Thompson, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE MAURICE KAY: The claimant in this case is a woman to whom I shall refer as "T". She has a troubled history. In April 1998 she was convicted of a drug trafficking offence in relation to a class B drug, and received a sentence of 15 months' imprisonment.

On 11th September 1998 there was a hearing in relation to confiscation following that conviction. The court made a confiscation order in the sum of £42,000. It ordered that the order be satisfied within six months and that T should serve 18 months' imprisonment in the event of default. One assumes that she was released from the 15-month prison sentence in or about November or December 1998.

In January 1999 she was a voluntary patient in a psychiatric hospital, and soon after she was detained there pursuant to section 3 of the Mental Health Act 1983. At some stage she must have been convicted of a further offence, because in August 1999 she was made the subject of a hospital order pursuant to section 37 of the Mental Health Act. Much of this history is imprecise, but it seems that she was discharged from hospital in March 2000. However, she continued to suffer and was readmitted to hospital in March and April 2001.

The conditions from which she suffers and has suffered for many years are described in a medical report dated 9th August 2000 from Dr Rosalind Furlong, a consultant psychiatrist. It discloses that T has a long psychiatric history, going back to when she was in her late twenties and was first seen by the psychiatric service in 1993. Dr Furlong states:

The confiscation order which had been made in September 1998 remained unsatisfied and on 10th May 2002 T was ordered by the Magistrates' Court to serve 15 of the 18 months of the default term for failure to satisfy the order. She started her term of imprisonment at HMP Holloway.

There is a suggestion that at the time when he sentenced her to that term of imprisonment the District Judge indicated that she would serve half of the sentence. There is no direct evidence of that and Mr Gledhill, on behalf of the claimant, does not seek to place reliance upon it.

On 13th May 2002 T was given a release date notification slip by a prison officer. It refers to the sentence expiry date as 9th August 2003 and the conditional release date as 24th December 2002. A release at that date would have been at the halfway stage in the sentence. It also referred to a home detention curfew eligibility date as 26th October 2002.

That calculation of the conditional release date was incorrect. It would have been correct if she had been sentenced to the same term of imprisonment for a criminal offence by reason of section 33 of the Criminal Justice Act 1991. However, by reason of section 45(3) of the Criminal Justice Act 1991, a person sentenced to 15 months' imprisonment for default in payment of a sum has to serve two-thirds rather than one-half of their sentence before being entitled to release. In addition, whereas a person serving a 15-month sentence for the commission of a criminal offence would be released at the halfway stage on licence, a person who is released at the two-thirds stage in respect of the sentence imposed for non-payment of a sum of money is released unconditionally. Accordingly, the release dates notification slip was erroneous.

Soon afterwards T's mental state again deteriorated and the prison medical officer obtained psychiatric opinions which supported a transfer to hospital. This was done on 20th June 2002, when, pursuant to section 47 of the Mental Health Act, the Secretary of State directed a transfer to hospital, relying on psychiatric reports from Dr Furlong and her colleague, Dr Whitworth.

In addition to the transfer direction under section 47, the Secretary of State made a restriction direction under section 49. This has consequences akin to those which arise under a court-imposed restriction order pursuant to section 41 of the same Act.

On 25th June 2002 an official in the Home Office Mental Health Unit wrote to T and in the course of the letter perpetuated the error which had first arisen in the prison document on 13th May. The relevant part of the letter stated:

On 9th August 2002 Dr Furlong wrote to the Home Office. The purpose of the letter was to request that the restriction direction be lifted by the Secretary of State. Dr Furlong's original recommendation had been that the transfer direction under section 47 should not be accompanied by a restriction direction under section 49, because, in the opinion of Dr Furlong, T does not pose any risk to the public arising from her mental health. Indeed, no one suggests that she has posed such a risk at any time.

As the treating psychiatrist, Dr Furlong was concerned that the restriction direction was impeding her treatment plan and delaying rehabilitation because it was preventing rehabilitation outside the hospital. In short, Dr Furlong took the view that the restriction direction was not only unnecessary. It was positively harmful so far as therapy was concerned, and she sought its discharge so that decision-making powers might revert to the doctors rather than remaining in the hands of the Secretary of State.

On 14th August 2002 an official in the Home Office wrote to Dr Furlong declining to lift the restriction direction and referring to the policy of the Secretary of State in these terms:

There was further correspondence, by this time between T's solicitors and the Home Office.

On 18th October 2002 Dr Furlong wrote again to the Home Office inviting the lifting of the restriction direction, and making certain points as to how her treatment plans were being made the more difficult by the restriction direction and how this was, in the opinion of the doctor, contrary to the interests of T.

On 25th October 2002 the Home Office wrote to Dr Furlong and for the first time corrected the previous error in relation to the conditional release date. The letter states:

The letter went on to explain the original confusion as to the relevant part of the statute and stated that T would remain under restriction until 10th March 2003. 10th March 2003 is the other side of this upcoming weekend.

There is one other part of the factual background to which I should refer at this stage. That relates to applications in connection with periods of leave and the like, and the way in which they have been processed by the Secretary of State.

Since the restriction order has been in place the Secretary of State has granted compassionate escorted leave in August 2002, which resulted in T undertaking six escorted visits to see her dying uncle. In September she applied for further compassionate unescorted leave and rehabilitative escorted and unescorted leave, and was granted at least some of that which she was requesting. In November the Secretary of State granted occasional unescorted day leave in the locality and to T's flat, the effect of which was to allow her out on leave to pursue a variety of activities, including preparing her flat for future discharge. She was given further overnight leave to stay at her flat on an occasion in January, in part at least to enable her to increase her confidence outside the hospital environment. This pattern has continued. She has been granted further weekend unescorted leave in January and February, and it is pertinent to observe that whenever practicable the Secretary of State appears to have acceded to reasonable requests of that kind. That then is the factual background.

The present case concerns a challenge to the policy of the Secretary of State, to which I have referred, and to its application in the present case. There is a subsidiary challenge raising the question of whether proper reasons were given for applying the policy to T.

Finally, there is an issue as to whether the Secretary of State has frustrated a legitimate expectation which had been raised, to the effect that the restriction direction would be lifted at the latest by 24th December.

Before turning to those issues, it is necessary to set out some of the statutory provisions which impact on this case. Section 47 is headed:

Section 48 makes specific provisions in relation to particular prisoners, including remand prisoners, civil prisoners and persons detained under the Immigration Act. It is related to detention for medical treatment which is urgently required.

The reference in section 47 to "a hospital order" is a reference to the form of order which can be made by way of disposal following conviction in the criminal courts. Its provisions are well known.

Section 49 relates to restriction directions imposed by the Secretary of State in relation to transfer directions made under section 47. Section 49(1) provides:

Thus just as section 47 relates back to section 37, so section 49 relates back to section 41 which is concerned with the imposition of restriction orders by the sentencing court in conjunction with a hospital order under section 37.

Section 41(1) provides:

So far as restriction directions of the Secretary of State are concerned, there are further provisions in section 50. Subsection (1) provides that:

It is of course that latter provision which has the effect in the present case of the restriction direction ceasing to have effect next Monday. That then is the statutory framework.

I turn now to the grounds of challenge, the first of which is to the policy of the Secretary of State. The case for the claimant, T, is that the policy of the Secretary of State is inconsistent with the policy of the Mental Health Act, which is that once a person is made the subject of a transfer direction under section 47 he or she "in effect ... passes out of the penal system and into the hospital regime." Those are the words of Mustill LJ in the case of R v Birch (1990) 90 Crim App R 78.

Mr Gledhill submits that the restriction order regime in relation to section 37 hospital orders is predicated upon the necessity to protect the public from serious harm. That is apparent from section 41(1). That is its policy purpose and by analogy it should condition the Secretary of State's exercise of his power when considering whether to make a restriction direction under section 49, which expressly cross refers to section 41.

Moreover, where the court imposes a restriction order under section 41, the Secretary of State is empowered to discharge it under section 42 where satisfied that it is no longer required for the protection of the public. All this emphasises that public protection lies at the heart of the restriction order regime. In addition, the Act specifically requires a restriction direction in relation to transferred remand prisoners who are in urgent need of treatment, but does not do so in respect of civil prisoners or immigration detainees (see section 48 and 49(1)). This, it is said, suggests that Parliament did not expect that transferred civil prisoners would be automatically subjected to restriction directions. In effect, the Secretary of State when making a transfer direction stands in the shoes of a sentencing court making a section 37 hospital order, and should only impose a restriction direction if public protection requires it. For these reasons, the policy is unreasonably wide and is the exercise of a discretion for a purpose other than that for which it was conferred. This submission is derived from Padfield v MAFF [1968] AC 997.

In answer to all this, Mr Chamberlain submits that this is to misunderstand the statutory context. The Secretary of State does not stand in the shoes of a sentencing court. Whereas a court under section 37 is concerned with whether a hospital order is the most suitable form of disposal for a person who stands convicted of a criminal offence, the Secretary of State is concerned with a person who has already been sentenced to a term of imprisonment by a court, and a term of imprisonment which has not yet been fully served. It may be that, for example, a lengthy sentence is in its early stages when the Secretary of State makes a transfer direction. Without a restriction order a person properly sentenced to imprisonment would pass wholly into the hands of the medical authorities so far as the regaining of his liberty was concerned.

As there is a clear and justified public policy in ensuring that a person sentenced to a term of imprisonment serves his sentence, or such part of it as statute requires, it is reasonable of the Secretary of State to have a policy which is designed to ensure that he does not regain his liberty before the envisaged date. It is significant that there is no reference to public protection in section 49. If Parliament had intended public protection to be a let alone the main consideration, it would have said so. After all, the White Paper which preceded the Mental Health Act 1983 had described the policy and its rationale, and Parliament must be taken to have had it in mind when enacting the 1983 Act.

The White Paper to which Mr Chamberlain refers is "Review of the Mental Health Act 1959." It was published as Cmnd 7320 in September 1978 and includes this passage at paragraph 5.43:

In my judgment Mr Chamberlain is correct. The analogy for which Mr Gledhill contends is indeed a false one. There is a fundamental difference between the position at the time of disposal by the court and the position when, at a later date, a sentenced prisoner is transferred. I do not accept that the criterion of public protection is as all pervasive as Mr Gledhill suggests. The policy, reasonably and justifiably, ensures that a sentence is not completely overridden by a supervening medical consideration. Its purpose is not outwith the policy of the Act. There is particular significance in the fact that public protection is not mentioned in section 49.

For all these reasons this first ground of challenge fails.

I should add that at a late stage Mr Gledhill referred to Article 8 of the European Convention on Human Rights and Fundamental Freedoms. It had not been mentioned in the claim form or the skeleton arguments. Such submissions that have centred upon it have been somewhat tenuous, and in my judgment it does not avail the claimant in the present case.

I next turn to the second ground of challenge, which can be referred to as the reasons challenge. I can deal with it more quickly. It was put in this way in Mr Gledhill's skeleton argument:

There is an obvious answer to this. The reason is the policy, which I have held to be a reasonable and justifiable policy. There is nothing to take T outside that policy. Therefore the reason for the decision is manifest and the decision is not susceptible to challenge by reference to an insufficiency of reasons.

This brings me to the third and final ground of challenge, which is legitimate expectation. I should add that this arose at a relatively late stage in these proceedings, and that when permission was granted by Sir Richard Tucker he limited the permission to the first two grounds of challenge, reserving legitimate expectation to the judge hearing the substantive application. Although Mr Chamberlain opposes permission, at least partly by reference to the lateness of the inclusion of the argument based on legitimate expectation, I do not propose to shut it out.

The case for T on legitimate expectation is based not on what the District Judge may or may not have said when imposing the 15-month sentence. So far as that is concerned there is simply no real evidence. T's case is based on the erroneous Home Office letter which went uncorrected for some months.

Mr Gledhill relies on R v Governor of HMP Pentonville ex parte Lynn, Divisional Court, 7th September 1999. There Lynn had been sentenced to two years' imprisonment suspended for two years for an offence of manslaughter. The Attorney-General obtained the leave of the Court of Appeal Criminal Division to challenge that sentence on the ground that it was unduly lenient. The Court of Appeal concluded that the sentence was indeed unduly lenient and that the circumstances had not justified the suspension of the sentence. The judgment of Rose LJ in the Divisional Court states that:

That reference to 9th December 1998 is a reference to the date on which the original suspended sentence had been passed. In other words, the Court of Appeal was imposing an immediate sentence, but on the fiction that it would be taken to have run from a time three or four months earlier, during the whole time of which, that is those three or four months, the appellant had been at liberty.

The point upon which Rose LJ and Smith J were agreed was that what had begun with the words Beldam LJ and been continued in Home Office documents subsequently, gave rise to a legitimate expectation on the part of Lynn. Rose LJ said at paragraph 22:

Smith J agreed with Rose LJ about that, adding that she was agreeing:

The case for T in the present case is that she has a legitimate expectation akin to the one upon which Lynn successfully relied. Mr Chamberlain submits that Lynn is readily distinguishable. He observes that the sentence in the present case of 15 months' imprisonment was lawfully imposed and was never challenged by way of appeal or an application for judicial review. The release date in relation to it derives from statute, namely section 45(3) of the Criminal Justice Act, and there can be no legitimate expectation arising from the erroneous statement of the civil servant who simply confused section 45(3) and section 33 in relation to a sentence previously imposed by a court. In Lynn, Mr Chamberlain points out, Rose LJ at least attached significance to the fact that the original source of the expectation was an utterance of the Court of Appeal which was not susceptible to further appeal or judicial review.

In my judgment, in the present case it is simply not possible to found a legitimate expectation on the mistaken statement of an official, in circumstances where the reality is that a statutory provision operates on a lawfully imposed sentence. Like Rose LJ, I would attach significance in Lynn to the fact that it was an utterance of the sentencing court which formed an important part of the legitimate expectation. In my view, legitimate expectation does not arise on the facts of the present case and accordingly this third ground of challenge also fails.

For all those reasons, this application for judicial review is dismissed.

MR CHAMBERLAIN: My Lord, I just ask for the usual public funding costs order.

MR GLEDHILL: My Lord, two ancillary matters. First of all, I would ask for legal aid detailed assessment. If the certificate is not on the file I have a copy here.

MR JUSTICE MAURICE KAY: Yes, you can have that.

MR GLEDHILL: I am much obliged.

My Lord, secondly and very briefly, the question of permission to appeal, which I put on both grounds on which permission can be granted, first of all reasonable prospects of success. I put that in relation to the first ground of challenge and your Lordship's dismissal of that. The way that I put it is that your Lordship has, in my submission, erroneously overlooked the effect of section 42 of the Act, which in effect states that the Home Secretary may lift a restriction direction if not necessary for the protection of the public. Well the request was made for the lifting of the restriction direction. The evidence was all one way, that there was no danger to the public.

My Lord, in any event, even if you are against me on that point -- and I appreciate that that goes contrary to your Lordship's judgment, so your Lordship may be on that point -- this is a matter of some importance. That provides, of course, a proper ground for the Court of Appeal to review this area of law. It is perhaps surprising that it has not been challenged, despite having been the policy in place since the 1959 Act, which is what the White Paper says, for some 44 years. It does affect a number of people every year. There are, I do not have the statistics readily to hand, but it runs into a significant number of people who are transferred from prison to hospital. It affects all of them as well. That, in my submission, provides a compelling reason for the Court of Appeal to review the issue. So I apply on that ground as well.

MR JUSTICE MAURICE KAY: Mr Gledhill, first of all, I am reminded I had intended to include words to the effect that there is no suggestion that T does or ever did constitute any danger to the public. So I shall write that into the transcript in due course.

Secondly, I am afraid you are not right in saying that I overlooked section 42, although I think may be right in saying I did not refer to it in the course of the judgment.

MR GLEDHILL: Your Lordship referred to it when setting out the statutory scheme, but in setting out what your judgment was as to what the scheme meant, it is at that stage you did not refer to it.

MR JUSTICE MAURICE KAY: If I did not refer to it, you are quite right. But you are not right to say I overlooked it.

Yes, Mr Chamberlain.

MR CHAMBERLAIN: My Lord, it may be that your Lordship's omission of reference to section 42 from the judgment and your Lordship's subsequent explanation clears that point up. But certainly, in my submission, the statutory scheme, when viewed as a whole, is clear. There is a distinction between the function, as your Lordship has found, exercised by the Secretary of State and the function exercised by a sentencing court. The essence of your Lordship's judgment is that the Secretary of State is not a sentencer. He is performing a different function, and in my submission that point is absolutely clear. If that is the point on which my learned friend applies for permission to appeal to the Court of Appeal, I would invite your Lordship to refuse that application.

MR JUSTICE MAURICE KAY: Mr Gledhill, I am not going to grant you permission to appeal. As it happens, it is academic in this case because the restriction order comes to an end in a couple of days' time. But it seems to me this is a policy that has endured for going on for half a century without challenge, and in my judgment the legal challenge to it in the first ground -- which is the one in respect of which you are seeking leave -- simply does not have a prospect of success in the Court of Appeal. Nor, in view of what I have just said, do I consider there is any compelling reason why the Court of Appeal should be concerned with it. So if you wish to appeal you will have to ask the Court of Appeal.

Thank you both very much.

MR GLEDHILL: Thank you.