M, R (on the application of) v Mental Health Review Team

By judicial review proceedings begun on 24 February 2005, for which permission was given by Munby J. on 29 April, the Claimant seeks an order that the decision of the Defendant of 25 November 2004 be quashed.

The grounds for the application are these. The Claimant was charged with assaulting a police officer. His case came before HHJ Walker, a Circuit Judge, (“the judge”) sitting at Blackfriars Crown Court on 7 July 2003. The Claimant pleaded guilty and the case was adjourned for medical reports. On 16 September 2003 the Claimant appeared in front of the judge who imposed a hospital order and a restriction order pursuant to ss. 37 and 41 (respectively) of the Mental Health Act 1983.

The Claimant applied for a review of the detention by the Mental Health Review Tribunal (“the Tribunal”) and it was to be heard on 25 November 2004. The panel included the judge as the legal member. The Claimant recognised correctly, as it turned out, the judge as the judge who had sentenced him. I shall return in due course to what then happened as it is relevant to the issue of waiver.

The judge continued to sit as the legal member. The written and oral medical evidence was considered by the Tribunal and other witnesses. It considered the matter and refused to discharge the Claimant.

Miss Morris, for the Claimant, submitted that it is not lawful for a judge who has imposed an order for a patient’s detention in hospital under MHA 1983 to determine a subsequent application by the same patient for discharge from detention because there is an appearance to a fair minded and informed observer of bias, whether looked at in accordance with Articles 5 (4) and 6 of the European Convention on Human Rights, or under domestic law.

Mr Chamberlain, for the Defendant, submitted that, on the facts of the instant case, a fair minded and informed observer would not conclude that there was a real possibility that the judge was biased. He further submitted that at the hearing in front of the Tribunal the Claimant, having received legal advice from his solicitor advocate, decided not to object to the judge continuing to sit on this case and that such decision should be regarded as informed and unequivocal and thus the Claimant waived any objection.

I have read statements of Yolanda Taw, the Claimant’s solicitor of 24 February 2005 and 14 September 2005, the Claimant of 26 May 2005, his sister, Lorraine Mckoy, of 2 June 2005, Debroah Postgate, the Claimant’s solicitor advocate, of [note to counsel – please complete with date] 2005, and of the judge of 15 June 2005.

The evidence on behalf of the Claimant as to the events of 25 November 2004 can be summarised thus. The identity of the members of the Tribunal was not conveyed to the Claimant’s solicitors prior to the day of the hearing. At the start of the proceedings Ms Postgate asked for a short adjournment to enable her to consider a document or documents she had not previously seen. The Claimant realised at this stage, having heard the name of the judge and seen him in the room where the proceedings were conducted, that the judge sentenced him in September 2003. During the thirty minute adjournment the Claimant specifically raised with Ms Postgate whether he could object to the judge hearing his case. He was given specific advice that such an application could be made but that (if it were successful) this would mean that the case would have to be adjourned to another date (to allow the Tribunal to be reconstituted with a new legal member in place of the judge). Ms Postgate believed that her instructions were that she should not make an application for the judge to recuse himself. When the Tribunal reconvened the Claimant and Ms Postgate pointed out to the judge that he had sentenced the Claimant. The judge said he could not remember the case. Ms Postgate has said (paragraph 9 of her statement) that she was “…not instructed to make an application that would necessitate an adjournment of the case.”

The judge was appointed a judge in 1989 and has been sitting on Mental Health Review Tribunals since 1991. His recollection of the hearing in November 2004 was limited. He agrees that he was told that he could have been the judge who sentenced the Claimant in September 2003. He could not recall the Claimant or any matter in which the Claimant had come before him previously. He told the Claimant “not to worry” as he did not remember anything about the case. He asked Ms Postgate whether any formal objection was taken to him hearing the application. He is sure neither the Claimant nor Ms Postgate made any objection. His notes of the hearing make no mention of any objection. If there had been an objection he would have noted it together with the Tribunal’s ruling and its reasons for any decision.

The Tribunal had the written evidence of Dr McAllister, the Claimant’s Resident Medical Officer, and Gerry Turner, a member of the clinical team at the clinic where the Claimant was detained. Both gave oral evidence and were cross-examined. The Claimant, his sister and two other persons also gave evidence to the Tribunal. Ms Postgate made submissions to the Tribunal.

The Tribunal concluded that the Claimant should not be discharged for the reasons that:-

“a)

The Tribunal is satisfied that the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment

b)

The Tribunal is satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.”

The reasons for its decision are of assistance in seeing what were the issues that the Tribunal had to focus on. They are concise and I will set them out in full:-

“It is apparent from the evidence of Dr McAllister and Mr Turner of the Clinical Team that Mr M has a lengthy history of serious and dangerous criminal offending and of mental illness. Most of his adult life has been spent either in serving prison sentences or in psychiatric hospitals. He spent 2 years in Broadmoor Hospital from 1998 to 2000. Since at least 1990 his offending history and psychiatric history are inextricably linked. His index offences of January 2003 were committed after he had persuaded his community clinical team to end his psychotropic medication and and had then apparently disengaged from contact with them – thought he told the Tribunal that it was the community team who disengaged from him. He has been at the B… Centre since February 2003.

“For the first year of his current stay in hospital Mr M was reluctant to take his medication and showed little insight. He was also regularly found to have been abusing cannabis. By January 2004 his mental state was stable and his cannabis use ended. However he then seems to have persuaded his then RMO to reduce his medication below the therapeutic level. The Tribunal is in no doubt that it was for this reason that his mental state deteriorated in April 2004 and he lost his insight. Happily, following a significant increase in medication, he resumed stability within a month. Since then he has made good progress, and he has shown no irritability or aggressive or threatening behaviour. In September he transferred to the rehabilitation unit at [X], a hostel within the hospital campus. He now has unescorted community leave and has been out on 8 occasions during the past 4 weeks, without incident.

“The Tribunal accepts the evidence of Dr McAllister that Mr M continues to suffer from paranoid schizophrenia, the symptoms of which are currently controlled by appropriate medication. Dr McAllister has minor concerns that he may not be as quite as well as he had been, but regards these as no more than possible warning signs, rather than indications of actual relapse.

“Mr M recognises that the medication has helped to stabilise him and has expressed willingness to take his long-term. But it is clear to the Tribunal not only from the evidence of Dr McAllister but also from his answers at the hearing that he is not really accepting of his diagnosis. He regards any mental illness he might have had to be simply a consequence of stress. He persuaded his then RMO to reduce his medication below a therapeutic dose – a pattern which could also be seen during his last periods of living in the community. The Tribunal is not persuaded that he would be compliant with medication in the community. He is reluctant to acknowledge responsibility for the index offences. It is commendable that he has abstained from cannabis since January, and he is adamant that he will not take it in the future. However he does not seem to accept it’s potential to destabilise his mental state.

“It is the intention of the Clinical Team that the stability of Mr M’s recovery should be tested by a period of living in the less restrictive surroundings of [X] and a period of graduated community leave. This is still in its early stages. Until this has been successfully undertaken for a considerably longer period, the Tribunal is satisfied by the evidence of Dr McAllister and of Mr Turner that Mr M’s illness remains of a nature which requires his continued liability to detention for treatment.

“Mr M asks that he be discharged on a deferred conditional discharge and assures the Tribunal that he would comply fully with conditions. The Tribunal congratulates Mr M on the progress he has made. To have reached the [X] rehabilitation unit is a notable achievement. However, for the reasons set out above the Tribunal is sure that a discharge at this stage would be premature.”

It is common ground between Miss Morris and Mr Chamberlain that the question the court must answer in determining these proceedings of judicial review is that set out by Lord Brown of Eaton-under-Heywood at paragraph 30 of R (Al-Hasan) v. Secretary of State for the Home Department, Regina (Carroll) v. Secretary of State for the Home Department [2005] I WLR 688:-

“The common law test for bias has been authoritatively settled by the recent decisions of this House in Porter v Magill [2002] 2 AC 357 and Lawal v Northern Spirit Limited [2003] ICR 856: “The question is whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.”

Furthermore, since the incorporation of the European Convention on Human Rights in our domestic law the court must take into account Articles 5 (4) and 6 (1).

It is necessary to look at the legislative framework in which the judge made the hospital and restriction orders in September 2003, and isolate the issues he then had to determine.

The judge in September 2003 exercised his powers pursuant to ss. 37 and 41 of the Mental Health Act 1983 (“the MHA”), the relevant parts of which provide as follows.

“Section 37

(1)

Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or falls to be imposed under section 109(2) of the Powers of Criminal Courts (Sentencing) Act 2000, or is convicted by a magistrates’ court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place under guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.

“(2)

The conditions referred to in subsection (1) above are that-

(a)

the court is satisfied, on the written or oral evidence of two

registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-

(i)

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 and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii)

in the case of an offender who has attained the age of 16

years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and

The judge was no doubt faced, in the light of the Claimant’s antecedents, with the option of imposing a sentence of imprisonment. Given the Claimant’s psychiatric history it can be safely surmised that he was reluctant to follow that course if there was another appropriate method of sentencing the Claimant. Hence the request for reports. For him to exercise his powers under s.37 of the MHA the judge had to be satisfied on the written or oral evidence of two registered medical practitioners that the Claimant was suffering from a mental illness of such a nature or degree which made it appropriate for him to be detained in hospital for medical treatment, and to be of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the Claimant, and to other available methods of dealing with him, that the most suitable method of disposing of the case was by means of an order under s.37.

The judge, if he wished to exercise his powers under s.41, had to have regard to the matters therein set out, and to be of the opinion that it was necessary to protect the public from serious harm. The judge was so satisfied and made the orders.

The judge was satisfied upon the evidence adduced before him that he had the power to make the orders under ss.37 and 41 and that it was right to do so in the circumstances of the case then pertaining.

It should be said in the light of certain submissions made by Miss Morris, that proceedings before the judge on both occasions in 2003 were conducted in the normal fashion i.e. entirely in open court. All the information necessary for the judge to make his decision was given in open court; the judge sentenced the Claimant in open court; and the Claimant and the public would have known the basis upon which the Claimant was sentenced in the way in fact he was. Nothing was done in secret.

I now turn to the legislative framework in which the Tribunal had to make its decision in November 2004. The relevant sections of the MHA are ss.72 and 73. They provide as follows:

It is at once apparent that these provisions direct the Tribunal’s attention to the facts and circumstances of the present i.e. as at 25 November 2004 and for the future. The important words in s.72 (1) (b) (i) are:-

“….he is then suffering from mental illness….”

and in s.72 (1) (b) (ii) are:-

“that it is necessary….that he should receive such treatment”

The Tribunal therefore is not required, and indeed has no powers, to consider the validity of the admission which gave rise for the liability to be determined i.e. the sentence in September 2003. Nor is the Tribunal called upon to make an assessment which will remain accurate indefinitely or for any given period of time. In Regina (Von Brandenburg) v. East London and the City Mental Health NHS Trust and another [2004] 2 A C 280 Lord Bingham of Cornhill, with whose speech the other Law Lords agreed, said at paragraph 9 (2) and (3) of his speech:-

“(2)

As the Master of the Rolls pointed out in para 30 of his judgment quoted above, the condition of many of those suffering from mental disorder will not be static. Episodes of acute illness may be followed by episodes of remission. Thus it does not follow that a tribunal decision, however sound when made, will remain so. Other things being equal, the longer the period since the decision was made the greater the chance that the patient’s mental condition may have altered, whether for better or worse.

“(3)

It is plain from the language of sub-paragraphs (a)(i) and (b)(i) of section 72(1), quoted above, that the focus of the tribunal’s inquiry into the mental health of the patient is on whether he is not “then suffering” from mental disorder or mental illness. “Then” refers to the time of the tribunal’s review and the tribunal has no power to consider the validity of the admission which gave rise to the liability to be detained: see Ex p Waldron [1986] QB 824, 846. The tribunal will doubtless endeavour to assess a patient’s condition in the round, and in considering issues of health, safety and public protection under sub-paragraphs (a)(ii) and (b)(ii) of section 72(1) it cannot ignore the foreseeable future consequences of discharge, but the temporal reference of “then” is clear and the tribunal is not called upon to make an assessment which will remain accurate indefinitely or for any given period of time.”

Further, an examination of the Tribunal’s reasoning in the instant case makes it clear that the Tribunal was concentrating on the present and the future. It found that the Claimant was then suffering from paranoid schizophrenia, the symptoms of which were controlled by medication, that the Claimant was not then accepting of his diagnosis, that he would not be compliant with medications in the community, that he was then reluctant to acknowledge responsibility for the index offences, and that the illness of the Claimant was such that it required his continued detention for treatment.

Furthermore, as recognised by Miss Morris, the overall issue was not that the Claimant should be absolutely discharged. Miss Morris told me that that was a very rare finding upon a first review after admission. She accepted that the overall issue was whether there should be no discharge or a conditional discharge. Further, as I understand it, there was no dispute that the Claimant was then suffering from paranoid schizophrenia. The issue, in reality, was whether the Claimant’s condition had improved and stabilised so that it was safe to discharge him conditionally. The Tribunal thought it necessary to test the stability of the Claimant’s recovery over a longer period and meanwhile he must remain detained.

Thus, in my judgment, Mr Chamberlain was correct in submitting that neither the issues that the Tribunal had to consider, nor its decision, nor the reasons for its decision, either did in fact, or could have, cast any doubt upon the validity of the sentence passed by the judge in September 2003.

The core of Miss Morris’ submissions I summarise as follows. First, the Claimant’s or any other relevant person’s concern about bias must be given due consideration. The decisions of the sentencing judge and the Tribunal concern the liberty of the subject and may lead to medical treatment of a patient without his consent. Given the extensive range of powers that may be exercised over the Claimant it is appropriate to give the question of apparent bias the most anxious scrutiny, or as Miss Morris put it orally “heightened” scrutiny.

Second, there was a substantial connection between the issues considered by the judge in September 2003 and by the Tribunal in November 2004. They are: whether the Claimant was suffering from mental disorder within the MHA; whether it is of a nature or degree which warranted his detention in hospital for treatment; whether treatment was likely to alleviate or prevent a deterioration in his condition; whether there was a risk of him committing further offences and/or such risk made his treatment in hospital necessary in the interest of others. Crucially, submitted Miss Morris, there will have been an earlier conclusion on these issues. There is a clear and identifiable risk that a judge will adhere to a previous assessment of a patient in a significant respect rather than looking at the matter afresh.

Third, a fair-minded and informed observer would consider that there is a significant risk that a sentencing judge might have a subconscious wish to uphold his original view of the patient as someone who required detention.

Fourth, although it is accepted that the judge in November 2004 had no recollection of the Claimant or his case, there was a significant risk that the judge might have had information about the Claimant from September 2003 which might affect his mind in November 2004 and to which the Claimant might not have the opportunity to respond. Every effort should be made to ensure that the Legal Member of the Tribunal does not have such information which is not also before the patient.

Fifth, that a sentencing judge should not preside over the same patient’s Tribunal hearing will not impose an unduly onerous burden on the Tribunal system. It the patient is given advance notice of the composition of the Tribunal who is to hear his case and told that he may object by a specific time before the Tribunal hearing date to the legal member on the grounds that he was the sentencing judge, then the necessary remedial action can be taken i.e. changing the legal member.

Miss Morris relied on the views of the Mental Health Act Commission (“the Commission”), an independent, statutory body, and of MIND, the well known charity. She submitted that the court should take cognisance of their views as important groups of an informed audience. As there was no objection to my considering their views I shall do so with care. However, I would like to sound a note of concern. I am rather doubtful that litigants and/or their advisers in inviting the views of bodies, however eminent, and then putting them in front of a court in an endeavour to persuade it how a fair minded and informed observer would react, is a desirable way of proceeding. Not only are the views opinion evidence on a point of law but also it may lead to each side approaching bodies or organisations for their views, leading to an unhelpful proliferation of “evidence”, and thus may give the impression that a court has to pick and choose between conflicting views presented to it. That is not its function in this type of case. Its function is to decide whether a fair-minded and informed observer, having considered the relevant facts, would conclude there was a real possibility of bias. Thus the court’s decision must be fact-sensitive and is, in any event, a matter of law.

On 24 June 2005, the Commission, in response to a letter from the Claimant’s solicitors, wrote stating that it could not comment on the specific case. However it stated that in relation to the draft Mental Health Bill going through Parliament that it supported the recommendations of the Joint Committee of Parliament namely:-

“we recommend that, in the interests of ensuring that hearings are both fair and seen to be fair, there be a clearer distinction between the roles of the tribunals as a determining body and as a review tribunal. So, for example, a member of a tribunal that has imposed an order for assessment or treatment should never hear the review or appeal of that order.”

The Committee said in its letter:-

“Under the present Act, the question in law that the MHRT must consider for patients who appeal against their detention subsequent to court orders, whether they are restricted patients or not, is whether the Tribunal panel is satisfied by the evidence of the detaining authority that the patient is at that point suffering from any classified form of mental disorder of a nature or degree that makes detention in hospital for medical treatment necessary in the interests of his own healthy or safety or with a view to the protection of others. Whilst, in practical terms, the question before most Tribunal hearings is therefore whether the patient’s improvement or the passage of time means that conditions justifying formal powers are still met, rather than whether they were ever met, a patient should be able to appeal on the grounds that the imposition of powers was unjustified from the start, and such a patient must be confident that this would be considered impartially.”

Further, it referred to the current Guidelines drawn up by the Regional Chairmen of the Mental Health Review Tribunal in the spring or early summer of 2005, and in particular to a passage under “Principles” of the Guidelines that:-

“(v)

a real danger of bias might be thought to arise from personal friendship or animosity between the member and any other person involved in the case; or if the member had been closely involved with any such person in a professional relationship such as court proceedings; or when, in similar circumstances, the member has in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such evidence with an open mind on a later occasion;….”

The Commission concluded as follows:-

“ The guidance operative from April 2005, which we have quoted at paragraph (v) above, does of course contain the suggestion of “a real danger of bias” where the Tribunal member had been closely involved with any other person involved in the case “in a professional relationship such as court proceedings”. We take the view that the relationship between a sentencing judge and a defendant must be construed to fall within this description. If it is the view of the Tribunal administration that it does not do so, either in general or with regard to the particulars of this case, we hope that the court will test that view carefully.”

It must be remembered, as Mr Chamberlain submitted, that the Commission’s views are given in the context of a draft Bill going through Parliament. The process before the Joint Committee was one of formulating policy recommendations, not, of course, deciding an issue of law in a fact sensitive situation. Furthermore, the Commission’s view would seem not to have taken into account, or if it has, not fully, the very important passage in the speech of Lord Bingham in von Brandenburg, which I have set out at paragraph 23 above. Furthermore, it is a legitimate comment of Mr Chamberlain that even where a patient is submitting that the diagnosis is or may have been wrong all along, the Tribunal has in front of it, when considering exercising its powers under ss 72 and 73 of the MHA, entirely fresh evidence and a fair-minded and informed observer would credit the legal member with the ability to listen and absorb it and revise or completely alter any previous view – see Dr S Sengupta and another v GMC and others [2002] ECWA Civ 1104 (to which I will come in due course).

Finally, in relation to the Commission’s letter, I have to say that I consider that its interpretation of the Guidelines may be erroneous. At paragraph 4 the Guidelines correctly set out the test of apparent bias. It considers that:-

“This is the overriding question and must be the question to be answered by any member concerned about bias.”

I quote paragraphs 5 and 6 in full.

“5.

Given the very broad nature of the above definition, we have decided not to attempt to list or define the factors which may, or may not, give rise to a real possibility of bias. Everything will depend on the facts and issues in each case. The religion, ethnic or national origin, gender, age, class, means or sexual orientation of a member should not form the basis of a sound objection. Nor, at any rate ordinarily, should an objection based on matters of social or educational or service or employment background or history, or that of the member’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous decisions; or extra-curricular utterances; or membership of the same professional body, circuit, local law society or chambers.

“6.

By contrast, a real danger of bias might be thought to arise from personal friendship or animosity between the member and any other person involved in the case; or if the member had been closely involved with any such person in a professional relationship such as court proceedings; or when, in similar circumstances, the member has in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such evidence with an open mind on a later occasion; or if on any question at issue the member had expressed views in such extreme and unbalanced terms as to throw real doubt on his ability to try the issue with an objective mind; or if, for any reason, there were real grounds for doubting the ability of the member to ignore extraneous consideration, prejudices and predilections and bring an objective judgment to bear on the issues.”

Paragraph 5 contains the words:-

“Nor, at any rate ordinarily, should an objection based on …. previous decisions….” [be the basis of a sound objection].

Looking at paragraph 6 on its own, even assuming that an accused/convicted man appearing before a criminal judge can give rise to “a professional relationship”, I do not read it as suggesting that a judge who has previously sentenced a patient under ss. 37 and 41 MHA should consider recusing himself on that ground alone from the Tribunal considering the matter at a later date under ss. 72 and 73. And considering it in the context of paragraph 5, I am not at all convinced that the Guidelines suggest that a legal member should consider releasing himself merely because he may have made a previous decision adverse to the patient.

On 19 July 2005 MIND replied to a letter from the Claimant’s solicitors. MIND gave its opinion on the facts of the instant case as set out in the letter of the Claimant’s solicitors. MIND referred to certain authorities and then wrote:-

“In our view, a member should refuse appointment to a tribunal if the appointment would raise legitimate questions about the member’s ability to exercise independent judgment. In the present case, a restricted patient is in a significantly different position from an unrestricted patient. A restriction order imposes real limits on an individual’s freedom and is a reflection of the severity of the index offence and the antecedents of the offender. As such, it imports into a hospital order, which is designed for treatment, a quasi-criminal sanction. Criminal penalties should be appealed to, or reviewed by, an independent body.

“Where a simple hospital order is being reviewed, the MHRT is considering foremost the recovery, or otherwise, of the patient from the mental disorder. The tribunal is not concerned with conditions of discharge or recall of the patient. Where a patient has fully recovered, he can still be made subject to recall even if no conditions are imposed. This decision is, therefore, not simply a question of the patient’s health but is a judgment on the wider public safety issue. The MHRT Rules, themselves, acknowledge the importance of a restricted hearing by providing that only experienced criminal practitioners can be presidents. This incorporates into such a hearing an element of criminal procedure and therefore means that issues of fairness should be that much more important. A judge who has already decided that the seriousness of the index offence and the antecedents of the offender are such that a restriction order ought to be imposed, should not, with respect, also decide whether to discharge that offender at a later date.

“Restriction orders are designed for the most serious cases and usually continue for several years, if not longer, after discharge. The conscious or subconscious desire to ensure that the correct decision was originally made would, it is submitted, cause a reasonable person to question the impartiality of the judge who imposed the restriction order. The fact that the restriction order could still be in force on discharge does not lessen this concern, since the judge’s original decision would have taken into account all of the offender’s circumstances and it is unrealistic to dissect all the factors relevant to that decision. The judge’s reassurance that it was perfectly proper for him to consider the application for discharge also does not alleviate this concern.

“In these circumstances, MIND considers that a fair minded and informed observer would conclude that there was a very real possibility of bias where the judge, who imposed the restriction order, is reviewing its status just over a year later. At the very least it does not look very fair.”

MIND have referred to a restriction order imposing real limits on an individual’s freedom and that it imparts into a hospital order “a quasi- criminal” sanction. That may be so. But a Tribunal, exercising its powers under ss. 72 and 73 of the MHA is not, with respect, an appellate or reviewing body from, or of, an earlier criminal sentence – see von Brandenburg.

Furthermore, if the Tribunal has no power to consider the validity of any earlier decision (von Brandenburg) in my judgment a fair-minded and informed observer would not consider that a judge or legal member sitting in a Tribunal would therefore be subject to any conscious or sub-conscious desire, as suggested by MIND, to uphold the original decision.

Having considered the views of both the Commission and MIND, I have to say that, although I am grateful to both for the obvious care that each has given to the matter in their letters, I have not found their views, in the circumstances of the instant case, to have been of particular assistance.

Miss Morris is correct, in my view, to place emphasis on the requirements of Articles 5 (4) and 6 of the ECHR. The decision of a sentencing judge and of a Tribunal exercising its powers under s.72, but particularly under s.73 of the MHA, do directly affect the liberty /detention of the subject. It is, I agree, a material consideration that any fair-minded and informed observer would have in mind; indeed very much to the forefront of his mind.

I should now refer to the authorities which counsel cited to me. I am very conscious of a passage in the judgment of the Court of Appeal, delivered by the Master of the Rolls (as he was then), Lord Phillips of Worth Matravers, at paragraph 8 of The Queen on the Application of PD v. West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 where he said:-

“8.

We would endorse the judge’s summary of the relevant legal principles. We would add only this comment in relation to the judge’s statement that one must consider a case where unconscious bias is alleged by examining “other similar analogous situations”. Lord Steyn stated that these “may arguably throw light on the problem”. The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focusing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window.”

If I may respectfully, and I hope not inaccurately, paraphrase that passage, it is that the court, in its search for the reaction of the fair-minded and informed observer, should keep its eye on the ball, i.e. the facts material of the case.

I was referred to two European authorities, namely De Cubber v. Belgium 7 EHRR 236 and Hauschildt v. Denmark (1989) 12 EHRR 266. In De Cubber one of the judges of a Belgian criminal court, which had given judgment on the charges brought against the applicant, had previously acted as the investigating judge in the two cases in question. The applicant contended that Article 6 (1) of the ECHR was infringed. At paragraph 26 of the judgment the European Court of Human Rights drew attention to the importance of appearances – “justice must not only be done: it must also be seen to be done.” What was at stake was the confidence which the courts in a democratic society must inspire in the public and, so far as criminal proceedings were concerned, in the accused.

However, there are, in my judgment, two factors in that case which are not present in the instant case. First, an investigating judge has the status of an officer of the criminal, investigation police [paragraph 29], and the preparatory investigation, which is inquisitorial in nature, is secret and not conducted in the presence of both parties [paragraph 29]. Thus, as the Court said:-

“One can accordingly understand that an accused might feel some unease should he see on the bench of the court called upon to determine the charge against him the judge who had ordered him to be placed on detention in remand and also had interrogated him on numerous occasions during the preparatory investigation…..”

The Court continued at paragraph 29:-

“Furthermore, through the various means of inquiry which he will have utilised at the investigation stage, the judge in question, unlike his colleagues, will already have acquired well before the hearing a particularly detailed knowledge of the – sometimes voluminous - file or files which he has assembled. Consequently, it is quite conceivable that he might, in the eyes of the accused, appear, firstly, to be in a position enabling him to play a crucial role in the trial court and, secondly, even to have a pre-formed opinion which is liable to weigh heavily in the balance at the moment of the decision.”

The Court further held [paragraph 30] that a restrictive interpretation of Article 6 (1) would not be consistent with the fundamental principle of the impartiality of Courts. The applicant’s complaint was therefore upheld.

In Hauschildt, the judge in question had sat in various interlocutory applications and was also thereafter the professional judge (together with two lay judges) at the applicant’s trial.

At paragraphs 45, 48 and 49 the Court said:-

“45.

The Court’s task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected Mr Hauschildt gave rise to a violation of Article 6 para 1 (art. 6-1).

“48.

Under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see, mutatis mutandis, the De Cubber judgment previously cited, Series A no. 86, p. 14, para. 26).

“This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive (see the Piersack judgment of 1 October 1982, Series A no. 53, p. 16, para. 31). What is decisive is whether this fear can be held objectively justified.

“49.

In the instant case the fear of lack of impartiality was based on the fact that the City Court judge who presided over the trial and the High Court judge who eventually took part in deciding the case on appeal had already had to deal with the case at an earlier stage of the proceedings and had given various decisions with regard to the applicant at the pre-trial stage (see paragraph 20-22 and 26 above).

“This kind of situation may occasion misgivings on the part of the accused as to the impartiality of the judge, misgivings which are understandable, but which nevertheless cannot necessarily be treated as objectively justified. Whether they should be so treated depends on the circumstances of each particular case.”

At paragraph 50 the Court said that the mere fact that a trial judge, in a system like the Danish, had also made pre-trial decisions in the case, including those concerning detention on remand, cannot be held as in itself justifying fears as to his impartiality. However the Court went on at paragraph 51 to say that special circumstances may be such as to warrant a different conclusion. The special circumstances were that in respect of nine of the decisions concerning the applicant’s detention remand the judge in question had satisfied himself that there was “a particularly confirmed suspicion” that the applicant had committed the crimes with which he was charged, i.e. the judge under Danish law had to be satisfied that there was “a very high degree of clarity “as to guilt””. As the Court said:-

“Thus the difference between the issue the judge has to settle when applying this section and the issue he will have to settle when giving judgment at the trial becomes tenuous.”

It can be seen that there are real differences of fact between those cases and the instant case. The judge in the instant case was in no way in an analogous position to either of the judges in De Cubber or Hauschildt. Furthermore, the proceedings in the Blackfriars Crown Court were totally open, as indeed were the proceedings in the Tribunal. Hauschildt does emphasise in paragraph 50 of the Court’s judgment that just because a judge has made decisions in the pre-trial stages does not justify fears as to his impartiality as the trial judge. What matters is whether or not there are special circumstances to warrant a different conclusion.

I now turn to the domestic authorities. Sengupta was concerned with a Lord Justice of Appeal deciding an application for permission to appeal adversely to the appellant and then sitting in the division of the Court of Appeal hearing the appeal, permission having been given at an oral hearing. The Court of Appeal unanimously decided that there were no grounds for Laws L.J. to recuse himself.

This case, of course, involved a civil, not criminal appeal. Nevertheless both counsel relied on it, and the judgments contain helpful guidance. Both De Cubber and Hauschildt were referred to. Laws L.J. said at paragraph 24 that the Strasbourg cases were “heavily fact-sensitive”. Keene L.J said at paragraph 44 that they brought out the need to see whether a judge is in reality having to decide the same question in which he has previously reached a determination.

At paragraph 36 Laws L.J said:-

“36.

I consider, in line with a submission made by Mr Pollock, that an affirmative answer to this question would travel beyond whatever is the perception of our courts and judges that may be entertained by the fair-minded and informed observer, whoever he may be. It is not only lawyers and judges who in various states of affairs may be invited – they may invite themselves – to change their minds. Absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed of the experience of all thinking men and women.”

He continued at paragraph 37:-

“(6)

who is the fair-minded and informed observer?

“37.

Our fair-minded and informed observer must surely have these matters in mind. That does not turn him into a notional lawyer. It merely reflects his fair-mindedness. However, much we may in the name of public confidence be prepared to clothe our observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man’s own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so. That is, I think, what this case involves: not merely the ascription to the notional bystander of a putative opinion about the thought –processes of a judge, but the ascription of a view about how any thinking, reasonable person might conduct himself or herself when, in a professional setting, he or she is asked to depart from an earlier expressed opinion. The view which Miss O’Rourke submits should be ascribed to the bystander does much less than justice, I think, to the ordinary capacities of such a person. In my judgment, therefore, it is not a view which the fair-minded and informed observer would entertain.”

He continued at paragraph 38:-

“(7)

The Adversarial System and the Legal Culture

“38.

As I have indicated (paragraph 9) Miss O’Rourke accepts that the bystander may be taken to possess “some knowledge of the legal culture”. He would know of the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their mind under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality.

Keene L.J. similarly laid emphasis upon the benefit of a court hearing oral argument on “a fundamental part of our system of justice” [paragraph 47]. At paragraph 48 he said:-

“48.

I am conscious that in stressing these differences I am drawing on my own experiences as a judge, whereas one is concerned for present purposes with the way in which a fair-minded and informed observer would regard these procedures. It is not easy for a professional judge to put himself or herself in the position of an ordinary litigant or member of the public who does not possess such insight into and experience of the judicial decision-making process. Yet that is was has to be done if proper regard is to be had for the need to maintain public confidence in our procedures. However, the application before us postulates that the fair-minded and informed observer knows of the refusal of permission on the papers, since that is the very foundation of the allegation of bias. Such an observer must also be taken to know such a refusal is not the end of the road, because the matter has progressed to a full appeal hearing, and it is therefore to be assumed that an observer who is indeed “informed” is conscious of the sequence of procedures between the initial lodging of the written Appellant’s Notice seeking permission to appeal and the substantive appeal hearing. That degree of knowledge is sufficient for him to conclude that there is no real possibility of bias, because it is the existence and nature of those procedural stages which, to my mind, lead properly to the conclusion that the judge in question still retains an open mind at the substantive appeal hearing. An uninformed observer might think differently, but no system can guard itself against criticism by the uninformed, nor does it need to adapt itself in what would be a vain attempt to deflect such criticism.”

Thus he concluded [at paragraph 45] that the nature of the decision being made by the single Lord Justice at the permission stage was sufficiently different from that required in the hearing of the substantive appeal for any allegations of an appearance of bias to be seen as unfounded.

PD, to which I have already referred, concerned a consultant employed by the same NHS Trust as that detaining the patient, sitting on the Tribunal. Considerable reliance was placed in that case upon the separate functions of the consultant and the NHS Trust and the assistance of any previous dealings between them and the patient.

In In re P (a barrister) [2005] 1 WLR 3019 the Visitors to the Inns of Court held that a lay member of the Professional Conduct and Complaints Committee of the Bar Council, the Bar Council’s prosecuting arm against members of the Bar for disciplinary offences, who sat as a panel member at the hearing and who had no connection at all with the prosecution of the appellant, nevertheless was acting as judge in his/her own cause and was therefore automatically disqualified and the lay representative would be recused.

Al-Hasan concerned a deputy governor of a high security prison, who conducted the appellants’ adjudication and had been present when the governor approved the decision to require the prisoners to squat as part of the search. The House of Lords set aside the findings of guilt against the appellants on the grounds that a fair-minded and informed observer might infer that the deputy governor had tacitly accepted that the governor’s order was lawful and thus lacked the degree of objective impartiality necessary for a tribunal adjudicating on the disciplinary charges (see in particular paragraph 39 of the speech of Lord Brown).

Finally, I was referred to the judgment of McNeill J. in R v. Oxford Regional Mental Health Review Tribunal ex parte Mackman, The Times 2 June 1986, a full transcript of which I have been given. The applicant moved to quash decisions of a Mental Health Review Tribunal of November 1985 of which a circuit judge was the legal member. The same judge had presided over the Tribunal in January 1985 which had not directed the applicant’s discharge. At the hearing in November 1985 the applicant, through Counsel, therefore applied for an adjournment, which was refused.

In my judgment McNeill J applied virtually the same test as is now applied. He said:-

“Mr Thorold on the Applicant’s behalf accepts on authority that the proper test in a case of this sort and is this: Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair hearing would be possible?”

He concluded, having reviewed the facts and the authorities in this way:-

“It does not seem to me that the point which was raised upon the obligation not to discharge until satisfied of the matters to which I have referred and the fact that the liberty of the subject is involved, affects the constitution of the Tribunal, at any rate in this case, where the only other element advanced is the short period of time between the two hearings. This is not the case as was the position in R v Frankland Prison Board of Visitors, Ex parte Lewis [1986] 1 All ER 272, where the visitors had both administrative and disciplinary functions. This is a case in which the Tribunal had a statutory responsibility to hear the matter in accordance with the Rules. But at the end of the day, could the reasonable and fair minded person sitting in court and knowing all the facts have a reasonable suspicion that this applicant would not have a fair hearing, that a fair hearing would not be possible?

“I cannot think that any such person could have formed that view. Indeed, it might even be arguable that there are advantages in a President sitting on the recurring applications of a particular patient, since, as is apparent from what I have read from the decisions given, one of the most important features is to, in effect, monitor the progress of a patient, as quite clearly was done here in that it was far too early. In the second, the Tribunal records further progress since the last Tribunal. One can, I think, understand why this Applicant with his condition might form the view which he did, but I do not consider that that is the appropriate test. It is not his subjective view that matters. It is the reasonable and fair-minded person’s objective view of the situation.

“To my mind, it would be quite wrong for this court to lay down that in the case of a particular applicant in successive applications as are permitted, that the Constitution of the Tribunal or the person presiding must as a matter of law be changed each time. I do not think that this is the law. I do not think it would be good practice. I think it would be quite wrong to put that obligation upon either the approved legal members or upon those who have to concern themselves with the administration of the Tribunal. Whether or not that extends to the membership, other than the President, is not for me to determine today.”

In my judgment the fair-minded and informed observer would take into account the following matters, which I list in no order of importance:-

Thus I conclude that the fair-minded and informed observer, having taken account of all the facts of the case, would not say that there was a real possibility of bias on the part of the judge when sitting as the legal member of the Tribunal considering the Claimant’s case in November 2004.

If I am wrong on the major issue in this case, then I should briefly set out my reasons why I conclude that the Claimant did waive his right to object to the judge sitting as the legal member of the Tribunal.

I accept Mr. Chamberlain’s submission that the Convention rights to an impartial tribunal can be waived if:

“all the circumstances which give use to the objections are known to the applicant and the waiver is unequivocal.”

per Lord Hope of Craighead at paragraph 53 of Millar v Dickson [2002] 1 WLR 1615. At paragraph 56 Lord Hope referred to Bulut v Austria 24 EHRR 84 where the European Court of Human Rights observed:-

“In any event, it is not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of the court which tried him, when he had the right to challenge its composition but refrained from doing so.”

I find that on the Claimant’s own case both he and Ms. Postgate knew of the facts necessary to form the basis of an application that the judge should recuse himself. He was advised that he could object but, if successful, his case would have to be adjourned. He did not instruct Ms. Postgate to make an objection. No objection was in fact made.

The Claimant’s case is that there was not sufficient time for him and Ms. Postgate to discuss the matter fully. In my judgment it did not require a protracted discussion. The Claimant has the necessary capacity to instruct lawyers (see paragraph 5.1 of Miss Taw’s statement of 24 February 2005). The Claimant immediately recognised the judge and asked Ms. Postgate if he could object. She gave her advice, seemingly without hesitation. The Claimant made up his mind not to instruct Ms. Postgate to object. Furthermore, I accept Mr. Chamberlain’s submissions that the court cannot inquire into the adequacy of what otherwise would appear to be a proper and informed decision.

Miss Morris submitted that in any event it is not the duty of the patient to ensure that a hearing proceeds fairly. If a Tribunal has any concern about the propriety of its proceedings it should consider whether an adjournment is appropriate and not rely upon the parties to make an application. She rather modified that in her oral submissions by suggesting that the Tribunal should have given the Claimant further time to consider his position when he saw who the judge was.

Miss Morris relied upon a passage in the judgment of Sedley J. (as he then was) in R v Cheshire County Council, exparte C [1998] ELR 66 where he said:-

“The power to adjourn is a fundamental aspect of the obligation resting on all decision-making bodies to hear both sides, for this necessarily means giving each party a fair opportunity to put its case and to contest what others are saying. Accordingly a power to adjourn where the interests of fairness require it will ordinarily be implied by the courts wherever it is not expressly or necessarily excluded. In many cases, the present included, rules having the force of law make express provision at large for the tribunal to adjourn a hearing. As an aspect of procedural fairness the exercise of this power is classically a free-standing public law obligation and justiciable as such. It is not a simple discretion challengeable only upon what have become known as Wednesbury grounds: see R v Thames Magistrates Court, ex parte Polemis [1974] 1 WLR 1371, citing Local Government Board v Arlidge [1915] AC 120, at p 132 Viscount Haldane LC:

“….when the duty of deciding an appeal is imposed, those whose duty it is to decide must….give to each of the parties the opportunity of adequately presenting the case made.”

“It follows that in the ordinary case, where the power of adjournment is at large, there is no true margin of appreciation for the tribunal; the court itself will decide on the relevant material whether fairness required an adjournment. That this is so is pointed up by the decision of the Court of Appeal in R v Immigration Appeal Tribunal ex parte Adrees (1996) 18 April (unreported), a case which concerned a power of adjournment which by rule was conditional upon the tribunal ‘being satisfied that there was good cause for the adjournment’.”

The relevant facts of that case were that on the eve of the tribunal hearing the educational psychologist, retained by the claimant as her expert and advocate, went ill with influenza and could not attend the hearing. The tribunal refused to adjourn. The claimant appealed which was allowed.

The factual matrix of that case was totally different from the instant case. I do not consider that Sedley J’s dicta can, or were intended to, cover a situation as such that in the instant case. Furthermore, the logic of Miss Morris’ argument is that, even supposing the Tribunal had of its own accord raised the issue of recusal and given the Claimant some time specifically to discuss that point with Ms Postgate, and if the Claimant even then had not objected, the Tribunal itself had to consider the issue and if necessary adjourn to another date for the Tribunal to be reconstituted. In my judgment, that would defy common sense.

I reject Miss Morris’ submissions. I do not consider that, in the circumstances of the instant case, where the Claimant took a rational and informed decision not to object to the judge sitting, the Tribunal was under any obligation to consider the matter further.

In my judgment the Claimant did know all the facts necessary for him to decide whether to object, he had legal advice and he unequivocally decided not to object. Accordingly he waived his right to object.

For these reasons the claim for judicial review is dismissed.