) 27 EHRR 296 at para [58], submits that following his transfer to the Norvic Clinic on 23 April 2003 the claimant’s detention falls within both Article 5(1)(a) and 5(1)(e). Ms Grey did not demur from Mr Bowen’s analysis and I agree with it.

In relation to Article 5 the lynchpin of Mr Bowen’s case is Reid v United Kingdom (2003) 37 EHRR 211 where, following its earlier decisions in Ashingdane v United Kingdom (1985) 7 EHRR 528 and Aerts v Belgium (1998) 29 EHRR 50, the Court held at para [48] that:

“there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution.”

Now this is all very well, but it has to be read in the context of another key strand in the jurisprudence. For, as the Court said in Reid v United Kingdom at para [47]:

“For the purposes of Article 5(1)(e), an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.”

Article 3 provides in absolute and unqualified terms that:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The general principles are well known. As summarised in Mouisel v France (2002) November 14 at para [37],

“ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3.”

The Court’s jurisprudence also shows that, for the purposes of Article 3, the State, when it deprives someone of his liberty, must take him as it finds him. The position was summarised in Mouisel v France at paras [38]-[43]:

“[38] The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention. In the case of a prisoner suffering from disorders associated with hereditary obesity, the European Commission of Human Rights expressed the opinion that that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (Chartier v Italy (1982) 33 DR 41 at pp 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant’s complaint under that Article was manifestly ill-founded (Papon v France (2001) June 7). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person’s suitability for detention.

[39] Thus, in assessing a prisoner’s state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (Keenan v United Kingdom (2001) 33 EHRR 913, paras [111]-[115]). In Price v United Kingdom (2001) 34 EHRR 1285 the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment.

[40] Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of the execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment.”

In that case the Court held that the conditions in which a prisoner suffering from cancer had been detained in prison constituted a violation of Article 3:

“[45] … The Court observes that the applicant’s health was found to be giving more and more cause for concern and to be increasingly incompatible with detention. The report of 28 June 2000 referred to the difficulty of providing cancer treatment in prison and recommended transferring him to a specialist unit. It also mentioned the applicant’s psychological condition, which had been aggravated by the stress of being ill and had affected his life expectancy and caused his health to decline. The letter of 20 November 2000 from the UCSA doctor to the applicant confirmed that his health was deteriorating and referred only to the possibility of a remission in the disease. All those factors show that the applicant’s illness was progressing and that the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night.

[48] In the final analysis, the Court considers that the national authorities did not take sufficient care of the applicant’s health to ensure that he did not suffer treatment contrary to Article 3 of the Convention. His continued detention, especially from June 2000 onwards, undermined his dignity and entailed particularly acute hardship that caused suffering beyond that inevitably associated with a prison sentence and treatment for cancer. In conclusion, the Court considers that the applicant was subjected to inhuman and degrading treatment on account of his continued detention in the conditions examined above.

There has therefore been a violation of Article 3 of the Convention.”

Mr Bowen also referred me to McGlinchey v United Kingdom (2003) 37 EHRR 821, where failures by the prison authorities to provide appropriate treatment to an asthmatic heroin addict who died whilst in custody were held to have been violations of Article 3. He pointed in particular to certain observations in the concurring opinion of Judge Costa:

“[3] What counts in my opinion is a nexus of facts. … That factual nexus is the reason why I and the majority of my colleagues reached the finding of a violation.

[4] Moreover, that finding must be placed in a wider context, that of the special treatment to be given to prisoners whose state of health gives cause for concern. In cases like that of the victim, such concern might even entail a decision that their state of health is incompatible with committal to prison, or in any case with continued detention.

[6] Our Court itself is becoming more and more sensitive to this concern. It has frequently stated in its judgments that assessment of the question whether treatment reaches the minimum level of severity for the purposes of applying Article 3 may depend on the sex, age and state of health of the victim. I might also mention, although the facts were different (the prisoner being seriously disabled), Price v United Kingdom (2001) 34 EHRR 1285, with the separate opinion of Sir Nicolas Bratza, whom I joined, and the separate opinion of Judge Greve; the authors of those opinions considered that the very principle of committing the applicant to prison was incompatible with Article 3 on account of her condition. See also the recent Mouisel v France in which the Court unanimously held that there had been a violation of Article 3 on account of the conditions of treatment and continued detention of a person suffering from an incurable illness.

[7] I naturally do not underestimate the difficulties the judicial authorities have to face when they are required to determine what kind of sentence to impose on an offender in bad health or those of the prison authorities and health services when they have to choose between treatment on the spot and admission to a hospital outside prison, especially as ill health among prisoners is unfortunately not an exceptional circumstance, particularly on account of the ravages of drugs among offenders. But if I return to the instant case, I think that all those authorities, for their part, underestimated the seriousness of Ms McGlinchey’s personal condition. The accumulation of errors was such, in my opinion, as to constitute in the final analysis a violation of Article 3.”

Mr Bowen also pointed to Bensaid v United Kingdom (2001) 33 EHRR 205 at para [37], where the Court recognised that “the suffering associated with” a “relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (eg, withdrawal and lack of motivation”) could in principle fall within the scope of Article 3. That, of course, is so. But as Ms Grey pointed out, the mere fact of a relapse or psychosis would not necessarily engage Article 3. It all depends on the particular facts and circumstances, on the severity and duration of the episode. As ever, she rightly says, the factual context is key. Thus, for example, if a prisoner’s deterioration was rapidly and properly managed, the suffering might not reach the necessary severity.

Mr Bowen further pointed to the recognition by the Court of Appeal in R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 at para [53] that “seclusion is capable of amounting to the ‘inhuman or degrading treatment or punishment’ which is prohibited by Article 3.” On the other hand, as the Court went on to observe at para [54], “segregation from the prison community or other detained patients does not of itself constitute a form of inhuman or degrading treatment.” Again it all depends on the facts. The Court went on to comment at para [55]:

“The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment, provided that they meet the standards considered acceptable at the time, are unlikely to amount to inhuman or degrading treatment or punishment under Article 3. The detention of psychiatric patients is a means to an end, the assessment and treatment of their mental disorder. Conditions of detention which defeat rather than promote that end are much more likely to amount to inhuman or degrading treatment. The Keenan case, which concerned a mentally ill prisoner, is a good illustration of this.”

Finally, Mr Bowen relied on R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036 at para [58] for the proposition that:

“where the state itself has deprived a vulnerable person [of] his liberty … the state itself is responsible for how that person is treated. In such cases, the state ought to know enough about its own prisoner or patient to provide effective protection from inhuman or degrading treatment by the state’s own agents. As the Strasbourg Court observed in Pretty v United Kingdom (2002) 35 EHRR 1, at para [50]:

“[Article 3] may be described in general terms as imposing a primary negative obligation on States to refrain from inflicting serious harm upon persons within their jurisdiction.””

None of this is at all controversial. I refer to the authorities at some length out of deference to Mr Bowen’s argument and because of the intrinsic importance of the subject-matter. Article 3 imposes potentially onerous burdens on the State when it seeks to imprison those who are physically or mentally handicapped. And, as Mouisel and McGlinchey show, the Strasbourg court is becoming more and more sensitive to this concern and demands an increasingly high standard. There is no room for complacency here. These are not matters affecting only those incarcerated in the further reaches of eastern or south-eastern Europe or Asia Minor. The decisions of the Court in Keenan v United Kingdom (2001) 33 EHRR 913, Price v United Kingdom (2001) 34 EHRR 1285 and McGlinchey v United Kingdom (2003) 37 EHRR 821 – in each of which this country was found to have violated the Article 3 rights of a prisoner – should concern us all, as, for that matter, should my own decision in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin), [2003] 1 FLR 484.

The scheme of section 50(1) of the Act is clear and simple. Confining the analysis to the circumstances of the present case, the Secretary of State can do nothing unless and until he is:

“notified by the responsible medical officer … that [the patient] no longer requires treatment in hospital for mental disorder”.

On the contrary, Pill LJ in R (Morley) v Nottinghamshire Health Care NHS Trust at paras [39], [41], [47], clearly treated the RMO’s duty, assuming he had made proper inquiries, as simply being to arrive at a clinical judgment, fairly and rationally made. As he said:

“[39] … As RMO, Dr Hayden was required to take an overall view when applying the treatability test. … If, which Dr Hayden does not accept, there was a dissenting view from Dr Evershed, it was still for him to make the clinical judgment required by s 50 when deciding to notify the Secretary of State. The responsibility was his and the rationality of his judgment is not challenged ...

[47] … The issue [under section 50(1)] is treatability and the Secretary of State’s decision necessarily turns upon a clinical judgment, that of the RMO, and if that judgment was fairly and rationally made, a duty in the Secretary of State to permit and consider representations does not … arise.”

I do not overlook the powerful point made by Sedley LJ in R (Wooder) v Feggetter at para [38], that where:

“a person with special qualifications is equipped in the public interest with statutory powers which impact directly on someone’s physical and moral autonomy … such power carries a heavy burden of responsibility. The SOAD’s opinion, while of course it is clinical, has legal and moral dimensions which cannot be marginalised and which are in every sense the SOAD’s business and – if necessary – the court’s.”

The same, I accept, goes for the RMO. Nonetheless, it does not carry with it the proposition, and Sedley LJ did not suggest, that the decision of a SOAD, let alone a RMO, is susceptible to challenge on Convention grounds.

I do not agree. The decision in Wilkinson was very carefully scrutinised by the Court of Appeal in R (N) v M. Both cases related to the medical opinion given by a SOAD for the purposes of compulsory treatment proposed to be administered in accordance with section 58 of the Act. In the latter case at para [39] the Court of Appeal said:

“although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review: see per Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paragraph 27.”

Richards J came to precisely the same conclusion in R (P) v Mersey Care NHS Trust [2003] EWHC 994 (Admin), where the challenge was to the refusal of the Secretary of State to direct the move of a patient from a high security hospital to a medium security hospital under sections 17 and 19 of the Act. So there, as here, the central question was the location of the patient’s detention; there, as here, the question turned on a clinical judgment; there, as here, there was conflicting expert evidence that the Secretary of State had to weigh; and there, as here, it was alleged that the Secretary of State’s decision violated the patient’s Convention rights.

There, as here, the claimant (also represented, as it happens, by Mr Bowen) argued (see para [16]) that the issue was one to be determined by the court itself hearing the relevant evidence. There, as here, reliance was placed on Wilkinson. Richards J rejected the submission:

“[25] In my judgment the central question in this case is whether the risk posed by the claimant is sufficiently low to make it appropriate for him to be accommodated in medium security rather than high security. If it is, then plainly there is a case for transfer; if it is not, his continued detention in conditions of high security is plainly a justifiable interference in his Article 8 rights.

[26] Who is to decide that question of risk? That is really the stark issue raised by Mr Bowen’s submissions. Is it the persons upon whom the statutory powers have been vested by Parliament? Is it the Tribunal or the court? In my judgment the answer is clear. The decision must lie with those in whom Parliament has vested the statutory powers and who are thereby made responsible for forming the necessary judgments upon which the exercise of the statutory powers is necessarily based. That applies in particular to the Secretary of State who has ultimate responsibility under all the relevant statutory provisions, either as the person with power to direct or as the person whose consent is a precondition to the exercise of the powers by others. The statutory scheme is clear. It is not for the court to substitute its judgment for the statutory decision-maker.

[27] The process contemplated in Wilkinson in hearing expert evidence, including cross-examination, which is the process that the claimant invites the court to adopt in the present case, seems to me to relate to a very different context. This is a situation where the court can and should acknowledge that the statutory responsibility has been vested in others. It should afford to the decision-maker a margin of discretion, though of course it will look carefully at the basis of the decision and at the judgment reached and will examine in particular whether all relevant evidence has been taken into account and, where there has been a recommendation, albeit an extra-statutory recommendation by the Tribunal, whether that recommendation has been properly taken into account. The court’s role is, however, the secondary one of determining whether the decision-making process has been a proper one and whether the judgment reached is one reasonably open on the evidence.”

I respectfully agree with my brother’s decision. In my judgment his reasoning applies, mutatis mutandis, to the present case. And I agree with Ms Grey when she submits that it cannot simply be marginalised or distinguished, as Mr Bowen would have it, because it was only a decision on an application for permission, or because the Convention rights in issue there arose under Article 8 rather than, as here, under Article 3, or because the issue there was whether a patient should be transferred from one hospital to another whereas here the issue is whether the claimant should be transferred from a hospital to prison. Richards J delivered a fully reasoned judgment following a relatively lengthy contested hearing at which the patient, the hospital and the Secretary of State were all represented. He refused the patient’s application for permission to appeal, and so did the Court of Appeal. The argument there turned, as here, on whether the Secretary of State had wrongly assessed the medical evidence. And although it is obviously relevant that Richards J was concerned only with an alleged violation of Article 8, whereas I am concerned with alleged violations of Articles 3 and 5, that goes only to the intensity of the scrutiny that is called for. As Lord Steyn observed in R (Daly) v Secretary of State for the Home Department at para [28], “context is everything”. And I readily accept that where the rights in issue are as important as those protected by Articles 3 and 5 a heightened degree of scrutiny will be necessary compared to what is appropriate where only Article 8 is in issue.

I was referred by Ms Grey to what the Court of Appeal said in R (Razgar) v Secretary of State for the Home Department [2003] EWCA Civ 840 at para [34]:

“In R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2002] 3 WLR 1276, it was made clear by the House of Lords that the court’s role is to exercise a function of supervisory review, rather than to engage in a merits review. As Lord Hutton states at para 70: “the question is whether the Secretary of State was entitled to certify that the appellant’s allegation was manifestly unfounded”, rather than “the substantive one whether the removal of the appellant to Germany would breach his human rights under article 3”. But the court, when reviewing the decision of the Secretary of State, is required to subject the decision to “the most anxious scrutiny” (Lord Hope para 58) and “rigorous examination” (Lord Hutton para 74).”

There is one final observation to be made. The Strasbourg court has made it clear that even when Article 5(4) is engaged, so that the legality of a detention is required to be reviewed by a “court”, the ambit of judicial review is limited. As the Court said in Reid v United Kingdom (2003) 37 EHRR 211 at para [64]:

“An arrested or detained person is entitled before such a court to a review of the “lawfulness” of his detention in light not only of domestic law requirements but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by para (1). This does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person subject to the type of deprivation of liberty ordered.”

In his final submissions Mr Bowen, in fact, came very close to accepting Ms Grey’s approach. Faced with R (N) v M he accepted that the function was essentially one of review. He accepted, following Professor Jeffrey Jowell’s analysis in Judicial deference: servility, civility or institutional capacity? [2003] PL 592 at p 598, that the court is engaged not in a substantive “merits review” but rather, he suggested, in what Professor Jowell calls “constitutional review”. But he submitted that the court might still have to reach a decision on the merits. I do not go that far. I must address the central issues identified in Reid v United Kingdom, I must subject the Secretary of State’s decision to “the most anxious scrutiny” and I must rigorously examine all the evidence. In the course of that exercise I may have to form a view of my own on some matters of fact. But at the end of the day, as Richards J said, it is not for me to substitute my judgment for that of the Secretary of State.

On the contrary, the test propounded by Mr Bowen was explicitly disavowed in the domestic context by the Court of Appeal in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2003] 3 WLR 365. In that case the court was concerned with the circumstances in which the State’s failure to make provision for asylum seekers might drive them into circumstances of destitution so severe as to amount to a violation of Article 3. Amongst the questions the Court of Appeal had to consider was (see para [50]) “whether the “real risk” test that has been applied by the Strasbourg Court in relation to intended removal was applicable in the present context.” The Court of Appeal held that it was not:

“[61] The passages from the judgment of Collins J to which we have referred above suggest that he considered that there will be a breach of Article 3 if the Secretary of State refuses permission to an asylum seeker where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty. The “real risk” test is one that Strasbourg has applied in the case of removal to a country in circumstances where the removing State will no longer be in a position to influence events. We do not believe that it is an appropriate test in the present context.

[63] Unlike Collins J we do not consider that the fact that there is a real risk that an individual asylum seeker will be reduced to this state of degradation of itself engages Article 3. It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself.”

So the relevant test is not whether there are substantial grounds for believing that there is a real risk that Convention rights will be violated. The test is whether it is clear that there will be such a violation, “will” here meaning that it is more likely than not that there will be a violation. I should add that this view perhaps receives some support from sections 6(1), 7(1) and, in particular, 8(1) of the Human Rights Act 1998, which show that the availability of a judicial remedy depends upon the court finding that the act (or proposed act) under challenge “is (or would be) unlawful” as being incompatible with a Convention right.

I do not agree. With all respect to Mr Bowen he has misunderstood the authorities upon which he relies. All they show is that once it is demonstrated that some course of conduct will, in the absence of justification, amount to a violation of the Convention then it is for those who seek to rely upon such a justification to prove convincingly that it exists. Thus in Barthold v Germany, a case under Article 10, it was for those who sought to restrict freedom of expression to establish convincingly the necessity for such restriction. So in Rehbock v Slovenia, a case under Article 3 where the claimant alleged ill-treatment in the course of his arrest, it was for the state to demonstrate with convincing arguments that the use of force was not excessive. Likewise, as Herczegfalvy v Austria and R (N) v M show, in the case of an asserted medical justification. Once it is demonstrated that some course of conduct will, in the absence of some medical justification, amount to a violation of Article 3 then it is for those who seek to rely upon a medical justification to prove convincingly that there is a medical necessity for what is proposed. As the Court said in Herczegfalvy v Austria at para [82]:

“The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.”

But it remains for the claimant to establish in the first place that the treatment to which he will be subjected will, absent justification, be such as to violate Article 3 or, as the case may be, Article 5.

I have already set out in paragraph [4] above what the RMO said in his letter of 8 October 2003. That letter, as we have seen, referred to an earlier report he had written. It was dated 27 August 2003 and in it the RMO had said:

“It is likely that [the claimant] will require further input from this service at a future date in terms of rehabilitation back into the community. It is of course also possible that his mental health will deteriorate especially if he defaults on medication, requiring further treatment in hospital. In either case we are willing to be involved.”

The Secretary of State also had in front of him two reports from Dr Bullard. In the first, dated 20 October 2003, she said:

“[The claimant] suffers from a mental disorder, namely mental illness (Paranoid Schizophrenia F20.0) and psychopathic disorder (Emotionally unstable personality disorder with both impulsive and borderline traits F60.3 and F60.31) and his mental disorder is of a nature and degree which makes it appropriate for him to receive medical treatment in a hospital; and in the case of psychopathic disorder such treatment is likely to alleviate and prevent a deterioration of his condition; and it is necessary for his health and safety and for the protection of other that he should receive such treatment …

Persons, such as [the claimant], who suffer from serious and endangering mental illness (with or without a personality disorder) and are also subject to life sentences are subject to double jeopardy. They cannot be released on life licence because they are mentally ill and unstable; and if transferred to hospital they cannot be conditionally discharged and when recovered are returned to prison only to become ill again. They are ineligible for rehabilitation because of their status as life sentence prisoners. This is an invidious and unjust state of affairs and the Home Office has recognised this and can change the status of a life sentenced prisoner to that of a “technical life sentence” where-by the prisoner is treated as if he was subject to a hospital order together with a restriction order. The clinical team is then able to offer the patient the treatment and rehabilitation he needs and make appropriate recommendations concerning conditional discharge …

In conclusion I am recommending that [his] case be reviewed by the Mental Health Review Tribunal before a decision is made to return him to prison and that the Home office make him a technical life sentence prisoner. ”

In the second, dated 22 October 2003, she said:

“[The claimant] suffers from a serious personality disorder and paranoid schizophrenia. At the time of the offence he was isolated, paranoid and disturbed. It was in the context of an un-treated mental illness that he killed his brother. He has not done well in prison although he has been compliant with anti-psychotic medication. He cannot participate in the lifer programme and remains in closed conditions as he approaches tariff. He spends long periods in segregation and in the Health Care Centre. He has self-harmed and bangs his head against his cell wall. On one occasion he swallowed a razor blade and was removed to the segregation unit for adjudication.

Prisons cannot cope with severely disordered inmates and [he] should be in hospital. His treatment needs to be given in a therapeutic environment where he is not punished for erratic and disturbed behaviour. At the moment he is in a Catch 22 situation. He is mentally disturbed in prison because he is mentally ill and therefore has no prospect of release on licence; and he cannot be conditionally discharged from hospital because he is a life sentenced prisoner and when he is deemed not to require treatment for mental illness in hospital, he is returned to prison where his illness relapses within weeks.

I agree with Dr Shetty about the diagnosis but not about his management of this case. I accept that [the claimant] improves in hospital and that treatment with Clozapine has been successful in ameliorating his psychotic symptoms. I am also aware that, because of his emotionally unstable personality disorder together with a long-standing largely un-treated mental illness and having spent seven years in prison, he is difficult to motivate and refuses to precipitate in the ward programme. This is a therapeutic challenge which can only be successful undertaken with the support of a dedicated clinical team. There is no possibility that [he] can receive any effective treatment in prison.

As a detained patient under the Mental Health Act, [he] is entitled to psychiatric supervision when he leaves hospital and is returned to prison. However, he has not had six monthly CPA reviews since he was discharged from hospital on the 8 January 2001. What actually happens is that he goes back to prison, his illness relapses and he is re-admitted to the Norvic Clinic after waiting up to seven months for a bed.

Opinion

[He] suffers from an enduring mental illness and severe personality disorder. He is likely to require treatment is hospital as a detained patient for many years. He needs slow rehabilitation through medium security followed by continuing care in a ward for the chronically mentally ill. He would benefit from all aspects of a rehabilitation programme; none of which is available in prison.

The risk [he] poses can only be assessed in hospital.”

Dr Shetty responded in a letter dated 24 October 2003:

“This is [his] second admission to the Norvic Clinic and from my clinical observations I am not persuaded that he has a “persistent disorder or disability of mind which has resulted in abnormally aggressive or seriously irresponsible conduct” during that time. I am also not persuaded that treatment at the Norvic Clinic is likely to alleviate or prevent a deterioration of his condition.

As far as his mental illness is concerned, as I have stated in my previous reports [he] is currently well and compliant with medication. There have been no episodes of violence or self-harm of note during the current admission.”

It was on the basis of these differing views that the Secretary of State came to the decision in his letter of 31 October 2003, the relevant parts of which I have set out in paragraph [5] above.

Dr Ball agrees that the claimant may relapse in prison but opines that:

“It is highly unlikely that any such relapse would be life threatening or would have significantly adverse consequences for the claimant’s health or well being given that he will be under the immediate care and attention of the prison services and the visiting psychiatric services … it is very unlikely that any relapse would be untreated for any significant length of time, or have any deleterious effect on his long-term health or well-being.”

She adds these further observations which I think I should set out in full:

“First, [his] active delusional symptoms would be subjectively very distressing. In my opinion those symptoms are so severe that to allow him to suffer a relapse when the means are available to prevent him so suffering could be described as “inhuman” or “degrading”, particularly if after a relapse he were to suffer those symptoms for many months.

Second, [his] self-harming and aggressive behaviour, which is a symptom of his underlying personality disorder, increases in frequency and intensity when his mental illness deteriorates.

Third, the likelihood of [his] mental illness (schizophrenia) relapsing in prison so that he again suffers those symptoms is extremely high: in my view, almost 100% If it does so he will need to be transferred back to hospital. That process is likely to take many months, if not years, as it has in the past.

Fourth, [he] suffers from a mental illness and mentally ill “lifers” who also have a personality disorder and cannot cope with prison do not stand any chance of release. It would be reasonable if the doctor responsible for managing this patient’s care accepted that the best chance for this patient to remain mentally well is for him to be in hospital and his treatment planned over years. To continue to detain him in prison where the prospect of release is held out to him by regular parole board reviews but when, in fact, such a prospect is wholly illusory is, in my view, quite wrong and could be described as “inhuman”.”

Mr Bowen submits that Dr Bullard’s various reports establish a prima facie case that to remit the claimant to prison will be a violation of Articles 3 and 5 and that the evidence relied on by the Secretary of State does not discharge the burden which is on him of showing that there will be no violation. That, as I have already said, is not the test. He also submits that to transfer the claimant back to prison while he continues to suffer from mental illness and in circumstances where he is almost certain to relapse into psychosis, and where the combination of his mental illness and his personality disorder means that he is likely to spend considerable periods in segregation, particularly once his mental illness relapses, violates both Article 3 and Article 5.

The principles to be applied in deciding whether or not to direct the hearing of oral evidence and cross-examination are now to be found in R (N) v M [2002] EWCA Civ 1789, [2003] 1 WLR 562, esp at paras [36]-[39], where the Court of Appeal emphasised that cross-examination should be ordered only if this was “necessary” to enable the court to determine any factual disputes for itself and that, even where there were disputed issues of fact and opinion, “it should not often be necessary to adduce oral evidence with cross-examination”. The court made it clear that R (Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, should not be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. As the court went on to observe at para [41],

“there is nothing in the Strasbourg jurisprudence to indicate that, even in a case where the question whether there has been a violation of a Convention right depends on disputed issues of fact or expert opinion, article 6 requires those issues to be determined by oral evidence.”

The factual issues which Mr Bowen seeks to explore in oral evidence are revealing: the most important topics are, he says, the likelihood of the claimant’s mental illness relapsing if he is returned to prison, the severity of the symptoms he is likely to suffer if there is a relapse, the extent and degree to which his acts of self-harm and/or aggression will increase in the event of a relapse, the prospects of an appropriate response being made to such a deterioration by prison staff, and the likelihood that his behaviour will (as in the past) be treated as a disciplinary issue rather than a health issue, thus leading to prolonged periods of segregation. The dispute between the RMO and Dr Bullard, he says, can only be resolved by the calling of oral evidence.