Royal Courts of Justice
Strand,
London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE MUNBY
Between :
THE QUEEN (on the application of I R) | Claimant |
- and - | |
(1) DR G SHETTY (Responsible Medical Officer) (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendants |
Mr Paul Bowen (instructed by Kaim Todner) for the claimant
The first defendant was neither present nor represented
Ms Eleanor Grey (instructed by the Treasury Solicitor) for the second defendant
Judgment
Mr Justice Munby :
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.
Much time was spent in 1997 ascertaining whether it was open to HHJ Hyam, instead of sending the claimant to prison, to make a hospital order under section 37 of the Act. I need not set out the section. It suffices for present purposes to note that a hospital order cannot be made (see section 37(1)) unless three conditions are satisfied:
Two doctors must give evidence that the offender is suffering from a mental illness or other mental disorder within the meaning of section 1(2) of the Act: section 37(2)(a).
The same two doctors must also give evidence that the mental disorder from which the offender is suffering “is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment”: section 37(2)(a)(i).
There must be a hospital bed available: section 37(4).
If these three conditions are met the court has power and discretion, subject to certain other conditions which are not relevant for present purposes, to make a hospital order: sections 37(1) and 37(2)(b).
HHJ Hyam had before him the evidence of three doctors: Drs Hadrian Ball, Jonathan Shapero and Henrietta Bullard. Dr Ball, in a report dated 12 September 1996, was clear that the claimant was not currently mentally disordered, though he had “an extremely unusual character, amounting to a personality disorder” which Dr Ball described as “of a mixed type with prominent schizoid and paranoid traits.” He commented that the degree of disorder was “marked”. He thought that what he diagnosed as the claimant’s malingering “could well be a harbinger of future genuine mental illness.” In a report dated 29 May 1997 Dr Ball said that he did not feel able to offer the claimant a bed at the Norvic Clinic.
Dr Shapero, in a report dated 8 August 1997, said that the claimant “does not presently suffer from mental illness … but he does have a significant disorder of personality.” He acknowledged “the possibility that under severe stress he probably develops symptoms of mental illness.” His report concluded:
“[The claimant] is determined to avoid medical treatment at the present time. He has poor insight, poor impulse control and seems only motivated to isolate himself from others. Indeed one of his motivations for wanting to return to prison custody is so that he may stay in isolation – at the hospital he sees himself as being forced into therapeutic activities in which he does not want to participate.
As a consequence of the above I regret that I do not consider that there will be any need to continue [his] detention under Section 38 of the Mental Health Act. His bed will not be available after the date of his Court appearance, and I assume he will return to prison custody even if he is not sentenced on that date.
There is little point in trying to persuade a patient with personality disorder to engage in treatment against their will. Consequently, I have no formal medical recommendation to make to the Court regarding this man’s disposal, other than to repeat my concerns about his long-term dangerousness in the community if he does not receive treatment.”
Dr Bullard’s report was dated 12 August 1997. She agreed with Dr Shapero that the claimant “suffers from a serious personality disorder and … has failed to participate in the assessment procedure.” She continued:
“It is hard to see how such a disturbed person can be accommodated within the prison system and if he is also subject to an indeterminate prison sentence he is likely to remain in prison indefinitely and not be suitable for release at tariff. It is inconceivable that the prison personnel will be able to cope with this man and I do consider that his needs are for management in hospital. In addition to his abnormal personality it is quite likely that he also suffers from a mental illness and that his strong views about his brother and people in Norwich Prison “burning his head from behind” are paranoid delusions.”
Sentencing the claimant to life imprisonment on 8 September 1997 HHJ Hyam said:
“Since your conviction, it has been urged upon me that the appropriate way of dealing with you is by means of a hospital order with the restrictions under s 41 of the Mental Health Act 1983. After a series of adjournments to explore that possibility, we have today reached a point at which your own counsel is driven to concede that there is no prospect of the conditions of such an order being made which will be satisfied.
I am left, therefore, to consider whether this is a case where an indeterminate sentence should be imposed or whether I should pass a determinate sentence. In order to pass a discretionary life sentence, I have to be satisfied that there is a likelihood that you constitute a threat to the public for an unpredictable period of time. It had been contended by your counsel, Mr Stokes that, in the light, particularly, of the evidence of Dr Ball at a previous hearing, there is a possibility but not a likelihood of you posing a risk to the public in the future.
Dr Bullard has also given evidence on previous occasions and today. She has always said and still says that a hospital order would be the appropriate sentence but she told me today that if that was not possible then a discretionary life sentence was in her view the next best way of dealing with you.
I have also a report by Dr Shapiro, dated 8th August 1997, and he says a number of things: first, that you do not at present suffer from mental illness; second, that you have a significant personality disorder; third, that you are at high risk of future violence or homicidal behaviour unless you receive treatment; fourth, that you are potentially a dangerous man made more so by the possibility that under severe stress you would possibly develop symptoms of mental illness; and, fifth, before your release from prison you should receive treatment.
In the light of that evidence, I have come to the conclusion that the only appropriate sentence in this case is an indeterminate life sentence.”
Subsequently, as we have seen, the claimant has twice been transferred to the Norvic Clinic: the first time on 8 August 2000, the second on 23 April 2003. The responsible medical officer (RMO) is the first defendant Dr Shetty. By October 2003 all the doctors were agreed that the claimant not merely had a disordered personality but was also suffering from paranoid schizophrenia. A report dated 6 October 2003 prepared by the RMO’s SHO, Dr Umezinwa, stated that the claimant “has an existing diagnosis of paranoid schizophrenia and emotionally unstable personality disorder.” The RMO, in a report dated 24 October 2003, said that “There is unanimity of the psychiatric opinions that [the claimant] has a disordered personality.” Dr Bullard in a witness statement dated 2 December 2003 makes two observations which are particularly important. Speaking of the period 1996-1997 she says that “none of us who examined [the claimant] at the time – Dr Ball, Dr Shapero or myself – accurately diagnosed his primary mental disorder, namely paranoid schizophrenia.” She continues:
“From what I have seen of [the claimant’s] medical notes it only appears to have been after transfer to the Norvic Clinic in August 2000 that the primary diagnosis of paranoid schizophrenia was made. That is now a diagnosis upon which all the clinicians agree.
It is likely that, if that diagnosis had been made in 1997, a hospital order would have been recommended. His schizophrenia was then, and remains, of a nature and degree that justified his admission to hospital for treatment.”
The claim
The claimant is currently in the Norvic Clinic. On 21 October 2003 his solicitors wrote to the Secretary of State for the Home Department seeking “technical lifer status” for him. The Secretary of State replied on 31 October 2003:
“In connection with the application for technical lifer status, the Secretary of State has considered carefully the medical evidence presented to the court at the time of sentencing and the judge’s sentencing remarks. He has noted in particular that the question of whether [the claimant] should be made subject to a hospital order was fully considered by the court when passing sentence, and that [he] was admitted to St Andrew’s Hospital pursuant to an interim order for the purpose of assessment.
On the basis of this, and the medical evidence described above, the Secretary of State has concluded that there are no grounds for granting [him] technical lifer status.”
“The medical evidence described above” is a reference to a substantial volume of medical reports describing the claimant’s current condition, in particular reports by Dr Shetty and Dr Bullard: see further R (ota IR) v Shetty [2003] EWHC 3022 (Admin) paras [5], [66]-[71].
The claimant seeks judicial review of, and brings a claim under section 7 of the Human Rights Act 1998 in respect of, the Secretary of State’s decision to refuse him technical lifer status. The proceedings, commenced in fact on 23 October 2003, are brought in part to prevent the claimant being returned to prison. An injunction to restrain the claimant’s return to prison was granted by Poole J on 23 October 2003 and extended by Richards J on 24 October 2003 and seemingly again by Stanley Burnton J (although his order is silent on the point) on 7 November 2003. On the latter occasion Stanley Burnton J granted the claimant permission to apply for judicial review. The injunction was further extended by me on 5 December 2003. The matter came on for hearing before me on 9 December 2003. The claimant was represented by Mr Paul Bowen and the Secretary of State by Ms Eleanor Grey. The RMO was neither present nor represented. At the end of the hearing I reserved judgment and further extended the injunction until 4pm on 15 December 2003 or earlier judgment. I now (12 December 2003) hand down judgment.
Technical lifers
A “technical lifer” is a person who, although sentenced to life imprisonment, is treated by the Secretary of State after transfer to hospital as though he had been made the subject of a hospital order under section 37 of the Act and a restriction order under section 41 of the Act. It is a non-statutory status, based on an administrative process entirely within the discretion of the Secretary of State. I need not go into further detail: that can be found in Jones’s ’Mental Health Act Manual’ (ed 8) pp 284-285. It is, from the perspective of a person in the claimant’s position, a desirable status because (a) he cannot in any circumstances be returned to prison, (b) he becomes entitled under Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to periodic reviews of the lawfulness of his detention even if his tariff period has not expired (see Van Droogenbroeck v Belgium (1982) 4 EHRR 443 and Benjamin and Wilson v United Kingdom (2002) 36 EHRR 1) and (c) in practice (see Benjamin and Wilson v United Kingdom paras [28], [30]) he will be entitled to his liberty if a Mental Health Review Tribunal so recommends.
The “technical lifer” policy as it is currently operated is described in a witness statement by Nigel Shackleford, Head of Caseworking in the Home Office Mental Health Unit:
“In assessing an application for “technical lifer” status, consideration is given to whether there is reason to believe the court’s decision to impose a prison sentence rather than a hospital order has been made because the sentencing court was prevented from making an hospital order by reasons beyond its control, such as:
a) the unavailability of a suitable hospital bed;
b) the lack of proper clinical information to the court;
c) medical reports which were prepared appear (in hindsight) not to have recorded accurately the patient’s mental state at the time of the offence;
d) the offender, although mentally disordered, refused to allow a diminished responsibility defence and was as a result, convicted of murder (for which a life sentence is mandatory).
Where the Secretary of State considers that there is reason to believe that, but for these reasons, the sentencing judge would have imposed a hospital order, he will refer the matter to the trial judge and the Lord Chief Justice for consultation. Following that consultation, and taking the recommendations of the trial judge and the Lord Chief Justice into account, the Secretary of State may exercise his discretion to grant a person “technical lifer” status.
The Secretary of State does not refer every request for technical lifer status for judicial consideration. He does so only in applications where it is clear either that the Court was unable to make a hospital disposal, or there is clear subsequent evidence which might have altered the court’s decision, and there are grounds to believe that the trial judge’s decision would have been different had that evidence been taken into account. The Secretary of State may take the view, upon consideration of the relevant information, that there is no reason to suggest that the sentencing judge would have imposed a hospital order, in which case he does not consult the judiciary.”
The claimant’s case
Mr Bowen submits that the Secretary of State’s decision not to categorise the claimant as a technical lifer is unlawful on two grounds:
Because the decision whether the claimant is to be categorised as a technical lifer can, he says, only be taken by a ‘court’ within the meaning of Article 6 of the Convention. I emphasise that the claim is based exclusively on Article 6. Mr Bowen does not seek to invoke Article 5. For this reason, as Ms Grey submits, Van Droogenbroeck v Belgium (1982) 4 EHRR 443, a decision on Articles 5(1)(a) and 5(4), does not assist.
Because, he says, the Secretary of State has not lawfully applied his own policy.
A further ground of attack based on an alleged ‘legitimate expectation’ was expressly abandoned by Mr Bowen.
It is important to note that the only attack on the legality of the policy is that mounted under Article 6. Article 6 apart there is no challenge to the policy qua policy: the only complaint is that the Secretary of State has failed to apply it properly.
Article 6
The claimant’s case is very simple. Mr Bowen submits that, in just the same way as the setting of a tariff for a person sentenced to life imprisonment is a sentencing exercise for the purposes of Article 6, and thus can lawfully be undertaken only by a ‘court’, so in the same way the decision to designate a prisoner as a technical lifer is a sentencing exercise that cannot lawfully be undertaken by the Secretary of State. It must be undertaken by a judge empowered to make a binding decision. The present policy does not comply with Article 6, he says, (a) because the Secretary of State refers a case to the trial judge and Lord Chief Justice only where certain matters are “clear” and (b) because the only role of the judges is to recommend: the decision is that of the Secretary of State.
Mr Bowen relies upon the principles to be found in the various “tariff” cases, culminating with the decisions of the Strasbourg court in Stafford v United Kingdom (2002) 35 EHRR 1121 and Easterbrook v United Kingdom (2003) June 12 and, domestically, with the decision of the House of Lords in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837.
In Stafford at para [79] the Court said of tariff-fixing: “It is a sentencing exercise.”
The clearest statement of the true principle is to be found in the speech of Lord Bingham of Cornhill in Anderson at paras [13], [17], [24]:
“[13] I return to the fixing of the convicted murderer’s tariff term by the Home Secretary … The true nature of that procedure must be judged as one of substance, not of form or description. It is what happens in practice that matters: Van Droogenbroeck v Belgium (1982) 4 EHRR 443, 456, para 38. What happens in practice is that, having taken advice from the trial judge, the Lord Chief Justice and departmental officials, the Home Secretary assesses the term of imprisonment which the convicted murderer should serve as punishment for his crime or crimes. That decision defines the period to be served before release on licence is considered. This is a classical sentencing function. It is what, in the case of other crimes, judges and magistrates do every day. In arguing on behalf of the Home Secretary that his fixing of a convicted murderer’s tariff was not a sentencing function, Mr David Pannick drew attention to two options open to the Home Secretary but not, as was rightly said, to a sentencing judge. He may shorten the convicted murderer’s tariff term if he makes exceptional progress in prison. He may increase the convicted murderer’s tariff term if fresh facts come to light, not known when the tariff term was fixed and revealing his conduct as graver than previously appreciated. There are obvious difficulties about this latter course if the length of the tariff term has already been disclosed to the convicted murderer (as in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539) and if the fresh facts are not admitted, but it may be accepted for present purposes that these differences exist. They are however minor differences and do not begin to outweigh the very striking similarities between the fixing of a tariff term and the imposition of an ordinary custodial sentence.
[17] There was material in these judgments to support the Home Secretary’s view of the mandatory life sentence as involving the forfeiture of the convicted murderer’s life to the state and his view of his own role as involving not the imposition of a sentence but the administrative implementation of a sentence already passed. But these views were inconsistent with the steadily growing recognition of the tariff-fixing exercise as involving the imposition of a sentence and with the procedures followed in the fixing of the tariff …
[24] … It is clear beyond doubt that the fixing of a convicted murderer’s tariff, whether it be for the remainder of his days or for a relatively short time only, involves an assessment of the quantum of punishment he should undergo.”
Ms Grey has an equally short and simple answer. She says, and I agree, that the decision of the Secretary of State as to whether or not to designate someone as a technical lifer is not a sentencing exercise. She points to what is said in Clayton & Tomlinson’s ‘Law of Human Rights’ at para 11.155:
“Article 6 does not apply to proceedings subsequent to the conviction of an offence of an individual, as they cannot be determinative of the charge. Neither are proceedings determinative where they relate to … revocation of a suspended sentence [or] application for clemency or conditional release …”
The authority referred to in support of the proposition in relation to clemency is X v Austria (1961) 8 CD 9; in relation to conditional release the authorities include Aldrian v Austria (1990) 65 DR 337.
X v Austria related to an application by a convicted prisoner for clemency, a procedure which involved an application to the Regional Court as a prelude to the possible consideration, by the Minister of Justice, of the exercise of the prerogative of mercy vested in the President of the Republic. The claim that Article 6 was engaged was rejected by the European Commission of Human Rights as manifestly unfounded, on the ground that (at p 11):
“the function of the Regional Court … was not to determine … a “criminal charge” against … the Applicant within the meaning of Article 6 of the Convention, but solely to decide, subsequently to the conviction of the Applicant, whether a pardon or a commutation of the sentence should be recommended to the President of the Republic.”
Aldrian v Austria related to an application by a convicted murderer, whose life sentence had been reduced as an act of grace by the Federal President to 15 years imprisonment, to be conditionally released on the basis that he had served two-thirds of the commuted 15 years’ sentence. He complained that Article 6 had been violated in the proceedings concerning the grant of conditional release. Rejecting the complaint as manifestly unfounded the Commission said (at p 342):
“The Commission recalls its constant case-law according to which proceedings concerning the execution of a sentence imposed by a competent court, including proceedings on the grant of conditional release, are not covered by Article 6 para 1 of the Convention. They concern neither the determination of “a criminal charge” nor of “civil rights and obligations” within the meaning of this provision. The Commission further recalls that a right to be released on probation is not as such included among the rights and freedoms guaranteed by the Convention and that Article 5 para 4 does not apply in this respect.
It follows that the applicant’s … complaint is incompatible with the provisions of the Convention, ratione materiae. It must accordingly be rejected”.
That case was not cited to me, but it simply confirms the view to which I would in any event have come.
The Commission’s jurisprudence was acknowledged in Stafford v United Kingdom where the Court at para [87] recognised the distinction:
“The Secretary of State’s role in fixing the tariff is a sentencing exercise, not the administrative implementation of the sentence of the court as can be seen in cases of early or conditional release from a determinate term of imprisonment.”
The Strasbourg jurisprudence, in my judgment, is clear and decisive. A decision by the Secretary of State whether or not to designate someone a technical lifer, in my judgment, is no more a sentencing exercise than a decision by the Secretary of State (in the days of capital punishment) whether or not to advise the Crown to commute a capital sentence, or a decision by the Secretary of State whether or not a terminally ill prisoner should be released early on compassionate grounds, or a decision by the Secretary of State whether a prisoner should be detained in an open prison or a closed prison or classified as a Category A, Category B or Category C prisoner. Article 6 does not apply. The claimant’s first ground of challenge fails.
The Secretary of State’s decision
Mr Bowen’s case is in large measure founded on paragraph (c) of Mr Shackleford’s statement of the policy. He asserts that this is a case in which it can now be seen, in hindsight, that the medical reports HHJ Hyam had before him in 1997 did not accurately record the claimant’s medical condition at the time of the offence. In support of this proposition he points to three things:
the fact that the claimant has twice since been transferred to hospital;
the fact that clinical opinion is now unanimous that the claimant is currently suffering from mental illness; and
Dr Bullard’s very recent acknowledgement that she, and her assertion that Drs Ball and Shapero, failed accurately to diagnose the claimant in 1997 as suffering from paranoid schizophrenia.
On the basis of this material Mr Bowen submits that it is “clear” that the reports before HHJ Hyam did not accurately reflect the claimant’s mental state at the time he was sentenced. He lays particular emphasis on the fact that everyone is now unanimous that the claimant is suffering from a mental illness.
That may be so, but it cannot be determinative of the question, for paragraph (c) of the policy directs attention not to the prisoner’s mental state at some unspecified time after sentence but to his mental state “at the time of the offence”. I ignore for present purposes the fact that the policy is directed to the prisoner’s mental state at the time of the offence rather than at the time when he is sentenced, because the argument before me has focussed on the medical evidence as to the claimant’s mental state in 1997 rather than in 1995. And as the policy shows, the inquiry is directed essentially to ascertaining whether the sentencing process was distorted by reason of one or other of the specified matters. So the question is not what the claimant’s mental state is to-day: the question is what his mental state was in 1997 and whether HHJ Hyam was prevented from doing what he would otherwise have done by some deficiency in the medical evidence.
In the particular circumstances of this case, the mere fact that the claimant has twice been transferred to hospital since being sentenced and that he is now viewed as suffering from paranoid schizophrenia seems to me, as it no doubt seemed to the Secretary of State, a matter of small significance. After all, both Dr Ball and Dr Shapero, each of whom was clear in 1997 that the claimant was not then suffering from any mental illness, recognised the distinct possibility that he might in future do so. So subsequent events, far from falsifying their diagnoses, are entirely consistent with them. Nor can it be said that subsequent events have proved inconsistent with Dr Bullard’s clinical opinion in 1997.
The reality, as Ms Grey pointed out, is that even now the only medical evidence which in any way differs from what was being said in 1997 is Dr Bullard’s statement that she was wrong in 1997, and her assertion that Drs Ball and Shapero were also wrong in 1997, in not diagnosing the claimant as then suffering from paranoid schizophrenia. That, as it seems to me, is the only “subsequent evidence” to which, in truth, the claimant can point in support of his assertion that a hospital order could and should have been made in 1997. And if that is the only new material then, as Ms Grey submits, it does not take the claimant anywhere. There is nothing whatever to suggest that either Dr Ball or Dr Shapero takes the same view as Dr Bullard. The claimant has produced no evidence from either of them, let alone evidence that either of them agrees with Dr Bullard that the medical reports prepared in 1997 did not accurately record his mental state at that time.
The position as it seems to me is really very simple. In 1997 HHJ Hyam had evidence from three doctors. Two (Drs Ball and Shapero) were clear that the claimant was not then suffering from mental illness. Only Dr Bullard was prepared to say that it was “quite likely” that he was suffering from a mental illness. Accordingly, the condition referred to in section 37(2)(a) of the Act was not satisfied. Dr Shapero also gave additional reasons – the claimant’s determination to avoid medical treatment – why in any event it was not appropriate for him to be detained in a hospital and why, accordingly, the condition referred to in section 37(2)(a)(i) was not satisfied. Even accepting that Dr Bullard would now have adopted a different stance in 1997, absent any evidence of a similar change on the part of either Dr Ball or Dr Shapero it remains the case that, even on this new evidence, HHJ Hyam would not have been able to make a hospital order in 1997. Even in the light of Dr Bullard’s change of position, matters today remain in all material respects just as they were in 1997. For there would still have been lacking the second doctor without whose evidence, agreeing with Dr Bullard, neither of the conditions referred to in sections 37(2)(a) and 37(2)(a)(i) could have been satisfied.
On this basis a decision by the Secretary of State to refuse the claimant’s application for technical lifer status seems to me to be entirely consistent with the policy – indeed almost inevitable in the light of the policy. What reason is there to believe that if HHJ Hyam had known in 1997 what Dr Bullard is now saying he would have imposed a hospital order? Indeed, what reason is there to believe that if HHJ Hyam had known in 1997 what Dr Bullard is now saying he could have imposed a hospital order, even if he had wanted to? What reason is there to believe that his decision would – could – have been different had this new evidence been taken into account? The answers in my judgment are obvious, and fatal to the claimant’s case. So far as the evidence before me goes, the balance of medical opinion today as to the claimant’s mental state in 1997 remains the same as it was in 1997. There is still only one doctor who is saying that the claimant was suffering in 1997 from a mental illness. On the evidence the claimant presented to the Secretary of State the pre-conditions for the exercise of the Secretary of State’s discretion in accordance with the policy were just not met.
That is how Ms Grey understandably puts the case. But she does not have to go that far. For in the final analysis what matters is not my view of the evidence but whether Mr Bowen can establish some proper ground of challenge to the Secretary of State’s decision. He submits that the Secretary of State has either failed to take all these relevant considerations into account or has “manifestly” failed to give them sufficient weight. He submits that the Secretary of State’s decision is irrational. There is, in my judgment, no basis for any of these complaints. The Secretary of State had access not merely to the medical reports which HHJ Hyam had seen but also, as his decision letter makes clear, to the more up-to-date material. His letter states that it was on the basis of all this material that he arrived at his decision. That was an entirely proper approach, indeed the very approach mandated by his own policy. It cannot be said that his decision itself demonstrates that he failed to give any of the evidence sufficient weight, for his decision is, for the reasons I have already given, entirely rational.
Mr Bowen also attacks the Secretary of State’s decision on the ground that he has not given adequate reasons. I reject that complaint. The reasons given, if brief, were adequate. After all, the reason why the application failed was fairly obvious: the claimant was unable to find two doctors in 1997 to say that he was then suffering from mental illness, and he is still in 2003 unable to find two doctors to say that in 1997 he was suffering from mental illness. Mr Bowen suggests that, in the light of Dr Bullard’s evidence, there must be a question-mark over what Dr Ball and Dr Shapero were saying in 1997. I do not agree. The suggestion is mere speculation. It is for the claimant, if he wishes to achieve technical lifer status, to marshal his case and present it to the Secretary of State. A case which, so far as it concerns Drs Ball and Shapero, is all surmise and speculation does not meet the evidential requirements clearly laid down in the Secretary of State’s policy.
More faintly Mr Bowen also submits that the case falls within paragraph (a), saying that although no suitable bed was available in 1997 such a bed is now available for the claimant. That argument is not open to him. As Ms Grey correctly submits, the reason why HHJ Hyam imposed a prison sentence and not a hospital order had nothing to do with the unavailability of a bed in 1997. The reason why HHJ Hyam did not impose a hospital order was because the conditions referred to in sections 37(2)(a) and 37(2)(a)(i) were not satisfied.
It will be appreciated that I have appraised the Secretary of State’s decision taking into account the latest evidence from Dr Bullard, even though that is contained in a witness statement which, dated 2 December 2003, was not in fact available when the Secretary of State made his decision on 31 October 2003. It seemed sensible and appropriate for me to proceed on this basis, not least in fairness to the claimant. Ms Grey did not demur. Plainly, if the claimant cannot succeed, as in my judgment he cannot, even with the benefit of Dr Bullard’s evidence, he could not have hoped to succeed without it.
In my judgment the claimant’s challenge to the Secretary of State’s decision fails. The Secretary of State’s decision was lawful and rational in the light of the material presented to him by the claimant in October 2003. It would, as it seems to me, have been equally lawful and rational for the Secretary of State to have come to precisely the same conclusion if he had had Dr Bullard’s latest evidence available to him at the time when he came to his decision.
Conclusion
It follows that the claimant’s application fails and must be dismissed.
The effect of this judgment and my judgment on 9 December 2003 in R (ota IR) v Shetty [2003] EWHC 3022 (Admin) is that there is no longer any justification for a continuation of the injunction. In principle, therefore, the injunction should be discharged. I will hear argument as to whether, if the claimant seeks permission to appeal, the injunction should be continued (and if so for how long) in order to protect him pending the matter coming before the Court of Appeal.
The court has made an order in this case restricting disclosure, or reporting, of the identity of the claimant. Anyone to whom a copy of this judgment is supplied, or who reads it in whatever circumstances, is bound by that order, details of which may be obtained from the clerk of the court.
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MR JUSTICE MUNBY: For the reasons set out in the draft judgment which I sent to the parties early this morning, this application is dismissed.
MISS GREY: My Lord, perhaps I could address the question of costs of the second defendant first.
MR JUSTICE MUNBY: Yes.
MISS GREY: Simply to ask if we could have an order in the modified football pools form. My learned friend has done the research and has found the minutes of the previous order. My Lord, I would ask for an order in the same terms.
MR JUSTICE MUNBY: Mr Bowen, I do not think you can resist that, can you?
MR BOWEN: I have nothing to add, my Lord.
MR JUSTICE MUNBY: I will dismiss the application with costs. The costs order to be in the modern version of the so-called football pools order.
MISS GREY: My Lord, for the avoidance of doubt, that is the costs of the entirety of the litigation, that is issues one and two as well as the third because I asked for the costs to be reserved.
MR JUSTICE MUNBY: That is right, yes. Tuesday's order dealt with the first defendant's costs, so today's order will deal with the whole of the Secretary of State's costs of both parts of the proceedings.
MISS GREY: I am grateful.
MR BOWEN: My Lord, I have an application to make which is that we have a little bit more time to lodge our appellant's notice. My Lord, under CPR 52.4(2), which is page 1267 of volume 1 of the White Book. The obligation is on the appellant to file his appellant's notice at the appeal court within:
such period as may be directed by the lower court; or
where the court makes no such direction, 14 days after the date of the decision of the lower court."
My Lord, there are three time limits that are currently running in respect of the decisions that have been made by your Lordship. There is the time limit in respect of the decision to refuse permission, which is catered for by 52.15(2) on page 1281 which is 7 days.
MR JUSTICE MUNBY: That is 7 days from last Tuesday.
MR BOWEN: Indeed. There is the time limit which runs from last Tuesday until a fortnight last Tuesday, which is against the Secretary of State in respect of ground 1. Then there is the time limit that runs as of today of 14 days. My Lord, the intervening Christmas period means that --
MR JUSTICE MUNBY: Mr Bowen, I see no reason to change any of those time limits. The more immediate point is that that is not going to help your client. The immediate point is the question of a stay or a continuation of the injunction. If you want 14 days to go to the Court of Appeal, you have 14 days to go to the Court of Appeal. It does not follow from that that the injunction will remain in place for 14 days.
MR BOWEN: My Lord, I am sorry. I should have said at the outset. I indicated to my learned friends that we are not making an application to extend the injunction. The claimant's position is that we are not in a position to put anything else before your Lordship or before the Court of Appeal to persuade either that the injunction should continue.
MR JUSTICE MUNBY: I see. The injunction in accordance with my previous order actually expires at 4pm on Monday afternoon. Is there any issue between the parties as to whether it should be discharged now or whether it should continue until 4 o'clock on Monday?
MR BOWEN: I have no objection to it being discharged now. I think that is what I would ask for.
MR JUSTICE MUNBY: Very well. There will be included in today's order an order that, despite the order that I made on Tuesday, the injunction is to be discharged forthwith.
MR BOWEN: My Lord, I am obliged. Can I make my application again against a slightly different background?
MR JUSTICE MUNBY: Yes.
MR BOWEN: My Lord, I accept that Mr R is going to have to go back to prison, Mr R accepts that. In light of the evidence put before your Lordship that there was a high likelihood however that at some point he will relapse and may find himself back in hospital, the issues that have been determined by your Lordship in these proceedings do remain of more than academic interest to him. Although it is accepted that on any appeal he is unlikely to get any substantial relief entitling him to be remitted back to the hospital, it is my respectful submission that those issues will remain of particular importance to him. However, in light of the fact that your Lordship's judgment is extremely comprehensive, it is my submission -- what we hope to do is to instruct leading counsel to advise as to whether there are, firstly, grounds of appeal, and secondly, whether it is in the public interest in any event to proceed with such an appeal rather than --
MR JUSTICE MUNBY: Mr Bowen, I think one has to divide the three time periods you mention into two categories. The first is the 7 days which you have for going to the Court of Appeal. Now, the view I have expressed on Tuesday is that I have no jurisdiction in relation to that matter. That is a matter for the Court of Appeal, and unless you can point me to something in the rules which gives me power to extend that particular time, my view, as I say, is based on the jurisdiction issue. So far as concerns the other two, since there is no longer any question of a stay or an injunction, I do not imagine that the Secretary of State would have any particular objection, first of all to marrying up the two time limits so that there are not separate time limits arising out of Tuesday and Friday, and secondly, bearing in mind the time of season, I do not imagine the Secretary of State would have any particular objection to some modest extension of the time. Quite apart from anything else, he does not want to be in a position where he is having to open up the office on New Years Day to do something.
MISS GREY: My Lord, it may assist if I say that your Lordship has correctly anticipated our position. The time limits for the appeal against the Secretary of State in respect of this part of the case, ignoring Tuesday's part, would mean that my learned friend had to submit his notice of appeal the day after Boxing Day, and then would have until 12 January to put a skeleton argument in. In the light of that, I indicated to my learned friend that if he were to undertake to put in both the notice of appeal and the skeleton argument and serve them on us at the same time by 16 January, which is the Friday instead of the Monday, we would have no objection to that course of action.
MR JUSTICE MUNBY: If I may say so, the idea of marrying up the two time limits and simultaneous service of both the notice and the skeleton seems eminently sensible. Is there any difficulty about 16 January, or would you like a slightly later date?
MR BOWEN: My Lord, I would certainly like a slightly later date but I do not think I could with good conscious make that application. I will be back from vacation for a week by that stage, but if I could ask for the extension formally to that date upon our undertaking to serve the skeleton argument and to serve at the same time. I ask for that specifically because if it is made an order that we serve a skeleton at the same time and for some reason we cannot and the defendants are happy with us taking a little bit longer to serve the skeleton, we could not extend the time limit by agreement because of CPR 52.6. Once the time limit has been fixed -- that is page 1271 -- but if we undertake to lodge the skeleton and to serve on the same day, then I would ask that the time limit be extended under 52.4(2) to 16 January.
MR JUSTICE MUNBY: Yes, as I understand it, that is not opposed. We have not actually dealt with the question of permission to appeal.
MR BOWEN: My Lord, that is correct. I do need to formally apply.
MR JUSTICE MUNBY: Or rather we did deal on Tuesday with the question of permission to appeal against Tuesday's judgment.
MR BOWEN: My Lord, I do need to formally apply for leave to appeal. My position is that your Lordship's judgment at present, in my respectful submission, provides the only authority on this point, but that does not mean that I can necessarily persuade your Lordship that there are real prospects of success but I do so submit.
MR JUSTICE MUNBY: I seem to remember Sir Robert McGarry once in a judgment saying that Mr so and so has submitted there was no authority: well, there is now.
MR BOWEN: My Lord, indeed. Your Lordship's judgment fills the field on this issue. My Lord, I also submit that there is some compelling reason for granting permission to appeal, very much for the same reasons as I did so in relation to the first ground, namely that this is an issue of substantial importance for those, like Mr R, who find themselves in a position that they do.
MR JUSTICE MUNBY: You resist, mutatis mutandis, for the same reasons as you resist on Tuesday?
MISS GREY: Precisely so.
MR JUSTICE MUNBY: So that I can put this in context, so far as concerns the Secretary of State, there are two judgments dealing with two aspects of the matter. One I handed down on Tuesday, the second I have handed down this morning. In relation to Tuesday's judgment, Mr Bowen applied on Tuesday for permission to appeal. I refused permission to appeal against that judgment and the consequential order on the basis that there was, in relation to the matters he sought at that stage to canvass before the Court of Appeal, as it seems to me, no reasonable prospect of an appeal succeeding. He Also failed to persuade me that there was some other compelling reason why the Court of Appeal should deal with the matter, and in any event, I indicated that questions of that nature were better canvassed in the Court of Appeal than at first instance. So far as concerns his application for permission to appeal against this morning's judgment, I come to the same decision for very much the same reasons. There is, in my judgment, no reasonable prospect of an appeal succeeding. There is no compelling reason why the matter should be considered by the Court of Appeal, and if the Court of Appeal wishes to take a different view on that, then it seems to me that it is for the Court of Appeal rather than for the judge at first instance to do so.
The reasons very briefly why I have come to that view are these. Two matters have been raised: one a pure point of law in relation to Article 6. That, for the reasons I have set out in my judgment, is, as it seems to me, concluded against the claimant by consistent jurisprudence in the Strasbourg Commission and Court, and also by authority in this country. The second matter is a pure question of the particular facts of the present case. Those facts as analysed have led me to a very clear conclusion that the plaintiff's case simply cannot succeed on the facts, even taking the facts as high as Mr Bowen on his behalf would seek to take them. Accordingly, having on Tuesday refused permission to appeal in relation to Tuesday's judgment, I refuse permission this morning to appeal against this morning's judgment.
So, Mr Bowen, so far as concerns the Secretary of State, you will have to renew your applications to the Court of Appeal. I will, in relation to those matters without the Secretary of State objecting, extend your time for approaching the Court of Appeal until 16 January on the basis that on 16 January you will be serving the Secretary of State simultaneously both your appellant's notice and skeleton argument. That, I think, leaves only the question as to whether there is any basis upon which I can extend your time for applying to the Court of Appeal in relation to the first defendant. So far as that is concerned, the view I expressed on Tuesday is that I have no jurisdiction at all on the matter. It is a separate kind of appeal which is, as I interpret the relevant rule, exclusively a matter for the Court of Appeal.
MR BOWEN: My Lord, certainly, as far as your Lordship's judgment is concerned that this court does not have jurisdiction to consider the question of permission, I would respectfully agree with your Lordship. There is a question, however, as to whether this court has any jurisdiction to extend the time limit for filing the appellant's notice because one has to look at 52.15 in the context of the other rules because one makes an appeal to the Court of Appeal by serving an appellant's notice, so in my respectful submission, 52.15(2) must be considered in the context of 52.4 on page 1267. So 52.4(1) certainly applies:
"When the appellant seeks permission from the appeal court it must be requested in the appellant's notice.
The appellant must file the appellant's notice within:
such period as may be directed by the lower court; or
where the court makes no such direction, 14 days ... "
My Lord, my submission is this. What part 52.15(2) does is to amend 52.4(2)(b) by substituting 7 days for 14 days. Now, if that interpretation is correct, then this court still has jurisdiction to consider the question as to whether to extend the period of time for lodging that appellant's notice. My Lord, in my respectful submission, it would be wrong to exclude that possibility as a question of jurisdiction. I recognise that it may be difficult to persuade the court in any particular situation that it is appropriate to extend the time limit, but if that interpretation is right, which in my respectful submission is not only possible but the most logical one, firstly, as a matter of jurisdiction, this court does have power to extend that time limit.
MR JUSTICE MUNBY: Well, I think there are two problems with that. First of all that involves construing CPR 52.15(2) as amending CPR 52.4(2)(b). Indeed, ousting 52.4(2)(b) without in any way affecting 52.4(2)(a), which is a slightly curious and unlikely outcome, and one which, if it had been intended, one might anticipate it being embodied in rather different language that 52.15(2). One might more naturally have expected 52.15(2) to say: notwithstanding 52.4(2)(b). The other point is that 52.4 is concerned with documents which are described as appellant's notices, whereas 52.15, which is a discrete provision dealing with a special kind of appeal, does not refer to appellant's notices at all, it refers to an application, and 52.15(2), which is the provision which imposes the 7-day rule, is a provision dealing with the application for permission and not the appellant's notice. So I am afraid, Mr Bowen, thus far I remain unpersuaded that I have the jurisdiction you suggest.
MR BOWEN: My Lord, in respect of that issue of whether an appeal against the refusal of permission has to be by way of appellant's notice, certainly the position is that it is made by way of an appellant's notice. If I can take your Lordship to the Practice Direction on page 1300 which is the Practice Direction relating to judicial review appeals, and your Lordship will see at paragraph 15.4 references to the appeal notice.
"Paragraph 5.6 and 5.19 above do not apply to cases where the appeal notice seeks permission to appeal a refusal to give permission to apply for judicial review. In such cases the following documents must be filed with the appellant's notice ... "
And then 15.5:
"The time for filing the appellant's notice in these circumstances is set out in 52.15(1). The arrangements for service on the respondent in paragraph 5.21 apply."
So, my Lord, in my respectful submission, 52.4 does apply to appeals that are against decisions refusing permission to apply for judicial review. That is the procedure that is provided for. So if 52.4 does applies, that is to say "where the appellant seeks permission from the appeal court it must be requested in the appellant's notice", that is 52.4(1). If I am right that 52.4(1) applies, then that, in my submission, lends strength to my submission that 52.4(2) applies, but subject to the amendment required by reason of 52.15. My Lord, this is just the sort of situation in which, as a matter of practicality, it is not just appropriate but essential to avoid wasting costs that there be at least jurisdiction in the courts to extend the time limits under 52.15 because one can envisage situations not just where there are two different defendants, one of whom in respect of which permission is refused, one of which in respect of the substantive application is refused, but where decisions are taken against the same defendant on some grounds, permission being refused on other grounds -- permission being allowed but the application being refused on substantive grounds. It is very much the practice of this court to roll up permission hearings with the substantive hearing where, for example, issues are raised about delay, issues are raised about standing --
MR JUSTICE MUNBY: I can see that, but there may be very compelling reasons why a similar practice should not apply in the Court of Appeal. The difference is that once you are driven back to 52.15, then you will almost always have been told by two different judges of the High Court that the case is unarguable because usually there will have been a decision on paper, then an oral decision. That is not, of course, invariable, but you are starting off within the position that a judge of the High Court has said the case is unarguable. One can well see in terms of practical and sensible case management in the Court of Appeal, although there may be some cases where it is appropriate for the matter to be rolled-up, it would be highly undesirable if the matter should be rolled up because, for example, if the matter be rolled-up in the Court of Appeal, the Secretary of State in a rolled-up appeal the person, such as Miss Grey, would be sitting there properly earning fees and incurring costs while you and Mr Havers were battling out a matter which is of no interest to the Secretary of State. It seems to me that it is pre-eminently for the Court of Appeal rather than the judge at first instance to determine whether the matter should proceed in the rolled-up way or separately, and I can well see that there should be not merely, as there manifestly is, a separate and discrete procedure for dealing with appeals of this sort: see CP5 52.15, but that it should be a procedure which does not have the same flexibility, at least at the initial stage, as other procedures do.
MR BOWEN: My Lord, can I deal with those points, if I may. Of course, I recognise that in most cases a judicial review appeal under 52.15 will only be being made after at least two judges of the High Court have said that the case is unarguable, and of course that is a very good reason for imposing stricter time limits. That does not mean as a matter of jurisdiction that this court should not in an appropriate case be able to extend the time limits.
MR JUSTICE MUNBY: Of course it does not mean that, but I merely make the observation to indicate that one could well understand the framers of the rule taking the view that in this particular rule there should be.
MR BOWEN: My Lord, secondly, my submission is, and this is supported in my respectful submission by the context of the rules generally in the Practice Direction, that what CPR 52.15 does is not to create a separate regime for appeals under CPR 52.15, but to create a regime which modifies the usual regime under CPR 52. That can be seen because all of the other provisions do apply. One looks at 52.4 "appellant's notice". Under CPR 52.5, the respondent to such an appeal has to file a respondent's notice. The same rules about variation of time by the Court of Appeal apply in 52.6. Amendments of appeal notices (52.8) also apply. So all of the other provisions in CPR 52 apply. What 52.15 does not do, in my respectful submission, is to create a whole new separate regime. What it does is it modifies the existing regime.
MR JUSTICE MUNBY: If that is so, why do he have 52.15(1) which, on your approach, would confer on the Court of Appeal a jurisdiction which it already had under 52.3(2)(b)?
MR BOWEN: Because, in my submission, my Lord, what it does, as your Lordship ruled on Tuesday, is that it does not give the High Court judge any jurisdiction to consider the question of whether to grant permission to appeal, but that does not mean that it ousts the jurisdiction of the High Court judge to extend time for filing the appellant's notice that, in any event, must be filed.
MR JUSTICE MUNBY: Mr Bowen, this is a matter which I have had occasion to think about previously. It is a matter some aspects of which we debated on Tuesday morning. You have addressed further submissions to me this morning. I am afraid I remain of the clear opinion that 52.15 and its operation and any jurisdiction to extend the time referred to in 52.15(2) are exclusively within the jurisdiction of the Court of Appeal, and I do not have jurisdiction in relation to a proposed appeal pursuant to 52.15, whether under 52.15 or 52.4 or any other part of CPR 52, to extend time.
MR BOWEN: My Lord, can I trouble your Lordship for a formal ruling on that issue because it may be that this is something which we could --
MR JUSTICE MUNBY: Accordingly, I will supplement the ruling which I gave on Tuesday which was to the effect that, for the reasons I gave on that occasion, I do not have jurisdiction to give permission to appeal in such a matter, with a ruling that I do not equally, and for the reasons I gave on Tuesday and the further reasons I have given this morning, I do not have jurisdiction to extend the time period of 7 days specified in CPR 52.15(2).
I have not called upon Mr Havers this morning. I understood Mr Havers' submission on Tuesday to be that I have no jurisdiction on the matter, as equally this morning his position and submission being I have no jurisdiction to extend time. Since I am afraid, Mr Bowen, you have failed to persuade me to the contrary, I do not need to call on Mr Havers to respond.
MR BOWEN: So be it, my Lord.
MR JUSTICE MUNBY: I do not ignore the fact, although I appreciate in a sense this cuts both ways, that the origin of 52.15 until comparatively recently is to be found in the previous procedure which was that there was no appeal of any sort against a refusal to grant permission, and the procedure was: one went to the Court of Appeal invoking what the Court of Appeal had accepted was its own original inherent jurisdiction to hear a fresh application. That was manifestly completely within the jurisdiction of the Court of Appeal. The CPR 52.15 modifies that practice to a significant extent by indicating that there is an appeal in the proper sense whereas previously there was not. To that extent the previous practice has been significantly changed. It is, however, noteworthy, it seems to me, that the framers of the CPR and the Practice Direction, although they were departing in that respect from the previous practice, saw fit to create a self-standing provision dealing as a discrete area of the Court of Appeal's practice with this particular category of appeal.
Mr Bowen, if you wish to obtain through the Court of Appeal a definitive ruling on the matter that might well be of convenience to all of us. Were you to obtain a Court of Appeal ruling to the effect that I am wrong, I confess I would not shed many tears over being reversed.
MR BOWEN: My Lord, in the light of your Lordship's ruling, the only other matter that I am asking for is for detailed assessment of my client's publicly funded costs.
MR JUSTICE MUNBY: Yes, certainly.
MR BOWEN: My Lord, it occurs to me that if the view is taken that there is merit in resolving this issue about the extension of time, I ought to formally apply for permission to appeal in respect of your Lordship's ruling, that your Lordship has no jurisdiction to consider whether to grant permission to appeal and/or to extend time.
MR JUSTICE MUNBY: Not accepting that I have any jurisdiction either to grant or to refuse permission to appeal against my ruling that I have no such jurisdiction, I refuse permission. Miss Grey, Mr Havers, Mr Bowen very kindly sent me the draft of Tuesday's order. I take it you have both seen that and are content with that?
MR HAVERS: I think what he sent to you was the final version of the order as it had been, as it were, moving around between counsel.
MR JUSTICE MUNBY: Agreed between all of you, yes.
MR HAVERS: Indeed, my Lord.
MR JUSTICE MUNBY: Can I then invite you similarly to agree an order which gives effect to everything I have ruled on and decided and dealt with today. If that could similarly be sent to me by e-mail once that has been agreed that will be very convenient and I will arrange with the associate to make sure that it is sealed. So far as Tuesday's order is concerned, that can be handed down to the associate now. The only other matter is this. Again, as I knew the parties were anxious to have a judgment as soon as possible, I have not had the typing corrections back yet. I simply sent a draft judgment. Obviously the sooner you can get back with the corrections the better, and as soon as you have all come back with the corrections I will then send out the final version of the judgment which will also be available to anybody outside who wants it.
MR BOWEN: Thank you again, My Lord, for turning it around as quickly as you did.
MR JUSTICE MUNBY: So far as concerns today, I will make an order in the terms of a draft order which will be settled and agreed between counsel and sent to me by counsel for my approval.